ICC Rights Watch

ICC Seeks to Prosecute a Military Mastermind

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – Since March of 2023, the ICC has sought to arrest Russian President Vladimir Putin and the Commissioner for Children’s Rights, Ms. Maria Lvova-Belova. However, as Russia is not an ICC signatory, it is unlikely that Putin or Lvova-Belova will be extradited for trial soon. 

 
President Vladimir Putin delivers a statement at the Kremlin in Moscow on July 5, 2024. Courtesy of Alexander Nemenov and Agence France-Presse.
  

Both are allegedly responsible for war crimes related to unlawful deportation and transportation of population, specifically children, from Russian-occupied areas of Ukraine as far back as 2022 in violation of Rome Statute Articles 8(2)(a)(vii) and 8(2)(b)(viii). Incidents identified by the prosecutor’s office include deporting children removed from orphanages and child care homes. Many of these children were allegedly given up for adoption in the Russian Federation, and Russian law was changed via presidential decree to expedite citizenship. These acts demonstrate an intention to remove these children from their home country permanently, which violates the Fourth Geneva Convention. Moscow has denied the allegations and called the warrants outrageous.

Pre-Trial Chamber II considered, based on the Prosecution’s applications in February 2023, that there were reasonable grounds to that each suspect may bear responsibility for the unlawful deportation of population and the unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, particularly in prejudice of Ukrainian children. The Court had evidence of individual criminal responsibility for both under Article 25(3)(a) of the Rome Statute and against Putin for failure to properly control civilian and military subordinates under Article 28(b). The warrants were considered in secret to protect the witnesses and investigation.

Prosecuting a military mastermind is no easy task and could undermine the Court; however, as the crimes addressed are allegedly ongoing, there is some hope that despite the unlikelihood of extradition, public awareness of the warrants may prevent further crimes. The Chamber considered this to be in the interest of justice and allowed the Registry to publicize the warrants’ existence, the suspect’s names, the warrants’ crimes, and the modes of liability the Chamber established.

The UN Commission of Inquiry of Ukraine found that Russian authorities took over 16,200 children out of Ukraine into Russia. The same Commission found evidence of rapes, torture, and killings, and has been investigating as far back as 2013 before the illegal annexation of Crimea. While the ICC can bring a prosecution against political leaders for waging an aggressive war, the Court seems to be focusing on civilian and children’s rights for now. Additionally, while the warrants recognize these acts as war crimes, commentators are making the case that the conduct also constitutes genocide and crimes against humanity. The decision to pursue these as war crimes may be an indication of evidence related to intent. With both the alleged crimes and evidence collection ongoing, the charges may be amended.

The Court has no power of enforcement instead relying on the 124 nations that are signatories to the Rome Statute to arrest those indicted of war crimes or crimes against humanity if they visit their territories. And yet, the Court issued the warrants. The decision to pursue charges against Putin sends a strong signal to low-level perpetrators that none are immune from prosecution and may serve as a deterrent. Plus, while Putin is not the first sitting head of state to be indicted, he is the first leader of a P5 country to be indicted. The ICC arrest warrants have impacted Putin internationally. He did not attend the BRICS summit in August 2023 in South Africa. Besides hindering potential international travel for Putin, the warrants make meeting with Putin less appealing. The stakes for engaging with Putin are becoming increasingly high for foreign governments. Combined with sanctions, the ICC warrants make it harder to ignore Russian actions in Ukraine and the brutality of its war. Even as many celebrate the ICC’s announcement, the Ukrainian government and like-minded partners continue to press for international support for the establishment of the tribunal to hold Russia accountable for the full breadth of crimes committed, specifically the crime of aggression.



This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

United States Institute of Peace – How the ICC’s Warrant for Putin Could Impact the Ukraine War – 23 March 2023

ICC – Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova – 17 March 2023

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 March 2023

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Foreign Affairs – Would Prosecuting Russia Prolong the War in Ukraine? – 12 July 2023



International Community Calls for a New Court to Prosecute the Crime of Aggression

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

Shortly after Russia launched its unlawful, full-scale invasion of Ukraine in February 2022, many began advocating for a new tribunal to prosecute Russian leadership for the crime of aggression. With 30 core states discussing the creation of a new adjudicative body, proponents are pushing for a way to address Russia’s breach of the international order and create deterrence in the future. 

 
A woman mourns at her son’s grave after he died fighting in the war on Ukrainian Independence Day in Kharkiv, Ukraine. Courtesy of Bram Janssen and Associated Press.
  

First recognized by the International Tribunal at Nuremberg, the crime of aggression, as defined by Article 2(4) of the UN Charter, prohibits the use of force, barring narrow exceptions. It imposes criminal liability on those in violation. Largely dormant throughout the Cold War, the International Criminal Court’s (ICC) Rome Statute sought to bring the crime under its jurisdiction but controversy at the time has left both the definition and activation apparently in limbo. Even with the additional Kampala amendments created in 2018 after the atrocities in Uganda, the grey zone remains. This has led many to call for a separate tribunal, akin to the one established at Nuremberg, to handle aggression cases stemming from the Russo-Ukrainian War. Beyond WWII, cases prosecuting aggression are scant. The UN Security Council set up courts to try the perpetrators of atrocities in Yugoslavia and Rwanda in the 90’s but with Russia as a permanent member, this is not a viable option. 

Further bolstering their demands, the Rome Statute has a major loophole: only parties to the Rome Statute fall under ICC jurisdiction. This means Russia, a non-party, cannot be tried by the Court currently. Additionally, domestic courts afford many members of The Russian Troika, including Putin, immunity. Coupled with the lack of precedent for prosecuting this crime generally, the ad hoc tribunal is becoming more compelling. 

Three major legal solutions have emerged. The first is a multilateral treaty between Ukraine and willing states, similar to the International Military Tribunal at Nuremberg. The second is a Ukraine-UN tribunal created via resolution. The last is a domestic-international hybrid chamber based in Ukraine. The first two circumvent the troika prosecution problem, and the deputy head of Ukraine’s Presidential Office has rejected the third option as unconstitutional. Many are opposed to a tribunal that would present the crime of aggression as something bilateral, between Ukraine and Russia alone, but much of this hinges on the level of international participation.

Because the crime of aggression carries a unique gravity, many are advocating for a clearly defined and replicable solution to serve a deterrent effect. In the meantime, many efforts to gather and preserve evidence of aggression are ongoing. EU member states have already agreed to support establishing a Centre for Prosecution in the Hague with American endorsement. This staggered approach has come with benefits already. As “the mother of all crimes”, whatever option the world chooses will likely become precedent in the future, further complicating the matter. As worries of selective justice and tribunal legitimacy continue, how to prosecute the crime of aggression is a legal question we may finally get an answer to; however, it will also be impossible to separate these two nations’ complex, centuries-long history without prosecution, definition, and resolution. As accountability efforts continue, Ukraine must determine which normative expectations it seeks to abide by and consider negotiating the Rome Statute and Kampala Amendments or developing a tribunal system prepared to adjudicate over the troika.

 

Note: This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023



ICC Office of the Prosecutor Launches New Policy to Bolster Principles of Complementarity and Cooperation

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On April 25, 2024, in accordance with several new policies released recently, the International Criminal Court (ICC) Office of the Prosecutor launched a new Policy on Complementarity and Cooperation. The Policy is the product of a global consultation process that began in October of last year that engaged States parties, civic society, academic institutions, and affected communities.

 
ICC Prosecutor Karim A.A. Khan during a visit to Bangladesh. | Photo courtesy of ICC.
  

The goal of the Policy is to fortify the ICC’s application of the Rome Statute’s principles of complementarity and cooperation. The principle of complementarity calls for collaboration between national criminal jurisdictions and the ICC. In essence, while states have primary authority to investigate and prosecute international crimes, the ICC may step in on a case-by-case basis to ensure that these crimes are justly addressed.

The new Policy is aimed toward strengthening the ICC’s relationship with other criminal jurisdictions to serve the ultimate goal of investigating and prosecuting global atrocities. To effectuate this, the Policy proposes a two-track strategy that will promote cooperation and partnership with states as well as frequent complementary action, while remaining faithful to the ICC’s mandate to independently and impartially handle Rome Statute crimes.

This approach reflects the important balance the ICC seeks to maintain between its duties and that of other jurisdictions. If this equilibrium is disrupted, however, the principle of complementarity, which is bolstered by this new Policy, allows the ICC to take action. This notion is forthright in the body of the Policy which states, “if States step up, the Office will step out. But equally, the reverse is also true. If states do not step up, the Office will not hesitate to fulfill its mandate.”

The Policy, which is referred to as a “renewed partnership for accountability,” suggests four pillars for enhanced cooperation and complementarity: (1) creating a community of practice, (2) technology as an accelerant, (3) bringing justice closer to communities, and (4) harnessing cooperation mechanisms.

Each of the new ICC policies launched in recent months have put victims and survivors of crimes at the forefront, and this one is no exception. The Deputy Prosecutor, Mame Mandiaye Niang, expressed that the Policy’s partnership-centered approach stands to deliver more for victims by way of further increased vigilance to global atrocities.

To aid in the implementation of the Policy, the Office of the Prosecutor has established a trust fund specifically dedicated to complementarity and cooperation. Contributions to this fund will support complementarity activities, such as providing information and assistance to national authorities in the implementation of their Rome Statute obligations. Further methods of deepening the ICC’s relationships with other jurisdictions will be supported by the trust fund as well, including a Complementarity and Cooperation Forum and other accountability efforts.

For Further Information, please see:

ICC – ICC Office of the Prosecutor launches policy on Complementarity and Cooperation – 25 Apr. 2024

ICC – Policy on Complementarity and Cooperation – Apr. 2024

Legal Information Institute – Complementarity defined – ND

 

ICC Office of the Prosecutor Targets Slavery Crimes with Landmark Policy

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, The Netherlands – On March 19, the International Criminal Court (ICC) Office of the Prosecutor announced that a new Policy on Slavery Crimes is in the works. The policy will mark the first specific action taken by an international judicial institution to combat crimes of slavery. This reflects the ICC’s dedication to achieving justice for victims of such crimes and preventing the future commission of them.

 
Permanent premises of the International Criminal Court in The Hague, the Netherlands. | Photo courtesy of Human Rights Watch.
  

Modern slavery encompasses sex trafficking, forced labor, bonded labor or debt bondage, domestic servitude, and the unlawful recruitment and use of child soldiers. To quote Prosecutor Khan, “Slavery crimes are committed against an untold number of persons and populations, including child soldiers, persons forced to migrate or be trafficked, and persons detained, disappeared, or forced into marriage or labor that devolves into slavery.”

As of 2021, 49.6 million people were living in modern slavery per the International Labour Organization. Of those individuals, 27.6 million were subject to forced labor and 22 million were in forced marriages. Twelve percent of those in forced labor were children and more than half of these children were victims of commercial sexual exploitation. Child trafficking occurs in every country in the world and makes up a third of all human trafficking cases. Human trafficking and forced labor generate roughly $150 billion annually. These numbers are testimony to how slavery crimes are a grave and pressing issue.

The Policy on Slave Crimes will aim to take a survivor-centered, trauma-informed and gender-competent approach, and will be “rigorously implemented” once formulated, according to the Prosecutor. It will be in alignment with other recent policies tackling similar issues, including the 2022 Policy Paper on Gender Persecution, the 2023 Policy on Gender-Based Crimes, and the 2023 Policy on Children.

The Office of the Prosecutor has consulted survivor communities, civil society organizations, national authorities, international organizations, and other justice actors to help shape the Policy. To further aid in the process, the Office is also seeking input from the public. External experts are welcome to offer substantive comment on how the Policy can be best effectuated. Such comments will be accepted via email until April 30, 2024 (see more information about submissions on the ICC website, linked below).

For further information, please see:

ICC – Office of the Prosecutor Launches Public Consultation on Policy on Slavery Crimes – Mar. 19, 2014

ICC – Policy on Children – Dec 7, 2023

ICC – Policy on Gender-Based Crimes – Dec. 4, 2023

ICC – Policy on The Crime of Gender Persecution – Dec 7, 2022

International Labour Organization – Forced Labour, Modern Slavery and Human Trafficking – Sept. 12, 2022

Lexology – ICC Opens Consultation for New Policy in Slavery Crimes – Mar. 20, 2024

UNICEF – UNICEF and The Fight Against Child Trafficking – Nov. 9, 2022

 

 

 

 

ICC to Hold First In Absentia Hearing Against Ugandan Rebel Leader

By: Tatiana Vaz
Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – On March 4, 2024, the International Criminal Court’s (ICC) Pre-Trial Chamber II issued a decision granting Prosecutor Karim Kham’s request to hold a confirmation hearing in the case against Joseph Kony in his absence, should he not appear, to commence on October 15, 2024. This is will be the ICC’s first in absentia hearing.

 
The International Criminal Court’s Headquarters at the Hague. | Photo courtesy of ICC.
  

Joseph Kony was the founder and leader of the Lord’s Resistance Army (“LRA”) in Uganda. The LRA is a Ugandan rebel group that currently operates in the border region of the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), and South Sudan. The group was established by Kony in 1998 with the claim of resorting to the honor of his ethnic Acholi people and installing a government based on his vision of the Ten Commandments. From July 1, 2001, until December 31, 2005, the LRA, an organization within the meaning of Article 7 (2)(a) of the Rome Statue, carried out widespread and systematic attacks against the civil population of northern Uganda.

Joseph Kony is suspected of twelve counts of crimes against humanity including murder, enslavement, sexual enslavement, rape, and inhuman acts of inflicting serious bodily injury and suffering. He is also suspected of 21 counts of war crimes, including murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, including rape, and forced enlistment of children between the years of2003 and 2004. The ICC issued a warrant for Kony’s arrest in 2005. However, he remains at large and is the only remaining suspect.

The Rome Statute, which is the treaty that governs the ICC, allows for a confirmation hearing proceeding at the pre-trial stage in the absence of the suspect. The confirmation hearing is not a trial, but it allows the prosecutor the opportunity to outline their case before the court. The Pre- Trial Chamber II consists of Presiding Judge Rosario Salvatore Aitala, Judge Tomoko Akane, and Judge Sergio Gerardo Ugalde Godinez.

Following the receipt of documents containing the charges against Kony and the Registry report on its efforts to inform Kony on those charges, the Court found that all reasonable steps to inform Kony of the charges against him have been taken within the meaning of Article 61 (2)(b) of the Rome Statue. The Court decided that the confirmation of charges hearing is to be held in the absence of Kony, should he not appear, and will begin October 15, 2024.

The Court also stated that it would ensure Kony’s right to have adequate time and facilities for the preparation of his defense under Article 61 (1)(b) of the Rome Statue, and Rule 121 (1) of the Rules of Procedure and Evidence will be fulfilled. The ICC stressed this right in light of the fact that, should the Court definitively decide that there is a cause to authorize a confirmation of charges in Kony’s absence, counsel will have to be appointed to represent his rights and interests in the proceeding.

The Court also required that Counsel have sufficient time to prepare their case Kony’s absence. As a result, the Prosecution must provide the Court with information in terms of the evidence and witnesses they plan to call within four weeks of the notification of the present decision. The Court further instructed the Registry to commence the process of searching for counsel to represent Kony’s rights and interests during the confirmation process and confirmation hearing, should this take place in his absence. The Registry is instructed to report back on their progress within three weeks of the notification of this present decision, whom they will appoint in time for the Prosecution’s disclosure of witnesses and evidence they plan to present.

The ICC’s decision is most certainly a step in the right direction, as many affected communities in Uganda believed it was over and lost hope. The confirmation hearing provides many victims with the opportunity to finally have their voices heard. The ICC has also taken other steps for the victims affected. Earlier this year the ICC granted reparations of more than $56 million to the victims of one of the convicted commanders of the LRA. Victims include former child soldiers and children born as a result of rapes and forced pregnancies. The ICC is currently seeking more state and non-partner assistance to capture Kony.

For further information please see:

AP – ICC Awards $56 Million in Reparations to Thousands of Victims of Convicted Ugandan Rebel Commander – 28 Feb. 2024

AP – International Criminal Court to Hold First Ever in Absentia Hearing Over Ugandan Rebel Leader Kony – 4 Mar. 2024

Counterterrorism Guide – Lord’s Resistance Army (LRA) – ND

FIDH – Uganda and the ICC: Justice at Last? – 14 Feb. 2024

ICC – Information on the Kony Case – ND

The East African – ICC Prosecutor Seeks Support in Hunt for Ugandan Warlord Kony – 4 Feb. 2023

Reuters – ICC Allows in Absentia Hearings in Case against Ugandan Warlord Kony – 4 Mar. 2024