Can The International Criminal Court Prosecute War Crimes In Ukraine?

The International Criminal Court is limited in its ability to investigate war crimes, and the most powerful have ways to shield themselves.
Posted at 8:56 PM, Jan 03, 2023

Ukrainians are still under threat from a war that's about to enter its 11th month, and as more is uncovered about the brutal realities of Russia's invasion, eyes are on the International Criminal Court — also known as the ICC.

It was originally created to be the global body that delivers justice in instances like these, but now there are questions whether the ICC has the teeth to take on a superpower like Russia.

The ICC functions based on the Rome Statute of the International Criminal Court, formed in 1998 and ratified by 60 countries in 2002. The agreement gives the court jurisdiction within their borders over four of "the gravest crimes of concern to the international community:" genocide, war crimes, crimes against humanity and the crime of aggression. To date, 123 countries have signed the statute.

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Judges, investigators and staff are appointed from all over the world. Member countries fund the court's overall budget. For 2023, that's just over 181 million U.S. dollars.

It's been dubbed the "court of last resort," but even that last resort doesn't come easy.

In 20 years, there have only been 31 cases before the ICC. Out of those cases, 10 suspects have been convicted, four were acquitted and charges against five were dropped after their deaths. Fourteen suspects remain at large and their cases are unresolved.

The court's jurisdiction is limited to countries that have signed the Rome Statute. Its cases are also recommended by member nations. While there are some big names on the dotted line, there are notable absences too — like the U.S., which was heavily involved in the formation of the ICC but ultimately didn't ratify it. That's because Congress felt it would give the court jurisdiction over Americans on foreign soil, which would be unconstitutional.

So, where do things stand with Russia and Ukraine?

Russia was a signatory party but withdrew in 2016 — a day after the court classified its annexation of Crimea, a Ukrainian peninsula, as an occupation. Meanwhile, Ukraine is not party to the Rome Statute but has allowed the court jurisdiction over relevant crimes on its territory since 2014.

Last year, the Republic of Lithuania, which is a signed state party, also recommended the Ukraine case to ICC prosecutors.

"The prosecutor's office sort of thinks about this principle called the principle of complementarity, which is written into the Rome Statute," said Genevieve Bates, an assistant professor of political science at the University of British Columbia. "The complementarity principle basically says that the ICC can hold people accountable only if the country in question is either unable or unwilling to do so itself."

Bates' work and research focuses on international criminal courts and tribunals. She told Scripps News the court is often limited in how swiftly and effectively it can investigate crimes because of factors like its lack of a police force, for example.

"So it can, for example, issue arrest warrants against people, but it can't go out and arrest them," Bates said. "It is reliant on countries to do that, and if countries are uncooperative, then the court can't get very far."

ICC investigators can work with local law enforcement and other regional agencies and human rights organizations to build cases for the court, but it can be hard to prosecute everyone involved in the decisions behind the crimes.

The most powerful have ways to shield themselves from the ICC. Many experts say that's why Russian President Vladimir Putin withdrew Russia from the Rome Statute.

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"The easiest Hoping to directly draw to Putin himself is the illegal invasion of Ukraine by Russia, which is the crime of aggression," Bates said. "It doesn't mean that he couldn't possibly be held accountable for some of the other crimes over which the ICC does have jurisdiction. It's just you have to then make a connection."

However, that connection can be really hard to make. Collecting evidence during war often requires investigators, survivors and witnesses to navigate physical threats. Then there's also issues like red tape, corruption and the mental toll of the disturbing data. Tracking and telling the survivor's stories of genocide, war crimes and crimes against humanity can be incredibly difficult. Plus, it can take years to put together a full picture.

In Ukraine's case, the ICC has already had boots on the ground since 2014.

"This speed and in many ways the efficiency with which the prosecutor's office and its investigators have gotten to work in Ukraine says something about its commitment and capability of investigating the crimes for which it does have jurisdiction, that it has obstruction of limitations over the crime of aggression is," Bates said. "That's an artifact of global geopolitics and has very little to do with the court itself."

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