War crimes, according to the Guardian, can be summarised as “wilful killing, wilfully causing great suffering, extensive destruction, and appropriation of property, as well as intentionally targeting civilian population or objects”. While crimes against humanity can be summarised as including murder “committed as part of a widespread or systematic attack directed against any civilian population”.
One would think that both definitions apply to the atrocities committed over past weeks by the Russian military against the Ukrainian population. And that prosecutions should follow.
However, the chances of Russian president Vladimir Putin being tried for war crimes by, say, the International Criminal Court (ICC) look slim, if not impossible. That’s partly because of the way the ICC works. But it may also have something to do with the fact that several other world leaders have committed war crimes with impunity.
ICC commences investigations
Nevertheless, the ICC is proceeding to put a case together.
On 28 February, it was reported that president Volodymyr Zelenskyy had awarded the ICC jurisdiction for Ukraine territory. Since then, a total of 38 countries have formally requested the ICC to commence investigations into what’s happening in Ukraine.
On 2 March, ICC prosecutor Karim Khan QC announced those investigations had commenced.
my Office has established a dedicated portal through which any person that may hold information relevant to the Ukraine situation can contact our investigators. I encourage all those with relevant information to come forward and contact our Team through this platform
that if attacks are intentionally directed against the civilian population: that is a crime. If attacks are intentionally directed against civilian objects: that is a crime. I strongly urge parties to the conflict to avoid the use of heavy explosive weapons in populated areas.
But there’s a problem
The BBC pointed out that the ICC “investigates and prosecutes individual war criminals who are not before the courts of individual states”. If Putin is to be charged with instigating war crimes – assuming he remains in power – he can only be arrested if he travels to a country that’s an ICC member.
Furthermore, gathering evidence is not that simple, as retired West Point law professor Gary Solis explained to Slate:
Films and photographs of hospitals getting bombed or civilians being killed on humanitarian corridors—that’s not evidence. It’s evidence that war crimes were committed. But it doesn’t pin the charge on anybody, except maybe the field commander of the unit that dropped that bomb. To get the guys on top—and I’m speaking as an international lawyer—you need memos, orders, records of conversations. Did Putin write anything down? Would one of his confidants turn on him?
Alternatively, instead of prosecuting Putin with war crimes, the ICC could always charge a country – Russia – for “a crime of an unjustified invasion or conflict”. However, as Russia is not an ICC member, that course of action is not practical either.
A third route could see a role for the International Court of Justice (ICJ). It rules on disputes between countries but does not prosecute individuals. Should the ICJ rule against Russia, the UN security council can enforce that ruling. Though that won’t work as Russia is a member of that council and will simply veto any sanctions imposed.
A fourth route
There is, however, another legal route that could be pursued. This is known as universal jurisdiction, which is:
the principle that every country has an interest in bringing to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.
One example of the application of universal jurisdiction is:
when Augusto Pinochet, the former dictator of Chile, was arrested for “crimes against humanity” while in a hospital in Britain. The warrant to arrest him had been signed by a judge in Spain. Pinochet was held prisoner in Britain for 503 days, and a British judge ruled that he could be extradited to Spain for trial—until British Home Secretary Jack Straw, citing Pinochet’s poor health, let him go home.
Universal jurisdiction also enabled Israel to prosecute Aldolf Eichmann for his part in the Holocaust.
The legal basis for universal jurisdiction, explains Human Rights Watch, lies with:
the 1949 Geneva Conventions, the 1973 Convention against Apartheid, the 1984 Convention against Torture, and the 2006 Convention against Enforced Disappearance (not yet in force).
Amnesty International adds:
The Charter of the Nuremberg and Tokyo Tribunals, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court all confirm that courts can exercise jurisdiction over the crimes (as grave crimes under international law) regardless of the official capacity of the accused at the time of the crime or later, be it a head of state, head or member of government, member of parliament or other elected or governmental capacity.
In short, in the unlikely possibility that Putin finds himself in a country that recognises universal jurisdiction, he could be arrested and face trial. Though what would happen next would depend on the politics of the Kremlin and the Russian people.
War crimes – a case study
Meanwhile, the atrocities committed in Ukraine continue, with evidence of great destruction in the city of Mariupol. This drone footage gives some idea of the devastation in that city:
Indeed, on arriving in Athens from Ukraine, on Sunday 20 March Greek general consul Manolis Androulakis told reporters: “What I saw in Mariupol, I hope no one will ever see”. He added that the city now ranks with similarly destroyed cities, such as “Guernica, Coventry, Aleppo, Grozny”.
As for Russia’s apparent bombing of Mariupol’s theatre, it’s now reported that at least 300 people are feared dead as a consequence of that attack. That’s despite the word ‘children’ that was written in the Russian language in huge letters on the outside of the building.
This ‘before and after’ – not just for Mariupol – provides a visual montage of the degree of destruction taking place:
Thriving cities reduced to rubble, homes obliterated, hospitals targeted and flattened.
This is how Russia's invasion has already reshaped Ukraine. pic.twitter.com/fzPAuSUbR5
— Channel 4 News (@Channel4News) March 17, 2022
And there’s this video footage of attacks by Russia on Kharkiv from Vice, via Declassified UK journalist Matt Kennard:
Harrowing report on the ground in Kharkiv, Ukraine's second largest city, from @HindHassanNews, a brave and brilliant journalist.
Watch it. Especially if you are still in two minds about the mindless savagery of this war.https://t.co/zb8EcznfMx
— Matt Kennard (@kennardmatt) March 25, 2022
On 4 March, it was reported that Russian forces attacked Ukraine’s Zaporizhzhia Nuclear Power Plant:
it is almost certain that this operation violated Article 56 [of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977].
65 confirmed cases and one probable case of attacks by Russia on Ukrainian health facilities. And Amnesty International has reported that so-called “dumb bombs” – unguided aerial bombs – were used against the city of Chernihiv, leaving 47 civilians dead.
Illegal use of weapons
The following is a summary of weapons regulated by international humanitarian law treaties:
|Explosive projectiles weighing less than 400 grams||Declaration of Saint Petersburg (1868)|
|Bullets that expand or flatten in the human body||Hague Declaration (1899)|
|Poison and poisoned weapons||Hague Regulations (1907)|
|Chemical weapons||Geneva Protocol (1925)
Convention on the prohibition of chemical weapons (1993)
|Biological weapons||Geneva Protocol (1925)
Convention on the prohibition of biological weapons (1972)
|Weapons that injure by fragments which, in the human body, escape detection by X-rays||Protocol I (1980) to the Convention on Certain Conventional Weapons|
|Incendiary weapons||Protocol III (1980) to the Convention on Certain Conventional Weapons|
|Blinding laser weapons||Protocol IV (1995) to the Convention on Certain Conventional Weapons|
|Mines, booby traps and “other devices”||Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons|
|Anti-personnel mines||Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty) (1997)|
|Explosive Remnants of War||Protocol V (2003) to the Convention on Certain Conventional Weapons|
|Cluster Munitions||Convention on Cluster Munitions (2008)|
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