Could Putin be prosecuted for war crimes in Ukraine?

With mounting evidence of atrocities in Ukraine, they have been growing calls for Russia’s president, Vladimir Putin, to be made to answer for the conflict. In highly publicised remarks, U.S. President Joe Biden has openly called him a war criminal. Likewise, the European Union has called on Russia to stop its war crimes immediately and has said that those responsible will be held to account according to international law. But just how likely is it that we’ll ever see Putin put on trial?

TThere was a time when nations could fight with relative impunity. However, over the past century or so we’ve seen real efforts not only to define the limits of acceptable behaviour in conflict but also to try to ensure that those responsible for waging war are held accountable for their actions. But just how effective is this? This question has come to a head with the war in Ukraine. Against the backdrop of a conflict that most of the world has now openly called a war of aggression, pictures have emerged of seemingly indiscriminate attacks against civilians and the use of banned weapons. With senior international officials now openly saying that there’s evidence of war crimes, this has already led to the start of a formal investigation by the International Criminal Court. At the same time, it’s also seen the start of a high-profile campaign to open the way for the Russian leader and others involved with the planning and execution of the conflict to be put on trial for their actions. But could this happen?

While there’s always been a sense of what is right and wrong in conflict, before the 19th century the conduct of the war was, for the most part, unregulated. However, beginning in the 1860s steps were taken to lay down the first rules of war. This led to the emergence of what we now call International Humanitarian Law. Formally codified in the four Geneva Conventions, adopted in 1949, these cover the treatment of sick and wounded combatants on land and sea, prisoners of war, and civilians. Since then, International Humanitarian Law has evolved in other ways, for example by outlawing chemical and biological weapons as well as certain classes of weapons, such as those that don’t discriminate between civilian and military targets. Taken all together, the International Committee of the Red Cross has identified 161 rules that now govern the conduct of war.

Additionally, international law recognises three other broad categories of crimes that are usually related to the conflict. First of all, there are crimes of aggression. This prohibits the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state. Secondly, there are crimes against humanity. This includes murder, enslavement, forcible transfers of populations, torture and sexual violence. Finally, the 1948 Genocide Convention requires UN members to prevent and punish acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. As well as defining various crimes related to war, the international community has also developed ways to hold those responsible for such crimes to account.

Nuremberg Trials, DW

The first major war crimes trials of the modern era took place after the Second World War. In 1945, 24 leading nazis were tried at Nuremberg for conspiracy to commit crimes against peace; planning, initiating or waging a war of aggression; participating in war crimes, and committing crimes against humanity. Of the 18 eventually convicted, 11 were executed and seven were sentenced to jail. Similarly, the International Military Tribunal for the Far East tried those responsible for Japan’s war in Asia, including generals and senior political leaders. In that case, seven were executed and 16 sentenced to life imprisonment.

The next important milestones came half a century later. As Yugoslavia collapsed into bitter and brutal conflicts at the start of the 1990s, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia, the ICTY. Operating until 2017, this led to 90 convictions for grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes against humanity, and genocide. This period would also see the establishment of other tribunals, such as the one set up to try those responsible for the 1994 Genocide in Rwanda, and a special court to deal with atrocities committed during the civil war in Sierra Leone.

Countries that signed Statute of Rome

But probably the most significant event of this era was the establishment of the International Criminal Court in 1998. This has created a permanent body to try those responsible for genocide, war crimes, crimes against humanity, and the crime of aggression. Established by the Statute of Rome, 123 states around the world have now accepted its jurisdiction. To date, it’s tried around 30 cases resulting in 10 convictions. So, what does all this mean in the context of Russia and Ukraine?

For a start, it’s important to determine whether crimes have been committed. As things stand, there would certainly seem to be a strong argument that Russia has violated at least three of the four classes of crimes associated with conflict. Most obviously, there would seem to be a case to answer concerning the crime of aggression. Russia has violated the sovereignty, territorial integrity and political independence of Ukraine not just now, but since 2014 when it invaded and annexed Crimea. Likewise, there would also seem to be evidence of war crimes, especially related to the potential use of banned weapons, such as cluster bombs, and the targeting of civilian areas. Then some allegations would seem to amount to crimes against humanity. These include reports of murder, sexual violence and claims that Russia has been forcibly transferring civilians from Ukraine to Russia. Of course, all these allegations will need to be very carefully investigated. But even at this stage, there appears to be at least some evidence that various crimes have indeed been committed. But the big question is whether Putin himself will face trial for any of this.

Here things become trickier. Bringing a case before the ICC presents several problems. First, although Ukraine has authorised the International Criminal Court to investigate crimes committed on its territory, it doesn’t formally accept the ICC’s jurisdiction. It therefore can’t refer cases to the court. However, this has seemingly been overcome. In March 2022, the Chief Prosecutor of the ICC announced that an investigation had been opened following a referral by 41 parties to the Rome Statute. The second problem is that any investigation is likely to take years to complete. There is one thing to remember, war crimes cases are often extremely complicated. It can be extremely difficult to establish a formal link between political leaders and actions carried out by armed forces on the ground. Indeed it could be almost impossible to establish a firm link between Putin and specific war crimes carried out in Ukraine.

Therefore, many respected people, including former world leaders, called for the establishment of a Special Tribunal to Punish Aggressive Crime Against Ukraine. This would be set up to concentrate on the decision to launch the war. This would focus on Putin directly and would seemingly be far easier to prove given the weight of evidence, not least of all on his statements. That said, it wouldn’t be an either-or proposition. Such a tribunal could run alongside other cases. Thirdly, even if indictments are issued against Putin, Russia China, the United States and around 70 other UN members don’t accept the Court’s jurisdiction. This means that it will not hand over his citizens to the court, not to mention the leader. That said, an indictment would be hugely embarrassing.

It would also mean that Putin could be arrested if he goes to any of the 123 countries that do accept the ICC’s jurisdiction. In other words, it would make him a pariah and would at least theoretically limit his ability to travel. Ultimately, this all means that for as long as Putin stays in power he seems likely to be safe. However, should he fall then we face a very different story. An obvious parallel is drawn with the leader of Serbia, Slobodan Milosevic, who was indicted by the ICTY for his role in the wars in Yugoslavia in the 1990s. Just nine months after being toppled, in October 2000, he was sent to The Hague where he was put on trial only to die before a verdict could be delivered.

But while all this suggests that Putin, and other Russian figures, are highly unlikely to be held personally accountable for the war in Ukraine, there may be ways that Russia, as a state, could be made to answer for the conflict. Most obviously, Ukraine could potentially bring a case before the International Court of Justice. This has already started. Kyiv has already instituted the case against Russia, accusing it of abusing the genocide convention to wage war. This in turn has seen the Court call on Russia to cease its military operations in Ukraine. However, it would be more difficult for Ukraine to bring other cases before the ICJ. Russia, like most UN members, doesn’t recognise the compulsory jurisdiction of the Court. The current case was only possible because it focuses on the Genocide Convention, which Russia and Ukraine have signed and which states that the ICJ adjudicates any disputes between parties.

But while it would seem to be difficult for Ukraine to bring other cases against Russia directly, there might still be a way to secure some sort of advisory opinion from the Court. This would require a vote from the UN General Assembly. However, even if this was successful, Russin wouldn’t be obliged to act on any ruling. Finally, there seems to be one other avenue that potentially remains open. Those affected by the war could bring a case against Russia before the European Court of Human Rights. Even though Russia has now withdrawn from the Council of Europe, the Court will be able to consider violations that took place before then. Of course, it’s highly unlikely that Russia will comply with any rulings. That said, if ever it wants to rejoin the now 46-member Council of Europe, it may well have to settle any outstanding cases and associated compensation payments.

For more than 160 years, the international community has developed a set of rules governing the conduct of war and the broader protection of human rights in conflict situations. As well as war crimes, this now includes crimes against humanity, crimes of aggression, and the crime of genocide. At the same time, it’s now accepted that those responsible for conflicts be they political leaders or military commanders can be held responsible for committing those crimes. In this context, the establishment of various tribunals, and especially the International Criminal Court, have been a major step forward in international law. However, despite growing evidence of crimes related to Ukraine, there seems little likelihood that we will ever see Putin or other Russian commanders stand trial for any of these. Of course, there is the option of a special tribunal. But it seems hard to imagine that this is happening. And what steps could conceivably be taken to hold Russia accountable as a state that so far seems to be closed off?

Ultimately, perhaps the best hope is that Putin falls and a new administration emerges that would be willing to submit him for trial as Serbia did with Milosevic. But this creates its paradox. As others have noted, to avoid this fate Putin needs to win the war. This may tempt him to take ever more drastic steps to ensure victory. The bitter irony, therefore, is that the possibility of facing a war crimes trial may make Putin more likely to commit those crimes.



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