Prosecuting Putin: How to Deliver Justice to Ukraine

Monica Ellena

Eurasia editor

Tuesday, 11 July, 2023

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The International Criminal Court (ICC) warrants for Russian President Vladimir Putin and his children’s commissioner are bold signals of the commitment to prosecute senior figures for war crimes. James Gow, Professor of International Peace and Security and co-director of the War Crimes Research Group at King’s College London, tells IWPR Eurasia editor Monica Ellena why a sharply focused approach may be key to achieving these ends.

IWPR: The ICC indictment of Putin focuses on the forced deportation of children from Ukraine to Russia, yet that is only one of many war crimes being committed in the conflict. Why is this?

Gow: The indictment has all the key elements in place: the responsible minister, Maria Lvova-Belova, has also been indicted, which provides a chain connecting the crimes to Putin. She has reported to him what has happened to these children, which provides legal admission in terms of acknowledging that the children have been abducted.

Compare this indictment with the process regarding former Serbian leader Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia (ICTY). For many years, Milosevic was widely thought to be responsible for the crimes that were being committed. But, proof of this to the standard of international criminal law was not available — not only proving crimes were committed, but being able to connect them through different levels to an accused leader. However, it became much easier to build a serious court case on which he could be indicted once he formally became commander of all the forces commanded by Belgrade on March 24, 1999, which provided clarity. He had formal responsibility and either knew, or should have known, and taken action about the alleged crimes; and the case was almost court ready. This is a similar situation.

It is important that the ICC keeps this indictment distinct. What happened with Milosevic is that the prosecutor then decided to add charges of grave breaches in relation to Croatia and then added genocide in relation to Bosnia and it became a vast, overwhelming case with lots of delays. In the end, Milosevic died before the end of the process.

Moreover, the indictment’s focus on children is unusual but will earn sympathy for the process and put the emphasis on the dark character of those responsible for the forced transfers. It also allows Karim Khan, the Chief Prosecutor, to mark out a new focus in international criminal law.

Another obvious feature of the war in Ukraine has been the indiscriminate targeting of civilians. How likely is it that there might be a charge related to that?

A lot of people were expecting that there might be charges raised by the ICC prosecutor for indiscriminate targeting. They haven’t come yet, but will no doubt come at a later stage. However, that will be a far more complicated area in terms of investigation and evidence to demonstrate the connections. It will always be wise to keep the indictment of the case that has already begun separate from other matters to avoid the kind of issues that arose with Milosevic.

How feasible is it that Putin will end up on trial?

If we assume that Putin won’t turn up in court to answer charges, this case can still be taken to a hearing after a certain period of time. At which point, there’s every chance that the judges will say there’s a substantial case and open up a trial chamber. That means that, should Putin find his way to court, there will be fewer pre-trial difficulties back and forth, and the case will be ready more or less immediately. Of course, there will be some delay while defence is organised but it will be straightforward.

Anybody accused tends to take great care in terms of what they do in terms of international arrest warrants. I find it unlikely that Putin will travel to many places, simply because he is safest at his base — it is evident from his long tables in some meetings, even, that he is concerned for his personal security and he will minimise any risks to his life, and the same applies to being detained anywhere. 

Ultimately, these situations are always covered by politics and diplomacy. We also need to consider that at some point Russia will change. It won’t change while Putin is in power, but if he’s still alive when it happens, those replacing him will have to work out how to manage these issues. I don’t think we should rule out that in that situation at some stage he might end up at The Hague, at the ICC or in another court, maybe in Russia itself — though politics would probably support sending him to The Hague.

Another possible charge that has been floated is the crime of aggression. How likely and feasible do you think that would be?

Aggression is a very challenging area. It was introduced as a crime in the ICC’s Rome Statute in 1998, but it had no substance at that point and could not actually be charged — the crime was ‘suspended.’ Elements of the crime were later established and approved by the UN so that from July 18 , 2018, leaders could be held accountable for the crime. But, the ICC currently has no jurisdiction over the crime in the context of Russia and Ukraine. So, some people have been agitating to create a special tribunal for aggression, perhaps an EU tribunal. In my view this is not a very well thought out idea, as it carries so many difficulties including a return to a version of the notion of victor’s justice, which would make any such tribunal seem to be a political initiative.

Could the crime of aggression be handled by a national court in a third country using the concept of universal jurisdiction?

Invoking universal jurisdiction would be very radical, but it could be done. Countries have very different interpretations of universal jurisdiction, but it is not impossible that a state could take it upon itself to prosecute it as an international crime. But it could become immensely complex because, before you got to any evidence, the legal issues surrounding it would be so contested, not least whether or not there was jurisdiction. The crime of aggression has only existed on paper in international law since 1998 and even at that point had no substance and no content, as I said, so you’re looking at a very fragile situation. The one place where aggression could be tried is in Russia itself, where Article 353 of the Criminal Code prohibits waging aggressive war (a Second World War legacy). So, Putin could be tried there, once Russia changes, as it will. Or, perhaps more likely in the politics and diplomacy of change, a different Moscow could agree to UN Security Council authority under Chapter VII of the Charter to make special provision at the ICC to embrace this aspect of the Russian criminal code. All of that is, of course, full of uncertainties and far off.

What is the type of tribunal that would be most beneficial to Ukraine in terms of prosecuting war crimes?

The wholly unrealistic answer is that an ad hoc tribunal would be created by the Security Council on the same kind of terms as for Yugoslavia and Rwanda, but that is not going to happen. Nobody will be creating another ad hoc tribunal, which is why the proposal for an EU initiative for the crime of aggression is problematic.

However, the ICC’s jurisdiction is patchy and complicated. Unlike the Yugoslav and Rwanda tribunals, which were established under Chapter 7 of the UN Charter, which is binding under international law, the ICC works on a complementarity principle, which means that the ICC can step in and exercise jurisdiction where states are unable or unwilling to investigate or prosecute, without replacing judicial systems that function properly — and only then if they are states party to the court, which neither Ukraine nor Russia is, although after a large number of states referred the matter to the Chief Prosecutor for an investigation, Kyiv accepted jurisdiction in relation to the conflict since 2014. As I indicated above, however, it is possible for the UN Security Council to refer a matter to the ICC under Chapter 7 and to set terms — but, that would require Russia’s approval so would only begin to be possible once Putin has gone and Russia has changed.

Ukraine has already begun prosecutions within the country and will continue, but it is telling that the Ukrainians, like the Bosnians and Kosovans and the Rwandans, all want international legitimation of what is happening. Somehow dealing with the crimes themselves is not enough; it’s the context in which that happens and the authority that comes from international legitimisation. But the problems of international criminal tribunals mean they don’t always work to people’s expectations.

What lessons can we draw from the ICTY in terms of delivering justice in Ukraine?

The first lesson is to focus on things that are achievable, however far off they may seem. In that context, there’s going to be a lot of work on indiscriminate targeting.

A second lesson concerns legal evidence. To be acceptable to the court, evidence has to handled appropriately to have legal probity and provenance. As we speak, evidence is being captured contemporaneously in ways that will be usable in court. For example, the prosecutor has been able to work with countries such France to send scientific investigators to obtain evidence that can be used should the issue ever come to trial.

Another lesson concerns the need to try to lower expectations of what the ICC can realistically achieve, given the pressures and demands it works under. Because it is based on complementarity, the ICC doesn’t have the enforcement characteristics and the same binding legal status that the ad hoc UN tribunals had. So the ICC is working in a slightly more difficult framework. We will see more indictments related to the conduct of armed operations and indiscriminate targeting, but they will be carefully judged.