President Putin will be indicted within a year

The international response to the war in Ukraine has entered a new phase. After diplomacy, sanctions, and the supply of weapons, justice has been at the heart of justice since the Butha massacre and the siege of Mariupol. Will the perpetrators pay for their crimes? Or are Russians fleeing justice in Ukraine as easily as in Syria?

The withdrawal of Russian troops paved the way for investigative teams of Ukrainian and international experts. The Ukrainian prosecutor’s office is seeking evidence of war crimes and crimes against humanity. Then there are ICTY investigators and UN investigators working in the so-called ‘international, impartial and independent mechanism’ established before the war in Syria.

US President Joe Biden further sharpened the issue of justice on Tuesday when he said that the actions of Russian soldiers in Ukraine were genocide. This immediately provoked reactions from politicians in both camps. Ukrainian President Volodymyr Zelensky said Biden spoke “as a leader”. French President Emmanuel Macron has warned of an “escalation of rhetoric”.

Three international law experts, when asked by phone, saw Biden’s statement and reactions to it primarily as a political rattle of weapons. “His verdict will have no effect on the trial,” said Valerie Oosterveld, a professor at Western Law University in Canada. “The prosecutor will not be bothered by this,” said David Crane, former chief prosecutor of the Special Court for Sierra Leone.

Whether there is genocide in the legal sense of the word is another verse. Oosterveld cautiously says that there are “some indications of that” in the war zone. Helen Duffy, a professor of international human rights in Leiden, says genocide “is not so obvious, but it is not impossible”. He sees Crane in pictures and messages more as soldiers and commanders who kill on their own. War crimes, crimes against humanity? Safe. Genocide? It’s hard to prove and I don’t think so. “

Who cares what you call it, Crane adds. “Ten thousand civilians were killed in Mariupol. Are their families worried about whether it was a war crime or genocide? ”

Biden’s statement has mostly political intent, Crane believes: to put pressure on Putin. Making it clear to other countries and leaders that what he is doing is not possible. Crane says confidently, “I am the only prosecutor who has successfully indicted the current head of state, President Charles Taylor of Liberia, before a court in Sierra Leone.” He is equally optimistic about the chance for justice in this case: “Putin will be indicted within a year,” he says. “He may still be at the head of the state, but he has already lost his legitimacy and his position is only weaker.” Oosterveld sees another positive consequence of Biden’s statement: it helps strengthen the political will to prosecute perpetrators.

Strengthening the ICC

Minister Wopke Hoekstra (Foreign Affairs, CDA) visited his US counterpart Antony Blinken on Thursday. He then told Dutch journalists that he was happy that the Americans wanted to help strengthen the role that the International Criminal Court could play in the investigation in Ukraine. “Precisely because the United States is a little far from the ICC.”

Formally, the United States does not recognize the ICC. Previously, this had everything to do with the wars in which the United States itself was involved. Participants in the CIA’s secret war in the years following the September 11, 2001 attacks could have benefited from legal protection that prevented the extradition of American suspects to the ICC. President Donald Trump even signed a decree on sanctions against ICC officials who wanted to investigate crimes committed by the United States or its allies, such as Israel.

The minister did not want to say whether the United States will also provide financial assistance to the ICC, as Hoekstra received from European countries earlier this week. – It’s up to the Americans to express themselves.

Strengthening the ICC in that regard is not a luxury, say three lawyers. “With the current budget, the court can prosecute five or six people a year,” says Valerie Oosterveld. “There is no budget for unexpected events like this war,” says David Crane. “The ICC also has a broader mission than this war itself,” said Helen Duffy.

Crane advocates the establishment of a Special Court for Ukraine, by analogy with previous courts for, for example, Yugoslavia and Rwanda. He is involved in ongoing discussions. Asked, Minister Hoekstra says he does not feel that way. “We think the best chance for justice is for the ICC to play a role in this. If you post something new, you run the huge risk of getting stuck in procedures, and countries are on the wrong side. Who will try to block such a court? ” Previous courts have usually been established with the consent of the UN Security Council. This includes Russia as a permanent member with the right of veto. Crane and Oosterveld say there are other ways to establish a Special Court that does not involve the Security Council.

All three experts see the importance of a coordinating role for the ICC, but also see a shortcoming. At the time of its establishment, the ICC had no jurisdiction when it came to crimes of aggression† The fact that Russia has launched an unprovoked war against Ukraine is the beginning of all the crimes committed there. “And that brings you to the top: Putin and his decision to invade,” Duffy says.

Duffy sees an “exceptional degree of cooperation” in the investigation of war crimes and crimes against humanity in the war in Ukraine. Meanwhile, 41 states have expressed readiness to investigate cases that could end up in the International Criminal Court.

It delights her and at the same time makes her think. Why this war? “There are so many conflicts in which crimes have gone unpunished, such as Russian crimes in Syria and American crimes in the war on terror.” The past U.S. stance on the ICC has undermined its legitimacy, Duffy says, and he hopes that will change now.

According to her, the solution lies mainly in strengthening the ICC and extending its mandate, which also means crimes of aggression could be prosecuted. “In this way, the international community does not have to assemble a new vehicle every time to investigate a new war. Then all crimes are prosecuted equally vigorously, regardless of the nationality of the suspect. “

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