Typically, prosecutions for violating the rules of war begin only after the fighting has ended. Ukraine does not wait. It began trying captured Russian soldiers within months of the start of the war. But what about the political and military leaders further up the chain of command?
Eric Larson, Bloomberg
Mar 19, 2023 at 11:35 am
Last modified: March 19, 2023, 11:40 am
Caption: Russian President Vladimir Putin attends a meeting of the Board of Prosecutors General in Moscow, Russia March 15, Reuters photo
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Caption: Russian President Vladimir Putin attends a meeting of the Board of Prosecutors General in Moscow, Russia March 15, Reuters photo
Widespread attacks on Ukrainian civilians and non-military targets have prompted calls in the US, Britain and Europe to hold not only Russian troops but also President Vladimir Putin and his subordinates accountable for war crimes in Ukraine. An international tribunal investigating such crimes and other possible atrocities issued arrest warrants for Putin and an aide on March 17. However, it is far from certain that senior Russian leaders will be tried under international law.
1. What are war crimes?
They violate the rules of warfare as laid down in various treaties, most notably the Geneva Conventions, a series of treaties concluded between 1864 and 1949. They surrendered, used prohibited weapons such as chemical and biological weapons, and targeted civilian targets. The Kremlin has denied allegations that its troops committed such abuses in Ukraine.
2. What is Putin accused of?
The International Criminal Court (ICC) in The Hague has accused Putin and his child rights commissioner Maria Alekseyevna Lvova-Belova of bearing responsibility for the illegal deportation of children from Ukraine to Russia since the beginning of the war. The Ukrainian authorities estimate that around 16,000 children have been deported. Russian officials say they took the children in as a wartime humanitarian gesture.
3. How were war crimes prosecuted in the past?
In an early exercise in international criminal justice, the Allied powers tried and punished German and Japanese leaders after World War II, and sentenced some to death. Because the Allies granted themselves immunity from accusations of war crimes, the tribunals were criticized as victor’s justice. To avoid this conflict of interest, the United Nations Security Council created independent international tribunals to prosecute atrocities in the Balkans and Rwanda in the 1990s. These horrors revived a 19th-century idea of establishing a permanent World Court to hold people accountable for mass inhumanity. The ICC was born in 2002 from a treaty called the Rome Statute; 123 states have ratified it to become ICC members. Notable holdouts include Russia, China, India and the US, who say placing their citizens under the jurisdiction of the court violates their constitutional rights.
4. What is Ukraine’s approach?
With the help of a number of countries, including the US, Ukrainian officials began collecting evidence of war crimes early in the conflict. By early December, they had opened more than 50,000 cases. In the first trial, a Ukrainian court sentenced a Russian soldier to life imprisonment for killing an unarmed civilian. In the second, two soldiers got 11.5 years for shelling an educational institution. In an op-ed published in The Conversation, Robert Goldman, President of the International Commissions of Jurists, said Ukraine’s approach is permissible under international law but arguably unwise. He pointed out that the International Committee of the Red Cross had warned against holding such trials during hostilities because it was unlikely that the accused would be able to prepare an adequate defense in this context.
5. What does the ICC do?
It sent a team of 42 people – its largest operation of its kind – to Ukraine to investigate crimes within the court’s jurisdiction. Despite not being a member of the International Criminal Court, Ukraine accepted the court’s jurisdiction over incidents on its territory, beginning months before Russia occupied the country’s Crimean Peninsula in 2014. In addition to war crimes, the International Criminal Court investigates crimes against humanity and genocide. The former are defined as acts such as murder, enslavement, deportation, imprisonment, rape and apartheid when committed as part of a widespread or systematic attack on a civilian population. Genocide is defined in a 1948 UN convention as a specific act aimed at “destroying, in whole or in part, a national, ethnic, racial or religious group”. Ukrainian President Volodymyr Zelenskyy has accused Russia of genocide and said Putin intends to end Ukraine’s existence as a nation.
6. What are the prospects of bringing Putin or other Russian officials to justice?
Except for regime change in Moscow, not good. The ICC does not allow trials in absentia, and the court is unlikely to get its hands on Putin or his lieutenants. It relies on its member states for arrests, and accused Russian officials could always avoid traveling to a country that might extradite them. Of the two dozen people against whom the ICC has prosecuted war crimes cases, about a third remain at large. The accused were members of armed groups rather than political or state military leaders, with four exceptions – a Libyan general, Sudan’s ex-president Omar al-Bashir, and two of his ministers – none of whom have been handed over to the ICC. Scores of political leaders have been indicted for barbarism in the Balkans and Rwanda, but these tribunals were set up by the Security Council, where Russia has a veto.
Erik Larson is a legal reporter for Bloomberg News.
Disclaimer: This article first appeared on Bloomberg and is being published under a special syndication agreement.
