Will Vladimir Putin ever be sent to court for war crimes? For mee Emmanuel Daoud, that would be logical. “He is a genuine war criminal. What he is doing today in Ukraine, he has already done in the past in Chechnya or Syria., underlines this lawyer specialized in international criminal law. Like his colleagues, M.e Daoud recognizes, however, that many obstacles remain to be overcome before seeing the Russian president in court.
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Because international criminal justice comes up against political and diplomatic logics which make it very difficult to prosecute heads of state. “In twenty years of existence, the International Criminal Court (ICC) has only succeeded in convicting a handful of second knives. Which makes many say that she is strong with the weak and weak with the strong”, says Alain Werner, lawyer and director of the Swiss organization Civitas Maxima.
kyiv recognized the jurisdiction of the ICC in 2014
Thus, the ICC has never been able to prosecute Bashar Al Assad, the President of Syria, a country which has never ratified the Rome Statute which created the Court. To judge him, the latter would have had to obtain the green light from the United Nations Security Council.
An unthinkable option due to Russia’s veto. In the case of Vladimir Putin, the situation is a little different. While Russia and Ukraine have not ratified the Rome Statute either, from 2014 kyiv recognized the jurisdiction of the ICC for crimes committed on its territory. The Court did not need the vote of the Security Council to launch an investigation into Ukraine. It would have been enough for it to be seized by 39 States, an unprecedented step to date.
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In theory, the ICC could very well one day issue an arrest warrant for the Russian president. But we would then have to wait for the leader of the Kremlin to go to a country that signed the Rome Statute, and hope that it would take the initiative to arrest him and extradite him to The Hague, in the Netherlands, where seat of the ICC.
Which is far from certain. In 2009, the ICC issued an arrest warrant against Sudanese President Omar Al Bashir for genocide, crimes against humanity and war crimes. “But in the following years he was able to travel to many countries, especially South Africa and Jordan, without ever being extradited,” deplores Me Clémence Bectarte, lawyer for the International Federation for Human Rights (Fidh).
L’option d’un tribunal ad hoc
Another option would be to set up an ad hoc tribunal on Ukraine, called in particular by Iryna Venediktova, the Ukrainian Attorney General, and Gordon Brown, the former British Prime Minister. Ad hoc courts have the advantage of making it easier to judge heads of state. So did the Special Court for Sierra Leone, which in 2012 sentenced former Liberian President Charles Taylor to fifty years in prison. If he had not died during his trial in 2016, former Serbian President Slobodan Milosevic may also have been convicted by the special court for the former Yugoslavia.
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Those advocating for an ad hoc tribunal say it, unlike the ICC, could have jurisdiction over the crime “aggression” of a state against a state. An offense that could be easier legally to oppose to Vladimir Putin than that of war crime.
« We can all the same recall that most of the ad hoc tribunals that have been created in recent years, in particular on the former Yugoslavia or Rwanda, were created after a vote by the United Nations Security Council. This is what gave them their legitimacy and a real power of coercion,” warns Me Bectarte