A Beginners Guide to Convicting a War Criminal: The Case of Putin

Laws during war?

War unshackles an innate right to kill. But not just anyone or anyhow. Today, states agree that certain behaviours, certain weapons, and certain tactics within armed conflict are so ruthless, destructive, and indiscriminate that they need to be outlawed. The prohibition of certain behaviour in the conduct of armed conflict can be traced back centuries, with the concept of war crimes notably developing at the end of the 19th, and beginning of the 20th, centuries, when international humanitarian law (IHL), or the laws of war, was codified. IHL is based on several treaties, particularly the Geneva Conventions of 1949 and their Additional Protocols, which set out limits to war, offering protection to civilians, and parameters as to what is acceptable and what is not on the battlefield. Basically: you do not attack civilians, you try to limit the impact of warfare on civilians (particularly women and children), you treat detainees humanely and you do not torture people. These rules are universal, albeit respect for the rules is not.

What are International Crimes? 

International crimes are regarded as the gravest crimes known to humanity, of which there are four core crimes: war crimes, genocide, crimes against humanity and the crime of aggression.

War Crimes

War crimes are grave breaches or serious violations of IHL that occur when superfluous injury or unnecessary suffering is inflicted upon an enemy. War crimes include: 

• Wilful killing;

• Torture or inhuman treatment;

• Causing great suffering or serious injury to body or health;

• Extensive destruction and appropriation of property not justified by military necessity,

• Taking of hostages;

• Unlawful deportation and unlawful confinement. 

In early April 2022, Human Rights Watch documented several cases of Russian military forces committing alleged war crimes against civilians in areas around Chernihiv, Kharkiv and Kyiv. These include repeated r*pe, summary execution and unlawful violence against civilians. Furthermore, Russia’s bombing of hospitals and a theatre clearly marked with the word “дети” (Russian for children) in huge letters visible from the sky, along with its suspected use of cluster bombs and vacuum bombs in dense civilian areas, have also been described as war crimes.

Genocide

“Indeed, this is genocide” was how Ukrainian President Volodymyr Zelenskyy described atrocities committed in Bucha and other areas near Kyiv, where mass graves and apparent executions of civilians were discovered after Russian troops withdrew from the region at the beginging of April. US President Joe Biden has also accused Vladimir Putin of genocide, saying the Russian President is “trying to wipe out the idea of even being Ukrainian”. But how significant is the allegation and how likely is Putin to face genocide charges?

The 1948 UN Genocide Convention defines genocide as “acts committed in whole or in part” to destroy national, racial, religious or ethnic groups. These acts involve not just killing people but seeking to destroy the target group by causing serious bodily or mental harm, creating harsh conditions of life, preventing births and forcibly transferring children to another group. Genocides have taken place throughout history: the Armenian genocide during WWI, the Holocaust, colonial conquests — like that of Australia — and in countries like China and Cambodia, where the governments have undertaken social engineering projects. The term, however, did not exist prior to 1944 and was first coined by Raphael Lemkin, a Polish-Jewish lawyer, who sought to describe Nazi policies of systematic murder and the destruction of European Jews during the Holocaust.

The International Criminal Court (ICC) has only charged one person with genocide: former Sudanese President Omar al-Bashir. After a 2003 uprising by mainly non-Arab rebels, Al-Bashir’s government armed, trained and financed bands of Arab nomads to attack villages across Darfur, killing, raping and looting as they went. Having rejected the jurisdiction of the ICC, Al-Bashir has never stood trial. Comparably, Russia withdrew from the ICC in 2016 and does not recognise the Court’s jurisdiction. If Putin were to be charged with genocide, like Bashir, he would undoubtedly reject the Court’s jurisdiction and not stand trial.

Experts are not uniform in their opinions as to whether Russia is committing genocide. Some say it is too early to define Russian atrocities as being in that category, while others say a genocide may have already begun.

Crimes Against Humanity

Crimes against humanity involve either large-scale violence in relation to the number of victims, its extension over a broad geographic area (widespread) or a methodical type of violence (systematic). This excludes random, accidental, or isolated acts of violence. The categories of crimes against humanity and war crimes are not fully disjunctive; individuals can commit both crimes by one single act. Unlike genocide and war crimes, crimes against humanity is yet to be codified in a dedicated international law treaty. However, the Rome Statute of the ICC offers the most extensive list of specific acts that may constitute the crime. These can include: murder, extermination, enslavement, r*pe, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and apartheid.

At the time of writing (April 2022), ICC Chief Prosecutor Karim Khan said that, after preliminary examination his Office is “satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine”.

Crime Of Aggression

Aggression in its essence is state conduct that either initiates war against another state or brings about a situation in which the victim is (or may be) driven to war. It requires aggressive acts, which are defined as the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations. Such acts include invasion, military occupation, annexation by the use of force and blockade of the ports or coasts. The crime was first prosecuted — and a central focus — in the Nuremberg Trial and the Tokyo War Crimes Trials after WWII; however, it was then called “crimes against peace”. While the conduct of Russia’s invasion of Ukraine may be qualified as a crime of aggression, neither states are party to the ICC, which precludes the ICC from exercising jurisdiction over this crime. The Court has no jurisdiction over the crime when committed by the nationals or on the territory of a State not Party. While the UN Security Council could refer this situation to the ICC Prosecutor, Russia’s veto power precludes this.

The crime of aggression has not been punished at the international level since WWII. The failure to hold accountable those who have waged blatantly aggressive wars is lamentable. The invasion of Iraq in 2003 has been raised as a particularly galling precedent. In 2010, the United States, the UK and France, fearful that charges of the crime of aggression might be deployed against them or their allies, particularly in relation to invasion of Iraq, led the way in restricting the ICC’s jurisdiction over aggression. Western states undermined a potentially valuable legal tool that could now apply to Russia’s invasion of Ukraine. Consequently, the prospect of the ICC’s swift and decisive indictment against Putin for ordering the unlawful invasion of a sovereign nation is non-existent. However, the revival of the crime of aggression has to begin somewhere and the invasion of Ukraine offers an opportunity to begin that revival.

The Process

For the credibility of international criminal justice, domestic and international institutions must maintain the highest standard of proof. Prosecutors must show beyond reasonable doubt that specific crimes have occurred. Collating such evidence entails interviewing witnesses, reviewing photos or videos, collecting forensic evidence, including ballistics analysis, autopsies or DNA testing. A case like this requires legal logic, stripped of emotion and focused on the evidence that will withstand the scrutiny of a court. What might look to be a clear-cut case about a massacre is not always straightforward. Was it a crime or was it not a crime? Is the person at the top of the political leadership responsible or not responsible? Although the bombing of a school may cause public outrage and heed calls of a war crime, such a bombing will only be a war crime if the extent of civilian casualties resulting from the attack is excessive compared to the military advantage gained from the attack. A commander can only be held responsible. Second, a commander or leader must be in “effective command and control” of their subordinate who dropped the bomb. In the case of Putin, the court must prove he knew of and sanctioned the crimes being investigated or had a reasonable expectation they would occur but took no action to prevent them. However, linking a foot soldier who pulled the trigger on a civilian to their leader is an arduous and meticulous process.

Who prosecutes the crimes?

There are two accountability mechanisms for international crimes: domestic courts and international courts. Generally, when war crimes are committed it is often the domestic courts that take the lead in prosecutions. Ukrainian president Volodymyr Zelensky has approved a decision to create a special justice mechanism to investigate Russian crimes in Ukraine. No further details about the nature of the mechanism are currently available, except that it is a domestic procedure set up under Ukraine’s legal system.

In the international domain, the United Nations’ International Court of Justice (ICJ) and the ICC are charged with upholding the laws of war. The ICJ is responsible for disputes between nations and the ICC prosecutes individuals who are not being tried by domestic courts. On 25 February 2022, Ukraine filed a case against Russia under the Genocide Convention at the ICJ. Russia did not attend an initial hearing nor did its lawyers turn up to hear the ruling. While the Court ruled, by 13 votes to two (the Russian and Chinese judges voted against the order), for a provisional order for Russia to immediately halt its military operations in Ukraine, the Court has no means of enforcement. The body to enforce any punishment would be the UN Security Council, which Russia holds veto power over. Since the ICJ’s binding ruling on March 16, Russia’s military operations in Ukraine have continued with no indication of plans to act otherwise.

The International Criminal Court (ICC)

The ICC is a permanent international court established to investigate and, where warranted, try individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression. However, it is not meant to replace a country’s domestic justice system. The ICC’s primary mission is to help end impunity for the perpetrators of such crimes and contribute to their prevention. Anyone can be held before the ICC, from the lowest foot soldier to the country’s leader. Yet, given the ICC’s limited resources, it tends to focus on leaders and commanders.

Since its inception, political, public and academic enthusiasm for the ICC has swayed between optimistic celebration which heralds the Court’s potential, and scathing scepticism for its abject failures. The Court’s failures are best illustrated by the few tangible successes it has had since its inception in 2002. Yet, the catalyst for many of the Court’s flaws stem from the lack of participation, predominantly by three permanent members of the UN Security Council: China, the United States and Russia. Other noteworthy criticism is levelled at the Court’s disproportionate focus on African Countries; to date every convicted person has been African.

The ICC has jurisdiction over the crimes committed in the territory of a state that has become a party to the Rome Statute or filed an ad hoc declaration. Ukraine filed such a declaration in 2014. Although Russia never became a party nor filed a declaration, the Ukrainian declaration alone constitutes a valid jurisdictional basis for war crimes, crimes against humanity and genocide, but not the crime of aggression. Kremlin spokesman Dmitry Peskov has already rejected the ICC’s investigation, noting that Russia isn’t a party to the Court, having withdrawn in 2016. On 2 March 2022, barely a week after Russia’s military entered Ukrainian territory, the ICC opened investigations into the situation in Ukraine.

The big flaw in all this talk of international criminal trials and bringing Putin to justice is the question of who would deliver the Russian leader to The Hague? Putin is not about to give himself up, and at present, no credible Russian opposition exists to overthrow him. If the ICC finds sufficient evidence to try the Russian President, it could issue an arrest warrant. However, as a judicial institution, the ICC does not have its own police force or enforcement body; it relies on the cooperation and support of states worldwide, particularly for making arrests, transferring arrested persons to the ICC, freezing suspects’ assets and enforcing sentences. Countries who do not recognise the Court such as China, India, Israel and Qatar would have no obligation to hand over Putin nor assist the Court. Moreover, the Court has never tried anyone in absentia (although it is not impossible). In the unlikely event Putin was tried in absentia, any of the ICC’s 123-member states would be obliged to arrest him if he visited.

What now?

International criminal law is the primary body of international law that attempts to ensure individual criminal responsibility for international crimes. However, it has developed alongside geopolitics and international relations. Consequently, international criminal law’s practical operation and accountability mechanisms — like the ICC and other war crime tribunals — are innately tied to political power and political will. This can, and has, undermined both individual and state accountability for international atrocities. The ‘politics’ of prosecuting government officials and military commanders has historically been trying, so holding top Russian officials accountable for international crimes, let alone Putin, will be difficult and long-winded to say the least.

Historically, war crimes trials are a slow and arduous process. The world’s response to the ghastly eruption of civil war, ethnic cleansing and genocide in the breakup of the former Yugoslavia reveals exactly this. Under orders from then Serbian President Slobodan Milosevic, the Yugoslav Army and Bosnian Serb forces besieged and systematically bombarded civilians, razed Muslim areas, burned down houses, blew up mosques, expelled entire communities and employed r*pe as a weapon of war. However, it was not until three and a half years of conflict and in the aftermath of the Srebrenica massacre in 1995 — where over 7,000 Bosnian Muslim boys and men were slaughtered — that the world took action against Milosevic. Still, Milosevic stayed in office until 2000 and it was not until 2001 that he was extradited to The Hague and tried at the International Criminal Tribunal for the former Yugoslavia (ICTY). He died of a heart attack four years into his trial. The ICTY did convict Serbia’s military commander in Srebrenica and the mastermind behind the massacre, General Ratko Mladic, but only in 2017, six years after his trial began and 22 years after the end of the war in Bosnia. 

The only way that Putin and other members of the Russian elite are likely to face justice is through the total upending of the Russian political system, and a commitment by any new government to hand them over. With the first of these highly unlikely in the near future, and the second by no means guaranteed, there is little optimism that the perpetrators will face justice anytime soon. However, there are no statutes of limitations for war crimes. Critical insider information could emerge years later, and Putin or others could be handed over to eventually have their day in court. Evidence is already being collected and collated but war crime trials are a slow and arduous process. The cogs of justice grind slowly, but they have already been set in motion.