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What are war crimes, what evidence is needed and which court might try Putin
United States President Joe Biden has called for Vladimir Putin to be prosecuted for war crimes following the discovery in Bucha (Ukraine) of mass graves and bodies of civilians who had been shot at close range. But putting the Russian president on trial would not be easy.
The International Criminal Court (ICC), the world’s first permanent war crimes tribunal, defines “war crimes” as “serious violations” in Geneva Conventionsa set of humanitarian laws to abide by in times of war.
Jonathan Hafetz, specialist in international criminal law and national security at Seton Hall University School of Law, told the Archyde.com news agency that the execution of civilians, as denounced in Bucha, is the “war crime par excellence”.
Russia continues to deny his guilt. The Russian Defense Ministry insisted on Sunday that “not a single civilian has faced violent action from the Russian military.”
Jake Sullivan, the White House National Security Adviser, told a news conference Monday that there are four main sources of evidence: information collected by the United States and its allies, including from intelligence sources; Ukraine’s own on-scene efforts to develop the case and document the forensic evidence of the murders; the material of international organizations, including the United Nations and NGOs; and the findings of independent media international, obtained through photos, interviews and documentation.
The prosecution might argue that Putin and his circle committed a war crime by directly ordering an illegal attack or knowing that crimes were being committed and failing to prevent them. This case might be difficult to prove in isolation, but if it fits into a larger pattern spread across Ukraine, it becomes more compelling. United States has already accused Russia of war crimeseven before Bucha.
Philippe Sands, professor at University College London, told the Associated Press agency: “You have to show that they knew, or might have known, or should have known. There is a real risk that in three years’ time middle-ranking people will end up on trial and that those primarily responsible for this horror – Putin, Lavrovthe Minister of Defense, the agents of the intelligence services, the military and those who finance it – are free of any blame”.
The ICC was created 20 years ago to prosecute perpetrators of genocide and crimes once morest humanity. But United States, China, Russia and Ukraine are not members of the court, which has been criticized for focusing too much on Africa and apply a “selective justice”.
ICC Chief Prosecutor Karim Khan said in February that he had opened a war crimes investigation, in response to the Russian invasion in Ukraine. Despite not being a signatory, Ukraine had previously approved an investigation dating back to 2013, including Russia’s annexation of Crimea.
The ICC issues arrest warrants if prosecutors can show there is “reasonable cause” to believe war crimes have been committed. But Russia would be unlikely to comply and the ICC cannot try someone in absentia. Also, the US’s unwillingness to join the tribunal is diplomatically awkward and, if it happens, is likely to provoke accusations of “Western hypocrisy.”
Donald Trump once said at the UN General Assembly: “As far as the United States is concerned, the ICC has no jurisdiction, no legitimacy, no authority.” His administration announced that the United States would impose visa bans on ICC officials implicated in a possible court investigation into Americans involved in alleged crimes committed in Afghanistan.
But Sullivan said Monday: “In the past, the United States has been able to collaborate with the International Criminal Court in other contexts, despite not being a signatory. But there are a variety of reasons why alternative courts might also be considered.”
The UN seems to be an obvious starting point. But one of the problems of going through the UN Security Council is that Russia is a permanent member. “It’s hard to imagine that they won’t try to use their veto to block something,” Sullivan observed.
Another option might be a special court organized by a group of countries. The Nuremberg Trials were created by the United States, the United Kingdom, France, and the Soviet Union to bring Nazi leaders to justice following the end of the war. WWII.
Potential models for the Ukraine case might be the courts created to try war crimes committed during the Balkan Wars in the early 1990s and the rwanda genocide in 1994. Another example was the Special Court for Sierra Leone, created in 2002 with the support of the UN, to bring to justice those responsible for the atrocities perpetrated beginning in 1996 during the country’s civil war.
It would be easier to prosecute Putin for the crime of aggression, as a result of having waged an unprovoked war once morest another sovereign country. The ICC does not have jurisdiction over Russia for the crime of aggression because Russia is not a signatory.
Last month, dozens of prominent lawyers and politicians – including the Ukrainian Foreign Minister Dmytro Kuleba and former British Prime Minister Gordon Brown—launched a campaign to create a special court to try Russia for the crime of aggression in Ukraine.
Probably many years. The International Criminal Tribunal for the former Yugoslavia indicted its first head of state, the then Yugoslav president Slobodan Milosevicin 1999 and jailed him in 2001. His trial began in 2002 and was still in progress when Milošević died in The Hague in 2006.
Charles Taylor, the former president of Liberia, was found guilty of complicity in war crimes and crimes once morest humanity for supporting rebels who committed atrocities, following four years of hearings at the special court for Sierra Leone in The Hague.
Translation by Julian Cnochaert
