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 tied-up civilians shot at close range. But bringing the Russian president to court would not be easy.
What are war crimes?
The International Criminal Court (ICC), the world’s first permanent war crimes tribunal, describes them as “grave violations” of the Geneva Conventions, a set of humanitarian laws that must be obeyed during war.
Jonathan Hafetz, a scholar of international criminal law and national security at Seton Hall University Law School, told Reuters that the execution of civilians, as claimed in Bucha, was a “typical war crime.”
Russia continues to deny its guilt. His defense ministry insisted on Sunday that “no civilians have been subjected to any violence by the Russian military.”
How can a war crimes case be filed?
Jake Sullivan, a U.S. national security adviser, told reporters Monday that there are four main sources of evidence: information gathered by the United States and its allies, including intelligence sources; Ukraine’s own efforts on the ground to develop the case and document the criminology of the killings; materials from international organizations, including the UN and NGOs; and findings from the world’s independent media with photos, interviews and documentation.
Can Putin be held personally responsible for the actions of his troops? Prosecutors may claim that Putin and his entourage committed a war crime by ordering a direct illegal attack or knowing that crimes were being committed and failing to prevent them. This case may be difficult to prove in isolation, but if it fits the wider model in Ukraine, it becomes more convincing. The United States has accused Russia of war crimes even before Bucha.
Philip Sands, a professor at University College London, told the Associated Press: “You have to prove that they knew or could have known or should have known. There is a real risk that in three years you will end up with trials against middle-level people and the main people responsible for this horror – Putin, Lavrov, the defense minister, the intelligence, the military and the financiers who support him – will get off the hook. “
Who would lead such a process?
The ICC was opened 20 years ago to prosecute perpetrators of genocide and crimes against humanity. But the United States, China, Russia and Ukraine are not members of the court, which has been criticized for focusing too much on Africa and applying “selective justice”.
ICC Chief Prosecutor Karim Khan said in February that he had launched an investigation into war crimes in response to Russia’s invasion of Ukraine. Although it has not signed, Ukraine has previously approved a 2013 investigation that includes Russia’s annexation of Crimea.
The ICC will issue arrest warrants if prosecutors can show “reasonable grounds” to believe war crimes have been committed. But there is little chance that Russia will comply and the ICC cannot sue anyone in absentia. The reluctance of the United States to join the court is also diplomatically inconvenient and is likely to provoke cries of Western hypocrisy.
Donald Trump once told the UN General Assembly: “As far as America is concerned, the International Criminal Court has no jurisdiction, no legitimacy and no power. His administration has said the United States will impose visa bans on ICC officials involved in a potential court investigation against Americans for alleged crimes in Afghanistan.
But Sullivan said Monday: “The United States has in the past been able to cooperate with the International Criminal Court in other contexts, although it has not signed. But there are different reasons why one can consider alternative places. “
What are these “alternative places”?
The UN seems to be the obvious starting point. But one problem with passing through the UN Security Council is that Russia is a permanent member. “It would be hard to imagine that they would not try to veto to block something,” Sullivan said.
Another option could be a special tribunal organized by a group of countries. The Nuremberg tribunal was set up by the United States, Britain, France and the Soviet Union to hold Nazi leaders accountable after World War II.
Potential models for Ukraine could include tribunals set up to prosecute war crimes committed during the Balkan wars in the early 1990s and the 1994 genocide in Rwanda. Another example was the UN-backed special court for Sierra Leone. established in 2002 to bring to justice those responsible for the atrocities committed during the country’s civil war in 1996.
How about a different charge?
It would be easier to prosecute Putin for the crime of aggression after he waged an unprovoked war against another sovereign state. The ICC has no jurisdiction over Russia for the crime of aggression, as Russia has not signed.
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 set up a special tribunal to try Russia for the crime of aggression in Ukraine.
How long will the prosecution take?
Probably many years. The International Criminal Tribunal for the Former Yugoslavia indicted its first head of state, then-Yugoslav President Slobodan Milosevic, in 1999 and arrested him in 2001. His trial began in 2002 and was 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 in support of insurgents who committed atrocities after four years of hearings in the special court for Sierra Leone in The Hague.
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