The likelihood of Russian president Vladimir Putin facing trial at the International Criminal Court (ICC) over potential war crimes in Ukraine is low, but not impossible, and he runs the risk of becoming a bargaining chip by a successive government under pressure to hand him over to The Hague.
The Kremlin reiterated on Tuesday that it does not recognise the jurisdiction of the ICC after reports suggested war crime prosecutors could be ready to level charges against Russian officials over the alleged forcible deportation of children from Ukraine and the targeting of civilian infrastructure.
It would be the first international war crime charges made in relation to the war in Ukraine, which is now in its 13th month.
It is unclear which Russian officials prosecutors might seek warrants against and whether it could reach as high as Mr Putin. But history has shown that autocratic leaders who try to evade international arrest warrants eventually get their comeuppance, even if it takes years, said Ken Roth, the former executive director of Human Rights Watch.
“Even if not today, there will come a time when, in all likelihood, Putin will be charged as the ultimate commander-in-chief presiding over the Kremlin’s war-crime strategy,” he told i.
He likened the situation to former Yugoslav President Slobodan Milosevic, who was overthrown and then extradited to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 2001 to face charges of war crimes over the Balkan wars of the 1990s. The extradition came after former Prime Minister of Serbia, Zoran Djindjic, came under pressure by the US and EU to cooperate or risk financial aid from the International Monetary Fund (IMF) and the World Bank.
Radovan Karadzic and Ratko Mladic, the political and military leaders of the Bosnian Serbs, also met a similar fate when they were brought to justice at the ICTY in 2016 and 2017 for atrocities committed in Bosnia during the 1990s. They were arrested without opposition from Serbia after spending years evading capture.
Mr Roth pointed to how Russian authorities will eventually seek to have Western sanctions lifted, and as part of a deal to patch up relations with Europe and the US, the Kremlin may be forced to cooperate with the ICC.
“Given the serious economic pressure that the Russian government faces, impunity today can well give rise to accountability tomorrow,” Mr Roth said.
“Putin may calculate that he can sit tight in the Kremlin and never have to worry about ICC prosecution, but that would require him to become president-for-life – a difficult goal to sustain.
“As Milosevic discovered, a future government, seeking to return to normal relations with the rest of the world, can face considerable pressure to surrender even the former head of state.”
Yet although technically possible, the chances of Russian authorities handing Mr Putin over to The Hague is not “feasible”, said Alex Batesmith, a former UN war crimes prosecutor in Cambodia and Kosovo, who has worked on cases involving genocide, crimes against humanity, and war crimes.
Bringing wanted war criminals in Russia to face justice at the ICC is complicated by the fact that Moscow is not a signatory to the court’s founding Rome Statute. The Kremlin is likely to resist handing over any suspect to the court and the ICC does not hold trials in absentia.
Mr Putin’s allies are positioned across parliament, and a controversial bill he signed into law in 2021 allows him to run for president twice more, potentially extending his rule to 2036 – when he will be 84 years old.
“It is not just Putin who opposes the ICC – it is the whole political establishment,” Mr Batesmith told i.
“The reality is Putin is untouchable at present and I don’t see how that is going to change unless there’s regime change, which might not happen without conflict.”
Despite the very low likelihood that Mr Putin would have his day in court, the two specific charges being levelled at the Kremlin are significant as it aims to capture those at the top of the chain of command.
Mr Batesmith pointed to how such acts of forcibly removing children and ordering attacks against civilian infrastructure would have to be signed off by senior military commanders.
“It is a direct link to senior leaders,” Mr Batesmith told i. “That is essentially the core purpose of the ICC, to bring to justice those who have ordered the perpetration of those crimes, those at the very top of the chain.”
Under the UN Genocide Convention of 1948, “forcibly transferring children” of a national, ethnical, racial or religious group to another group can be deemed an act of genocide. An unidentified source told Reuters that the ICC charges against the Russian officials could include genocide. “It looks that way,” they said.
Russia has rejected claims that it was deliberately targeting civilian infrastructure in Ukraine, saying its attacks are all intended to reduce Kyiv’s ability to fight.
A report last year by researchers at Yale University in the US found at least 43 camps and other facilities where at least 6,000 Ukrainian children were held as part of a “large-scale systematic network” operated by Moscow for the primary purpose of “political re-education”. Some of the children were adopted by Russian families, or moved into foster care in Russia.
Russia has not denied reports that it has brought thousands of Ukrainian children to Russia, but says it is a humanitarian campaign to protect orphans and children abandoned in the conflict.
Such excuses will not be acceptable to the ICC, said Mr Batesmith. “The reason why these two charges have been brought is not only because it’s easier to link to military commanders but there’s also evidence and a reasonable basis for conviction,” he explained.
Before formal charges will be announced, the ICC chief prosecutor, Karim Khan, will present his case to a pre-trial chamber that will decide whether to grant arrest warrants based on the evidence.
“A prosecutor wouldn’t ask a court to arrest somebody unless they’re confident of the evidence they have,” said Mr Batesmith.
“Looking at the evidence, it would be breathtaking to think this is anything other than a crime on an international field.”
