Referring to "war crimes" and "crimes against humanity", the prosecutor of the International Criminal Court (ICC), Karim Khan, announced on Monday the opening "as quickly as possible" of an investigation into the situation in Ukraine.
Ukraine has not signed the Rome Statute, the international treaty founding the ICC, but it has formally recognized the court's jurisdiction over crimes committed on its territory since 2014.
For his part, Ukrainian President Volodymyr Zelensky filed a petition on Saturday before the International Court of Justice – the judicial body of the United Nations – on Russian intervention in his territory.
He had already expressed, last week, his “growing concern” following the Russian invasion of Ukraine, promising to follow the situation closely.
This Monday, Karim Khan, the prosecutor of the International Criminal Court (ICC), announced the opening "as quickly as possible" of an investigation, citing "war crimes" and "crimes against humanity" in the country.
Launched last Thursday, the Russian offensive in Ukraine has caused the flight of more than 660,000 people to neighboring countries, as well as a million inside the country, said the UN High Commissioner for Refugees, this Tuesday.
More than 350 Ukrainian civilians have died since the start of the Russian invasion, according to Ukrainian authorities.
The UN spoke on Monday of more than 100 civilians killed.
Crimes against humanity and war crimes
If Karim Khan plans to open an investigation, it is because he believes that there is "a reasonable basis to believe that alleged war crimes and crimes against humanity have been committed in Ukraine", he said. he justified in his press release published Monday evening.
And this, after having examined the “conclusions of the Office resulting from the preliminary examination of the situation in Ukraine”.
In the sights of the ICC in particular, the bombings in Kharviv on Monday, which left 11 dead, or the one against the Ukrainian television tower in Kiev, on Tuesday, where five people were killed, according to the latest report.
And it is no coincidence that the prosecutor mentions "war crimes" and "crimes against humanity".
“Crimes against humanity take place in a national or international context, in peacetime, against the civilian population.
These are massive crimes, explains Jeanne Sulzer, lawyer specializing in international criminal law with
20 Minutes
.
War crimes, on the other hand, are crimes that violate the laws of war defined by the Geneva and Hague Conventions”.
What differentiates the two, “is the context”, adds the specialist.
In recent days, the NGOs Amnesty International and Human Rights Watch have also denounced the use by Russia of cluster bombs which have affected civilians in Ukraine.
The ICC does not retain the crime of aggression
But for the ICC to be able to exercise its jurisdiction, the State must be a party, that is to say have ratified the Rome Statute, which founded the tribunal in 1998. However, this is neither the case for the Russia, nor the case of Ukraine.
Nevertheless, a non-signatory state of the text can make a declaration to recognize the jurisdiction of the ICC.
“In 2014, Ukraine recognized the jurisdiction of the ICC for a limited period.
Then in 2015, she did it for an unlimited time, ”explains Catherine Le Bris, researcher specializing in international law at the CNRS at the University of Paris 1 Panthéon-Sorbonne, to
20 Minutes
.
In 2014, Kiev recognized the court's jurisdiction over a period from November 21, 2013 to February 22, 2014, corresponding to crimes committed before and during the fall of former Ukrainian President Viktor Yanukovych.
In 2015, Kiev again recognized the jurisdiction of the Hague tribunal for crimes committed after February 2014, particularly during the conflict in the east of the country, for an unlimited period.
“If Ukraine had not definitively recognized the jurisdiction of the ICC, this investigation would never have been possible”, adds Jeanne Sulzer.
The ICC could also have been seized by the UN Security Council, but "it is obvious that Russia, a permanent member of the UN Security Council, would have vetoed it", believes Catherine Le Bris.
In its press release, the ICC specifies that it was also asked to open an investigation for "crime of aggression", without retaining this reason.
The latter, the fourth crime under the jurisdiction of the ICC along with the crime of genocide, refers to the use by a State of armed force against the sovereignty, integrity or independence of another State.
"There are special conditions, it's a separate crime: it is absolutely necessary that the State is a party, that it has ratified the Rome Statute, which is not the case for Ukraine and the Russia.
Unlike the other three crimes, having recognized the jurisdiction of the ICC, as Ukraine has done, is not enough,” explains Catherine Le Bris.
A historical procedure?
Next step, obtain “the authorization of the Pre-Trial Chamber of the Court”, underlined Karim Khan in his press release.
The ICC prosecutor “must verify the seriousness of the information.
If he concludes on a "reasonable basis", he must request authorization from the preliminary chamber to open an investigation into the alleged crimes, ”explains Sévag Torossian, lawyer at the Paris bar and with the ICC, at
20 Minutes
.
Unlike the International Court of Justice, which settles conflicts between States, the ICC only judges natural persons, individuals.
"It could be Vladimir Putin, Russian political or military leaders, but also performers," says Catherine Le Bris.
If the procedure is launched, it would indeed be historic, it would be the first head of state of a great world power to be worried by the ICC.
But it seems to me premature, presumptuous and unlikely
If Sévag Torossian recognizes that the approach is unprecedented, the lawyer believes that it has little chance of reaching the end: "If the procedure is launched, it would indeed be historic, it would be the first State of a major world power to be worried by the ICC.
But that seems to me premature, presumptuous and unlikely, ”said the specialist, specifying all the same that if the procedure came to an end, the ICC could issue international arrest warrants, in particular against Vladimir Putin.
On the other hand, for him, the political dimension is inseparable from this file.
“The general principle that presides over everything that is happening is to neutralize Vladimir Putin without Western military intervention.
We deploy all non-military resources and the actuation of the ICC is part of this panoply,” explains Sévag Torossian.
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