The United States Senate’s passing of a resolution supporting a war crimes investigation into Russian President Vladimir Putin for his invasion of Ukraine adds to an international call to hold Putin accountable for Russia’s actions.
The invasion gives rise to a real concern not only about breaches of international law for which the Russian Federation might be liable, but about liability of individuals for international crimes, said Leila Sadat, the James Carr Professor of International Criminal Law and Special Adviser on Crimes Against Humanity to the International Criminal Court prosecutor.
“Although not every violation of the law of war amounts to a ‘war crime,’ the facts emerging from the conflict thus far are deeply troubling, suggesting a pattern or practice of attacking civilian installations and objects, and a callous disregard for the civilian population,” Sadat said.
Here, she shares her thoughts on how a war crimes prosecution may play out.
“The International Court of Justice (ICJ) in The Hague heard a case brought by Ukraine alleging that Russia’s rationale for the invasion — that Ukraine was committing genocide against Russians — was false and baseless and on March 16 issued provisional measures ordering the Russian Federation to ‘immediately suspend the military operations it commenced on Feb. 24, 2022 in the territory of Ukraine.’
“The Russian Federation may not comply with the court’s decision and may continue its military campaign. But doing so is a risky course of action. The Russian invasion has now been condemned by the UN General Assembly, in an overwhelming vote, by the World Court and by states all around the world. Russia — and Russians — have been subjected to crippling economic sanctions, and the increasing number of courts finding the war and its conduct unlawful lend support to those imposing sanctions on the Russian Federation or Russians more generally.
“The International Criminal Court (ICC), also in The Hague, recently opened an investigation into allegations of crimes committed on the territory of Ukraine. The court has jurisdiction based upon two referrals in 2014 and 2015 by Ukraine — arising out of the annexation of Crimea and the use of force in Eastern Ukraine — and 41 states have now asked the prosecutor to proceed with an investigation, thereby bypassing the need for the prosecutor to seek permission from the court’s judiciary to investigate the case.
“Like the Nuremberg Tribunal established at the end of World War II, the ICC has jurisdiction over four crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Each of the four crimes has a separate — and complex — definition, and each protects a different societal value. The most frequent concerns being raised at the present time regarding the conflict regard the legality of the conflict itself (the crime of aggression) and the legality of the conduct of the war.
“In terms of the crime of aggression, a jurisdictional limit was placed into the Rome Statute regarding this crime that makes difficult to use it as a basis to prosecute the nationals of non-state parties committing crimes on the territory of states parties. That is why some experts have called for the establishment of an ad hoc aggression tribunal that could hear this case only. This is an interesting idea, although it may give the impression of victor’s justice and pose some difficulties in practice.
“More frequently invoked is the idea of trying members of the Russian Federation government for war crimes and crimes against humanity at the ICC. Images of hospitals, schools, homes, and theaters have appeared on television and computer screens suggesting that the Russian Federation is either directly targeting those civilian installations — which are presumptively entitled to protection under the Geneva Conventions, Protocol I of the Geneva Convention and article 8 of the ICC Statute — or striking targets with reckless disregard.
“The ICC Prosecutor, Karim A.A. Khan, has reminded all parties to the conflict of their obligations to respect the laws of war, and emphasized the illegality of targeting hospitals, schools, churches and other civilian objects. The ICC Prosecutor also recently applied for arrest warrants covering three suspects, two of whom have Russian nationality.
“Crimes against humanity charges may also be brought by the ICC if warranted. These are crimes directed against the civilian population as part of a State or organizational policy, and encompass violent acts like murder, torture, deportation, rape and other forms of sexual and gender based violence, disappearances and the crime of persecution.”