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Can the International Criminal Court catch Vladimir Putin?

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A week after sharing his “growing concern” face of the Russian invasion in Ukraine and called on the parties to comply with international humanitarian law, the prosecutor of the International Criminal Court (ICC), Karim Khan, has just announced the opening of an investigation. “I am satisfied that there is a reasonable basis to believe that alleged war crimes and crimes against humanity have been committed in Ukraine”he said in a statement.

This decision follows the preliminary report issued in December 2020 by Karim Khan’s predecessor, Fatou Bensouda. She noted that a “wide range of conduct constituting war crimes and crimes against humanity” had been committed in Ukraine since the Maidan revolution in 2014. The former prosecutor had then wished for the opening of a full investigation, which had been described as “historic decision” by Kyiv at the time. Recent events have thus ” wake up “ the Ukrainian case at the ICC. But what risks does Vladimir Putin really run as a result of the ICC investigation? Marianne make the point.

What is the role of the ICC?

The International Criminal Court is a permanent jurisdiction designed to punish individuals who commit the most serious crimes against international humanitarian law. It can initiate investigations and prosecutions for alleged crimes (crimes of genocide, war crimes, crimes against humanity and crimes of aggression) when national authorities are unable or unwilling to do so, if these facts have been committed on the territory or by a national of a country recognizing the Court. The statutes of this legal body were adopted on July 17, 1988 during the Rome Convention.

Can Vladimir Putin be tried by the ICC?

Although Russia withdrew its signature from the Rome Statute in 2016, Ukraine formally recognized the jurisdiction of the Court for crimes committed on its territory by two declarations, on April 9, 2014 and September 8, 2015. In this regard , the Russian president can, a priori, be prosecuted by the ICC.

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Moreover, the criminal policy of the Office of the Prosecutor consists in concentrating on the individuals who bear the greatest responsibility for the crimes, in the light of the evidence collected, and without taking into account their possible official status. However, Vladimir Putin, appearing as the principal of the Russian offensive in Ukraine, it is therefore a priori he who bears the greatest responsibility in the alleged facts.

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Regarding the charges, the 59 paragraphs of article 8 of the Rome Statute govern the jurisdiction of the ICC in matters of ” war crime “. More generally, a war crime can be qualified as soon as a party to the conflict voluntarily attacks non-military objectives, both human (civilians, prisoners of war, wounded) and material (cities with no troops or military installations). In this case, on Monday, the UN mentioned 102 civilians killed, 304 injured adding that the real figures were “considerably” higher. For their part, the Ukrainian authorities have reported 352 civilians killed and 2,040 injured since Thursday. While the scale of human losses remains uncertain, they are very real. Similarly, according to AFP, several residential buildings were targeted by missile fire in many Ukrainian cities such as Kiev, Irpin and Okhtyrka.

The charges of ” crime against humanity », governed by article 7 of the Rome Statute, are more difficult to apprehend. This Monday again, the Russian president made a commitment to Emmanuel Macron, not to affect the civilian populations. Yet AFP learned on Tuesday March 1 that a Russian strike had just fallen on the Kiev television tower… While the strike is certainly strategic for Putin, the fact remains that it may be the cause of the death of civilians.

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Thus, unlike the war crime, the crime against humanity must be planned and be the subject of a “widespread and systematic attack against any civilian population”. However, it would seem that Vladimir Putin planned his actions gradually in a strategic way: on Monday February 21 he officially announced the Russian recognition of the Ukrainian separatist territories before positioning his military troops there and actually invading them from Thursday February 24 . Many commentators have referred to the term escalation, a strategy aimed at intimidating the adversary.

What is Vladimir Putin’s risk?

If the ICC holds Vladimir Putin responsible for acts of ” war crime “ and or ” crime against humanity “, then the latter will be exposed to various sanctions. It can be a prison sentence not exceeding thirty years, a life sentence, a financial penalty but also an obligation to repair the damage suffered by the victims (compensation, restitution , rehabilitation).

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Several leaders have been convicted by the ICC in the past. Among them, on March 31, 2021, the former Congolese warlord, Bosco Ntaganda, was sentenced to 30 years in prison for war crimes and crimes against humanity, and on June 8, 2021, the former Serbian leader Ratko Mladic was sentenced to life for genocide, war crimes and crimes against humanity, committed during the war in Bosnia (1992-1995).

Remains a major obstacle for the ICC. Under article 63 of the Rome Statute, “ the accused is present at his trial “. The ICC does not try people until they are present in the courtroom. To do so, States required to cooperate with the ICC (Article 86 of the Rome Statute) must execute the arrest warrant and arrest the accused in order to hand him over to the Court. Not sure that the scenario arises after the war in Ukraine…

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