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Only a week after Russia’s invasion of Ukraine, the Prosecutor of the International Criminal Court, Karim Khan, began investigating war crimes committed during the current conflict. And he’s not alone. Several Western countries, including Germany, Latvia, Sweden, and Estonia, have decided to launch their own investigations. Ukraine, Lithuania, and Poland have signed an agreement to establish a joint investigation group.
At the same time, American President Joe Biden has called Vladimir Putin a war criminal several times. The first time was not very confident, but the second time was more decisive.
Where a crime has been committed, punishment should be expected – and this also applies to military crimes. However, it is difficult to imagine that Russian authorities or military personnel appear before a court (which, moreover, also issues a guilty verdict).
Meanwhile, there are mechanisms in the world for investigating such cases – and of course, for conducting trials on them. In this text, I will tell you what these mechanisms are. And also try to understand how they will be (and whether they will be) applied in the current conflict.
Navigation: the text consists of five parts
The first one briefly describes what international humanitarian law is. In the second one, we explain in detail what the concept of “war crimes” includes and how they differ from international crimes. The third one answers the question of whether war crimes are really being committed in Ukraine (and this is a very short and specific answer). The fourth one outlines the key principles under which war criminals are held accountable. And the fifth one lists the main scenarios of how (from a legal point of view) war crimes can be prosecuted in this war and what the “buts” are.
How people agreed to fight by the rules
Wars exist as many as there are countries in the world. And there are just as many rules of war.
Such rules appeared as far back as ancient times. Of course, they changed along with the wars themselves: new types of weapons and combat techniques appeared. But throughout all epochs, ethical questions were an integral part of any armed conflict.
In modern wars, there are also rules – they are outlined in international humanitarian law. In its current form, this law emerged in the second half of the 19th century and was finally formed after World War II.
We are talking about the Geneva Conventions*, signed in August 1949 – there are four of them in total. These documents have been ratified by 196 countries, including Russia and Ukraine. But de facto, the conventions have gained the status of international customary law and now apply to all states on the planet – regardless of whether the country has ratified them or not.
The history of modern international humanitarian law is associated with the name of Swiss businessman Henry Dunant. In June 1859, during the Austro-Franco-Italian War, Dunant witnessed the battle in the Italian town of Solferino. As a volunteer, he spent several days among the wounded and was shocked by the conditions in which they found themselves. Dunant detailed his impressions in “A Memory of Solferino” (this book became very popular in Europe). In it, Dunant described in detail the suffering of the wounded from grenades and cylindrical bullets.
There he proposed the creation of national societies for the aid of the wounded and a special convention that would grant neutral status to those who provide medical assistance during war. Thus, in 1863 the International Committee of the Red Cross was born. In 1864, 16 countries adopted the first Geneva Convention, protecting wounded and sick soldiers. Later, this convention became the model for the creation of the four Geneva Conventions*, and Dunant became the first laureate of the Nobel Peace Prize.
Thus, international humanitarian law (also known as the law of armed conflicts) is the norms and principles that protect the victims of war, as well as limit the number of permitted methods and means of warfare.
Does international law apply to the current war? After all, Russia itself does not stubbornly call it a war. In the context of international humanitarian law, it does not matter what words the parties to the conflict use. And the word “war” itself is ambiguous and undefined in legal terms. Therefore, lawyers usually use the more neutral term “armed conflict” instead. Of course, unless we are talking about large-scale military actions between several states at once – then it is unequivocally a “war” and other words are less appropriate here.
Armed conflicts may be domestic or international. The current conflict in Ukraine is international. And it is subject to the norms of accountability for war crimes to the fullest extent.
How to understand where a war crime is and where it is not (after all, war is complete chaos)?
War crimes are committed exclusively during armed conflicts and are directly related to them. The objects of war crimes can be not only people – enemy combatants and civilians, but also cultural or religious buildings.
In short, a war crime is any violation of the fundamental principles of international humanitarian law (yes, it’s that simple). Here are these principles:
To military and civilians during a conflict it is necessary to treat differently
If during the war an attack was carried out against an armed enemy, it is not a war crime. But if a deliberate strike was made against a residential building with unarmed civilians – it is.
Those who are not participating in the war (or cannot do it right now) should be protected
This refers not only to civilians, but also to wounded combatants and prisoners of war. International law requires all parties to the conflict to treat them humanely, including not using violence against them.
Military objectives must always be balanced against the potential harm from combat operations
This principle is violated, for example, when there is an attack on a military warehouse that leads to mass casualties among civilians and the destruction of residential buildings.
Humanity above all
The principle that somehow unites all the previous ones is intentional attacks on civilians, taking hostages, using prohibited types of weapons (such as chemical and biological), cruel treatment of prisoners of war – all of this is inhumane, therefore outside the rules. Thus, the common phrase “treating according to the laws of war”, which is often used to justify atrocities in war, contradicts international norms. The principle of “not taking prisoners” (which actually means “killing everyone”) is also contrary to these norms.
The responsibility for war crimes is also stipulated in the Geneva Conventions*. The list of military crimes is specified in the First Additional Protocol to the Conventions of 1977. The most complete list of such crimes is contained in Article 8 of the Rome Statute of the International Criminal Court*.
International humanitarian law applies equally to all sides of an armed conflict. It does not matter which state (or group of states) is attacking and which is defending. All of them can be held equally accountable. There is hardly any conflict in history in which only one side committed war crimes.
And one more important nuance. Military crimes are often confused with international crimes, but these are different things. International crimes are a broader concept. It includes both crimes committed exclusively in wartime and those that also apply to peacetime. The latter, for example, include crimes against humanity and genocide (which occur not only in war). At the same time, large-scale armed conflicts almost always involve both military crimes and international crimes – as was the case, for example, in former Yugoslavia; hence the confusion.
Is it true that military crimes are being committed in Ukraine or is there still no evidence?
The data collected during the current war is sufficient to give a clear answer to this question. Yes, military crimes are indeed being committed in Ukraine.
First and foremost, they are committed by Russian military. This is not only believed by representatives of individual states (such as the US and Germany), but also by major international organizations – for example, the G7 and the expert group of the OSCE, which analyzed the situation back in March, before the discovery of mass graves in Bucha and other places in the Kiev region. In addition, the prosecutor of the International Criminal Court* came to this conclusion in a preliminary assessment.
What specific crimes are these? Thanks to publications in independent media, it has become known about beatings, murders, and rapes of civilians. The number of victims among the civilian population and the scale of destruction of civilian infrastructure objects indicate the mass nature of attacks on Ukrainian cities. As for the cruel treatment of prisoners of war, it appears that not only Russian but also Ukrainian military personnel are involved in this.
However, all of this is still the first evidence. We probably won’t know the true scale of war crimes for a long time – for several reasons.
Firstly, investigating crimes of this kind is a difficult task. In normal life, when there is theft or murder, law enforcement officials have the opportunity to immediately go to the scene, study it, collect evidence, and interview witnesses on the hot trail. With military crime, it is different: the investigation may not have access to the scene of the crime for a long time. Or they may never get to that place (for example, because the state in whose territory everything happened refuses to cooperate).
Secondly, those who investigate war crimes have to verify information particularly carefully. False reports of atrocities by the enemy are inevitable, and disinformation is a part of military propaganda on both sides, notes international criminal law expert Gleb Bogush. Even direct witness testimony must be taken critically, he admits: in a state of shock, people may confuse details, distort facts, or recount events that did not occur.
However, all that is already known about the situation in Ukraine clearly points to numerous violations of humanitarian law and facts of war crimes. Now it is necessary to gather all possible evidence and document them.
Who can be recognized as a war criminal
Individual criminal responsibility is provided for military crimes. Everyone involved, from a private to the supreme commander-in-chief (in the case of Russia, the president of the country), can be held accountable for them.
Even if an ordinary soldier was simply following orders and those orders were criminal (for example, torturing prisoners or killing civilians), he still faces punishment. Responsibility for carrying out a criminal order is one of the principles developed as a result of the Nuremberg trials.
In turn, commanders are responsible not only for their criminal orders. They can also be punished for the crimes committed by their subordinates at their own will – if it has been proven that the commander knew or should have known about these crimes and did not take measures to prevent or punish the guilty.
Important: there is no statute of limitations for military crimes. In addition, the principle of universal jurisdiction applies here – prosecution does not depend on the place of the crime and the citizenship of the accused. That is, a military criminal can be held accountable at any time and in any place – as long as he is alive.
And also – not only military personnel can be held responsible. Representatives of the highest power in the country can be as well, including those who are part of the “political triad”; that is, the three main people in the country (the head of state, the head of government, and the Foreign Minister). All three have personal immunity that protects them from prosecution in another state. However, there are nuances here. First – this protection only applies until the end of their term. Second – it does not extend to accountability for military crimes.
Many heads of state have faced trial for war crimes after voluntarily or forcibly leaving their positions. For instance, former Serbian and Yugoslavian president Slobodan Milosevic was accused of numerous war crimes committed in Croatia, Bosnia, and Kosovo by the International Criminal Tribunal for the former Yugoslavia. Former president of Liberia Charles Taylor was convicted for aiding crimes against civilians in Sierra Leone. And in Senegal, a special court convicted former dictator of Chad, Hissene Habre.
History knows many examples of war crimes that have gone unpunished. A vivid example is the two Chechen wars of 1994-1996 and 1999-2000. No one was held accountable for the war crimes committed during these conflicts, despite numerous facts established by the European Court of Human Rights.
How are military crimes judged and what options are possible as a result of the current conflict?
According to international rules, courts for military crimes can be national or international. In the first case, the judicial process is organized by a specific country – for example, Ukraine or Russia. The second involves an international judicial process with the participation of several states.
There are several possible scenarios here. Let’s discuss the key ones.
Scenario One: International Criminal Court
There is currently only one international court that can consider cases of war crimes in Ukraine and issue a decision on them. This is the International Criminal Court (ICC) in The Hague. It was established in 1998 on the basis of the Rome Statute and began operating in 2002.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) is authorized to investigate international and military crimes in several cases:
- If they were committed on the territory of those states that have ratified the Rome Statute* (regardless of the nationality of potential defendants);
- “If they were committed by citizens of the state that ratified the Rome Statute.”
- If the crimes were committed against the citizens of the state that ratified the Rome Statute*, regardless of where the crimes were committed.
It is noteworthy that neither Russia nor Ukraine has ratified the Rome Statute*.
*The Rome Statute is an international treaty establishing the International Criminal Court.
But the International Criminal Court* still has the right to prosecute individuals for war crimes, genocide*, and crimes against humanity* on the territory of Ukraine. This jurisdiction was granted to it by the declaration adopted by Ukraine in 2014. It states, in particular, that any person who commits a war crime on its territory, regardless of their citizenship (including stateless persons), may potentially face trial. This means that Russian citizens are also included.
Prosecutor ICC* Karim Khan officially began investigating war crimes in Ukraine on March 2, 2022 – after about 40 states asked him to do so. Based on the results of this investigation and the judicial process, ICC* may deliver a judgment – for example, to find someone guilty and determine a punishment, as well as to award compensation to the victims.
But:
The court cannot take place in absentia
The Rome Statute* states that the accused must be present at the trial. Therefore, the International Criminal Court* is not allowed to issue verdicts in absentia.
In general, the work of the Military Prosecutor’s Office* in cases of military crimes is divided into two stages. The investigation that is going on now is the first one. When enough evidence is collected, the next stage – the actual trial – should begin. To start it, an order for the arrest of the defendant (or defendants) is needed. Moreover, the order may be secret – that is, theoretically it may have already been issued.
There are no legal obstacles for the IC* to issue an arrest warrant, say, for Vladimir Putin. But then someone has to execute this order – the IC* does not have its own police, therefore it is up to law enforcement agencies of the state.
In international court practice, there is a precedent that vividly demonstrates how it works and what the hitch is. Lawyer Natalia Sekretareva explains that the arrest warrant for Sudanese President Omar Al-Bashir (who was accused of several international crimes*) was issued in absentia – and after that, Al-Bashir evaded justice for many years. “States that have not ratified the Rome Statute* are not obliged to cooperate with the ICC*. But even if a state has ratified the statute, in the case of Al-Bashir, we see that the ICC* can have such weak influence on participating states that a dictator accused of genocide* could freely travel to neighboring countries for 10 years, whose representatives just shrugged in response to requests to arrest him,” she explains.
In other words, arresting a suspect and extraditing them for trial is a real problem. The current Russian government will not extradite their citizens, of course, lawyers surveyed by Kit are convinced. In addition, the Russian Constitution prohibits the extradition of citizens to other countries.
ICC does everything very slowly
The legal proceedings of the ICC* last for years. Like all international justice in general, the International Criminal Court* is very cumbersome and slow.
The head of the international practice of the human rights group “Agora”, Kirill Koroteev, discusses this sluggishness with a specific example: “Georgia, unlike Ukraine, ratified the Rome Statute* long ago, which made it possible for the ICC* to investigate the crimes of Russia against Georgian citizens during the five-day war in 2008. And despite this, only in 2016 was the investigation formally started. And only in 2022, three arrest warrants were announced against the accused.”
Scenario Two: International Tribunal
By joining forces, states can create investigative groups to investigate war crimes. And also – international tribunals (both with each other and with the help of international organizations).
This is exactly how international tribunals for human rights violations in former Yugoslavia and Rwanda were established in the 1990s.
But:
Creating a tribunal will be difficult: Russia has ways to prevent this
There is no strict regulation for the organization of international tribunals, so different options are possible. However, so far all special international judicial bodies (except for the ICTY*) have been established on the basis of UN Security Council resolutions. And Russia can block these resolutions using its veto right. After all, Russia is a permanent member of the Security Council.
However, there is a loophole here. Theoretically, states can establish tribunals simply by agreeing among themselves or with international organizations, admits international criminal law expert Gleb Bogush.
Lawyer Natalia Sekretareva agrees with him. She recalls: “During the height of the Cold War, the UN Security Council was blocked [by the USSR] because the veto power was used, and the UN General Assembly adopted the resolution Uniting for Peace to circumvent the Security Council. But this was the only precedent that was seen as very controversial.”
Therefore, Secretary Sekretareva does not exclude the possibility that the UN General Assembly will vote in favor of creating an international tribunal, despite all of Russia’s protests. However, the prerogative of creating the tribunal still lies with the Security Council. And the establishment of the tribunal through the General Assembly actually goes against international legal regulation, so Sekretareva considers such an option to be rather fantastic.
The tribunal cannot be held in absentia either
Even if the tribunal is eventually created, it may face the same problem as the International Criminal Court: it will be essentially impossible to reach the suspects. All UN-created tribunals conduct only in-person proceedings – and the trial does not begin until the suspects are arrested. However, there is also an exception to this rule – the special tribunal for Lebanon.
The Special Tribunal for Lebanon began its work in 2009 to investigate the murder of former Prime Minister of the country, Rafik Hariri. Initially, it was to be created under an agreement between the United Nations and Lebanon, but the country’s authorities delayed ratification of the agreement for a long time, and as a result, the UN Security Council resolution on the establishment of the tribunal was concluded without ratification, explains Kirill Koroteev. The process was conducted in absentia. In December 2020, the court issued a guilty verdict: according to it, the key figure in the case, Salim Ayyash, received five life sentences. He still remains at large, and if he is caught, “a new process will have to be launched and a new tribunal created,” says Koroteev. The trial lasted more than 10 years and cost about a billion dollars.
Scenario Three: Court in Ukraine
Ukraine can investigate war crimes of the current conflict on its own. After all, such crimes are being committed on its territory, including against its citizens. The country’s authorities have already initiated numerous investigations against Russian officials and military personnel – albeit in absentia.
But:
Enforcing the verdict will be very difficult
Unlike the International Criminal Court and the tribunal, the Ukrainian court may establish guilt and issue a verdict in absentia. But what’s next? Enforcing the sentence in the absence of the guilty party is impossible – and as in the case of the ICC, Russian authorities will not hand over their nationals to the court. “There are limitations to absentia trials, and everyone understands that the effect of them is relative,” notes Gleb Bogush.
Even if the guilty party does appear, they will be able to restart the process
Another legal trap is that international justice allows for a review of a criminal case if the verdict was issued in absentia, emphasizes lawyer Kirill Koroteev.
Therefore, even if the convicted person is caught by the Ukrainian justice system in absentia, he will have the right to request a new trial in his presence.
Scenario Four: Court in Russia
Russian courts not only can consider cases of military crimes committed by citizens of the country, but also must do so. After all, the Russian Criminal Code provides for punishment for “the use of prohibited means and methods of warfare”. That is, the guilty parties are held responsible both according to international norms and according to Russian law. And law enforcement agencies of the state must investigate such cases.
But:
These courts are not needed by the current government
They are not needed by her not only outside the country, but also, of course, within. Since the beginning of the war, Russia has never once given the impression that it is willing to investigate how its army is fighting, dismissing any mentions of its military’s atrocities on Ukrainian soil as “provocations” and “fakes.” Russian President Vladimir Putin is confident that “the guys are fighting bravely, heroically, and professionally.”
It is possible, of course, to imagine that the regime in the country has changed and that the new authorities have the political will to undertake such an investigation (on their own or within the framework of international cooperation). But for now, this is nothing more than fantasy. The government in the country may not change for many years. And at least until then, all the lawyers surveyed by Kit do not expect a trial of war criminals within the country.
And one more important point. Even if you consider a rapid change of power in the country likely, it should be borne in mind that potential new leadership will inherit “old” institutions from their predecessors. This includes the judiciary system which has been inefficient for many years and has long been in a state of stagnation.
The judicial system of the country will be difficult in any case
As we have already mentioned earlier, there were no cases of military crimes following the results of the two Chechen wars. Even during peacetime, cases of enforced disappearances are practically not investigated in the region, Kirill Koroteev points out. Lawyers are aware of thousands of similar cases, but verdicts have been issued only in individual cases, he emphasizes.
That is, the country’s judicial system simply lacks relevant experience. And even in the event of a change of power, it will be necessary to literally start from scratch to gain this experience.
Shouldn’t international rules be reviewed, as everything is so complicated?
The current war has indeed exposed the ineffectiveness of the current international system for ensuring security and peace. Lawyer Natalia Sekretareva acknowledges that the legal community is currently talking a lot about the need to review it.
However, this problem is not actually new. And even before Russia’s invasion of Ukraine, it was obvious that international justice was essentially unable to do anything with the permanent members of the UN Security Council (Britain, France, the United States, Russia, and China) and their closest “friends,” reminds Kirill Koroteev.
As an example, he cites the war in Afghanistan. As a result of it, the International Criminal Court* refused to investigate the actions of American military on the territory of the country – supposedly, it is necessary to focus on the actions of the Taliban** and the Islamic State** militants. Human rights defenders, including Amnesty International, criticized the ICC* for this decision.
Also, international justice is powerless against the authorities of the PRC, who have committed and continue to commit crimes against humanity towards their citizens, says Koroteev. The facts of violations have not yet been the subject of international investigation, and the guilty parties remain unpunished – because the PRC easily blocks any initiatives on this topic in the UN Security Council.
In early April on Sky News, Dmitry Peskov, the press secretary of the President of Russia, was asked if Vladimir Putin is worried about being judged for war crimes.
Peskov replied: “No, we do not see any probability of this.” And the mechanisms of international humanitarian law are such that at least under the current government, the probability tends towards zero. This applies not only to the head of state, but also to any ordinary Russian military.
The reason for the crisis in the international security and peace protection system lies in the structures of the UN and its Security Council. The United Nations was built after World War II by the victorious countries, which makes it very difficult, almost impossible, to influence any of the five nuclear powers, permanent members of the UN Security Council, through the mechanisms of this system.
However, lawyer Koroteev believes that it is not only the structure of the UN that needs to be revised, but there is a much more global issue. And according to him, it is the concept of a world divided into nation-states.
“Until we have any other concept of organizing the world, getting accused from countries that do not want to extradite them remains a very difficult task,” he summarizes.
Terms
Here we explain some terms that are mentioned in the text (in the order of appearance). All these terms in the material are marked with an asterisk.
Combatant – a person who participates in combat activities on legal grounds (i.e. as part of armed forces) and therefore has a special legal status during times of war. Thanks to this status, a combatant has the right to engage in combat, use weapons, and carry out other actions necessary for participation in the conflict. At the same time, a combatant must observe the rules of warfare and may be held accountable for war crimes.
Crimes against humanity – according to the Rome Statute of the International Criminal Court, these are large-scale and systematic “inhumane acts” committed against civilian populations. These acts may include murder, enslavement, deportation or forcible transfer of people, torture, rape, forced prostitution, forced pregnancy, as well as persecution of any group on political, racial, national, cultural, religious, gender or other grounds.
Genocide is the killing or other actions committed to destroy (partially or completely) a certain group of people. For example, national, racial, ethnic, or religious. Genocide can be committed both in peacetime and in wartime. Unlike crimes against humanity, genocide is distinguished by the fact that these actions are aimed at the destruction of a specific group of people based on some specific characteristic, rather than the civilian population as a whole.
The International Criminal Court is a permanent international court that investigates international crimes. The impetus for its creation was special international tribunals that were established in the 1990s to consider cases of human rights violations in former Yugoslavia and Rwanda. During its history, the ICC has considered several cases of war crimes: in the Democratic Republic of Congo, Uganda and Mali. The court operates on the principle of complementarity – that is, it intervenes when national criminal justice systems do not want or are unable to handle a case on their own.
The International Criminal Court (ICC) differs from international tribunals in that it was created specifically as a permanent court for any future cases involving international crimes. For example, the tribunal for the former Yugoslavia is limited to investigating crimes during a specific period in the countries of the former Yugoslavia, while the tribunal for Rwanda is limited to a specific period in Rwanda.
The Rome Statute of the International Criminal Court is a document (or international treaty) which regulates the work of the ICC. Neither Russia nor Ukraine have ratified the Rome Statute.
The International Court of Justice is a part of the United Nations system. It considers disputes between states, not criminal cases.
The Geneva Conventions and their Additional Protocols form the basis of that part of international humanitarian law that regulates armed conflicts. In total, four Geneva Conventions were adopted.
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