Among the challenges of prosecuting Putin is getting him to physically appear in court. So, why not just start the trial, anyway? The answer lies in the law.
Regardless of the crimes of Russian President Vladimir Putin as part of his country’s invasion of Ukraine, there is little reason to believe he will ever stand trial at the International Criminal Court (ICC).
The Rome Statute, from which the ICC draws its authority, sets out two provisions that preclude trials being held in absentia (in the absence of the accused) — meaning Putin would have to be physically present in the courtroom for one to take place.
The first provision, found in Article 60, requires the accused to appear in person in front of a Pre-Trial Chamber of the ICC before the trial phase of proceedings can begin. It is a necessary triggering event and there is no statutory possibility of holding a trial at the ICC if there is no initial appearance. The existence of this provision means Putin cannot be tried without an initial appearance in person.
The second provision relates to the presence of the accused during the trial itself. Article 63(1) specifically states, ‘[t]he accused shall be present during the trial.’ This statement seems to preclude holding a trial against Putin unless he is physically inside the courtroom. There is an exception to this rule in Article 63(2), but it is not applicable to the present situation involving Putin.
The ICC’s judiciary has largely supported the idea that trials cannot take place in absentia. In 2013, the Appeals Chamber found that the Rome Statute reinforces the accused’s right to be present at trial and does not permit it to be implicitly waived. Other judges have taken a similar position.
In an earlier dissenting opinion, Judge Kuniko Ozaki indicated that the Statute requires the accused to be continuously and physically present throughout the trial. Similarly, Judge Olga Herrera Carbuccia determined that the accused could only be absent after having been removed from the courtroom for being disruptive, and even then they maintained a right to attend trial via video-link.
Even when judges have found that some absences from trial may be permissible, as Judge Erkki Kourula and Judge Anita Ušaka did in 2013, they have rejected the idea that the accused can be absent from trial in its entirety.
Sentiment may be changing. In May 2020, the Appeals Chamber issued an opinion in which it stated that the Rome Statute, when properly understood, does not prevent trial from continuing when the accused has decided to be wilfully absent.
Instead, it is designed to protect those defendants who wish to attend their trial but, through no fault of their own, are not able to. This decision could open the door for trying Putin in his absence if it is determined that he has wilfully refused to appear for trial.
This possibility comes with a significant caveat that would almost certainly preclude Putin from being tried in absentia by the ICC. The May 2020 decision recognises that a wilfully absent accused may only be tried in their absence if they appeared in person for their initial appearance before the ICC. If they have not, it acts as an absolute bar to proceeding in their absence. So, unless Putin makes an initial appearance at the ICC, he cannot be tried in absentia regardless of the severity of the charges against him.
Putin would either have to agree to voluntarily appear at the ICC, or be arrested and transferred into the custody of the Court for a trial to take place. Both of these outcomes are highly unlikely, meaning there is little chance Putin will be prosecuted by the ICC for his alleged crimes.
Trials in absentia are controversial and give rise to concerns they are being used for political, rather than legal reasons. Holding an in absentia trial against Putin could exacerbate tensions between Russia and NATO, raising questions about whether the ICC is being used as a tool to further the political goals of Putin’s opponents.
From a practical perspective, it is difficult to justify a long and expensive international criminal trial when the accused is not available to be punished should they be found guilty. It would represent nothing more than a symbolic victory and do little to address the suffering experienced by Putin’s victims.
Dr Caleb H. Wheeler is a lecturer in law at Cardiff University and the author of the book The Right To Be Present At Trial In International Criminal Law.
Dr Wheeler declared no conflicts of interest in relation to this article.
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