On the 17th March 2023, the ICC announced that it has issued an arrest warrant for Russian President Vladimir Putin. The warrant requires any member state of the ICC to arrest the Russian President if he comes under their jurisdiction. However, the ICC has many limits. So what are its strengths and weaknesses and is Vladimir Putin ever likely to see a jail cell in The Hague?
What is the ICC and when and how was it formed?
The ICC is the International Criminal Court and is based in The Hague, Netherlands. It is a court that is not designed to deal with disputes between states (like the ICJ) but instead deals with international criminal charges against individuals. The crimes that it tries are the four most serious breaches of international law:
Genocide – The ICC can try the crime of genocide, which means the destruction, or attempt to destroy, a national, ethnic, racial or religious group.
Crimes Against Humanity – The ICC can try aggressive or negligent acts directed at civilian populations.
War Crimes – The ICC can try violations of international law relating to war. For example, this would include mistreatment of prisoners of war.
The Crime of Aggression – The ICC can try offences relating to the planning, preparation, initiation, or execution of an act of aggression by a State against another State.
The notion of an international criminal court was first established in the aftermath of the First World War as a mechanism to try those who may be responsible for war crimes, like the German Kaiser. However, no permanent body was established before the end of the Second World War.
After the Second World War it was clear that the surviving leaders of Germany and Japan would have to face a formal trial. As such, two tribunals were established:
The International Military Tribunal (IMT) – This tried suspected German War Criminals between November 1945 and October 1946.
The International Military Tribunal for the Far East (IMTFE) – This tried suspected Japanese War Criminals between May 1946 and November 1948.
The first set of trials took place in Nuremberg, Germany, and saw 12 Nazi Leaders sentenced to death. Many further trials took place in Germany and a similar process took place in Japan.
This was a major turning point in international law. Prior to this, international justice was dominated by the Westphalian Principles. The principles established at the Treaty of Westphalia (1648) were based on the acceptance that state sovereignty was inviolable and states had control over everything that happened within their borders. However, at Nuremburg, new principles known as the Nuremburg Principles emerged. Whilst the Westphalian principles emphasise state sovereignty above all else, Nuremburg highlights the individual responsibility for crimes.
The Nuremburg Principles included:
- Principle of Individual Responsibility: Individuals are responsible for their own actions and cannot escape responsibility by claiming that they were acting on orders from a superior.
- Principle of Crimes Against Peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances is a crime against peace.
- Principle of War Crimes: War crimes are violations of the laws and customs of war and include murder, ill-treatment, and deportation of civilians.
- Principle of Crimes Against Humanity: Crimes against humanity are widespread or systematic attacks directed against any civilian population, with knowledge of the attack.
- Principle of Universality: The principles of international law are applicable to all individuals and states, regardless of whether they have ratified specific treaties or agreements.
Following the Nuremburg Laws, the principle of international war crimes and crimes against humanity were embedded in international law.
Following the foundation of the the UN in 1948 there were further discussions about the foundation of a permanent international criminal court. However, the dynamics of the Cold War meant that it never had a realistic chance of establishment. However, the end of the Cold War gave a new impetus to the idea.
Consequently, in July 1998 the Rome Statute was agreed. This created the International Criminal Court.
How does the ICC Work?
The ICC works on a principle called complementarity. This means that it will only investigate and consider prosecuting cases if this is not, or cannot, be done by the national government in which the alleged crime took place. This means that the ICC is respecting the sovereignty of states to deal with issues within their own borders in the first instance.
Cases can be referred to the the ICC in three ways:
- They can be referred by the UN Security Council. For example, in 2005 the UN Security Council passed resolution 1593 which referred alleged crimes against humanity and war crimes in Darfur to the ICC Prosecutor.
- They can be referred by member states. For example, in 2014 the Central African Republic referred the violence taking place in the country to the ICC.
- They can be initiated by the ICC Prosecutor. For example, in 2019 the ICC Prosecutor announced they were carrying out a preliminary investigation into claims that thousands of people had been killed by the government in the Phiipines in its ‘war on drugs’.
The ICC will then investigate the alleged crime and gather as much evidence as possible. When prosecutors believe they have enough evidence to prosecute, they will apply to the ICC to issue an arrest warrant. At this point, all member countries have a legal duty to arrest and handover a suspect who is within their jurisdiction. For example, Dominic Ongwen a suspected Uganda War Criminal, was arrested in the Central African Republic.
If an individual is indicted, they will face a trial in front of a panel of judges. Their legal costs are covered in full to ensure their right to a fair trial. Given the complexities of the cases, this can be a significant sum of money. For example, Jean-Pierre Bemba, a suspected war criminal, claimed over €3 million in defence fees before his acquittal. The burden of proof is ‘beyond a reasonable doubt’, the same as under the UK criminal justice system. When an individual is sentenced, they serve their sentence in a member state, even if not a state directly impacted by crimes committed.
Who has been tried by the International Criminal Court?
Since its inception 31 cases have been bought before the Court. There have been 10 convictions, 4 acquittals and 17 cases are ongoing.
The court has issued 38 arrest warrants and 21 people have been detained in the ICC’s detention centre, whist 14 remain at large.
Some of the key conventions include:
Thomas Lubanga Dyilo – Found guilty of war crimes for enlisting and conscripting children under the age of 15 to participate in hostilities in the Democratic Republic of the Congo.
Germain Katanga – Found guilty of war crimes and crimes against humanity for his role in an attack on a village in the Democratic Republic of the Congo in which over 200 people were killed.
Some of the key acquittals include:
Laurent Gbagbo – Acquitted of crimes against humanity charges related to the 2010-2011 post-election violence in Cote d’Ivoire.
Mathieu Ngudjolo Chui – Acquitted of war crimes and crimes against humanity charges related to an attack on a village in the Democratic Republic of Congo in 2003.
Some of those suspects at large include:
Joseph Kony – Leader of the Lord’s Resistance Army (LRA) in Uganda, indicted on charges of war crimes and crimes against humanity. He is believed to be hiding in the Central African Republic.
Omar Al-Bashir – Former President of Sudan, indicted on charges of war crimes, crimes against humanity, and genocide related to the conflict in Darfur. Al-Bashir is believed to still be in Sudan.
Who are the members of the ICC?
The ICC currently has 123 member states:
Notably, some of the most significant states in global politics are not members of the ICC, including three of the five permanent members of the UN Security Council:
United States – The United States signed the Rome Statute in 2000 whilst Bill Clinton was President. However, the US Senate never ratified the treaty (a constitutional requirement in the US). The US has gone further and passed laws that stop US citizens being passed to the ICC and even provides for the use of force to free any US citizen detained by the ICC.
China – China have never formally signed the Rome Statute. China has always been concerned that membership of the ICC could see it interfering with their domestic affairs. In addition, they have criticised the court for its western bias and believe they would become a victim of this.
Russia – Russia did sign the statute in 2000, but has made no moves to ratifying it. However, in 2016, Russia went further and withdrew its signature from the treaty. This followed the ICC ruling that Russia’s presence in Crimea was an ‘ongoing occupation’.
What are the strengths of the ICC?
Some of the strengths of the ICC include:
It operates under a principle of universal jurisdiction – The Rome Statute gives the ICC jurisdiction over any of the four specified crimes anywhere in the world. This means that the ICC will pursue prosecutions even if national governments fail to do so.
It sets precedents in international law – International law is a much less firm body of law than domestic law. However, as more cases are tried in the ICC there are increasing precedents being set and the body of law is growing.
It acts as a deterrent to other would-be war criminals – The fact that leaders know they may one day be held accountable by the ICC may dissuade them from committing crimes that may be actionable.
It gives victims a sense of justice and closure – The ICC places a big emphasis on giving victims a platform during trials. This can help to begin not just justice, but also a sense of closure. The ICC has bought the true horror of a number of events to light.
It is independent from state governments – The ICC had a legitimacy that comes from the fact it is international and separate from domestic politics. In addition, the fact that defendants are given a full defence adds to the legitimacy of the court.
It is complementary to state justice systems – The ICC tries to respect state sovereignty where possible and allow states to deal with their own international criminals through their own legal processes. The ICC is therefore a ‘court of last resort’. However, it is willing to step in when this is not happening.
What are the weaknesses of the ICC?
In reality, it has limited jurisdiction – The real jurisdiction of the court is limited to member states or states that co-operate. For example, in 2019 the Philippines withdrew from the ICC after the court said it was investigating its governments war on drugs.
It has limited arraignment power – The court has limited power to apprehend suspects. It relies on non-member states voluntarily handing a suspect over or a suspect entering the jurisdiction of a member state. Even then, member states may not cooperate. For example:
2010: The ICC issued arrest warrants for four Kenyan nationals, including two high-ranking government officials, on charges of crimes against humanity committed during post-election violence in 2007-2008. Kenya initially cooperated with the ICC, but later failed to turn over the individuals.
2011: The ICC issued arrest warrants for former Libyan leader Muammar Gaddafi, his son Saif al-Islam Gaddafi, and intelligence chief Abdullah al-Senussi on charges of crimes against humanity committed during the Libyan civil war. Libya initially cooperated with the ICC, but later refused to turn over the individuals, and Saif al-Islam Gaddafi remains at large.
It has limited enforcement power – The ICC does not have its own police forces or military and relies on member states to execute its orders. In addition, it relies on states handing over all information relating to any case.
It is perceived to have western bias – All of the convictions in the ICC currently relate to suspects from Africa. This gives rise to strong accusations of western bias. In protest at this, Burundi have withdrawn from the ICC.
It has limited membership – Many of the key states in the world are not members, including the US, Russia, China and India. This means over 70% of the global population are not under the jurisdiction of the court. With so many countries not accepting the jurisdiction of the court it impacts the legitimacy and universality of the court.
What is likely to happen to Vladimir Putin and why have the ICC taken the action they have?
The warrant against Vladimir Putin relates to War Crimes and specifically to allegations that Putin authorised the abduction and deportation of Ukrainian children to Russia.
Vladimir Putin is already an international pariah and is subject to a number of travel restrictions and economic sanctions. However, he is unlikely to face trial at The Hague. Firstly, the ICC does not try suspects in absentia. This means that to put Putin on trial, he would need to be transferred to the Hague. Secondly, Russia is not a signatory to the ICC and none of the countries still likely to host Putin in the future (such as Belarus) are signatories either. This means it is unlikely to be a chance to carry out the warrant. Finally, the ICC does not allow kidnap. Historically, there have been some very famous cases whereby an individual has been foreseeably removed from a place into the legal jurisdiction of another. Most famously, Adolf Eichmann, one of the architects of the Holocaust, was kidnapped by Mossad Agents in Argentina before being put on trial in Israel. However, this is not an option for the ICC.
Given the unlikelihood that Putin will face trial, it can be questioned by the arrest warrant has been issued. However, it is important for a number of reasons:
- It sends a message to the Russian people that Putin’s actions are unlawful and he will be held to account.
- It sends a message to other would be war criminals that no-one is above the law.
- It places further restrictions on where Putin can travel.
- If Putin is removed from power, it makes it harder for him to escape to another state. and seek refuge. Any state could voluntarily hand him over in the future.
The ICC helps to ensure that war crimes, crimes against humanity and similar crimes are investigated and individuals are held to account. It has resulted in a number of convictions. However, the ICC has a number of weaknesses, including those stemming from its limited membership and it is not a fundamentally effective mechanism for dealing with the issues under it remit.
Westphalian Principles – The Westphalian Principles refer to the set of principles that emerged from the Treaty of Westphalia, which was signed in 1648. The principles are based on the idea of state sovereignty, which means that states are the primary actors in international relations and have the right to govern their own affairs without interference from other states.
Nuremberg Principles – A set of principles that emerged from the International Military Tribunal (IMT) that was held in Nuremberg, Germany, after World War II. The principles established that individuals who commit war crimes, crimes against peace, and crimes against humanity can be held accountable under international law, even if they were acting on behalf of a government.
International Military Tribunal – The International Military Tribunal (IMT) was a court established by the Allied powers after World War II to try high-ranking Nazi officials for war crimes, crimes against peace, and crimes against humanity. It is commonly called the Nuremburg Trials.
Genocide – The intentional and systematic destruction, in whole or in part, of a racial, ethnic, religious, or national group. It is considered to be one of the most heinous crimes under international law.
Crimes Against Humanity – Acts that are committed as part of a widespread or systematic attack against a civilian population, including murder, torture, rape, and enslavement.
War Crimes – Acts that violate the laws and customs of war, including the mistreatment of prisoners of war, the use of chemical weapons, and the deliberate targeting of civilian populations.
The Crime of Aggression – The use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state.
Universality – The idea that international law applies equally to all states, regardless of their size, power, or level of development. It is one of the fundamental principles of international law.
Rome Statute – A treaty that established the International Criminal Court (ICC) in 2002.
International Criminal Court – The International Criminal Court (ICC) is a court established by the Rome Statute to prosecute individuals for the most serious crimes under international law.
Beyond a Reasonable Doubt – A standard of proof which means that the prosecution must prove its case to the extent that there is no other reasonable explanation for the defendant’s guilt.