Joe Biden has called for Vladimir Putin to be prosecuted for war crimes after mass graves and bodies of bound civilians shot at point-blank range were discovered in Bucha, Ukraine. But bringing the Russian president to justice would be far from easy.
What are war crimes?
The International Criminal Court (ICC), the world’s first permanent war crimes tribunal, defines them as “serious violations” of the Geneva Conventions, a set of humanitarian laws that must be observed in war.
Jonathan Hafetz, a scholar of international criminal law and national security at Seton Hall University School of Law, told Reuters that the alleged execution of civilians in Bucha was a “material war crime”.
Russia continues to deny guilt. His defense ministry insisted on Sunday that “not a single civilian was subjected to violent action by the Russian military.”
How can a case War crimes evidence to be built?
Jake Sullivan, the US national security adviser, told reporters Monday that there were four main sources of evidence: information gathered by the US and its allies, including intelligence sources; Ukraine’s own efforts on the ground to advance the case and forensically document the killings; Material from international organizations including the UN and NGOs; and insights from worldwide independent media with photos, interviews and documentaries.
Can Putin be held personally responsible for the actions of his troops?
Prosecutors could argue that Putin and his inner circle committed a war crime by directly ordering an illegal attack, or that they knew crimes were being committed and failed to prevent them. This case may be difficult to prove in isolation, but when it fits into a broader pattern in Ukraine, it becomes more compelling. The United States had accused Russia of war crimes even before Bucha.
Philippe Sands, a professor at University College London, told the Associated Press: “They have to prove they knew or could have known or should have known. There is a real danger that in three years you will end up with middle-level court cases and the main perpetrators of this horror – Putin, Lavrov, the defense minister, the intelligence officials, the military and the financiers who support him – will be off the hook be.”
Who would conduct such a process?
The International Criminal Court opened 20 years ago to try perpetrators of genocide and crimes against humanity. But the US, China, Russia and Ukraine are not members of the court, which has been criticized for focusing too much on Africa and using “selective justice”.
The chief prosecutor at the International Criminal Court, Karim Khan, said in February he had opened a war crimes investigation in response to the Russian invasion of Ukraine. Although not a signatory, Ukraine previously approved a 2013 probe involving Russia’s annexation of Crimea.
The ICC will issue arrest warrants if prosecutors can show “reasonable grounds” to suspect war crimes. But there is little chance that Russia will comply, and the ICC cannot try anyone in absentia. The US’ unwillingness to join the court is also diplomatically clumsy and is likely to shout out Western hypocrisy.
Donald Trump once told the UN General Assembly, “As far as America is concerned, the ICC has no jurisdiction, no legitimacy, no authority.” His administration announced that the US would impose visa bans on ICC officials involved in possible court investigations against Americans for alleged crimes in Afghanistan.
But Sullivan said Monday: “The US has had a history of cooperating with the International Criminal Court in other contexts, although not a signatory. But there are a number of reasons why alternative venues might also be considered.”
What are these “alternative venues”?
The UN seems an obvious place to start. But one problem with going through the UN Security Council is that Russia is a permanent member. “It would be hard to imagine that they wouldn’t try to veto something to block something,” Sullivan noted.
Another option could be a special court organized by a group of countries. The Nuremberg Tribunal was set up by the US, UK, France and the Soviet Union to hold Nazi leaders accountable after World War II.
Possible role models for Ukraine could be the tribunals set up to try war crimes committed during the Balkan wars in the early 1990s and the Rwandan genocide in 1994. Another example was the United Nations-backed Special Court for Sierra Leone, established in 2002 to try those responsible for atrocities committed during the country’s 1996 civil war.
What about another load?
It would be easier to prosecute Putin for the crime of aggression after waging an unprovoked war against another sovereign country. The International Criminal Court has no jurisdiction over Russia for the crime of aggression since Russia is not a signatory.
Last month, dozens of prominent lawyers and politicians, including Ukrainian Foreign Minister Dmytro Kuleba and former British Prime Minister Gordon Brown, launched a campaign to create a special tribunal to try Russia for the crime of aggression in Ukraine.
How long would an indictment last?
Probably many years. The International Criminal Tribunal for the former Yugoslavia indicted its first head of state, then-Yugoslav President Slobodan Milošević, in 1999 and arrested him in 2001. His trial began in 2002 and was still ongoing when he died in The Hague in 2006.
Charles Taylor, the former President of Liberia, has been found guilty of aiding and abetting war crimes and crimes against humanity for aiding rebels who committed atrocities after a four-year hearing at the Special Court for Sierra Leone in The Hague.