The international involvement regarding the documentation of war crimes in Ukraine has been enormous. Countless national and international bodies and individuals have become engaged in the collection of evidence, including the United Nations, the European Union, journalists, international human rights organisations and local NGOs.
Recently, the International Criminal Court's Chief Prosecutor Karim Khan issued arrest warrants for Putin and the Children's Ombudsman of Russia, Maria Lvova-Belova. Both are accused of kidnapping and deporting thousands of Ukrainian children to Russia. The decision has led to heated discussions worldwide. Can Putin really be punished? How can he be punished? And what can he be punished for?
In the podcast «Det store bildet», Kjersti Lohne and Sofie Høgestøl discuss the International Criminal Court (ICC), its limitations and what it will take for Putin to be punished for the war crimes committed in Ukraine.
Why are they not investigating Saudi Arabia or Iran?
Even though the ICC has issued an arrest warrant, we will probably not see Putin in The Hague anytime soon. There are several reasons for that. The Court has a number of limitations, including the fact that it is based on voluntary membership. As a member state, you give the ICC permission to investigate your citizens and on your own territory. States that do not want the ICC to be able to investigate their own potential offences have declined membership.
– When journalists ask, «why do they not investigate Saudi Arabia or Iran?» the answer is very simple. Those countries have probably looked at what they are doing themselves and thought «we should not take part in an international criminal court», Høgestøl explains.
Great powers such as China, Russia and the United States have also not signed the treaty on which the court is based, and therefore have no obligation to hand over Putin if he were to visit them. With Putin doubtfully intending to hand himself over to The Hague, an arrest would depend on Putin travelling to and being apprehended by one of the 123 countries that are members of the ICC.
Abduction of children
The ICC is mandated to investigate mainly three types of offences: war crimes, crimes against humanity and genocide. Examples of war crimes can be sexual crimes in war, murder of civilians, attacks on civilian infrastructure or – for which the Chief Prosecutor has now issued an indictment – illegal deportation and kidnapping of children. According to Ukrainian authorities,16 226 children have been deported from Ukraine to Russia during the war.
The reason why the Chief Prosecutor has issued an indictment for this particular case, despite the fact that several thousands of war crimes have been documented in Ukraine, could relate to prosecution strategy. Høgestøl studies this topic and states that the choice of charge can be explained by the fact that it is a relatively simple case to prove.
– It will probably be easier to get concrete evidence, because you will have Ukrainian children who are no longer with their parents. They are demonstrably in Russia. It is a war crime. It is a very concrete charge to make, says Høgestøl.
The prosecution can also be strategic in other ways. It is perceived as unacceptable that children are kidnapped and injured in war. By bringing charges in this particular case, the Chief Prosecutor is focusing on a crime that is widely accepted as highly reprehensible.
The crime of aggression
On the other hand, the ICC does not have the mandate to punish the crime of aggression itself, i.e. - going to illegal war against another country. Despite speculation that it would be easier to prove that Putin is guilty of this crime, it is beyond the ICC's jurisdiction.
– Many people talk about the crime of aggression, which is what Putin is doing in Ukraine. Not the events that happen in war, but going to war. And there, the ICC has no jurisdiction. They cannot prosecute Putin for the crime of aggression, says Lohne.
Facts about the International Criminal Court (ICC)
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Founded in Rome in 1998.
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Headquarters in The Hague.
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The Court is not conflict-specific. This is in contrast to, among others, the special tribunals of Yugoslavia, Rwanda and Sierra Leone, which were also established to punish war crimes.
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The ICC is a global and permanent court that prosecutes international crimes where the states themselves are not willing or able to investigate and prosecute them.
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The ICC currently has 123 member states, mainly small and medium-sized countries.
- Membership is voluntary. Countries such as Russia, China, the US, India and Israel are not members.
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Throughout the years of operation, the ICC has issued arrest warrants for 38 people. Of these, 21 have been arrested and brought before the court. 14 are still on the run. Five cases have been dropped due to the death of the wanted persons.
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Of 31 cases brought before the court, 10 have resulted in convictions.
Should a new court be established?
Due to the limitations of the International Criminal Court, many have promoted and discussed the possibility of creating a special tribunal.
– There are probably many Ukrainians who believe that it is completely pointless to punish Putin if you are not going to punish him for going to war. In a way, this is seen as the original sin. Going to war. It leads to everything else terrible that happens, says Lohne.
A special tribunal can be either ad-hoc or hybrid, with both options presenting a number of challenges. An ad-hoc tribunal is a non-permanent tribunal established by the UN Security Council, such as the Tribunal for the former Yugoslavia and the Tribunal for Rwanda. The challenge here is that Russia has a seat in the Security Council.
– Russia and China would never agree to something like that, says Høgestøl.
– Otherwise, you can create something called a hybrid court, which will be owned more by Ukraine itself and where Ukraine and the UN enter into an agreement, Lohne continues.
This has been done in Cambodia, Bosnia and Sierra Leone, and aims to strengthen national judicial processes. In this case, the local community will be closer to the court and have the opportunity to punish the crime of aggression themselves, with guidance from the international community. Such a solution nevertheless presents challenges. Among other things, Ukraine struggles with corruption in their own legal system. Another factor, according to Høgestøl, is that Ukrainian actors do not want to prosecute the crime of aggression themselves.
– They want a full Yugoslavia Tribunal. The problem is that the only group that has had the authority to create such courts legally - is the UN Security Council. And that is not possible the way things are now.
Can Putin be punished?
According to Høgestøl and Lohne, it will probably not be possible to punish Putin in the near future. Presumably, the judicial processes that take place after the Ukraine war will be largely determined by the state of the world in 10 years time.
– If there is one thing I have learned from researching international crimes, it is that what is possible today is not necessarily what is possible tomorrow, says Høgestøl.
Høgestøl further refers to the Yugoslavia Wars as an example. Despite several convictions in the aftermath of the conflict, the special tribunal was paralysed and ineffective in the first years. During the 20 years that followed, the political circumstances changed. Those who were powerful during and after the conflict were suddenly no longer powerful, and were handed over to the court.
– What was deemed impossible in the 90s was suddenly possible in 2005.
Furthermore, Lohne and Høgestøl claim that the judicial processes after the war in Ukraine will depend on Putin's position in Russia in 10 years time. What is needed, according to them, is that a new regime in Russia wants a better relationship with the West and considers it politically strategic to hand over Putin.
– For example, this was part of the reason why Mladic and Krajišnik were extradited. Serbia wanted to integrate more closely with the EU system. The EU was very clear that «we know that these people are hiding in your country. We must have them handed over to the Yugoslavia Tribunal before we talk further about integration». If it becomes a type of dynamic where someone profits from it politically, that Putin is extradited to The Hague - then it can happen.
Did you know that...?
Norway has signed a sentencing agreement with the International Criminal Court. This means that if Putin is convicted, he may in theory serve his sentence in Norway.