Efforts at international accountability are embedded in broader political and strategic realities.
By Dr. David Bosco
Associate Professor of International Studies
Hamilton Lugar School of Global and International Studies
As outrage about atrocities in Ukraine mounts, several dozen countries have referred the situation to the International Criminal Court (ICC), an unprecedented show of support for an investigation. On Feb. 28, the ICC’s chief prosecutor, Karim Khan, responded by initiating a formal investigation. His office has already dispatched investigators to the country to gather evidence and established a portal for the public to provide information.
These efforts could ensnare Russian officials and commanders, who appear to have significant criminal exposure. Former U.S. war crimes ambassador David Scheffer even predicted that the ICC would bring charges against Vladimir Putin himself within the space of a few months.
Given the pace of ICC activity and the intense pressure to address atrocities, it is important to consider how these accountability efforts might intersect with diplomatic efforts to end the war. The purported friction between peace and justice has often been exaggerated, but efforts at international accountability are embedded in broader political and strategic realities and the interaction between them deserves considered attention.
Background: The Scope of an ICC Investigation
The ICC has broad reach to investigate crimes in Ukraine dating back as far as the Maidan protests and initial Russian incursions in eastern areas of the country. While not an ICC member, Ukraine has given the court jurisdiction over the entirety of its territory. The ICC’s understanding of its jurisdiction means that it will therefore be able to pursue alleged crimes committed in Ukraine by individuals of any nationality. Russia (like the United States) maintains that the court lacks jurisdiction over its nationals (even outside of its territory) because it has not ratified the treaty that created the ICC. But that view has no purchase at the court and only limited support in the international legal community.
If the prosecutor has broad territorial reach, he can also investigate most categories of crimes elaborated by the Rome Statute, including war crimes, crimes against humanity, and genocide. However, it is important to note that the crime of aggression itself will not be available to ICC prosecutors. This is significant because it is likely the most straightforward charge to bring against senior Russian leaders. There has been discussion of a special tribunal to prosecute aggression in Ukraine, but any such process would almost certainly remain distinct from the ICC investigation.
Public reporting on the conflict suggests that a range of specific activities will attract the attention of ICC prosecutors. These include the alleged Russian targeting of civilian buildings (including medical facilities), civilian evacuation routes, and nuclear power facilities, as well as the use of indiscriminate weapons (e.g., cluster munitions) in crowded urban areas.
As the ICC’s investigation gathered speed, the prosecutor sent a signal about his willingness to challenge Moscow. On March 10, he requested arrest warrants against several Russian-supported officials accused of war crimes during the 2008 Russia-Georgia conflict. The prosecutor also suggested that he would have sought an arrest warrant against a Russian military commander had the individual not died in the intervening years. In reflecting on the war crimes alleged in Georgia, Khan added, “My Office has made findings of similar patterns of conduct during its preliminary examination of the Situation in Ukraine.”
While Russian activities will likely get most of the prosecutor’s attention, it is important to recognize that Ukrainians could face scrutiny as well. Questions have been raised about the treatment of Russian prisoners of war and statements suggesting that Ukraine might not give quarter to Russian combatants.
Arrest Warrants: Timing and Publicity
For the moment, the ICC’s investigative activities will likely remain quiet and behind the scenes. But the high stakes and intense public focus mean that all prosecutorial and court moves will be scrutinized, and the question of who is legally responsible for crimes in the country will interact with broader political and military issues.
One view of international justice insists that the court investigation remain entirely distinct from political and diplomatic considerations. On this view, the prosecutor should simply follow the facts his office is able to assemble and bring charges against relevant individuals whenever there is adequate evidence to support them. But a “just the facts and the law” approach elides discretion that the prosecutor has and underestimates some hard choices that investigators may face.
The evidence gathering process itself will likely have a significant political dimension. Ukrainian officials and their Western allies will be eager to highlight Russian crimes but much less eager to provide access to information, personnel, or sites that might involve alleged Ukrainian misconduct. Western intelligence services will likely be able to offer access to communication intercepts and other information that may be critical to linking senior officials with crimes on the ground. At some point, the prosecutor may have to decide how public to be as his office pushes for information and cooperation.
As the investigation develops, the prosecutor will also need to consider the timing of any charges. Previous ICC officials have noted that selecting the timing of arrest warrants gives the prosecutor significant and legitimate discretion. For example, if the evidence against senior Russian leaders coalesces just as peace negotiations are at a critical phase, the prosecutor might well decide to delay in order not to disrupt diplomacy.
Past ICC practice demonstrates that the prosecutor can also prepare and formalize charges against individuals without making them public. These sealed charges can be an important tool for enabling the court to secure custody of charged individuals. But sealed charges might also be a means for the court to limit or manage the political impact of its activities.
The ICC’s record suggests that the prosecutor should be able to get plenty of advice from diplomats as he seeks to navigate swirling pressures. At the height of the Darfur crisis, Western diplomats frequently offered the prosecutor their views on how to proceed as they sought to mesh ICC activities with their diplomatic and humanitarian efforts. And during the NATO intervention in Libya, Obama administration officials urged the prosecutor to move slowly on charges against Libyan leaders. Washington feared that quick indictments might foreclose diplomatic options for ending the conflict.
The UN Security Council and the Court
On the broader diplomatic stage, there is another way in which justice and diplomacy may intersect. While the ICC operates independently from the United Nations, there is some important overlap between the institutions. The UN Security Council has the power to refer situations to the court itself, as it did in Sudan (in 2005) and Libya (in 2011). More relevant for the current situation, Article 16 of the Rome Statute gives the Security Council the ability to defer ICC investigations for up to twelve months (and to renew deferrals indefinitely). That provision reflected an understanding that the court’s investigative work might conflict with the Council’s peace and security mandate.
In several past situations, diplomats have explored whether a Council deferral of ICC investigations might aid diplomatic efforts. At the urging of the African Union, diplomats considered a deferral in Sudan as efforts to tamp down violence in Darfur intensified. But Western governments ultimately proved resistant to sidelining the pursuit of justice, at least formally. In 2013, the Kenyan government pushed for a deferral of the investigation in that country. Its effort eventually secured seven votes on the Council but fell short of the support it needed.
At the moment, the prospect of any meaningful Security Council involvement in Ukraine is extremely limited. The veto power means that the diplomatic body is essentially paralyzed. And the idea of Western capitals delaying an ICC investigation to aid diplomatic efforts is hard to imagine.
But Council dynamics may well change as the military and political situation evolves. In some past crises, sharp division among the permanent members has dissipated at later stages. Paralysis over NATO’s Kosovo intervention, for example, yielded to a more cooperative dynamic that permitted Council action to create a postwar UN mission in the region. And such a shift has even occurred in a situation directly involving the use of force by a permanent member — Council members that had been bitterly divided over the 2003 Iraq War agreed several weeks later to a resolution creating a postwar framework.
If Russia does eventually seek a face-saving exit from the bloody crisis it has created, the Council could be an attractive option. Russian diplomacy has often emphasized the Council’s role in world politics, and the presence of China and India—fellow major powers not necessarily hostile to Moscow’s worldview—may make the Council even more attractive as a venue. Russia’s veto means that Moscow could extract certain concessions as the price for allowing a settlement, and it’s conceivable that a freeze on prosecutions could be one that it seeks.
The idea of international accountability as just one variable in an intricate diplomatic equation is understandably anathema to many justice advocates, and likely to many victims. And there are contexts in which no reasonable government should consider delaying or impeding international criminal investigations. But ending the conflict that is generating regular atrocities (and could spiral even more fully out of control) is also a moral imperative. Diplomats would be wise to start thinking about whether and how justice and an eventual peace process can go together.
Originally published by the Just Security, 03.15.2022, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.