War Crimes and How Putin Could Be Prosecuted

Three weeks after Russia’s horrific invasion of Ukraine and its continued assault on the citizens and military of Ukraine, President Joe Biden declared that Russian President Vladimir Putin is a war criminal. 

Specifically, Biden thinks that war crimes committed by Putin can be deemed crimes of war due to the relentless targeting of Ukrainian civilians. 

What Are War Crimes?

Under Article 8 of the Rome Statute of the International Criminal Court (ICC), a war crime is  a “grave [breach] of the Geneva Conventions of 12 August 1949.” The Rome Statute provides the following specific acts as examples of war crimes that fall under the Geneva Conventions:

• Wilful killing;
• Torture or inhuman treatment, including biological experiments;
• Wilfully causing great suffering or serious injury to body or health; 
• Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The statute provides further examples of war crimes that fall outside of the Geneva Conventions, including in the relevant part:

• Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
• Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.

The ICC’s Rome Statute is extensive in its description of what constitutes a war crime, including many more provisions that may not apply to the Russian invasion of Ukraine.

Also read:Russia’s Invasion of Ukraine: The Role of International Law

On February 24, 2022, the world watched in horror as Russia invaded its neighbor, Ukraine, via land and sky in an unprovoked act of ag...

What Are the Allegations of War Crimes in Ukraine?

According to a recent address before the United Nations Human Rights Council, Russia is being investigated for conducting “indiscriminate attacks” on Ukraine, mainly targeting civilian areas with no military ties. 

There have been 77 verified attacks on medical institutions in Ukraine, at least 50 of which were hospitals. Confirmed civilian casualties number in the thousands, with actual numbers unknown due to issues accessing some of the areas hit hardest by Russian forces. 

In addition to allegations of attacks on civilian locations and a high incidence of death among Ukrainian civilians, U.S. human rights envoy Michele Taylor alleged there are reports of abductions by Russian officials of political leaders. 

If found to be accurate, such allegations are a clear violation of the Rome Statute of the ICC as actions prohibited explicitly by the Geneva Conventions.

How Are Suspected War Criminals Pursued and Prosecuted?

The International Criminal Court (ICC) is responsible for investigating and prosecuting “atrocity crimes,” an umbrella term used to encompass crimes against humanity, war crimes, and genocide. Potential violations of the Geneva Conventions transfer to the ICC for investigation in three ways:

1. By referral of a state party that has ratified the Rome Statute, where the alleged crimes have taken place (such as Ukraine)
2. By referral of the U.N. Security Council
3. Proprio Motu investigations or preliminary investigations without a formal referral

Of these three options, only one or three is applicable in investigating Vladimir Putin war crimes because a veto from one permanent member of the U.N. Security Council (in this case, Russia itself) is sufficient to halt their referral entirely.

The investigative process consists of five primary steps: 

1. inspection of the area where the crime allegedly occurred 

2. collection of evidence 

3. interviews with witnesses and victims 

4. consultation with specialists and other experts 

5. a thorough analysis of financial interactions that may provide further information 

Can The ICC Prosecute the Offenses in Ukraine?

Based upon the definition of a war crime as provided in the Rome Statute and the known testimony of Human Rights experts to the United Nations, the ICC can prosecute the offenses committed by Russia in Ukraine, specifically including the attacks on civilian hospitals and abductions of political leaders. 

The ICC can investigate its judgment, or it may investigate based upon a referral from Ukraine. As of March 2, 2022, the ICC has begun its formal investigation of Russia’s war crimes based upon a referral received from Ukraine, negating any possible issues that may arise from Russia’s veto of the referral as a permanent member of the U.N. Security Council.

However, the ICC must first prove it has jurisdiction to prosecute these crimes. There are four types of relevant jurisdiction the ICC must establish to bring charges against Russian officials for their crimes:

1. Temporal jurisdiction (that the crime occurred after 2002);
2. Territorial jurisdiction (that the crime occurred within the territory of a state party);
3. Subject matter jurisdiction (that the crime falls within the specific definitions of the aforementioned “atrocity crimes”);
4. Personal jurisdiction (that the prosecution is against a “natural person,” instead of an entire political party or group, who lives within a state party).

The ICC can easily prove the first three forms of jurisdiction, but trouble arises as to personal jurisdiction. While the entire Russian government could not be prosecuted, it appears at first glance that Vladimir Putin, as an individual and as the architect of the invasion and its subsequent atrocities, can be accountable. 

However, the personal jurisdiction of the ICC requires both the crime to have occurred in a state party and the accused person to live within a state party. Russia is not a state party within the Rome Statute, so the ICC cannot try it under this statute. While Ukraine is not a state party (because at the time the signatories signed the Geneva Conventions, Ukraine was part of the Soviet Union), Putin war crimes could lead to a trial. Certain war crimes committed by Putin within the Geneva Conventions, including pillaging and recruitment of child soldiers, could make them liable to the ICC. 

These crimes are a carve-out from specific requirements for ICC investigation and prosecution. Other options include the World Court, which treaty provisions that require mediation before prosecution may prevent, or the European Court of Human Rights, which can only prosecute specific crimes resulting from the invasion. 

Still, its jurisdiction is limited to recovering property damaged during the attacks. Of course, there is always a possibility that Putin’s war crimes could come under scrutiny with an improbable regime change in Moscow. 

The Russian government could hold war crimes of Putin accountable since he is violating Russian own statutory laws prohibiting “crimes of aggression.”  The odds of this occurring any time soon are infinitely small. The most likely route to Putin’s prosecution is through the ICC, a process that is not without its own controversy.