Arresting Putin: Implications for Investigations and Speedy Trial Rights in the International Criminal Court

Joshua Wilkinson February, 2024

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On March 17, 2023, the International Criminal Court (ICC) issued a warrant for the arrest of Vladmir Putin, Russia’s head of state, for his role in the Ukrainian war and the mass deportation of Ukrainian Children.[1] Putin’s arrest in the near future, however, is unlikely. The Rome Statute, the ICC’s governing instrument, confers the arrest obligation on its signatory states, [2] but Putin is unlikely to travel to one of these states. But even if the ICC successfully executes the warrant against Putin, further challenges remain to hold him accountable for crimes in Ukraine; there is tension between the arrest warrant and the ICC Office of the Prosecutor’s (OCP) investigation, particularly its disclosure obligations. Such tensions may force the ICC to confront ambiguity in the Rome Statute over the meaning of “undue delay.”[3] The ICC may be tempted to define this term broadly to resolve this tension, an act which may make it easier to hold Putin accountable in the short term, but which may ignore the opportunity to shape an important right in international criminal law.

Such issues stem from the tension between the ICC’s interpretation of the Rome Statute and the OCP’s disclosure obligations. Article 54 of the Rome Statute lays out the “powers of the Prosecutor with respect to investigations.”[4] Although this article empowers the Prosecutor to investigate, and places certain duties on the Prosecutor, the article does not place time limits on the Prosecutor’s investigations.[5]

Yet, this fact has not prevented the ICC from placing such limits by its own power; past cases before the ICC have limited the OCP’s ability to investigate, particularly after the defendant’s confirmation of evidence hearing, which is a stage between arrest and trial.[6]

This limitation has not always existed. In Prosecutor v. Lubanga, the Appeals Chamber disagreed that the Prosecutor’s investigation needed to be “brought to an end before the confirmation hearing….”[7] Subsequent cases, however, brought a shift in the opposite direction. In Prosecutor v. Mbarushimana, the Appeals Chamber stated that stated that “the investigation should largely be completed at the stage of the confirmation of charges hearing.”[8] By the time the ICC decided Prosecutor v. Kenyatta, the Court had moved to a position that such a time limit was a presumption, and that an investigation which continued past the confirmation hearing was the minority exception.[9] As a result, ICC judges created a rule that the OCP must conclude its investigation of the defendant before the confirmation of evidence hearing.[10]

For an investigation of Putin’s crimes, then, the OCP must gather sufficient evidence before this confirmation hearing. The war in Ukraine, however, is ongoing, making fact gathering difficult and meaning that Putin’s alleged crimes may still be in commission, generating more evidence for the OCP to gather. But since the ICC has already issued a warrant, the OCP’s investigation and subsequent prosecution might be limited if a state successfully executes the warrant and the OCP proceeds to a confirmation hearing. The OCP may therefore wish to detain Putin while simultaneously continuing to pursue their investigation, hdelaying the confirmation of evidence hearing and thus delaying the trial.

Yet, such an action by the OCP and the ICC implicates the right to be tried without undue delay. The Rome Statute confers to the accused the right to be “tried without undue delay.”[11] This right is such a “common feature in domestic legal systems,” that some have argued that the right is a “general principle of law.”[12] But not every state recognizes this right.[13] And not every state and international body which recognize this right provides a definition of what constitutes undue delay.[14]

Although it is true that some countries fix specific limits on the periods between detention, arraignment, and trial, the ICC has not answered the question of how long the ICC may hold the defendant between arrest and the initiation of other pretrial stages.[15] This could mean that in an ongoing investigation of Russia and Putin in the ICC, and in a world where the ICC successfully executes its warrant, the Court may test the bounds of this right.

How will the ICC resolve this tension? Article 21 of the Rome Statute lists the sources of law that the ICC may consider to answer such questions, first stating that the Court should apply the Rome Statute and its rules of procedure and evidence, to next consider applicable treaties, and finally, “[f]ailing that, general principles of law derived by the Court from national laws of legal systems of the world, including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.”[16]

Importantly, there is no specific time limit in the Rome Statute nor its rules of procedure and evidence.[17] Likewise, both Russia and Ukraine lack speedy trial rights.[18] This removes the option to turn to what these states would do if they prosecuted Putin’s crimes, since ignoring these rights completely would be at odds with the Statute and international norms.

This means, essentially, that the Court has latitude to shape the right, but it is still limited by the sources it can turn to. Although the ICC may be tempted to follow the example of international tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) which have upheld years long delays before trial,[19] the ICC cannot rely on these other tribunals’ decisions as precedent. At best, the Court can argue that these prior decisions represent legal systems of the world from which the Court can derive general principles of law.

But the Court need not justify a years-long delay in Putin’s future trial. Instead, the Court can fix specific limits on what constitutes undue delay. By doing so, the Court can recognize that the speedy trial right is not just the right of the accused— it is also the rights of the victims and the public who “have strong interests in seeing justice done quickly so they can begin to heal.”[20] If the Court finds itself in this situation, it should recognize that it has an opportunity to shape a right in a way that benefits the international public. The ICC should act accordingly.

  1. Situation in Urkaine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, International Criminal Court (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and ↑
  2. Rome Statute of the International Criminal Court [hereinafter Rome Statute] art. 86, July 17, 1998 2187, U.N.T.S. 90. ↑
  3. Id. art. 67. ↑
  4. Id. art. 54. ↑
  5. Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 L. and Contempo. Probs 163, 166 (2013). ↑
  6. Id. at 164. ↑
  7. Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence” (Oct. 13,2006), http://www.icc-cpi.int/iccdocs/doc/docl93057. ↑
  8. Prosecutor v. Mbarushimana, ICC-01/04-01/10, Judgment on the Appeal of Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision the Confirmation of Charges” (May 30.2012), http://www.icc-cpi.int/iccdocs/doc ↑
  9. Whiting, supra note 6, at 170. ↑
  10. Id. See also id. at 171-173 for a further discussion of when the OCP must complete its investigations. ↑
  11. Brian Farrell, The Right to a Speedy Trial before International Criminal Tribunals,

    19 S. AFR. J. on HUM. RTS. 98, 115 (2003). ↑

  12. Id. at 100. ↑
  13. See id. ↑
  14. See id. at 101, 105. ↑
  15. See id. at 116 (“those before the court will likely

    be accused of serious violations of international humanitarian or human

    rights law and it is likely that continuous pre-trial detention will be the

    norm.”). ↑

  16. Rome Statute, supra note 2, art. 21. ↑
  17. See Farrell, supra note 11, at 116. ↑
  18. See Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] art. 22 (Russ.); see Ukr. Const. Jun. 28, 1996. Notably, the Russian constitution allows for indefinite detention upon court decision prior to trial.

    ↑

  19. Stephanos Bibas, and William W. Burke-White International Idealism Meets Domestic-Criminal-Procedure Realism, 59 Duke L. J. 637, 699 (2010). ↑
  20. Id. ↑