The prosecutor of the International Criminal Court, at the request of several states, has already opened an investigation, which covers all the events that have occurred in Ukraine since 2014, since the taking of Crimea. Numerous incidents of war crimes and crimes against humanity, as described in the Statute of the Court, are the subject of the investigation. At the national level of Ukraine, another investigation is being conducted by the attorney general. In perspective, the judgment could be blocked before the International Court, since the latter has a subsidiary competence, which is manifested only if the judicial authorities of the country concerned do not want or are unable to act effectively. Therefore, for now it is a matter of preliminary ascertaining the facts, so that the prosecutor, on the basis of what he will acquire, can formally ask the Court to be authorized to conduct an investigation. The object of the judgment of the International Court will not be the responsibility of a State for the actions of its agents, but it will be a question of bringing natural persons to the judgment of the Court, with evidence that indicates their individual responsibility for the single criminal act, personally committed. or ordered. This is also the case for national criminal justice and in general in judicial proceedings. A judgment concerning individual responsibilities is particularly complex, due to the individual guarantees that characterize it. This explains among other things the fact that the necessary participation of the accused persons in the trial is foreseen, who must be present (arrested or free). The evidence presented to the judge, then, must refer to the single fact and to the single person accused of having committed it. This could sometimes be easier with reference to those who carry out an illegitimate order (the soldiers on the street), than for those in charge, in a hierarchy that could end up in the Kremlin. A novelty of this war is the presence of cell phones everywhere. They photograph, document, transmit what happens in the streets, but not what takes place in the palaces of power.
The trial will be long and likely to be selective, meaning that the prosecutor will choose to proceed for the most serious cases or for which he has been able to gather solid evidence. In the meantime, the International Criminal Court will be absent in terms of information, to which public opinion has a right and urgency. A specially set up court to judge crimes committed on Ukrainian territory would also be. As long as that path is chosen internationally (but not by the UN, whose Security Council is blocked by the Russian and perhaps also Chinese veto). The serious and urgent need for information, which helps to know the truth and to counteract disinformation regarding facts so cruel and savage as to verge on the incredible that belongs to the inhumane, can hardly be satisfied. On the other hand, it would be indispensable that reliable investigations are carried out quickly and that the results are made available as and when they are achieved. In fact, the judicial outcome, with all its guarantees and its limits, is useful, but in the meantime the political and moral judgment cannot be delayed. And if such a judgment is prevented in Russia, in the free West there is the possibility of forming an opinion, without being too seriously victims of the information battle. And then the work of international humanitarian organizations on the ground and non-governmental ones will be invaluable. And that of journalists and journalists. We can therefore believe that the work of the prosecutor and then of the International Criminal Court, which is in progress, is useful and indeed necessary, but it cannot be enough.
The insistence on many sides that Putin be tried for war crimes and crimes against humanity or something else, even though it can be envisaged under international law, belongs mainly to the political rhetoric of war. Nobody seems to want to be left in the background in the statements: obviously not being able to arrest him, they imply that the judges could and should do so. Mechanism well known also at national level: the judges are to blame if they do not. But the question cannot be resolved with words. And it leaves such a sudden reliance on international judges perplexed. The United States, Russia, China, India, Pakistan, Israel and numerous other states have refused to ratify the treaty establishing the International Court. The United States (under Trump) had come to refuse entry visas to the then prosecutor of the International Court, who was investigating possible crimes by American troops in Afghanistan and even imposed sanctions on the International Court. Thus arousing vibrant protests from various European states “for the attack on the heart of the Court”. The United States does not admit that its soldiers can be tried by the court, wherever they carry out their actions. Russia, after signing the Statute of the Court, refused to ratify it when the Court began to deal with the occupation of Crimea. What, then, of certain operational difficulties of the Court and its prosecutor? How to be surprised? In the same days as the Bucha massacre, 200 civilians were killed in Mali, probably by the Russian army and militiamen of the Wagner group. Obscured by Ukrainian events, this other episode reminds us of how vast and cruel the evil is in the world. Peace and the primacy of law, which the international community had desired with the establishment of the United Nations after the war and of the International Criminal Court in 1998, are denied, even when vainly proclaimed. And they are also by the most powerful governments. Bullying.