Can Putin be held responsible for war crimes at ICC?

( translation of my article in KATHIMERINI, 16-04-2022  Μπορεί τελικά ο Πούτιν να καθίσει στο εδώλιο; )

Humanity has not managed to eradicate the war that continues to accompany and mark the course of humankind from the depths of history to the present day. Attempts by great thinkers to interpret and possibly find an antidote to the phenomenon of war have failed. Some optimistic predictions that had prevailed at the beginning of the last century, that the progress of civilisation, the prevalence of rationality and, above all, the interdependence of economic interests would prevent war, were most dramatically contradicted in the slaughterhouse of the First World War and, a few decades later, in the Holocaust of the Second World War. This bitter realisation takes on dramatic proportions when one considers the destructive nature of modern warfare, which could even cause the nuclear extinction of life on the planet. In this dismal landscape, that does not make modern societies proud, some positive steps have been taken towards reducing inhumane behaviour in warfare. A first step was taken by American President Abraham Lincoln when, during the American Civil War, in 1863, he issued a Code of Conduct for War, which contained provisions for the protection of prisoners and civilians. Efforts to establish an international humanitarian law of war continued intensively in the late 19th and early 20th centuries.

After the end of World War II, the victors moved with great speed and determination and tried the Nazi leadership at the famous Nuremberg Trials.

A major step was taken in 1949, with the signing of the Geneva Convention, which sought to place limits on the brutality of war and clearly defined the need to protect civilians, the wounded and prisoners. All UN Member States have acceded to the Geneva Convention.

In the post-war period, the international community has continued the practice followed at Nuremberg of establishing a special international tribunal whenever the question of punishment for war crimes arises. Thus, in 1993, the International Criminal Tribunal for the former Yugoslavia – ICTY – was established by a unanimous resolution of the UN Security Council, which Russia also voted for. In its 24 years of operation, it has managed to try those who violated fundamental humanitarian rules of war, from all warring factions and nationalities, with some of those convicted being at the top of the state hierarchy. But the big leap towards more effective punishment for war crimes came after the end of the Yugoslav wars. By decision of the UN General Assembly, an international diplomatic conference was convened in Rome in 1998 with the aim of establishing a permanent International Criminal Court (ICC International Criminal Court). The Rome Convention has so far been acceded to by 123 States. The Court has been operating since 2002 and is based in The Hague.

Just one day after the Russian invasion, the Prosecutor of the ICC in a public statement warned all those involved in hostilities on Ukrainian territory that the Court may exercise its jurisdiction and investigate any criminal war crimes committed on Ukrainian territory. The Ukrainian Parliament has not yet ratified the country’s accession to the ICC, but the government has since 2013 recognised the Court’s jurisdiction over crimes committed on its territory.

Even citizens of countries that have not acceded to the ICC, such as Russia, are not excluded from its criminal jurisdiction and could be arrested if they are found on the territory of one of the 123 countries participating in the Rome Convention. In theory, any official suspected of committing war crimes can be arrested if there is a warrant, even if they are a head of state. In practice, of course, this does not seem likely as long as the Putin regime remains in power. However, the political and moral importance of such a judicial process should not be underestimated, even if the accused are not arrested. The establishment of a permanent International Criminal Court is a major achievement of civilised humanity. The functioning of the Court no longer depends on the conjunctural international political balances, nor does it require a unanimous decision of the members of the Security Council to enable it to take action against suspected war criminals.

Three permanent members of the Security Council, Russia, China and the US, continue to refuse to join the ICC. The US, while initially supporting the idea of a permanent court, then began to express reservations and under the presidency of Bush’s son adopted a completely negative attitude and began to undermine its establishment.

In the period 2001-2006 I served as the European Union Ambassador in Sofia when Bulgaria was negotiating with Brussels for full membership. One of the obligations that Bulgaria had to fulfil as a candidate country was to accede to the International Criminal Court, as all EU Member States had already done. There was strong American pressure on the Bulgarian government to exclude American citizens from the jurisdiction of the court. Thanks to the honourable attitude of the then Prime Minister Simeon, the pressure did not succeed.

Today, the American side seems to be taking a softer stance and there is talk of a growing number of voices in Washington calling for US accession to the ICC, which would bring the two sides of the Atlantic even closer together on this issue.

It has become second nature for those involved in international relations to conclude that the European Union is ‘non-existent’ or ‘weak’ in international politics and, in any case, does not play the role it should. There is no doubt that these criticisms are sometimes justified. But the establishment of the International Criminal Court and the EU’s leading role in this historic achievement is an example to the contrary.