Dusseldorf The International Criminal Court (ICC) wants to investigate possible war crimes in the Ukraine war. Sooner or later, Russian President Vladimir Putin could end up in the dock in The Hague. “There are no immunities before the International Criminal Court – not even for heads of state,” explains international criminal law expert Christoph Safferling. An arrest warrant can also be issued against an incumbent president.
In fact, the ICC has already launched investigations into war crimes in Ukraine, as Chief Prosecutor Karim Khan announced in The Hague this week. However, according to the current status, these are not yet aimed directly at Putin himself.
The investigation will be launched “as soon as possible” – there is “reasonable basis to believe” that the offenses of war crimes and crimes against humanity were committed in Ukraine, Khan said.
He received the support of 39 countries for his investigations, including all EU member states, Great Britain, Canada, Switzerland, New Zealand and several countries in Latin America.
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Although neither Russia nor Ukraine are contracting states of the ICC, “in 2013 Ukraine declared to the Criminal Court that it recognized its jurisdiction for events since November 21, 2013,” says international law expert Elisabeth Hoffberger-Pippan.
The crimes also include the violent crackdown on pro-European protests in 2014, the annexation of Crimea and the fighting in eastern Ukraine that has been going on for eight years.
Putin could be indicted directly
The Criminal Court has jurisdiction over war crimes or crimes against humanity committed on Ukrainian soil, even if the perpetrators are Russian nationals.
As early as 2020, the then chief prosecutor, Fatou Bensouda, took over a preliminary investigation into the situation in Ukraine, explains Hoffberger-Pippan – but the pre-trial chamber had decided in 2021 that the proceedings would not be officially started. In February 2022, Chief Prosecutor Karim Khan took on the situation in Ukraine.
Armed conflicts between two states are dealt with by the International Court of Justice (ICJ), and the proceedings are directed against the countries concerned. The International Criminal Court has also existed since 2002. Individuals can be convicted there – from simple soldiers to heads of state, depending on the criminal offense – so theoretically Vladimir Putin too.
As head of state, Putin is responsible “at the bottom of the chain of command”.
First and foremost, however, the prosecution must investigate, explains Safferling. Suspects would then have to be identified. A possible next step would be an arrest warrant. “There is a basis for investigation, now evidence is being collected.”
The difficult part: A person has to be proven guilty of war crimes or crimes against humanity. Prosecutors must therefore be able to lay out chains of command and prove individual responsibilities. At the end of the chain of command, however, is Putin as head of state and superior, according to Safferling. “The chain of command to be followed ranges from the simple soldier pressing a button to Vladimir Putin sitting in the Kremlin.”
Even if Putin does not commit these crimes himself, Hoffberger-Pippan explains that he could also be prosecuted for prompting or instigating the Russian armed forces to commit these crimes.
Russia’s attacks on homes could be war crimes
In the case of attacks, a distinction must be made above all between civilian and military objects, according to the Geneva Convention. “When homes are bombed like this, it’s an attack on a civilian object,” Safferling said. That is forbidden – and definitely to be classified as a war crime. “If Putin did not know in the individual case that civilian objects were being bombed, he should at least have taken action against it when he found out about it.”
The Kremlin chief should have issued an immediate cease-and-desist order and taken measures to end the attack on residential buildings. “If he hasn’t done that, that’s already sufficient for criminal liability,” Safferling said.
The attack on the nuclear power plant in Zaporizhia can also be regarded as such a crime: “The power plant is used to supply civilians with electricity. If this is shot at, it is an attack on the civil infrastructure – especially in view of the possible environmental damage.
Preliminary proceedings against Putin and Lukashenko could be intimidating
Determine right at the beginning – that could have a deterrent effect – also on individual military forces on site. “It’s a clear signal,” says expert Safferling. “Anyone who can be proven to have taken part in the murder of civilians is liable to prosecution – and can be traced.” The Belarusian head of state Alexander Lukashenko could also be held accountable as a commander.
Even if the International Criminal Court is set up to deal with more serious crimes, other countries, including Germany, could also face war crimes trials. “No one responsible can be sure that he will not be recognized and that the procedure will not be done to him.”
The International Court of Justice will not deal with the question of whether this is a war of aggression, explained Kai Ambos, Professor of International Criminal Law at the University of Göttingen. Such a procedure can only take place if the United Nations Security Council establishes aggression or if the aggressor and the victim state are contracting parties to the two courts. “Neither is given, because Russia can veto, especially in the UN Security Council,” said Ambos.
After a guilty verdict, Putin could no longer leave Russia
The head of the Kremlin does not enjoy immunity from the International Criminal Court. In the horizontal state relationship, however, problems could arise with an arrest warrant. “If Germany were to arrest Putin, for example, it would fundamentally interfere with the sovereignty of Russia, represented by its head of state,” said Ambos.
In addition, only those states that are contractual partners of the International Criminal Court are obliged to execute the arrest warrant against Putin. “Russia does not have this obligation – Germany and other contractual partners do.”
In the event of a change of government in Moscow, the new government could extradite Putin. However, a transfer from Russia is currently unlikely. “As long as his own police don’t arrest him and take him to The Hague, someone else has to do it,” says Safferling. This will not become a commando action by NATO forces. “But he may not be able to leave Russia if there is an arrest warrant.”
Long-term sentence of Putin possible: “They will wait for him”
Should Putin one day travel to a country that recognizes the criminal court, he could be arrested there and extradited. In the past, African militia leaders have ended up before the court in The Hague several times in this way. “Putin and Lukashenko could face the court in The Hague – if they are overthrown,” said Ambos.
123 states, including all EU states, recognize the International Criminal Court – a trip to the countries could then become problematic for the President. Russia, Israel, China and the USA are not among them. When implementing arrest warrants, the court is therefore dependent on the cooperation of the states.
Congolese militia leader Bosco Ntaganda extradited himself to the United States in 2013. That is not to be expected from Putin, said Hoffberger-Pippan. But: “The past has taught us – as in the case of the former Sudanese President Al-Bashir – that even the most autocratic regimes do not have to last in the long term,” explains the expert. “Putin will one day no longer be the President of Russia.”
Not necessarily in the near future, but Safferling agrees that in a few years a Vladimir Putin could also be before an international court. “They’ll be waiting for him anyway.”
More: Does Putin belong before the criminal court? Which Russian war crimes are proven in Ukraine