On Wednesday, Joe Biden called Vladimir Putin a “war criminal” for his ongoing offensive in Ukraine, where hospitals and maternity hospitals were bombed.
But declaring someone a war criminal is not as easy as just saying the words. There are established definitions and processes for determining who is a war criminal and how he should be punished.
Here’s how it all works:
Who is a war criminal?
The term is applied to anyone who violates the set of rules adopted by world leaders known as the law of armed conflict. Rules determine how nations behave during war.
These rules have been modified and expanded over the last century based on the Geneva Conventions adopted after World War II and protocols added later.
The rules are intended to protect people not taking part in hostilities and those who can no longer fight, including civilians such as doctors and nurses, wounded military personnel and prisoners of war. Treaties and protocols specify who can be attacked and with what weapons. Certain weapons are prohibited, including chemical or biological agents.
What specific crimes make a person a war criminal?
“Serious violations” of the conventions, which amount to war crimes, include deliberate killing and widespread destruction and appropriation of property not justified by military necessity. Other war crimes include deliberate attacks on civilians, the use of disproportionate force, the use of human shields and the taking of hostages.
The International Criminal Court (ICC) also prosecutes crimes against humanity committed in the context of a “widespread or systematic attack against any civilian population”. These include murder, extermination, forced displacement, torture, rape and sexual slavery.
The most likely way in which Putin could be called a war criminal is through the widely accepted legal doctrine of command responsibility. If commanders give orders, know or may know about crimes and do nothing to prevent them, they can be held legally liable.
What are the paths to justice?
Generally, there are four avenues for investigating and detecting war crimes, although each has its own limitations. One via ICC.
The second option is if the UN hands over its commission of inquiry to a hybrid international war crimes tribunal to prosecute Putin.
The third would be the creation of a tribunal or court to try Putin by a group of interested or concerned states and groups such as NATO, the EU and the US. An example is the Nuremberg military tribunals against Nazi leaders.
Finally, some countries have their own war crimes prosecution laws. Germany, for example, is already investigating Putin. There is no such law in the US, but there is a department in the Department of Justice that deals with acts such as international genocide, torture, recruitment of child soldiers, and female genital mutilation.
Where can Putin be judged?
This is not clear. Russia does not recognize the jurisdiction of the ICC and will not send suspects to the headquarters of the court in The Hague, the Netherlands. The US also does not recognize the authority of the court. Putin can be tried in a country chosen by the UN or a consortium of interested countries. But getting it there will be difficult.
Have national leaders been persecuted in the past?
Yes. From the Nuremberg and Tokyo tribunals to recent special hearings, top leaders have been prosecuted for their actions in countries such as Bosnia, Cambodia and Rwanda.
Former Yugoslav leader Slobodan Milosevic appeared before a UN tribunal in The Hague for instigating bloody conflicts during the breakup of Yugoslavia in the early 1990s. He died in his cell before the court pronounced its verdict. His Bosnian Serb ally Radovan Karadzic and Bosnian Serb warlord General Ratko Mladic were successfully prosecuted and are serving life sentences.
Former Liberian President Charles Taylor has been sentenced to 50 years in prison on charges of sponsoring atrocities in neighboring Sierra Leone. Former Chadian dictator Hissène Habré, who died last year, became the first former head of state to be convicted in an African court of crimes against humanity. He was sentenced to life imprisonment.