Why there are very few legal avenues for holding Vladimir Putin accountable for war crimes

On March 16, the International Court of Justice (ICJ) ordered Russia to “immediately suspend” its invasion of Ukraine. The ruling came on a resounding 13-2 vote, with only the court’s Russian and Chinese judges dissenting.

This story first appeared in 'The Progressive.'

And yet the death and destruction continue. Russia has openly defied the ICJ, and the court has no means to enforce its order. Even if a negotiated settlement is reached in the coming days or weeks, the weaknesses of international humanitarian law have once again been tragically exposed.

Still, this is no time to give up on the rule of law as an alternative to war, whether waged by Russia, the United States, or any other global power. The ICJ should be applauded as a voice of reason and peace on Ukraine; its ceasefire order expresses the conscience of the world.

The International Criminal Court (ICC) has also opened an investigation into the war in Ukraine. Like the ICJ, the ICC is based in The Hague, Netherlands. The two tribunals are separate and independent institutions that serve complementary purposes.

Also known as the “World Court,” the ICJ sits in the Peace Palace, a turreted red-brick edifice constructed in the Neo-Renaissance style in 1913. The court is the principal judicial organ of the United Nations, and is designed to adjudicate disputes between nations. It does not prosecute individuals; that’s the job of the ICC.

Since convening its first trial in 1947, the ICJ has heard some 182 cases. Many involve boundary, aviation, and fisheries disputes, but a few have addressed weighty charges of genocide and human rights abuses in the former Yugoslavia, Iran, and now Ukraine.

Although it usually takes the ICJ about two years to resolve a case, the court has put its response to the invasion of Ukraine on a fast track. The court held a public hearing on March 7 to review Ukraine’s emergency application for a ceasefire and scheduled March 8 to consider Russia’s side of the controversy. Russia submitted written objections to the court’s jurisdiction, but otherwise declined to appear. Undaunted, the court forged ahead, live-streaming the March 7 session on the Internet. The March 8 hearing was canceled.

That the court would rule in Ukraine’s favor was not a foregone conclusion. The court’s jurisdiction is limited by the provisions of the U.N. Charter, and its own governing statute. It can hear contested matters involving countries that have assented to its “compulsory jurisdiction” for all purposes or that have agreed to submit specific disputes to it under the terms of international treaties they have signed.

Currently, only seventy-three countries have accepted the ICJ’s compulsory jurisdiction. They include most of the nations of western and northern Europe, but neither the Russian Federation nor Ukraine is among them. Neither is the United States, which hypocritically withdrew from compulsory jurisdiction in 1985 after it was sued in the ICJ by Nicaragua for fomenting civil war and mining Nicaragua’s harbors.

In its emergency application, Ukraine invoked the ICJ’s jurisdiction under the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both it and Russia have signed. The court’s subsequent ceasefire order stressed the risk of irreparable harm to Ukraine and the urgent need to stop the bloodshed. The decision, however, is only provisional; a formal trial on the merits will be set for a later date.

The International Criminal Court, by contrast, has the potential to deliver more immediate real-world consequences for Russian military personnel and possibly for Vladimir Putin himself.

The ICC was founded after a 1998 conference attended by 160 nations in Rome. An agreement known as the Rome Statute, which took effect in July 2002, established the ICC as the first treaty-based international criminal court able to investigate and try individuals—both governmental and non-state actors—accused of genocide, war crimes, and crimes against humanity.

The court, housed in a modern steel-and-glass office building, consists of eighteen judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor.

The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those found guilty. According to its website, the court has opened thirty cases since its inception, with some cases having more than one suspect. To date, there have been ten convictions.

Some 123 countries have signed the Rome Statute, but both the United States and Russia are scofflaws. The United States signed the statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge U.S. soldiers or officials with international crimes.

Russia withdrew in 2016 after the court issued preliminary findings classifying Russia’s annexation of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.

The International Criminal Court has been criticized for targeting African human rights violators and overlooking European and U.S. malefactors. But in a historic turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan and Palestine. The Trump Administration responded by revoking the visas of the court’s lead and assistant prosecutors and freezing their U.S. assets. The Biden Administration lifted these sanctions, but continues to oppose both probes.

The ICC promises to be even more aggressive on Ukraine under the leadership of its new chief prosecutor Karim Khan, a London-based barrister, who took office last year. Khan opened the ICC’s Ukraine investigation on March 2 after receiving requests from thirty-nine state parties to the Rome statute, an unprecedented number. Since then, he has personally visited both Poland and Ukraine to begin the arduous process of gathering evidence of war crimes.

Though Ukraine has never joined the court, it has formally accepted the ICC’s jurisdiction. Russia has not.

With or without Russia’s cooperation or membership in the ICC, the investigation will proceed. Under the Rome Statute, nationals of non-member states can be held responsible for war crimes. Soldiers on the ground, their commanding officers, and those who give the orders at the highest levels are all at risk.

What this means for Putin and his cronies is that, if indicted, they will be subject to arrest if they are apprehended in the territory of a cooperating member state.

What this means for the rest of the world, including the United States, is a reminder that no individual, and no nation, is above the law. The law has a long memory—especially when it comes to war crimes.