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.
