Could Putin be tried as a war criminal?

The decision of the chief prosecutor of the International Criminal Court (CPI), Karim Khan, to request the opening of an investigation into the invasion of Ukraine by Russia begins to outline on a horizon, still distant, the possibility that the Russian president, Vladimir Putinand the political and military leadership of his regime could be investigated and tried by genocide, war crimes and crimes against humanity.

“Any person who commits such crimesincluding the fact of ordering, inciting or contributing in any other way to the commission of these, may be prosecuted in courtwith full respect for the principle of complementarity,” Khan said last week in one of the statements released by his office, in which he considered it “imperative” that “all parties to the conflict respect their obligations under international humanitarian law.” .

The magistrate of the National Court José Ricardo de Prada, who was part of the United Nations court that increased the sentence against the Bosnian Serb war criminal to life imprisonment radovan karadzicshares the legal framework given to the facts by the ICC Prosecutor’s Office and explains to laSexta that there is no possibility of applying the crime of aggression -which typifies the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State- because “neither Russia nor Ukraine are members of the Rome Statute”, which regulates the functioning of the court.

Manuel Ollé, professor of International Criminal Law at the Complutense University of Madrid, warns, however, of the difficulties for Putin to be able to one day sit on the bench of those accused of aggression against Ukraine. In the first place, as he explains, because Russia “does not recognize the Rome Statute or the International Criminal Court“and, furthermore, because “the facts could hardly be transferred by the United Nations, in which he has the right of veto as a member of the Security Council”. “Beyond all that, Putin passes the Prosecutor’s Office of the Court International Penal where you and I from Mars, “he adds.

Legal twist to investigate

However, the chief prosecutor of the International Criminal Court claims to have found a formula to investigate the events that have been going on for almost a week in Ukraine. Although the invaded country has also not signed the Rome Statute, which prevents her from filing a complaint herself, Khan stresses that she has “twice exercised her prerogative” to legally accept her jurisdiction.

The government of Ukraine accepted the jurisdiction of the ICC regarding the alleged crimes committed in its territory between November 21, 2013 and February 22, 2014, due to the conflict in Donbas that led to the so-called Maidan revolution. The second statement openly expanded this time period to cover ongoing crimes that would have been committed on the entire territory of Ukraine as of February 20, 2014.

Another alternative way to enable the opening of an investigation, which would ultimately have to be authorized by the Pre-Trial Chamber of the Court, would be that any of the states that signed the Rome Statute denounced formally the facts. In fact, the chief prosecutor has already asked his team to “explore all possibilities to preserve evidence”, while calling for “additional budget support” and even “voluntary contributions” to be able to carry out an investigation into the ground. “This pronouncement is important, above all, from a preventive point of view -explains Ollé- because the Russian authorities have to know that the focus is on them“.

limited universal justice

The route of the International Criminal Court is the only possibility to prosecute this type of war crimes, unless the case is accepted by some national court. In Spain, the possibilities are scarce since, first in 2009 and then in 2014, Congress decided to limit the so-called universal jurisdiction, which allowed the National Court to open investigations into cases such as the murder in Iraq of the cameraman Joseph Cousothe genocides perpetrated in Tibet, Guatemala or the Sahara, the CIA flights or the crimes committed in Guantánamo, Rwanda or the Gaza Strip.

The current regulation of universal justice was established on February 27, 2014. With the sole votes of the PP, Congress modified article 23 of the Organic Law of the Judiciary (LOPJ) so that the prosecution of crimes of genocide and crimes against humanity can only occur when the cause be directed against Spaniards or foreigners who have acquired nationality Spanish after committing the acts investigated or whose extradition had been denied by the authorities of our country. And provided that a complaint has previously been filed by the aggrieved party by the Public Prosecutor’s Office, excluding the exercise of popular action.

De Prada explains that the current regulation of universal justice “requires requirements that could never be met” in the case of the invasion of Ukraine because “the author would have to be a Spanish national, habitually reside in Spain or, being in Spain, his extradition would have been rejected”. “The most serious thing is that, in the current situation, Spain cannot meet the requirements that the Office of the Prosecutor of the International Criminal Court could do to cooperate in the investigation”, he affirms.

In 2018, the then Minister of Justice and current Attorney General of the State, Dolores Delgado, created a commission of experts to try to recover the project of universal justice. The idea is a mandate from Congress since May 2021, when, with the opposition of the PP and Vox, a non-law proposal (PNL) presented by United We Can was approved in which the Government is urged to recover the system of universal jurisdiction that was in force until that reform and that, among other things, allowed Judge Baltasar Garzón to issue an international arrest warrant against Chilean dictator Augusto Pinochet in October 1988.