Putin at the ICC - The Jurisdictional Issues
The International Criminal Court (ICC) used to be referred to as a dumping ground for rebels.
That reflects the complex web that insulated leaders from the jurisdiction of the Court – a jurisdiction, which is often a function of political will and the power balance.
One way to refer a grave situation to the Court is a UN Security Council referral on the grounds of war crimes, genocide, or crimes against humanity. There are several jurisdictional routes for the ICC to establish jurisdiction over a situation and referral by the UN Security Council has zero chance in the case of Russia's war on Ukraine. It's simple – Russia will always exercise its veto and will never vote to refer itself and its leadership to the ICC. So the UN Security Council option is out, as it will be blocked not only by a Russian veto but also by a Chinese veto or at least Chinese abstention.
What's left then are the territorial and nationality jurisdictional routes, enumerated in Article 12 of the Rome Statute.
Article 12 Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.
That means that individuals of the nationality of a state party of the ICC Rome Statute, or individuals who allegedly committed crimes on the territory of an ICC state party may be tried
Russia is not a state party to the Court, so President Putin and Russian generals can't be tried according to the Russian nationality route. Even if they don't have a nationality of an ICC state party – the territory (Ukraine) is enough.
What's left then is to turn to the territorial route. Ukraine is also not a state party to the ICC Statute but it has twice in the past (2013; 2014) accepted the jurisdiction of the Court, pursuant to Article 12(3) of the Rome Statute, and that jurisdiction is still ongoing covering the territory of Ukraine since February 2014. That's enough. That precisely established jurisdiction on the basis of territory even though Ukraine accepts the jurisdiction of the Court only for that limited situation.
That meant that if Russian leadership suspected of war crimes in Ukraine is caught on the territory of Ukraine or another country, the Russian leadership can be extradited and sent to The Hague.
According to Article 13 of the Rome Statute on exercise of jurisdiction, there are three ways to exercise jurisdiction. 39 state parties already referred the situation in Ukraine to the ICC prosecutor:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Smaller fish of Russian nationality might be caught in Ukraine's direction or in one of the 39 referral countries. It's safe to say that President Putin won't feel comfortable in setting foot anywhere near these countries with a risk of extradition. This also means that any of the Russian leadership will be uneasy to travel on holidays in most of the EU.
The United States is fundamentally against the ICC and was not among the ones to press for an investigation of war crimes and crimes against humanity. It has to be recalled also that by accepting the Court's jurisdiction, Ukraine has also submitted their own under scrutiny for potential crimes committed by the Ukrainian side also.
My prognosis is that even if the jurisdiction is established, the ICC Prosecutor and his team won't be able to catch Putin and Co. The ICC investigative team doesn't have the power to invade Russia and bring Russian President Vladimir Putin to The Hague.
Iveta Cherneva is an author and political commentator.
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