Phuong Pham, Kathryn Sikkink, and Patrick Vinck
The Biden administration and its allies have acted with unprecedented alacrity to impose far reaching sanctions and diplomatic pressures on Russia for its illegal invasion of Ukraine. They now need to add serious support for individual criminal accountability to their game plan. There’s a practical path for making that happen.
Twenty years after becoming fully operational, the International Criminal Court (ICC) is now well-positioned to become the vehicle for bringing accountability for serious crimes and deterring further violence during the war in Ukraine. On March 2, within a week of Russia’s invasion, the ICC opened an investigation for alleged crimes committed in Ukraine from November 2013 to February 2014, when Russia annexed Crimea, and from February 24 2022 onward - the current conflict.
Our research has explored the emergence of a new age of accountability and its positive impact on human rights. Research by international relations scholars Beth Simmons and Hyeron Jo shows that ICC investigations are associated with a decline in the widespread and intentional killing of civilians in states with civil wars, suggesting that ICC actions can deter war crimes. Our research in countries affected by conflicts consistently also shows that survivors demand broad criminal prosecution and are not satisfied when proceedings are limited to the few most responsible for the violence.
How then can such broad and timely criminal accountability be achieved? National court systems are generally entrusted with this responsibility, but this is not an option in Ukraine in the current context. Foreign countries have, in the past, pursued cases under universal jurisdiction for serious crimes in Rwanda, for example. Already several countries are opening such proceedings for Ukraine, but such prosecutions are challenging because they are selectively enforced and sometimes lack legitimacy. Calls for a hybrid mechanism that combines international and domestic judicial features ignore the cost and complexity of setting up new institutions. This leaves the ICC as the most legitimate court to start proceedings rapidly and effectively. The ICC can, for example, start immediate proceedings against alleged war criminals already in custody in Ukraine, or investigate crimes of aggression and forced displacement of civilians that can be tied to the highest levels of government in Russa
Over its two decades of existence, the ICC has experienced numerous challenges including its failure to prosecute more cases and accusations of neo-colonialism because of its focus on Africa. The reality, however, is that the ICC lacks the resources to investigate and prosecute more cases. The budget of the ICC has increased by a mere 2.5% over the last 5 years. The Court also depends on member states to follow through on their commitments and enforce arrest warrants, delivering suspects to the Hague. Only state support through funding and cooperation can alleviate these challenges.
With its investigation of the situation of Ukraine, the ICC has an opportunity to effectively respond to criticisms and demonstrate its contribution to peace and stability around the world. This is the first investigation by the ICC for serious crimes committed in Europe. The Court has a clear mandate and support from Ukraine. The Court also has an important precedent on the continent: the International Criminal Tribunal for the former Yugoslavia, or ICTY, created to hold accountable perpetrators of war crimes committed during the Yugoslav Wars.
They are quite different courts: the ICTY was an ad-hoc international tribunal set up for a single area and the ICC is the world’s first permanent criminal tribunal, but there are still lessons to be learned from the ICTY experience. Established in 1993, the ICTY initially suffered from woes similar to those of the ICC including a glacial speed of operations and few arrests of alleged criminals. By the time the ICTY rendered its last judgment in November 2017, however, it had indicted 161 suspects and convicted 90 individuals. With help from states, the ICTY eventually completed what Julian Borger, in his meticulously researched and gripping book, The Butcher’s Trail, has called one of the most successful manhunts of modern times.
The ICTY prosecuted individuals at a range of ranks, from Slobodan Milošević -- the first sitting head of state indicted for war crimes – and generals such as Stanislav Galić, who oversaw the sniping and shelling campaigns on Sarajevo, to lower-level soldiers and guards who carried out specific crimes. For example, the ICTY sentenced Predrag Banović, a guard at the Keraterm camp, to 8 years for crimes against humanity for his treatment of detainees. Dragan Zelenović, a Bosnian Serb soldier and de facto military policeman, was sentenced to 15 years for torture and rape.
The ICC can now repeat this important message: accountability is not limited to the few. Anyone in the chain of command leading to serious war crimes and crimes against humanity including forced displacement must understand that they can and will be held accountable for their crimes. By acting immediately the ICC could contribute to deterring atrocity against civilians and providing the hope of justice to survivors.
The likelihood of seeing high level perpetrators held to account soon is low, however. Slobodan Milošević was not indicted by the ICTY until 1999, 6 years after its creation. In the meantime, however, the ICC can investigate the situation, issue arrest warrants for alleged perpetrators, and send its message to leaders in Moscow and commanders and troops in the field that they don’t have impunity. This alone may help deter further crimes in Ukraine.
For this to happen, however, the ICC will require support and commitments from Member States and of non-member countries, like the United States. The US Congress has already provided an unprecedented show of support last week with a unanimous resolution encouraging the US to support Ukraine’s complaint against Russia at the ICC. But further cooperation is needed.
NATO eventually proved it could skillfully execute ICTY arrest warrants, often of individuals trying to cross borders. The ICC must be able to tap into strong political support and get the cooperation of national governments to fund its investigation, share intelligence, facilitate the gathering of evidence, and arrest, detain and transfer suspects. Such action will signal that the world is entering a new age of accountability.
Phuong Pham and Patrick Vinck are Assistant Professors at the Harvard Medical School and Harvard T.H. Chan School of Public Health, and leaders at the at the Harvard Humanitarian Initiative (HHI). Kathryn Sikkink is the Ryan Family Professor of Human Rights Policy at the Harvard Kennedy School.