Moscow: Is Russian President Vladimir Putin a war criminal? Well, according to US President Joe Biden, he is one. It may not seem like it, but “even war has rules” contained in strings of international laws and agreements including treaties called the Geneva Conventions. Under these rules, in the name of war, neither civilians nor any infrastructure that is vital to their survival can be deliberately attacked. There are reams of evidence that suggest Russia, during its brutal invasion of Ukraine have broken many of these rules, which has led some world leaders — including Biden last week — to use the term war criminal for him.
However, according to legal experts, a prosecution of Putin or other Russian leaders would face high hurdles and could take years.
How is a war crime defined?
According to a report by news agency Reuters, the International Criminal Court in The Hague defines war crimes as “grave breaches” of the post-World War Two Geneva Conventions, agreements which lay out the international humanitarian laws to be followed in war time. Breaches include deliberately targeting civilians and attacking legitimate military targets where civilian casualties would be “excessive,” Reuters reported quoting legal experts.
Ukraine and its Western allies have accused Russia of targeting civilians indiscriminately. However, Moscow, which describes the invasion as a “special operation,” denied targeting civilians. Russia said its goal is to “demilitarize and denazify” Ukraine, a claim that Kyiv and the West call baseless.
The USSR, in 1954, ratified the Geneva Convention reportedly. In 2019, Russia revoked its recognition of one of the protocols but remained a signatory to the rest of the agreements. The International Criminal Court (ICC), formed in 2002, is distinct from the International Court of Justice, a United Nations body that hears disputes between states.
How might a case proceed?
Quoting ICC’s chief prosecutor, Karim Khan, Reuters reported that he had opened an investigation into possible war crimes in Ukraine this month. Neither Russia nor Ukraine is a member of the ICC and Moscow does not recognize the tribunal. But Ukraine has reportedly given its approval to examine alleged atrocities on its territory dating back to Russia’s annexation of Crimea in 2014.
Now, there is a possibility that Russia may decide not to cooperate with the ICC and in that case, any trial would be delayed until a defendant is arrested.
“It’s not going to stop the international court from pursuing its prosecution and issuing its arrest warrants,” Reuters quoted American University law professor Rebecca Hamilton as saying.
Who could be charged?
A war crimes investigation may focus on soldiers, commanders and heads of state, experts told Reuters. As per the report, a prosecutor could present evidence that Putin or another state leader committed a war crime by directly ordering an illegal attack or knew crimes were being committed and failed to prevent them.
Astrid Reisinger Coracini, the lecturer at the University of Vienna Department of International Law, said the ICC team faces a challenge presenting evidence to link crimes on the ground to orders from leaders higher up. “And the higher it goes, the more difficult it becomes,” she said.
What is the standard of proof?
Experts told Reuters that the ICC will issue an arrest warrant if prosecutors can show “reasonable grounds to believe” war crimes were committed, and to obtain a conviction, the prosecutor would have to prove a defendant’s guilt beyond a reasonable doubt. For most charges, that requires proving intent. One way to prove intent could be to show there were no military targets in the area of an attack and that it was not an accident.
What makes a war crime conviction difficult?
According to the report, legal experts said the bombings in Mariupol of a maternity hospital and a theatre marked as sheltering children, appear to fall under the definition of war crimes, but securing a conviction can be difficult.
In addition to proving intent in many cases and linking leaders directly to specific attacks, prosecutors can also face tough time obtaining evidence, including testimony from witnesses who might be intimidated or otherwise reluctant to speak out.
In the case of Ukraine, ICC prosecutors will comb through publicly available video and photographic evidence. Bringing defendants to trial can also be difficult, as Russia will certainly refuse to comply with arrest warrants. The ICC will have to track potential defendants to see if they travel to countries where they can be arrested.
Are there any precedents?
Since the ICC was formed, it has overseen 30 cases, some with multiple defendants, according to its website. ICC judges have convicted five people of war crimes, genocide, and crimes against humanity and acquitted four others. Congolese warlord Thomas Lubanga Dyilo, convicted in 2012 is one of them.
The court has also issued arrest warrants for several defendants, including Joseph Kony, leader of the Lord’s Resistance Army militia group in Uganda, who remain at large.
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