VU Lawyer: Bringing War Criminals to the International Criminal Court is a Big Issue

On 1 March, Lithuania was the first, followed by several dozen other states (including Japan), to apply to the International Criminal Court in The Hague, launching an inquiry into the assessment of Russia's actions on Ukrainian territories, such as war crimes, genocide, and crimes against humanity. Ukraine itself has also brought an action against Russia before the International Court of Justice.

In the podcast of Vilnius University (VU) “Science without Sermons”, Dr. Indrė Isokaitė-Valužė, Associate Professor of the Faculty of Law at Vilnius University (VU) talks about how the proceedings before the International Criminal Court are taking place, why it is taking so long, how many war criminals have already been convicted in it, and what punishment could be imposed on Russia and its leader.

Case investigations can take up to several years

According to the lawyer, war crimes are one of the four international crimes that constitute violations of the laws of Geneva and The Hague, i.e. the principles and norms governing the protection of civilians and victims of war, the methods of war, and the use of military force.
War crimes also involve the use of certain prohibited weapons.

"There are various international treaties on the use of weapons that prohibit specific categories of weapons, namely, weapons that are incapable of distinguishing between a military and civilian object and those that operate on a very large scale, such as chemical, biological, toxic, nuclear weapons," says the interlocutor.

According to the lawyer, the prosecutor of the International Criminal Court is participating in the process of gathering evidence in a case against Russia, in cooperation with the states party to the Rome Statute (which have also launched investigations under national law), as well as Ukraine itself.

"Evidence may include various recordings and videos of Ukrainians in the basements suffering without food and water, telephones, as well as witness statements. There is such evidence and they are clear because every day we can see civil targets, such as hospitals, kindergartens, schools being bombarded not by mistake,” says the interlocutor of the podcast.

According to her, the sufficiency of the evidence in the investigation of the case of extreme open aggression in the International Criminal Court is only one of the elements, as the extent of legal violations, the need to administer international justice, jurisdiction are also assessed.

Although there are no specific deadlines for the length of time that evidence-gathering procedures may take place, it can be inferred from practice that these processes take several years. As an example, the expert in international law gave the investigation into Russia's actions on Ukrainian territory, which had been launched before the International Criminal Court since 2014.

"Since that date, the first stage of that investigation has been completed several years ago, according to the data of which it has been established that crimes against humanity, war crimes, may have been committed. But after this stage there is another stage of pre-trial, court examination, issuance of arrest and bringing the person to court, followed by the possibility of appeal and execution of the sentence,” says Isokaitė-Valužė.

Is real punishment ever inflicted?

According to the lawyer, we have criminal tribunals and the criminal liability of individuals as a tool not only to fill the gap in impunity in international law but also to administer justice, guarantee human rights and compensate the victims of heinous crimes. The Nuremberg trials were the first time in history that the highest representatives of the state had to answer for their crimes in a specially established international court.

"It convicted the leaders of former Nazi Germany and about one and a half hundred people who were responsible for or contributed to the terrible repression, to the deaths of millions in the concentration camps. Truth be told, the sentence was not carried in the case of all convicts because some of them chose to commit suicide. Another part of the accused was tried in the national courts,” recalls the lawyer.

Similar proceedings took place in the International Military Tribunal for the Far East (Tokyo Process), which tried the leaders of the Japanese Empire for crimes against peace, war crimes, and crimes against humanity during World War II.

Among the actual convicts, the lawyer mentions Radovan Karadžić, a former Bosnian wartime Serb leader, as well as a politician, former Serbian President Slobodan Milošević, who died in prison in 2006, and warlord Slobodan Praljak, who committed suicide after hearing the sentence.

There are 30 cases in the International Criminal Court, but only 4 people have actually been convicted.
When asked why so few aggressors are punished, the researcher says there are difficulties in proving, for example, crimes of genocide which require proof of intentional intent, as well as the participation of defendants in this court, as finding and bringing them to court is a major problem.

According to the interlocutor, the effectiveness of the International Criminal Court depends to a large extent on the success of cooperation between the parties to the Rome Statute.

"Therefore, even if a decision to detain had already been made in an international court, no one would arrest Putin and bring him to the courtroom, because without Russia itself, without the involvement of the law enforcement agencies of other countries, the International Criminal Court does not have the same powers in sovereign states as well as the capacity of the "international police" to come to another country and detain a person," says the lawyer.

Historically, there are not many examples of arrest warrants being issued to heads of state at the International Criminal Court. Such cases include the President of Côte d'Ivoire, the leaders of the state of Sudan and Libya.

Most severe sanction – life imprisonment

The list of people who could be prosecuted for the war in Ukraine is long. According to the Rome Statute of the International Criminal Court, the liability lies with natural persons who, by order to commit or instigate international crimes, have contributed to their execution. Therefore, the people in charge can range from the president, the commander of the military, generals to the government, members of parliament, and others.

"Belarus's responsible people must not be forgotten here either, because there is a very clear definition of aggression, according to which the perpetrator is considered to be the state from the territory of which the attacks, the use of force against another state are carried out, and which provides forces to the aggressor there. Therefore, the perpetrators of indirect aggression also deserve individual criminal liability,” assures Isokaitė-Valužė.

According to the lawyer, the most severe sanction imposed on natural persons in this court is life imprisonment, shorter periods of imprisonment are applied in individual cases.

In addition to individual penalties, there is a nationwide financial liability for the damage caused. After World War II, Germany and Japan, for example, paid reparations. Cross-border liability should also be applied in the case of the war in Ukraine, but, according to the interlocutor, there are problems with its realization, as Lithuania has been claiming compensation for the damage of the occupation for more than a decade.

The interlocutor points out that an initiative has been put in place to set up a special criminal tribunal to prosecute those responsible for the crime of aggression, and that the case could be heard in Ukraine, which has the highest number of victims of such actions.

"It is still not enough to talk and expect the conviction and detention of those people, because these are complex, long-term and perhaps not always real processes. It is not the means to stop the human tragedy here and now. Therefore, it is very important to act at different levels, unanimously, to apply and maintain economic sanctions, to break the links of energy dependence, research, to remove the aggressor state from various international associations, even in the legal sense, it would not be illegal if Ukraine was provided with safe airspace or assisted in the implementation of the right to self-defense," the lawyer said.