There has been much debate on whether the International Criminal Court (ICC) is able to bring Russian President Vladimir Putin to justice for his military action and war crimes in Ukraine.
On July 17, 1998, representatives of 120 states adopted the Rome Statute, paving the way for the establishment of such a court and a new age of accountability. Located in The Hague, Netherlands, the ICC was inaugurated in 2002 to handle international crimes.
Different from most international conventions, the treaty shifted the focus from national compensation to criminal proceedings against individuals, and established the ICC’s jurisdiction over war crimes, crimes against humanity, genocide and the crime of aggression. In this way, butchers were prevented from hiding behind state power.
As wars are typically launched by heads of state, the chance of finding evidence of their orders to massacre people is next to zero.
The Rome Statute contains provisions that prevent those involved in warfare from evading responsibility. Article 28 says that with respect to superior and subordinate relationships, the superior is criminally responsible if they knew or consciously disregarded information clearly indicating that subordinates were committing crimes. The article acts to prevent superiors from hiding behind technicalities.
Article 33, Section 2 says: “A person pursuant to an order of a government or of a superior, whether military or civilian, shall not be relieved of criminal responsibility unless,” among other things, “the order was not manifestly unlawful.”
Since “orders to commit genocide or crimes against humanity are manifestly unlawful,” it says, a person cannot evade responsibility by using the excuse of following orders.
Given the civilian casualties in the invasion, Russia has doubtless committed war crimes under the statute.
However, Ukraine did not ratify the statute, and Russia — saying that the ICC is a “vassal” of the West — withdrew its signature in 2016. Whether Ukraine can pursue a case against Putin in the ICC remains an open question.
To protect the universality of human rights, Article 4, Section 2 says that the ICC “may exercise its functions and powers ... on the territory of any state party and ... on the territory of any other non-state party.”
As the Ukrainian government has twice lodged declarations to legally accept the ICC’s jurisdiction under the Rome Statute over alleged crimes occurring on its territory, ICC Prosecutor Karim Khan said at the beginning of Russia’s invasion that he would open an investigation into events in Ukraine.
As long as Putin remains the Russian president, his prosecution would face political barriers. However, Article 29 says that crimes within the jurisdiction of the ICC “shall not be subject to any statute of limitations.” No matter how much time elapses, judicial proceedings could still be initiated.
One example is former Serbian leader Slobodan Milosevic, the “Butcher of the Balkans” who was sent to The Hague on charges of genocide and war crimes in Bosnia and Kosovo.
Although Taiwan is not a state party under the Roman Statute given its unique status in the international community, it could exercise its prerogative to accept the ICC’s jurisdiction, as Ukraine did, in the face of Chinese aggression.
The move would not only bolster Taiwan’s national security, but would also give other nations less reason to hesitate sending assistance in a time of need because of a cross-strait conflict being seen as a “domestic issue.”
Wu Ching-chin is an associate law professor at Aletheia University and the director of the university’s Research Center for Criminal Law.
Translated by Rita Wang
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