The first session of the International Criminal Court in The Hague started on Monday. The Court is beginning an investigation into russia’s war against Ukraine. Putin is to follow suit in the subsequent trial.
How does the International Criminal Court in The Hague work?
The Hague-based International Criminal Court (ICC) is also known as the Hague Tribunal. It began operating in 2002 as the UN’s first legal body based on the Rome Statute treaty adopted in 1998.
The International Criminal Court should not be confused with the UN’s International Court of Justice, which also sits in The Hague but performs a different function: resolving disputes between countries. The ICC is not part of the official structures of the United Nations, even though it may initiate proceedings at the request of the UN Security Council. It should be noted that the ICC is the only judicial body charged with prosecuting high-ranking officials at the international level.
One hundred twenty-three states parties to the ICC have ratified the Rome Statute. About 30 more states are in the process of ratifying the Statute. Neither Ukraine nor Russia is a party to the Rome Statute of the ICC. However, our state has recognized its jurisdiction over crimes committed in Ukraine from November 20, 2013, to the present day. Since 2014, the ICC has been considering the case of the situation in Ukraine, which addresses three issues: the Maidan killings, the situation in Crimea, and Donbas. After recognizing the ICC’s jurisdiction, Ukraine filed another lawsuit in 2015, for which an investigation was initiated in 2021.
In November 2016, russian president vladimir putin approved an order for russia to withdraw from the International Criminal Court’s jurisdiction.
What kinds of crimes are investigated by the International Criminal Court?
The ICC prosecutes genocide, crimes against humanity, war crimes, and crimes of aggression.
Genocide is the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. Signs of genocide include killing members of the group, causing serious bodily or mental harm to members of the group, forcibly transferring children of the group to another group, imposing measures intended to prevent births within the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Examples of acts of genocide committed in the last decades of the XX – early XXI centuries include the genocide of the Tutsi ethnic group in Rwanda in 1994; the genocide in Srebrenica (former Yugoslavia) in 1995, in which over 8,000 Bosnian Muslims, mostly men, were deliberately killed; mass-killing and other acts of violence, including the use of chemical weapons in Darfur (Sudan) in 2002.
Crimes against humanity have a grave, destructive effect on the human person, degrade the dignity, or worsen the condition of a person or group of people. Crimes against humanity include murder, torture, enslavement, extermination, enforced disappearances, imprisonment, deportation or forcible transfer of population, the crime of apartheid (policies of racial discrimination, segregation, and oppression), sexual harassment (sexual violence), coercion into prostitution, forced pregnancy, forced sterilization, and other forms of sexual violence).
War crimes are international crimes grossly violating the laws or customs of war. These include premeditated murder; use of poison or poison-filled weapons; intentional targeting: attacks on the civilian population not directly involved in hostilities; shelling or attacks on civilian objects not used for military purposes (e.g., civilian settlements, residential premises, and cultural values); illegal destruction or misappropriation of property not justified by military necessity; intentional acts to make civilian populations starve as a way of waging war and intentional blockage of aid; recruiting children under the age of fifteen into the armed forces or using them to take part in military actions; taking hostages; rape, etc.
An act of aggression is the illegal use of armed force by a state against another state’s sovereignty, territorial integrity, or political independence. The crime of aggression is also considered a gross violation of the UN Charter. The acts that can be interpreted as acts of aggression include an invasion or attack by the armed forces of a state of the territory of another state, or any military occupation; bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state; the blockade of the ports or coasts of a state by the armed forces of another state; an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state, etc.
How will russia be tried?
Usually, the ICC trial consists of several stages, starting with preliminary examinations to determine whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims.
On February 28, Chief Prosecutor Karim Ahmad Khan announced the launch of an investigation into the situation in Ukraine. The agency has received appeals from 39 countries, including EU member states, Australia, Canada, and the United Kingdom.
On March 16, Karim Khan arrived in Ukraine and began his work. Currently, the International Criminal Court’s investigative team and Ukrainian law enforcement officers are collecting all the evidence and facts of war crimes committed by Russian troops.
On March 17, the International Criminal Court prosecutor also sent an official request to meet with Russia and called for a discussion of the situation in Ukraine. According to Karim Khan, russia must actively participate in this investigation. The prosecutor is ready to meet with representatives of russia’s competent authorities. Work is already underway. Therefore, the occupiers will be held accountable for all their war crimes against Ukrainians.
The second stage is investigations. At this stage, suspects are identified, and an arrest warrant is issued.
The third stage is pre-trial. Three pre-trial judges confirm the suspect’s identity, ensuring the suspect understands the charges. This is followed by charges hearings, and then the judges decide (usually within 60 days) if there is enough evidence for the case to go to trial.
In the fourth stage, the prosecution proves the guilt of the accused before three trial judges. The judges issue a verdict at this stage.
During the fifth stage, the parties have the right to appeal a decision on the verdict.
Finally, the sixth stage is the enforcement of the sentence.
How is evidence collected?
According to the Rome Statute, the ICC chief prosecutor is responsible for collecting evidence. The prosecutor and his team work with authorities and non-governmental organizations. They collect evidence and any information that can facilitate the investigation.
There is a list of specific actions that will help conduct an investigation. One of the steps is to inspect crime scenes. For instance, governmental or non-governmental organizations examine residential neighborhoods, public buildings that came under fire, provide tangible evidence of missile fragments, etc. Data from mobile phones, emails, radio interceptions, videos, photos, etc., can also serve as evidence. If maps of attacks on cities and targets for destruction have been taken from the enemy, they can also be evidence of crimes. Witnesses and victims (e.g., civilians) are interviewed for the investigation. Relevant experts are involved in gathering evidence of crimes, and financial transactions are analyzed.
Therefore, virtually every citizen who has witnessed or been a victim of a crime can provide relevant evidence just like the state. These can include photos, video recordings, and witness testimony of crimes.
Since 2013, many crimes have been documented in Ukraine, falling under the ICC’s jurisdiction. These include deliberate attacks on civilians and civilian infrastructure, torture, premeditated murder, etc. Speaking about russia’s current military incursion into the territory of Ukraine, there are solid grounds to assert that war crimes have been and are being committed in Ukraine. However, they still need to be proven.
How can criminals be punished?
The International Criminal Court may impose a long term of imprisonment of up to 30 years or life imprisonment. In addition, the Court may decide to impose a fine or confiscate the income, property, or assets derived from crimes. Those who have committed the most severe crimes in Ukraine since November 21, 2013, will not be able to visit the 123 countries parties to the Rome Statute. In addition, these criminals will be automatically included in the ICC’s wanted list.
Criminal responsibility will be applied equally to all persons without distinction as to whether he or she is a Head of State or government, a member of a government or parliament, an elected representative, or a government official. Therefore, putin too can be prosecuted. The Criminal Court may issue an international arrest warrant for putin and other alleged perpetrators during the trial. After that, they can be arrested while traveling to states signatories to the ICC.
Punishment procedures may also apply to russians taking part in the war against Ukraine. If a person commits a crime on the orders of their boss, it does not absolve them from criminal responsibility.
How are crime victims protected and compensated?
The International Criminal Court recognizes as victims all those who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court. Victims may include individual people and organizations, or institutions that have sustained direct harm to any of their property.
Victims can participate directly in the ICC trial. Victims may seek the advice of a lawyer as legal counsel in the courtroom during the trial. If a victim or group of victims lacks the necessary means for such a legal representative, the Registry may afford some financial assistance. Victims do not have to travel to the seat of the Court. Their lawyer can represent them.
All victims can seek reparation for the harm that they have suffered. At the end of a trial, if there is a conviction, the Trial Chamber may order a convicted person to pay reparations to the victims of the crimes. The Court may order such reparations to be paid through the Trust Fund for Victims.
The Court may award reparations on an individual and/or collective basis, whichever is, in its view, the most appropriate for the victims in each particular case. Collective and/or individual reparations may include monetary compensation, return of the property, rehabilitation, medical support, victims’ services centers, or symbolic measures such as apologies or memorials.
In addition to reparations, which can only be delivered after a defendant has been convicted, the Rome Statute allows for assistance to victims through the Trust Fund for Victims, following a decision by an ICC Pre-Trial Chamber.
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