Point of View

Try Putin for 'war crimes'? Unfortunately, not applicable

March 20, 2014 

The crisis in Ukraine is of grave concern to the prospects of peace, security and personal accountability in foreign affairs. Russia’s incursion into the Crimean region of Ukraine raises serious rule of law issues and presses the power of international criminal accountability in situations concerning violations of territorial sovereignty of other countries.

An important question, therefore, is whether Russian’s President Vladimir Putin violated international criminal law and can he be personally tried for his actions by the International Criminal Court.

Historically, personal liability for international crimes is relatively new. The Nuremburg trials held after World War II set a new precedent under international law that individuals can be held criminally responsible for their actions. This moved away from the norm of punishing states for the actions of their leaders and prevented impunity for the actors who committed some of the most horrible crimes of international concern.

The Cold War prevented the creation of any international criminal tribunals for 50 years until the Soviet Union fell apart and the international community in the 1990s created tribunals for the atrocities committed in the countries of the former Yugoslavia and Rwanda. The culmination of international criminal law evolution was a permanent court to try international crimes, the International Criminal Court. The ICC statute was drafted in Rome in 1998 and came into legal effect in 2002.

The purpose of the ICC is to prosecute offenders “for the most serious crimes of international concern.” These crimes are genocide, crimes against humanity, war crimes and the crime of aggression. Pertinent to Russia’s actions is the crime of aggression, which is defined by the ICC as “the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.” This is in accord with the United Nations Charter, Article 2(4), which mandates that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

So does the ICC have jurisdiction over the actions of Russian President Vladimir Putin? The answer is no. First, the ICC has jurisdiction only over actions committed by nationals of state parties to the statute or actions that are committed within the territory of a state party. Neither Russia nor Ukraine has signed the ICC treaty. The U.N. Security Council has the power to refer cases to the ICC regardless of whther the state is a party or not. However, Russia is a permanent member of the Security Council and has veto power over any resolutions against its national interest.

Ukraine could voluntarily submit to the ICC’s jurisdiction temporarily for this matter, but serious political issues arise, such as the legitimacy of Ukraine’s ousted President Yanukovych as the elected leader of the country. Without clear jurisdiction, the ICC will stay out.

More importantly, the ICC has no jurisdiction over the crime of aggression until at least the year 2017 and upon a further vote of state parties. When the ICC statute was drafted, the crime of aggression was included but not defined or given legal effect until further action by a vote of state parties to amend the statute. The state parties voted to include the crime of aggression during the Assembly of State Parties in Uganda in 2010 but delayed its legal effect another seven years.

International criminal law has no ability to try Putin or others for the actions in Crimea. The veto power of Russia and the lack of jurisdiction of the ICC prevent justice for the victims of any acts of aggression committed by President Putin. Internationally imposed sanctions or military intervention are the only realistic avenues available, and Realpolitick concerns of armed conflict with a nuclear nation should persuade international leaders to prefer the former rather than the latter.

Kurt Willems of Raleigh is an attorney who studies and writes about the International Criminal Court.

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