By Russell Bikoff / Washington, D.C.
The Russian military’s assault on Ukraine has had more success in committing war crimes than it has had in attaining its military objectives. It is almost as though Russia’s military machine is designed to commit war crimes, or at least cannot operate without committing them. More than three weeks into the conflict, since Russia’s attack began on February 24, each day seems to bring new outrages, with threats of a broader conflict. Just in recent days, Russian forces have kidnapped the mayor of a town in southern Ukraine (who was released days later in a reported prisoner exchange), killed journalists for Western media (journalists are protected under the Geneva Conventions as civilians), laid the propaganda groundwork for using prohibited chemical weapons (although it is a party to the Chemical Weapons Convention, which became effective in 1997), bombed military and civilian targets near Ukraine’s western border with NATO countries, and threatened to “interdict” NATO military supplies to Ukraine’s army.
With the exception of a few far-right political and media figures who seem to admire Vladimir Putin, most Americans now would love to see Putin sitting in a dank cell in the U.K. or the Netherlands, serving a life sentence for the atrocities his forces are committing in Ukraine. The prospects of him doing so, however, are low and we are unlikely to have that satisfaction in the foreseeable future. Nonetheless, there is a strong case to be made for ramping up war crimes investigations and a tribunal with a prosecutorial arm, as well as filing indictments against Putin, his top henchman, his military high command, and Russian troops on the ground who can be identified as war criminals.
The International Criminal Court (ICC), based at The Hague, has announced it has opened investigations, and the U.N.’s Human Rights Council has set up a commission to investigate abuses in Ukraine. Ukraine’s government has brought a case against Russia in the International Court of Justice (the “World Court,” also located at The Hague). On March 16, that court rejected Russia’s efforts to justify its invasion as an exercise of “self-defense” under Article 51 of the U.N. Charter to prevent “genocide” against Russian-speakers living in the separatist-controlled areas of the Donbas. The court ordered Russia, as part of a “provisional remedy” granted to Ukraine, to “immediately suspend” its military operations in Ukraine and ensure that the forces it controls in the breakaway “republics” of Donetsk and Lugansk also cease military operations in Ukraine. Furthermore, Ukraine and its citizens have made heroic efforts to document Russian atrocities. The Biden Administration has begun to use the term “war crimes,” as President Biden, on March 16, the day President Volodymyr Zelensky of Ukraine addressed Congress remotely, finally called Putin a war criminal.
With countries obligated to arrest and extradite accused war criminals, war crimes charges can be another tool in building pressure on Putin’s regime for a cessation of hostilities and the withdrawal of Russian forces before Ukraine is erased from the map and its precious population further brutalized. Given the immense scale of destruction in Ukraine, war crimes convictions of individuals can achieve important purposes. Also, fixing state responsibility on Russia for damages to Ukraine’s people, property, and civilian infrastructure is possible. International law arguably provides remedies for reparation to the Ukrainian people and nation, including restitution, rehabilitation, and compensation.
Putin's Hitler-like rampage through Ukraine raises important questions for international criminal law. Are war crimes trials only for small countries or defeated countries, or should larger powers like Russia (as well as the U.S. and China) be constrained by international law? Should the possession of nuclear weapons privilege such a country’s leaders to immunity from criminal responsibility? If so, then leaders of the first five declared nuclear powers (the permanent members of the U.N. Security Council: the U.S., U.K., Russia, France, and China) and newer nuclear powers (Pakistan, India, North Korea), as well as undeclared nuclear powers (Israel) and those wishing to finalize their programs (Iran), would have a nuclear shield protecting them from legal accountability. Also, is regime change the only way to get a national leader like Putin and his top lieutenants to answer at a war crimes trial? Some of these questions will be presented to the world in the coming years as we grapple with the consequences of Putin’s war on Ukraine.
There is recent precedent for convicting a head of state on international crimes. The former president of Liberia, Charles Taylor, was convicted in the U.N. Special Court for Sierra Leone, sitting in the Netherlands. Also, the Tribunal for Former Yugoslavia (ICTY) charged the political leaders of Serbia and the Bosnian Serb entity, Slobodan Milosevic and Radovan Karadzic, respectively, as well as the Bosnian Serb military commander Ratko Mladic, with genocide, crimes against humanity, and violations of the laws and customs of war (war crimes). Both Karadzic and Mladic were convicted and are now serving life sentences. Milosevic died in detention during his trial. Finally, the International Criminal Tribunal for Rwanda (ICTR) from 1995 to 2012 conducted trials and sentenced a former acting prime minister, other officials, private persons, and military commanders for acts of genocide, crimes against humanity, and war crimes.
The ICC has also issued arrest warrants for heads of state for international crimes. In 2005, the U.N. Security Council referred the case of then-President Omar Al Bashir of Sudan to the ICC for investigation. In 2009 and 2010, the ICC issued arrest warrants for Al Bashir for acts of genocide, crimes against humanity, and war crimes committed in the Sudanese region of Darfur between 2003 and 2008. Since Al Bashir’s fall from power in 2019, Sudan’s new governments have failed to surrender him to the ICC but reportedly have imprisoned him after convictions on local crimes in Sudan. In 2011, the ICC issued an arrest warrant against Muammar Gaddafi, the ruler of Libya, charging him with crimes against humanity for attacks on demonstrators opposed to his regime. Several months later, after Gaddafi was killed during a rebellion, the ICC withdrew the warrant on grounds of his death.
The Nuremberg Trials, 1945-1946. (left) The 21 defendants. The Tribunal acquitted three and sentenced seven others to prison. Eleven were sentenced to hang, although two (including Hermann Goering, in the first row, extreme left, in the defendant's dock) managed to commit suicide before their date with the executioner. (right) The four voting judges and four alternate judges from the Allied powers: the U.S., U.K., France and the U.S.S.R.
1) Why Putin is guilty of crimes against the peace
Crimes against the peace or waging aggressive war is a relatively new crime established by the International Military Tribunal at Nuremberg (the main Nuremberg trial, which took place between 1945 and 1946), which convicted the leading Nazi war criminals of this crime and established a new precedent. Putin's attack on Ukraine is clearly a violation of this crime and is stronger even than historical examples such as North Korea's invasion of the South in 1950, the Soviet Union's invasion of Afghanistan in 1979, and Saddam Hussein’s Iraqi invasion of Kuwait in 1990.
In discussing these examples of aggression, former U.S. Nuremberg prosecutor Telford Taylor noted in 1992 that while some may argue that the U.S. wars in Vietnam, Iraq, and Afghanistan also violated the U.N. Charter as wars of aggression, the case should be made that in all three wars, the U.S. was legally responding to the aggression of the other parties to the hostilities who were themselves in violation of the Charter and international law. The legal basis for the crime is the early recognition in 1946 by the U.N. of the validity of the Nuremberg precedent, and its likely acceptance as a principle of customary international law.
Even though the Russian Federation, like the U. S., is not a party to the International Criminal Court’s statute (the “Rome statute”), which took effect in 2002, the nations adhering to the ICC have recognized the crime of aggression. In 2010, the ICC parties defined aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” The perpetrator must have “planned, prepared, initiated or executed an act of aggression.” Also, the perpetrator was “a person in a position effectively to exercise control over or to direct the political or military action of the state which committed the act of aggression.” Other elements of the crime require the perpetrator’s awareness that the use of armed force was inconsistent with the U.N. Charter. The crime applies to individuals, not just state parties. And it is independent of war crimes, so that defendants can be convicted of crimes against the peace by undertaking a war, even if they then wage it lawfully. The idea is that war as an institution in human affairs is so bad that it should be discouraged except in limited circumstances, such as in self-defense, and wars of aggression should not occur.
Although Putin attempted to hide his intentions behind a veil of obfuscations and false denials, even an announced, non-surprise attack on Ukraine would constitute a violation. Moreover, various international agreements and declarations dating back to Ukraine’s independence in 1991 when the Soviet Union collapsed, in which Russia assured Ukraine that it would respect Ukraine’s right to live in peace, were violated by the military invasion that began on February 24. Just as Hitler's attack on Poland on September 1, 1939, was a crime against peace, so was Putin’s attack on Ukraine. His possible defense, that he believed that Ukraine was planning to attack Russia or was planning to join NATO so all could attack Russia, and therefore Russia attacked in self-defense, will be dismissed by international judges as completely lacking evidence in support. A future attempt by Putin to have a puppet Ukrainian regime invite the Russian army in and provide an ex post-facto legal justification will also be a stratagem that fails.
And it's not only Putin. His top lieutenants, both civilian and military, who planned this attack and engaged in a conspiracy to carry it out, are also at risk of being charged and convicted for crimes against the peace. It seems that in the approximately three-quarters of a century since Nuremburg, no national leaders or their top assistants have been convicted of this crime. Given the limitations of the International Criminal Court’s jurisdiction over Russia and its leaders, if circumstances change in Russia, the U.N. Security Council or a set of the leading world powers may need to establish a special tribunal for charges of engaging in crimes against the peace. Putin richly deserves conviction on this charge and a conviction should break this record of impunity.
2) Why Putin’s military is committing grave breaches of the laws and customs of war and why he is criminally responsible for war crimes
News reports from Ukraine daily are showing horrifying scenes of Russian bombings, such as the destruction of a maternity hospital in Mariupol with deaths and casualties. Other scenes and reports are of people fleeing in private cars shot dead by Russian troops and others killed with their families while crossing underneath a destroyed bridge northwest of Kyiv. Some of these actions could be considered war crimes and punished as such. Putin, his military and civilian staff, and his officers in the field, as well as ordinary soldiers, are all subject to the laws and customs of war.
The protection of civilians caught in an international armed conflict is governed by the Fourth Geneva Convention of 1949 (the “Geneva Convention relative to the Protection of Civilian Persons in Time of War”), one of four such conventions protecting, besides civilians, wounded and sick soldiers and seamen, and prisoners of war. (Incidentally, mercenaries do not receive the protections of the first three Geneva conventions, since they are not combatants or prisoners of war. Foreign volunteers, such as people largely from Western countries entering Ukraine to fight, are not mercenaries if they become members of the armed forces of a party to the conflict or receive pay equivalent to members of such armed forces.) While that treaty contains an expansive definition of protected persons (as those caught in a conflict or occupation and “in the hands of” a foreign country’s armed forces) and gives robust protections to medical facilities and personnel, and the transport of wounded and sick persons, including pregnant women, its specific protections for the civilian population at large during a conflict are limited. Thus, the Additional Protocol I of 1977, relating to international armed conflict, substantially fleshed out protections for the civilian population during hostilities. Both Russia and Ukraine are parties to the 1949 Convention and the 1977 Additional Protocol. (The U.S. is a party only to the four Geneva Conventions of 1949 and not to the 1977 protocol.
A second Additional Protocol applies to conflicts not of an international character, meaning insurgencies, rebellions, and civil wars within countries. Additional Protocol II does not apply currently to the war in Ukraine.) The Fourth Geneva Convention is not self-enforcing and instead calls on the Parties to enact penal legislation to enforce penalties against grave breaches in trials in its own courts or those of another Party. The 1977 Additional Protocol I defines grave breaches of the Geneva Conventions and the Protocol as war crimes.
Ukrainian civilians are protected by these instruments. The Additional Protocol applies to the types of indiscriminate attacks we have seen Russia engage in, including bombardments and the destruction of hospitals, schools and universities, churches, sections of cities and towns with large apartment blocks, neighborhoods with houses, and so on (See article 51). The Additional Protocol also covers such Russian conduct as starving civilians and any destruction of or attacks against “objects indispensable to the survival of the civilian population,” which includes food, agriculture, and drinking water. Finally, the Additional Protocol covers the Russian attacks on the decommissioned nuclear plant in Chernobyl and the operating nuclear plants elsewhere in Ukraine, since these places may not be attacked if “such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.”
Neither Russia nor Ukraine (nor the United States) is a party to the ICC statute, although Ukraine, after making constitutional changes effective in 2019, can ratify the treaty and join any time. The war will make that difficult and perhaps impossible. Nevertheless, because Ukraine filed “declarations” with the ICC in 2014 and 2015, the ICC has jurisdiction to investigate all acts of genocide, war crimes, and crimes against humanity occurring on its territory, and Ukraine has the obligation to cooperate with the court. The crime of aggression is not covered, so the ICC does not have jurisdiction for investigating whether Russia’s unprovoked attack on Ukraine constitutes that crime. As Human Rights Watch explains, the “referral” by 38 ICC member countries in February and March 2022 provided the basis for the ICC prosecutor to open an investigation in Ukraine without the need for him to apply to the ICC judges for permission. A crucial feature is that all individuals, no matter of which countries they are nationals, committing crimes on the territory of Ukraine are within the ICC’s jurisdiction. Therefore, the absence of Russia as a party to the Rome Statute does not insulate the members of its military in Ukraine, as well as Putin and others from afar, from ICC scrutiny.
As a non-party to the ICC, Russia is not legally obligated to cooperate with the ICC investigations. This raises the question of how the ICC prosecutor and court will gain personal jurisdiction (custody) over those members of the Russian military who are credibly suspected of engaging in war crimes. It should be possible for Ukraine, while it complies with its obligations under the Third Geneva Convention of 1949, relating to prisoners of war, to detain members of the Russian military whom it holds as POWs while preliminary war crimes investigations proceed. For Russian soldiers whom the evidence implicates as war criminals, rather than return them to Russia when hostilities conclude, Ukraine and the ICC prosecution should have the legal right, even duty, to transfer them to the ICC’s custody in The Netherlands for legal proceedings to go forward. This same argument would apply to soldiers from any of Russia’s allies, like Belarus or Syria, captured in Ukraine and suspected to have committed war crimes.
The ICC statute codifies at length a long list of war crimes, and its later resolution in 2010 defines the legal elements of these crimes. The statute covers many of the atrocities the world has seen Russian forces commit since the invasion began. The statute contains preexisting crimes from the Geneva Conventions. Thus, even where ICC jurisdiction runs into limits, the laws of war should be applied under those conventions, the Additional Protocol, and customary law to Russian military forces. The ICC statute lists eight war crimes that arise from grave breaches of the Geneva Conventions. The subsequent ICC resolution detailing elements of these war crimes lists 11 such crimes. These include:
Willful killing
Willfully 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
Depriving a prisoner of war or a civilian (“protected person”) of the rights of a fair and regular trial
The unlawful deportation or transfer or unlawful confinement of protected persons; and the taking of hostages
These are all grave breaches of the 1949 Fourth Geneva Convention for protecting civilians.
Other war crimes listed in the ICC statute derive not from “grave breaches,” but from “serious violations of the law and customs” of war. These serious violations are also derived from the Geneva Conventions and Additional Protocol I of 1977. The ICC statute lists these crimes in 26 sections and the 2010 ICC resolution provides specific definitions and elements for 35 such war crimes. These include:
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
Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the [UN]
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated
Some or all the above appear to apply to Russia’s indiscriminate shelling and bombing, including attacks on neutral or humanitarian routes for the evacuation of civilians. If there are legally recognized efforts to deliver humanitarian assistance to besieged cities and towns, Russian attacks on such assistance should also be punished as war crimes.
Proving intent should not be difficult for international prosecutors, since the ICC statute’s definition of that term is in accord with ordinary criminal law principles. The statute provides that a person has intent when, in relation to conduct, that person “means to engage in the conduct.” In relation to a consequence, the person has intent when he “means to cause that consequence or is aware that it will occur in the ordinary course of events.” Russian destruction of Ukraine’s cities through artillery and missile strikes are quite clearly intentional; particular attacks on certain buildings or sections of cities will easily be shown as intentional.
Further war crimes under the Geneva Conventions, the Additional Protocol, and customary international law, spelled out in the Rome (ICC) statute, include:
Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives
The deportation or transfer “of all or parts of the population of the occupied territory within or outside this territory"
Intentional “attacks against buildings dedicated to religion, education, arts, science or charitable purpose, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives"
These specified crimes appear to cover the Russian military’s destruction of urban neighborhoods, as well as entire towns and villages, and its apparently intentional bombing of hospitals, schools, churches, and other civilian buildings.
Even more possible war crimes that we have seen being committed or have been threatened by Putin and Russian troops are:
Pillaging (looting) a town or place, even when taken by assault
Destroying or seizing Ukrainian property, without the imperative demands of the necessities of war
Employing poison or poison weapons or poison gas
Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict (provided that such weapons have previously been outlawed under the ICC process)
This last category of crimes conceivably would include Russian rockets, missiles, cruise missiles, Grad multi-launch missiles, and dumb bombs. There are also reports that Russia has used thermobaric bombs and cluster bombs, which may be covered by this comprehensive prohibition and included in the ICC statute. Certain types of expanding bullets are also prohibited, so any Russian use of those munitions would also be war crimes.
Reports of Russian soldiers seizing Ukrainian local officials in towns occupied by the Russian military, and the possibility of transfer to the Donbas “republics” where these officials may be placed on trial would trigger other Russian war crimes. These include the prohibition on hostage-taking, a grave breach of the Geneva Conventions. Show trials or kangaroo courts on Russian charges of “terrorism” would be a serious violation of the prohibition on abolishing or suspending “in a court of law the rights and actions of the [Ukrainian] nationals.” Moreover, Article 75 of Additional Protocol I requires that all trials of “penal offenses” be conducted by “impartial and regularly constituted court[s]” using “generally recognized principles of regular judicial procedure,” and lists a panoply of procedural rights familiar to Americans, including due process, the presumption of innocence, and the right against self- incrimination. Any Russian attempt to try Ukrainian officials for “war crimes,” whether grave breaches or lesser crimes, will trigger the protections of Article 75, or “more favorable treatment under the [Geneva] Conventions or this Protocol,” and the requirement that such trials must be conducted “in accordance with the applicable rules of international law.”
Finally, it is also a crime of war to intentionally use “starvation of civilians as a method of warfare by depriving them of objects indispensable to survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.” We have seen evidence of this in the besieged city of Mariupol on the sea of Azov, and to judge by past Russian behavior in Chechnya and Syria, starvation will likely be employed by Russian forces as they encircle and besiege other towns and cities, including Kyiv and Kharkiv, if Russian forces succeed in overcoming the fierce resistance of the Ukrainian armed forces.
We have been focusing on how the law of armed conflict protects civilians. Key concepts are the principles of military necessity and proportionality. As applied in Ukraine, this means that Russia must only attack targets with military value and ascertain whether civilians are likely to be killed or injured. The attack must not take place unless the expected “collateral damage” to civilians and their objects is proportionate to the military advantage to be gained. This is clearly not happening in Ukraine. Indiscriminate attacks on civilians and civilian institutions and infrastructure are outlawed. Commentators on U.S. media have noted that after Russia was thwarted from its planned blitzkrieg and decapitation of the Ukrainian government, it reverted to its traditional tactics of standing at a distance and pummeling urban centers with explosives, whether from artillery, rockets, or munitions dropped from planes. This does not relieve the Russian military of its legal obligations to only target military objects. To the contrary, the Russian military’s indiscriminate bombardments destroying cities, designed to terrorize the civilian population, will support many war crimes charges.
The Rome statute also restates and applies general principles of international criminal law. These include such concepts as attempts, aiding and abetting, joint conduct, acting with a common purpose (akin to conspiracy), and ordering or soliciting war crimes. The principle of individual accountability means that ordinary soldiers and commanders engaged in hostilities are accountable, if there is proof of their individual conduct and their mental state, usually an intent to commit such conduct and knowledge of the circumstances or consequences, as specified in the elements of the particular war crime charged. There is no defense of superior orders for a soldier or civilian, even for one under a legal duty to comply with the orders of his government or superiors, when the accused knew that the order was unlawful or it was “manifestly unlawful.” (All orders to commit genocide or crimes against humanity are manifestly unlawful.)
Significantly, the principle of command responsibility reaches the entire chain of command, where military commanders or civilian leaders knew or “should have known” that their forces were committing such crimes and failed to take “all necessary and reasonable measures” to prevent their commission. A superior officer (military or civilian) is also responsible for crimes committed by his subordinates when the superior knew or “consciously disregarded” indications that the subordinates were committing crimes, they were within his “effective responsibility and control,” and he failed to take all “necessary and reasonable measures” within his power to prevent their commission. For the highest government officials, including heads of state and government, the statute is explicit that such high office “shall in no case exempt a person from criminal responsibility.” The convictions not long ago of the leaders of Serbia and the Bosnian Serbs for war crimes are an example of command responsibility and might serve as a model for holding Putin and his closest aides accountable.
3) Why Putin and the Russian military are committing crimes against humanity and how to hold them accountable
Crimes against humanity are another large category of crimes against the rules and customs of war. These are patterns of war crimes, characterized as “widespread and systemic,” involving multiple criminal acts directed at civilians. As the Russian attack on Ukraine continues, perhaps for weeks and months to come, new patterns of atrocities directed against the civilian population will continue to emerge. The Nuremberg tribunal was the first modern progenitor of this category, based on Nazi outrages that shocked the conscience of humankind. The Geneva Conventions of 1949 and Additional Protocol I of 1977 (which Russia and Ukraine, although not the United States, have ratified,) list “grave breaches” of obligations of international humanitarian law. These grave breaches involve causing death or serious injury to the body or health of the civilian population or other protected persons, including prisoners of war, refugees, and stateless persons. Attacking the civilian population or individual civilians through a pattern of indiscriminate attacks, knowing that such attacks will cause excessive loss of life or injury to civilians or damage to civilian objects, is a crime against humanity.
The ICC (Rome) statute makes clear that crimes against humanity are a matter of international criminal law and entail individual criminal responsibility. There are 16 separately defined crimes against humanity (CAH), not all of which are likely to apply to Russia’s invasion of Ukraine (for example, the crime of apartheid). For all 16, there is a required element that “the conduct was committed as part of a widespread or systematic attack directed against a civilian population.” The definition of an “attack directed against any civilian population” involves “a course of conduct involving the multiple commission of acts.”
The first CAH listed in the statute is murder. Persecution (defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”) against an identifiable group or collectivity on grounds that include national, ethnic, and cultural identity is another CAH. Extermination, defined as “the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of the population” is also listed. The deportation or forcible transfer of population, defined as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law” is another specifically defined CAH. Finally, there is a catchall CAH of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Should Russian brutality continue and overwhelm the Ukrainian defense, there may well arise other patterns of criminal acts. For example, torture, imprisonment, enslavement, rape and sexual slavery, and the enforced disappearance of persons, during a period of Russian occupation may lead to additional charges of these specific crimes against humanity. Russian conduct that amounts to ethnic cleansing, which is not a legal term, of cities or regions of Ukraine, its treatment of prisoners of war, and its failures to meet the needs for food, water, health, medical care, and the security of civilian populations under Russian military control can all lead to charges of crimes against humanity. Recent reports of Russia targeting Ukrainian officials in towns under its control and threatening to break up Ukraine into different “people’s republics” will also require investigation and perhaps lead to charges.
4) Why Putin and Russia may be guilty of genocide and how to punish the perpetrators
Before starting hostilities in late February, Putin had made statements in which he denied the national rights of the Ukrainian nation and people. He appeared to consider them either unworthy of having their own nation- state or simply as a part of a larger Russian nation and people. Having denied them agency and identity, perhaps it was easier for Putin to launch a massive invasion of Ukraine. The main Nuremberg trial did not employ and did not lead to any development of the crime of genocide. There was no progress until 1951 when the Genocide Convention came into force. (The United States did not ratify this convention until 1988.)
Depending on what the future holds, both in terms of the political structures in place in Ukraine when the war concludes or a political settlement is reached, Putin could be charged with genocide. The crime is defined in the Genocide Convention and in the ICC statute, which is drawn word-for-word from the Convention. It begins with an “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group” by means of different actions. The actions are killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. Each of these is a different way in which to commit the crime of genocide. The ICC’s elements of crimes adopted in 2010 spell out for each of these methods specific elements that must be proved against a perpetrator to obtain that person’s conviction of the crime of genocide. Genocide has universal jurisdiction, meaning that all the nations of the world are obligated to put on trial or send to another state for trial a person they apprehend who is credibly believed to have committed that crime. The International Criminal tribunal for Rwanda and the tribunal for Yugoslavia both produced convictions on charges of genocide.
5) How can we see Putin and his top henchman put in the dock?
It can admittedly take years and even decades for legal authorities from an international criminal tribunal to gain custody of indicted war criminals. Current international law and any new agreement or international statute that creates a special tribunal would obligate all countries to assist by arresting and extraditing the defendants. It is impossible to calculate the chances and predict the series of events by which Putin and his subordinates could be taken into custody. One possibility is for Russia to be ejected from Interpol, as some have proposed. This would permit the arrests when they travel outside of Russia on red notices of suspected war criminals under indictments by international tribunals, or even by Ukraine, should that country keep its independence. Putin, as a head of state, and his diplomats, like foreign minister Sergei Lavrov, would be immune from arrest. Should Putin fall from power, however, he would be subject to arrest if he leaves Russia. As with Serbia, a new Russian government could decide on its own to either try him in their courts or extradite him to a tribunal.
6) Final Thoughts
A few years ago, much was made of the “responsibility to protect,” called R2P, a doctrine that has been institutionalized within the U.N, system. It refers to humanitarian interventions, by force if necessary, to protect civilian populations, usually from their own governments. In this case, any intervention would be to protect Ukraine’s civilians against Russian forces. There is presently no appetite in the West for engaging in a humanitarian intervention, let alone one that is accomplished using military force.
Under the Fourth Geneva Convention the parties to the conflict are encouraged to establish neutral zones, in which civilians can shelter in safety or escape from the hostilities. Until now, Russia and Ukraine have made fitful attempts for temporary neutral zones, so that food and medical supplies can be delivered to trapped civilians, as well as establish corridors so that civilians may escape the hostilities. News reports of Russian shooting and bombardments of evacuation corridors have shown Russia violating these agreements and preventing many civilians from getting to relative safety. Fortunately, in some locations in recent days these agreements have appeared to hold, and thousands of civilians have been able to leave for safer locations within Ukraine. However, should Russia continue to block implementing of agreements that would provide relief to besieged Ukrainian populations, the U.S. and its NATO allies, in cooperation with international relief organizations, may need to undertake humanitarian interventions, even ones requiring the threat or use of force.
Given what the world is witnessing, it is positive to see the International Criminal Court, the UN, and Ukraine’s government, with the support of other governments, launch war crimes investigations. In the future, without ICC jurisdiction over nationals of non-members, the nations of the world may need to create a special tribunal to solely address the charges of Russian crimes in Ukraine. Some difficult hurdles will need to be overcome to create such a tribunal. Perhaps Russia can be suspended from the U.N. Security Council or its veto can be taken away during these hostilities. Or, if a new Russian government comes to power, that might permit the creation of a new tribunal. It is almost certainly the case that we will not see anything like the Nuremberg tribunal, because that was created by the victorious Allied powers that defeated and occupied Nazi Germany.
Any new tribunal will need to have both a trial and appellate chamber of judges, and a strong staff of prosecutors and investigators. The longer the conflict in Ukraine goes on, with a growing number of violations of humanitarian and international criminal law that accompany the destruction and violence, the greater the urgency will be to find an appropriate tribunal to build upon the investigations currently underway. The prospects of war crimes charges and trials can help to relieve human suffering and destruction in Ukraine and can complicate the war calculations in the Kremlin by Putin and his military. These prospects are also a potential tool of diplomacy that may lead to negotiations, not only between Russia and Ukraine, but also with other interested parties in the world community, to achieve a settlement. Such a settlement will need to ensure, among many other things, individual accountability for violations of the laws of war and the foreclosure of impunity for those in Russia who caused this atrocious and unnecessary war and are conducting it with extraordinary barbarity and criminality.
Russell Bikoff has been a prosecutor in the Manhattan District Attorney’s office and a federal official in the foreign affairs community and the U.S. Department of Justice. In the mid-1990s, he helped create the first-ever class in conflict resolution at the Foreign Service Institute, an arm of the U.S. Department of State. For the past 15 years, he has practiced law in Washington, D.C., focusing on criminal defense, civil litigation, and other civil matters.