Symposium on Prosecuting Heads of State for International Crimes: Will X Ever Stand Trial?

[Iva Vukušić is a lecturer at the Centre for Conflict Studies at Utrecht University in the Netherlands. She holds a PhD from the History Department of Utrecht University, where she defended her dissertation on paramilitaries during the breakup of Yugoslavia]

The likelihood of arrest of high-level leaders indicted by international courts is always a topic of discussion among those interested in accountability and justice for international crimes. However, since the 2023 International Criminal Court (ICC) arrest warrant for Vladimir Putin, the President of the Russian Federation, and the 2024 warrant for Benjamin Netanyahu, Prime Minister of Israel, this question became omnipresent, particularly in media coverage and public debates. Both are likely to remain in their positions for at least a while, and both represent states which are not ICC states parties. 

The understanding underlining the question’s frequency is that it was very likely that they would not in fact be arrested anytime soon. Why? Because this time, the court has, perhaps, bitten off more than it could chew. After all, while arrests of high level indictees are always contingent on politics and alliances, domestic and international, with these two men, there are particularly powerful states—including their own—that are fighting tooth and nail to prevent their appearance in front of judges in The Hague. 

This blog post will briefly provide a broader historical perspective on prosecuting high-level state officials, particularly since the establishment of the contemporary ad hoc tribunals. It will further outline the effects of time on investigations and prosecutions and consider the various kinds of pressures courts face in dealing with cases of long-term abuses constituting international crimes, the legal neglect and decades of impunity. 

Prosecuting High-level State Officials 

International courts rarely conduct trials against (former) heads of state. In over thirty years, courts handling cases based on charges concerning crimes in the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the various situations at the ICC produced but a few. Arrests of sitting or even former prime ministers, presidents and high-level officials are rare, and “successful”, completed prosecutions even more so. The question of what exactly constitutes a “successful” prosecution is best left for another time, but several trials ended without reaching a judgment. A well-known case is of the former Serbian and Yugoslav President Slobodan Milošević at the ICTY, which ended in 2006, with his death of heart failure. Other ones, such as that of the Kenyan President Uhuru Kenyatta collapsed at the ICC. Charles Taylor, former President of Liberia, was tried and convicted to 50 years in jail for war crimes, crimes against humanity and other serious violations, representing one of the few instances of a completed trial followed by a conviction.  

Arrests of former presidents and prime ministers tend to happen when the individual loses their grip on power, and when those protecting them conclude that the effort is no longer worth it. Bosnian Serb political and military leaders, Radovan Karadžić and Ratko Mladić, while not heads of state as Republika Srpska never achieved that status, were arrests which were difficult to achieve. Sustained pressure, implemented over years, brought them about. The two, charged with a litany of crimes committed in Bosnia and Herzegovina in the early 1990s, including the genocide in Srebrenica, were protected by Serbia for over a decade. While many had given up on any prospects of arrest, political circumstances changed, and they were apprehended, tried and convicted for life-long sentences long after the crimes were committed. The two are still serving those sentences. These examples are clear: arrests are unlikely, or even politically impossible, until they aren’t anymore. 

However, one can lose power and still not be transferred to the ICC. A case in point: Omar al-Bashir, the former President of Sudan, has been deposed in 2019. Even though there is an outstanding arrest warrant for this arrest from the ICC since 2009 (no less!), on charges of genocide in Darfur in the early 2000s, he is still in a cell in Khartoum, and there seems to be no path towards his transfer. 

Existing examples of prosecutions against high-level officials include, as has been a matter of increasingly loud critique over the years, no officials from powerful Western states. Those being prosecuted were the opponents, the weak, the losers. They were never Westerners, never Europeans, Americans or Australians. That is the underlying issue of the current backlash by several powerful states, including U.S. sanctions which have debilitating effects, and cyber-attacks. The Prosecutor at the ICC dared to investigate and charge high-level officials of a permanent member of the Security Council, Russia, and Israel, a close U.S. ally. Both have nuclear weapons. This marks a significant departure from the kinds of cases international courts have traditionally pursued. In many ways, experts say, these cases are a test for international justice.

Even in the best-case scenario, with a case where it is politically more likely for an arrest and an eventual trial to take place, it is exceptionally hard to prosecute high-level officials for several practical reasons. They tend to be physically far removed from any crimes, and avoid contact with the grassroot perpetrators, placing a lawyer of in-between institutions, and personnel, to create distance. It is this “linkage evidence”, linking the suspect to the crime, which is hardest to obtain. Documents and intelligence proving involvement tend to be hard to obtain for investigators, and institutions holding them may be reluctant to turn them over. 

There are often informal actors, such as paramilitaries, murdering, raping and expelling populations on behalf of the regime, creating plausible deniability. Orders to commit crimes tend to be verbal and expressed only in the most trusted of circles. Sometimes, the only way to access what was said are insider witnesses, whose credibility and security is often a major challenge for any judge. High-level officials may still command fear or respect, even after losing power, making witnesses in their close environment less likely to testify. The insiders may also fear that, by speaking to investigators, they draw attention to themselves and their own actions. 

There are also formal, legal obstacles to prosecution, with immunities protecting sitting presidents, prime ministers and ministers of foreign affairs. This issue kept creating obstacles during the long discussions and negotiations about the establishment of the Special Tribunal for the Crime of Aggression against Ukraine, and it is yet to be seen how prosecuting aggression specifically in Ukraine will actually go (if at all). After dominating discussions on justice and accountability so forcefully between the full-scale invasion and the 7^th of October 2023, the momentum seems to have slowed down but slow progress is still visible.  

Time and Its Effects on Prosecutions

The more time passes, the more crimes are committed and impunity rains, the higher the pressures on any institution whose mandate is to provide justice for atrocity crimes. That is a risk for any potential proceeding regarding crimes in Ukraine and Palestine. While it is easy to assume guilt for war crimes, crimes against humanity or even genocide for Putin and Netanyahu, it is vital that any judicial process proceeds with a presumption of innocence and guardrails in place, securing a fair trial with a robust defense. 

That will be hard to sustain in these cases where there is a record of impunity, sometimes decades-long, where all eyes, especially those of victims, will be pointed to the courtroom, looking for justice, recognition, and reparations for years and years of loss, grief and suffering. That pressure is also not fair to the accused, who must be tried for crimes they themselves allegedly committed, not those which came before. It is thus vital to be alert to these pressures, and explain, if there is ever an opportunity to do so, that Netanyahu’s trial cannot address the occupation as a whole, or the decades of humiliation and dispossession of Palestinians. While he has been a serving high-level official for around three decades and may be seen as the face of contemporary violations, he is not alone in these actions. The injustice is likely too great for any one individual trial to address and the burden is not rightly placed on that one potential judicial process nor any of its actors. 

By focusing immediately on high-level officials, courts like the ICC are at a significant disadvantage. The ICTY has had years of practice, trying low-level accused, collecting evidence, testing witnesses, and crystalizing legal arguments, before any of the high-level accused even showed up. By the time Karadžić and Mladić were captured, the Prosecution had the Milošević lesson of how not to build a case absorbed, the Court knew how to manage a complex trial, and a number of low-level cases addressing the same crimes were completed. Convictions were secured, and guilt pleas of associates existed to be built on. 

When immediately jumping to those high-level cases, it becomes an all-or-nothing exercise, with little effective preparation, where all actors in court walk a largely unknown path. Those kinds of challenges are hard to explain to the public, and there is little understanding of what it takes to actually investigate and prosecute these individuals. For victim communities especially, no outcome apart from a conviction and a long sentence is legitimate, creating additional pressures on the court to educate, and communicate plainly and clearly—something that courts are not so well equipped at doing.

Years will likely pass before Putin or Netanyahu, probably the two most focused-on heads of state and the test cases for international justice, may reach any courtroom. It could also be that they never do, causing a significant blow to international justice as a whole, and proving to critics that it was a system built on double standards, to protect the powerful and enforce their will. However, as long as the two are alive and healthy, hope remains and time can be used constructively, to make success, whatever it may be, more likely down the line.

There is no way to know how effective or successful any proceedings against high-level officials will be. One former head of state, Duterte, is waiting for his ICC trial to begin. As the very ground beneath our feat is moving, and the legal infrastructure is convulsing under unimaginable pressure and threat of collapse; when experts describe the time we are living through as the “great unravelling,” there is no way of knowing if the ICC will survive the sanctions to continue its work. There is no way of knowing where international relations are going and what will be possible. What is certain is that any proceeding, any fair trial, is a result of quiet hard work, and persistence, and a belief that it is worth it, while at the same time remaining cognizant of the limits of this process. 

Trial or not, there is no reason to abandon the broader commitment to accountability, and to making sure that survivors are supported in ways which make their lives materially better: through psycho-social support, reparations, finding missing persons, establishing facts for posterity, and doing all those things that a criminal trial was not designed to do.