Could Putin really be prosecuted for war crimes?
Usually, it's only after fighting ends that prosecutions begin for breaking the rules of war. Ukraine isn't waiting. It began putting captured Russian soldiers on trial within months of the war's start. But what about the political and military leaders higher up the chain of command?
Widespread attacks on Ukrainian civilians and non-military targets have led to calls in the US, UK and Europe to hold not just Russian troops but President Vladimir Putin and his subordinates accountable for war crimes in Ukraine. An international tribunal investigating such offenses and other potential atrocities issued arrest warrants for Putin and an aide March 17. However, it's far from certain that senior Russian leaders will be brought to justice under international law.
1. What are war crimes?
They are violations of the rules of warfare as set out in various treaties, notably the Geneva Conventions, a series of agreements concluded between 1864 and 1949. War crimes include willful killing, torture, rape, using starvation as a weapon, shooting combatants who have surrendered, deploying banned weapons such as chemical and biological arms, and deliberately attacking civilian targets. The Kremlin has rejected allegations that its troops have committed such transgressions in Ukraine.
2. What is Putin accused of?
The Hague-based International Criminal Court (ICC) accused Putin and Maria Alekseyevna LvovaBelova, his commissioner for children's rights, of bearing responsibility for the unlawful deportation of children from Ukraine to Russia since the war began. Ukrainian authorities estimate that about 16,000 children have been deported. Russian officials say they have taken the children in as a wartime humanitarian gesture.
3. How have war crimes been prosecuted in the past?
In an early exercise of international criminal justice, Allied powers tried and punished German and Japanese leaders after World War II, sentencing some to death. Because the Allies granted themselves immunity from war crimes charges, the tribunals were criticized as victors' justice. To avoid that conflict of interest, the United Nations Security Council created independent, international tribunals to prosecute atrocities in the Balkans and Rwanda in the 1990s. Those horrors revived a 19th-century idea of establishing a permanent world court to hold people accountable for acts of mass inhumanity. The ICC was born in 2002 out of a treaty called the Rome Statute; 123 states have ratified it to become ICC members. Notable holdouts include Russia, China, India and the US, which says putting its citizens under the court's jurisdiction would violate their constitutional rights.
4. What's Ukraine's approach?
With the help of a number of countries, including the US, Ukrainian officials began collecting evidence of war crimes early in the conflict. By early December, they had opened more than 50,000 cases. In the first trial, a Ukrainian court sentenced a Russian soldier to life imprisonment for killing an unarmed civilian. In the second, two soldiers got 11.5 years for shelling an educational facility. In a commentary published in The Conversation, Robert Goldman, president of the International Commissions of Jurists, said that Ukraine's approach was permissible under international law but arguably not wise. He noted that the International Committee of the Red Cross has cautioned against holding such trials during hostilities because of the improbability that the accused could properly prepare a defense in that setting.
5. What's the ICC doing?
It sent a team of 42 people — its largest such deployment — to Ukraine to investigate crimes that fall within the court's jurisdiction. Although Ukraine is not an ICC member, it accepted the court's jurisdiction for incidents on its territory starting months before Russia seized the country's Crimea peninsula in 2014. In addition to war crimes, the ICC is investigating crimes against humanity and genocide. The former are defined as acts such as murder, enslavement, deportation, imprisonment, rape and apartheid when committed as part of a widespread or systematic attack against a civilian population. Genocide is defined in a 1948 UN convention as specific acts intended "to destroy, in whole or in part, a national, ethnical, racial or religious group." Ukrainian President Volodymyr Zelenskiy has accused Russia of genocide, saying Putin intends to end Ukraine's existence as a nation.
6. What are the prospects of trying Putin or other Russian officials?
Barring a change of regime in Moscow, not good. The ICC doesn't permit trials in absentia, and the court is unlikely to gets its hands on Putin or his lieutenants. It relies on its member states to make arrests, and accused Russian officials could always avoid traveling to a country that might turn them over. Of the two dozen people against whom the ICC has pursued war crimes cases, about a third remain at large. Those charged have been members of armed groups rather than political or state military leaders, with four exceptions — a Libyan general, Sudan's ex-president, Omar al-Bashir, and two of his ministers — none of whom have been turned over to the ICC. Numerous political leaders were prosecuted for barbarities in the Balkans and Rwanda, but those tribunals were established by the Security Council, where Russia has a veto.
Disclaimer: This article first appeared on Bloomberg, and is published by special syndication arrangement.