Does the ICC hold power to punish Russians for war crimes in Ukraine?

The International Criminal Court (ICC) is reportedly ready to formally open two war crimes cases against “several” Russian officials over the war in Ukraine.

As per a Reuters report, the ICC is expected to seek arrest warrants on charges of “forcibly deporting children from Ukraine and targeting civilian infrastructure”.

This would be the first international war crimes cases to arise out of Russia’s invasion of Ukraine that began last February.

Let’s take a look at these charges and if the ICC has the power to prosecute Russians.

What crimes does ICC prosecute?

The ICC, based in the Hague in the Netherlands, is the “world’s first permanent international criminal court”.

Guided by the Rome Statute, an international treaty, the court can prosecute individuals on four offences: genocide, crimes against humanity, war crimes and the crime of aggression.

As per its guidelines, war crimes include attacking civilian populations, violating the Geneva Conventions, intentional killing, taking hostages, rape, sexual slavery, and targeting specific groups of people, reported Indian Express.

Crimes against humanity consist of murder “committed as part of a widespread or systematic attack directed against any civilian population”.

The crime of aggression is defined as invasion of another state, bombardment and blocking of ports, reported The Guardian. 

The ICC has 123 member nations globally. However, 31 countries, including Russia, Ukraine and even the United States, are not a party to the Rome Statute.

So far, the court has issued only 10 convictions.

ICC’s charges against Russians

In March 2022, ICC’s chief prosecutor, Karim Khan, announced he has launched an investigation into alleged war crimes or crimes against humanity in Ukraine.

Since then, he has visited Ukraine thrice where he went to the sites of alleged war crimes.

As per reports, Khan would seek the approval of pre-trial judges to issue arrest warrants based on the evidence collected so far.

The New York Times (NYT) says the first case that the ICC can bring against Russian individuals is the alleged abduction of Ukrainian children.

Moscow has accepted taking Ukrainian children and teenagers to Russia and handing them to families there but has claimed it was a humanitarian campaign to protect orphans abandoned in the conflict, as per Reuters. It has denied accusations of forcibly moving Ukrainian children.

Last May, Russian president Vladimir Putin had signed a decree easing the process to adopt and give citizenship to Ukrainian children.

According to a report published this February by Yale University and the Conflict Observatory program of the US State Department, at least 6,000 children from Ukraine were being kept at around 43 “re-education” camps in Russia.

The National Information Bureau of the Ukrainian government predicts the number could be more than 16,000, reported NYT.

Khan had earlier indicated his priority to pursue this case of shifting Ukrainian children to Russia.

“The ICC prosecutor might be working towards making the case that the abduction of children is a case of genocide. That would be a first and that might make this case stand out,” Iva Vukusic, a war crimes expert and assistant professor of international history at the University of Utrecht, told The Guardian.

“If the ICC charges the abductions as genocide, it’s also unclear what the outcome and judgment in any future case would be. This is really untested territory.”

Reuters source has said the ICC could bring genocide charges against the Russian officials.

The second case that the ICC chief prosecutor is expected to pursue is the “unrelenting” attacks on civilian infrastructure, including water supplies and gas and power plants, in Ukraine, reported NYT citing unnamed officials.

Human Rights Watch has also accused Russian troops of carrying out “indiscriminate and disproportionate” bombing and shelling of urban areas, hospitals and schools, reported The Guardian.

Russia has denied deliberately targeting civilians, however, its defence ministry has acknowledged targeting energy infrastructure in Ukraine.

Can the ICC prosecute Russians?

It is complicated.

In 2000, Russia signed the founding statute of the ICC but did not ratify it to become a member.

In 2016, Moscow officially withdrew its signature from the Rome Statute after the ICC published a report that labelled the 2014 Russian annexation of Crimea as an occupation.

The ICC can try any person accused of a crime that is from a country that falls under its jurisdiction.

Although Ukraine is not a member of the ICC, the country has accepted the court’s jurisdiction previously.

As per The Guardian, while Ukraine cannot refer the alleged crimes itself, the ICC has jurisdiction over its territory.

It remains unclear which Russian individuals the ICC wants to prosecute. But, it is certain Russia, which is not a member of the ICC, will reject any arrest warrants against its officials, noted Reuters.

Putin’s spokesperson, Dmitry Peskov, has said Russia does not recognise the jurisdiction of the ICC. “We do not recognise this court; we do not recognise its jurisdiction,” he said on Tuesday (14 March), as per The Guardian.

Moreover, the ICC cannot prosecute individuals of non-member states for crimes of aggression. But this limitation does not apply to war crimes, crimes against humanity and genocide carried out by a non-signatory state. However, it is not easy to link a political leader to the crimes committed by the country’s armed troops on the grounds.

Experts have told NYT that the ICC could charge Putin, however, a trial is hardly expected to take place.

The ICC cannot hear cases in absentia and Russia is unlikely to surrender its own officials, they added.

Though one thing that can happen with these war crimes charges is that they would increase Moscow’s diplomatic isolation and make it harder for the accused to travel abroad, as per Reuters.

With inputs from agencies

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