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An international court is investigating possible war crimes in Ukraine. What does that mean, exactly?

The ICC can investigate Russia even though it’s not a member.

- March 21, 2022

Just days after the Russian invasion of Ukraine began last month, the chief prosecutor of the International Criminal Court, Karim Khan, announced he would open an investigation into possible crimes against humanity and war crimes in Ukraine. Nearly three weeks later, the humanitarian crisis is growing, with thousands of civilians without food, water or a safe way to escape the fighting.

While Khan’s announcement galvanized the international legal community, the ICC’s ability to hold Russian President Vladimir Putin and the Russian leadership accountable for any crimes committed in this war faces a big hurdle — Russia’s cooperation and compliance.

If Russia does not cooperate with the ICC or other international courts in times of peace, what can we expect in times of war? Building on research from my recent book, “Saving the International Justice Regime: Beyond Backlash against International Courts,” the ICC may have some other options. The ICC can intensify the spotlight on Russia’s transgressions in Ukraine, actively confirm the importance of human rights to the democratic world and amplify other efforts to hold Russia accountable for its actions in Ukraine.

What is the International Criminal Court?

What is the ICC’s role, and what can it do, exactly? The International Criminal Court is a standing international tribunal with the authority to try the worst perpetrators of the worst crimes — genocide, crimes against humanity and war crimes, such as targeting civilians and destroying cities and villages. The ICC is rooted in the 1998 Rome Statute, which sets out the terms of the court and the extent of its jurisdiction.

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In addition to active investigations, the prosecutor of the ICC conducts preliminary examinations, which involve surveying a situation for potential Rome Statute crimes. Preliminary examinations can become active investigations if the prosecutor finds sufficient evidence to suggest that Rome Statute crimes have been committed.

Russia rejects the ICC’s jurisdiction

Russia does not accept the jurisdiction of the ICC, however. Russia signed — but never ratified — the Rome Statute and withdrew its signature in 2016. The ICC launched investigations into Russia’s invasion of South Ossetia in Georgia in 2008 and, most pertinent to the war on Ukraine, the ICC decided that Russia was an occupying force in Crimea following the 2014 invasion and could thus be held accountable under the Rome Statute. Russia subsequently withdrew its signature in a symbolic attempt to undermine the court.

Ukraine is also not a party to the ICC, but it has accepted limited ICC jurisdiction through two official declarations pursuant to Article 12(3) of the Rome Statute. The first was in April 2014, following Ukraine’s Maidan protests, which prompted the Office of the Prosecutor to open a preliminary examination into allegations of abuse during the protests. Ukraine issued its second Article 12(3) declaration on Sept. 8, 2015, extending its authorization of the ICC’s examination past February 2014, with no end date. The scope of the preliminary examination also expanded to include Russia’s occupation of eastern Ukraine.

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In her preliminary examination in late 2020, ICC Chief Prosecutor Fatou Bensouda found sufficient evidence of war crimes and crimes against humanity and recommended that the Pre-Trial Chamber authorize opening an active investigation.

Given recent events, Khan, the ICC’s current chief prosecutor, agreed to pursue an active investigation into the situation in Ukraine. On March 1, the government of Lithuania announced that, as a party to the Rome Statute, it, too, would ask the ICC to investigate alleged war crimes and crimes against humanity committed in Ukraine. On March 2, 38 other countries followed suit. By referring the situation to the ICC, these governments are working to ensure that the world remains focused on the human costs of Putin’s war.

Does this change the outlook for prosecution?

Without Putin’s cooperation, the ICC will be unable to bring perpetrators, including Putin himself, to justice. The international justice regime is characterized by this very tension —international courts remain deeply dependent on the very same governments and political elites they aim to hold accountable for human rights abuse.

This suggests that the executive mansion is the safest place for suspected war criminals to foil ICC investigations. Given Putin’s control over Russia’s resources, not to mention his powerful friends, he will likely be able to evade prosecution at the ICC or any other international tribunal.

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Could other global courts step in?

The International Court of Justice (ICJ) and the European Court of Human Rights also have jurisdiction over the current conflict, and Ukraine is leveraging both.

On Feb. 27, Ukrainian President Volodymyr Zelensky tweeted that his government had submitted an application to the ICJ against Russia for “manipulating the notion of genocide to justify aggression.” In addition Ukraine submitted a request of provisional measures to take immediate effect to stop the violence within its territory.

Beyond the ICJ, Ukraine has sought recourse at the European Court of Human Rights, where both Ukraine and Russia are members. Russia’s relationship with the European Court of Human Rights, unsurprisingly, is contentious. This relationship has not improved in recent years, as the court has begun addressing a set of inter-state cases Ukraine filed against following Russia’s attacks in 2014.

On March 1, the European Court of Human Rights announced that it was issuing interim measures to stop the “massive human rights violations” resulting from Russia’s assault on Ukraine. As with the ICC, however, the effectiveness of these measures hinges on Russia’s unlikely willingness to cooperate and comply.

International law alone is unlikely to stop Russia’s aggression in Ukraine. Finding an end to the current hostilities will require leveraging available military, financial and diplomatic resources. International courts can, however, shine a spotlight on Russia’s aggression, reassert the importance of human rights norms, and support countries and stakeholders unwilling to let Russian aggression reshape the world order.

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Courtney Hillebrecht (@c_hillebrecht) is Samuel Clark Waugh Distinguished Professor of International Relations at the University of Nebraska, Lincoln. She is the author of Saving the International Justice Regime: Beyond Backlash against International Courts (Cambridge University Press, 2021) and Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (Cambridge University Press, 2014).