How to bring the Ukrainian war to an end? That should be the immediate priority. After one year, thousands of civilians and soldiers have been killed, 14 million Ukrainians have been displaced, more than Berlin, Paris, and Rome’s population combined, the world economy is suffering and WWIII became a possibility. The current strategy to stop Russia’s aggression is a military escalation that involves the risk of the use of nuclear weapons.
Russia’s intervention in Ukraine is the most serious violation of the UN Charter, but the UN Security Council, in charge of peace and international security, is unable to end a conflict that includes its permanent members. The International Criminal Court (ICC) has no jurisdiction to prosecute President Putin for aggression crime. It is a failure by design.
During my nine years as the ICC Chief Prosecutor, I could observe the difficulties of international actors’ managing previous conflicts in Afghanistan, Darfur, Georgia, Iraq, Libya, and Syria. I witnessed the lack of integration of military, political, humanitarian, and justice efforts to manage massive violence.
For instance, in Libya, the UN Security Council was able to refer the situation to the ICC by consensus and authorized the use of military force. In just four months, the ICC issued arrest warrants against Libyan leaders, including Muammar Gaddafi, and his forces were defeated on the battlefield. Still, there were no serious international efforts to stabilize the country after the rebel victory.
We should learn how to harmonize international interventions to compensate for the legal architecture’s failures. Just Security provides a unique forum for legal experts to move beyond the boundaries created by their nationalities and academic fields to propose an integrated solution.
Thomas Kleine-Brockhoff and James H. Sallembien recently affirmed, “On Ukraine, Europeans are Doing More Than Many Seem to Think.” They explained that Europe is providing €52 billion in military aid, humanitarian relief, and financial support to Ukraine. But, Europeans are not leading diplomatic efforts, they are not pushing the warring parties toward talks.
Europe could do more than finance military efforts to achieve an eventual Pyrrhic victory. The region should lead the negotiations that will be required to stop the war, integrating justice activities and military operations. At least, Europe can join the initiatives presented by Ambassador H.E. Juan Ramón de la Fuente and Pablo Arrocha Olabuenaga.
A decisive justice intervention would not stop Russian aggression, but it would reaffirm the international order and could contribute to the end game. The questions are: How to combine national and international justice? How could justice facilitate a diplomatic solution?
While the Ukrainian prosecutors could conduct war crimes’ investigations, they are legally “unable” to prosecute those with immunity like President Vladimir Putin as a sitting head of state. The ICC, respecting the principle of complementarity, could overcome the immunity obstacle.
The Court has no jurisdiction to investigate the crime of waging a war of aggression, and it will prove challenging to link President Putin with specific war crimes committed during the battle. However, it is evident that the Russian invasion of Ukraine has involved the forced displacement of civilians from the area in which they were “lawfully present,” “without grounds permitted under international law” as required by Article 7, 1 (d) of the Rome Statute.
Indicting President Putin for forced displacement as a crime against humanity will highlight the links with the military occupation. ICC Prosecutor Karim Kahn’s investigation is active, and he could prioritize those charges allowing the Court to issue an arrest warrant against President Putin in a few months. At the same time, his office could continue investigating other incidents.
An indictment would not be an obstacle to negotiating the conflict’s end. On the contrary, it would provide leverage at the negotiation table.
Take the example of the ICC indictment of President Bashir in Sudan, which confirmed the commission of the most severe crimes in Darfur and it also helped trigger a negotiation. The Obama administration used the Court decision as leverage to reach an agreement with President Bashir forcing his administration to respect South Sudan’s independence. Years later, Bashir was arrested. The political actors could pressure Sudan to transfer former President Bashir to the ICC, sending a clear message to President Putin.
The Russian veto could not stop the ICC. But, if an agreement is reached, the UN Security Council could offer to suspend an ICC investigation or prosecution, in accordance with Article 16 of the Rome Statute.
The ICC is the best available option, by far.
I was encouraged by Prof. Jennifer Trahan and former ICC President Chile Eboe-Osuji’s agreeing on the importance of avoiding selective justice for the crime of aggression. However, both consider that creating a special ad hoc tribunal would be a practical first step while promoting a future review of the Rome Statute jurisdiction.
As former ICC President Eboe-Osuji affirmed, the creation of the Ad Hoc International Military Tribunal in 1945 should be celebrated. It was a step forward for civilization. But, more than 75 years later, returning to an ad hoc solution driven by partial interests would be a gigantic step backward. The Rome Statute, transformed the legacy of Nuremberg into a permanent international criminal justice system. The IMT was victor’s justice, but there was no alternative in 1945. In 2023, there is no reason to ignore an impartial justice system in operation for twenty years.
As noted, Prof. Trahan does not endorse selectivity either. She considers that “the STCoA [Special Tribunal on the Crime of Aggression] must be part of a two-step process of an ad hoc solution now and fixing the ICC’s jurisdiction over the crime in the future (a process that takes much more time than the urgency of the current situation allows).”
She cannot guarantee that second step (not even state representatives can), but I would focus on her argument about time. Creating a special tribunal would demand a debate at the UN General Assembly between 193 states. The Rome Statute Assembly of States Parties instead includes just 123, and neither Russia nor the USA could participate.
Establishing an ad hoc tribunal will delay President Putin’s prosecution for aggression crimes. It would require a protracted process to be born let alone to be up and running. Even if the negotiations between the UN members are successful, and the immunity obstacles are avoided, selecting and recruiting the personnel, adopting the protocols, and conducting investigations would take at least a couple of years. It took two years to adopt the Special Court for Sierra Leone, the model mentioned by former UN Legal Counsel Hans Corell, and another year to issue the first indictments following an exceptionally speedy investigation.
Instead, amending the Rome Statute would demand a few months, and an arrest warrant for the crime of aggression against President Putin could be immediately added. Indeed, it may essentially come in the form of a superseding indictment.
Ukraine provides an opportunity to appreciate the importance of an impartial international justice system and to improve the global legal architecture even further. The US position on the ICC and the UN Security Council’s flawed design will not change but they will not be an obstacle to justice. To assist the Ukrainians, experts should be pragmatic, compensate for the legal design failures, and focus on how to achieve a good negotiation to end the war.
Luis Moreno Ocampo
Founder ICC Chief Prosecutor
Author: “War and Justice in the 21st Century. A case study on the International Criminal Court and its interaction with the War on Terror.”OUP, 2022