It seems almost inevitable that Russian President Vladimir Putin will be indicted by the International Criminal Court, and probably other courts as well.
But if I had said that a few months ago, I would have been dismissed outright as an out-of-touch academic – and rightly so.
The past few decades have seen a decided shift toward accountability, even for leaders who have long seemed untouchable.
Certainly, the past few decades have seen a decided shift toward accountability, even for leaders who have long seemed untouchable. But in practice, international tribunals have prosecuted leaders of states defeated in war (see: Nuremberg, Tokyo) or of “small power” states, such as Liberia and Côte d’Ivoire.
Now, however, an unusually large group of states are actively involved in investigating the atrocities in Ukraine, which many believe will eventually lead to the ICC indicting Putin. The intensity of these investigations is greater than anything I have seen in nearly three decades of work in the field of international justice.
The landscape of global justice is changing at lightning speed. And a convergence of several key factors in Ukraine fueled this change.
First, the brazen nature of the Russian invasion. Russia’s attack on a country whose only offense was its adherence to democracy and its desire to join the North Atlantic Treaty Organization is deemed “so outrageous” that it has galvanized global resolve. Admittedly, this is not the first time in recent memory that a sovereign state has been invaded (see: Iraq in 2003). But by appearing to flout international law so blatantly, Putin has propelled global efforts to uphold it to new heights.
Second, Russian forces have unleashed a litany of atrocities allegedly against thousands of innocent civilians, including, it seems, hundreds of children. In response, Western leaders as French President Emmanuel Macron insists “The Russian authorities will have to answer for these crimes.”
Third, and crucially, Ukrainian President Volodymyr Zelenskyy demanded that those responsible for serious war crimes “be held accountable” and facilitated real-time investigations into Russian atrocities.
His opinions carry phenomenal weight. At a time when inspirational leaders are sorely lacking, Zelenskyy’s leadership has garnered wide and deep admiration – bolstered, no doubt, by fresh memories of Afghan President Ashraf Ghani abandoning his country before it fell to power. of the Taliban. No wonder world leaders have taken turns traveling to a war zone to show solidarity — and be photographed — with Ukraine’s president.
Fourth, the media savvy Zelenskyy welcomed foreign correspondents, who reported the atrocities as they occurred. What a difference with the situation in Myanmar, for example. Although its citizens have suffered under a brutal junta since February 2021, its depredations now attract little attention, in part because the junta banned independent media.
Equally critical, efforts to bring Putin to justice are part and parcel of a powerful political commitment by President Joe Biden and other leaders, backed by meaningful action and tireless diplomacy, to counter Russian aggression.
And yes, Western leaders may well be quicker to act in the face of the suffering of citizens like them. The flip side, however, and what makes recent developments so striking, is that Western leaders may also be more tolerant of ICC indictments of leaders who don’t look like them, rule powerful countries or enjoy the protection of great powers – so many critics think.
Consider the contemporary court record. Although the ICC is currently investigating atrocities committed in the Philippines, Venezuela and several other countries outside Africa, it has so far only indicted leaders or former leaders of African countries. African leaders have also been prosecuted before a UN tribunal set up in response to the genocide in Rwanda (former Rwandan Prime Minister Jean Kambanda pleaded guilty to genocide in 1998) and another international tribunal which looked into on atrocities committed in Sierra Leone (former Liberian President Charles Taylor was convicted of sponsoring atrocities in 2012).
In Europe, a UN tribunal set up to deal with the atrocities accompanying the breakup of Yugoslavia eventually targeted the leaders. In 1999 he indicted Serbian wartime leader Slobodan Milošević. Although he died before trial, Milošević spent his last years in the dock. It was a milestone – but Milošević was no Putin.
All these lawsuits were amply justified. And they were a welcome departure from times past, when former dictators could look forward to a quiet retirement, proverbially in the south of France. Even so, an ICC indictment against Putin would mark a break with what have long seemed to be the unwritten rules of global justice.
To be clear, what critics have called a “great power” exemption from the ICC’s mandate is partly explained by fundamental rules of international law. Unless the UN Security Council calls for an ICC investigation (this is where countries with veto power like Russia can bend justice to their interests), his prosecutor can only seize atrocities if they are committed in or by citizens of countries that have accepted its jurisdiction. Because the scope of the court is defined by its founding treaty, which countries are free to accept or not. The United States, Russia and China – the nations at the top of today’s shortlist of “great powers” – have no intention of doing so.
All these lawsuits were amply justified. And they were a welcome departure from times past.
Why, then, is it now reasonable to assume that the ICC prosecutor will eventually indict Putin? If revulsion at Putin’s conduct, coupled with admiration for Zelenskyy, explain the current political momentum for accountability, the court’s legal license comes from two sources.
First, in 2015 Ukraine filed a declaration accepting the jurisdiction of the ICC. This allowed the prosecutor to investigate atrocities committed in Ukraine since February 20, 2014, when Russia began annexing the Crimean peninsula and supported separatists in the Donbass region. But that hardly propelled timely action. It took the then prosecutor more than five years to conclude that a full investigation was warranted.
In stark contrast, just days after Russia invaded Ukraine in February, the court’s current prosecutor, Karim Khan, announced he wanted to open an investigation. This triggered the second key action: an unprecedented number of 41 countries quickly “returned” Ukraine to court, which freed Khan from having to seek permission from the judges.
Meanwhile, political figures and legal experts are now proposing to set up a new international or regional tribunal that could prosecute the crime of aggression – which the ICC cannot investigate without Russian consent. Barely three weeks after Russian tanks arrived in Ukraine, legal experts have drafted a model indictment “against President Vladimir Putin for the crime of initiating and executing a war of aggression against the Ukrainian”.
Another notable realignment may also be underway: the United States, which has strongly opposed the ICC’s jurisdiction over nationals of countries that have not joined the Court without a referral by the UN Security Council , are actively debating whether to soften their position.
The Biden administration has already come a long way in this direction, suggesting that the ICC’s involvement in Ukraine might be “appropriate.” Also remarkably, the Senate unanimously approved a resolution, introduced by Senator Lindsey Graham, RS.C., supporting the ICC investigation in Ukraine. At a time when I never thought it would happen, Graham told the New York Times that Putin single-handedly “rehabilitated[d] the ICC in the eyes of the Republican Party and the American people.
Of course, in the end, it’s one thing to indict a head of state and another to bring them to justice in a global court. The ICC file sounds like a warning. Although former Sudanese leader Omar al-Bashir, indicted in 2009, is ousted from power and detained in Sudan, he has still not been transferred to the ICC in The Hague. Muammar Gaddafi, who the court indicted in June 2011, was killed in Libya before the court could secure his custody. A few years later, then-prosecutor Fatou Bensouda was forced to drop charges against Kenyan President Uhuru Kenyatta, saying witness intimidation doomed her case.
It is one thing to indict a head of state and another to bring him to justice in a world court.
Even so, it would be a mistake to rule out a successful prosecution of Putin. On the one hand, key governments appear to be unusually willing to provide evidence, including potentially intelligence interceptions, of Putin’s criminal responsibility.
International justice has also repeatedly challenged skeptics. Admittedly, this often took far too long. But this should not be confused with a denial of justice.
Last year the ICC finally convicted Dominic Ongwen, a senior Ugandan commander in the notoriously brutal Lord’s Resistance Army, who was first charged in 2005 but evaded capture for a decade. His case is hardly unique.
Cambodians had to wait much longer to get a measure of justice for Pol Pot’s murderous rule. Yet, more than 30 years after the ousting of the Khmer Rouge, three surviving figures have been found guilty of international crimes before the extraordinary chambers of Cambodian courts.
That’s not to say it’s only a matter of time before Putin is brought to justice. Among the formidable challenges ahead is the relentless tendency of diplomats and their bosses to move on to the next crisis. As intense as the global drive to hold Putin to account is today, we cannot assume it will last.
Yet Putin has shattered the tolerable limits of abstention so far that it is not fanciful to assume that fundamental change is afoot. Furthermore, as the champions of justice remind us, his indictment itself would not provide an account. In fact, that would be a game changer.