While we are firmly ensconced in the current Ukraine/Russian conflict, it begs us to consider the concept of war crimes and whether Putin can be charged with them.
Just this week, authorities from Chad handed over a former militia leader who was being sought by the International Criminal Court on suspicion of war crimes and crimes against humanity for crimes committed in 2013. These included murder, torture, persecution, and directing attacks against civilians. As to the last matter, are we seeing the same thing out of the Kremin?
What is Considered a War Crime?
Broadly speaking, a war crime is one that includes widespread destruction and seizure of property, willful killing and suffering, and deliberately targeting civilian populations. These cases are usually heard by the International Criminal Court in their headquarters in the Netherlands. Karim Khan, an ICC prosecutor, suggested that there was already a belief that both war crimes and crimes against humanity had already taken place in Ukraine.
What is the International Criminal Court?
The International Criminal Court, established in 2022, is an independent tribunal that investigates and prosecutes war crimes, crimes against humanity, genocide, and the crime of aggression using international fair trial procedures.
The ICC prosecutor, under its founding treaty, the Rome Statute, prosecutes cases against parties which it has determined are responsible for these crimes. There are currently 123 countries that are members, but currently, neither Russia nor the United States belong to the ICC.
Ukraine’s democratically-elected president, Volodymyr Zelensky, has accused Russia of specifically targeting civilians in the conflict after Ukraine was successful in delaying the initial advance on Kyiv. He specifically described an attack on Freedom Square, in the city of Khardiv, as a war crime, imploring the West to help.
Legal experts, however, say that there must be proof that Russian forces were indeed targeting civilians. And this kind of proof can be difficult. As for the United States, President Biden, while agreeing that civilians were being targeted, has come short of calling it a war crime, claiming it was still too soon to tell.
Ukraine is No Stranger to Seeking These Investigations
Since the Russian annexation of Crimea in 2014, Ukraine has sought ICC investigation into war crimes against Russia. A prosecutor for the court said that there was reasonable basis for the investigation with evidence of torture, rape, and targeting of civilians in Ukraine’s eastern regions. But that investigation was put on hold at the onset of the COVID-19 pandemic.
Could Putin Potentially Be Charged?
It is unlikely that Putin will face war crimes charges.
In the case of war crimes, it is easier for commanders who ordered them in the field to be prosecuted than the leaders who directed them. In order for Putin to be charged by the court, he would first need to be arrested in a country that accepts the court’s jurisdiction, which is something he could very easily avoid.
Moscow formally withdrew from the ICC after the court published a document calling the Crimea annexation an “occupation,” although they had never ratified their membership to begin with. Russia can also veto any possible U.N. Security Council move to refer a case of war crimes to the ICC.
Even if Putin does face charges, getting a conviction is difficult, and the ICC acquits most defendants. A conviction requires proof of intent and clear evidence is typically unavailable. In addition, prosecution by the ICC generally is very slow and cumbersome and could take years to pursue.
International Law Amid Globalization
International law is complex, with many potential political variables. As we are seeing, while some systems may be set up with good intention, good intention is often where it ends if it can’t effectively bring individuals to justice.
In this time of globalization, the need for attorneys with international expertise is ever-growing. If you have an international legal challenge, our team of international attorneys at Bukh Law Firm may be able to assist you. Contact us to schedule a complimentary consultation.