War crimes: how Putin could be tried before the International Criminal Court

The US Embassy in Kyiv said Friday that Russia committed a war crime by attacking a nuclear power plant in Ukraine.

Alleged Russian use of cluster bombs and so-called vacuum bombs in densely populated areas with many civilians was also described as a war crime.

“I want to be very clear about this, that Mr. Putin is a war criminal,” former Ukrainian Prime Minister Arseny Yatsenyuk told the Council on Foreign Relations on Thursday. “He must sit behind the bars of the International Criminal Court.”

However, if justice in general moves slowly, international justice barely moves. Investigations at the ICC take many years. Only a handful of convictions have been won.

Here is a very broad overview of war crimes and the international justice movement.

Note: Some of the information below comes from CNN’s Research Library, which has compiled information about the International Criminal Court.

What is a war crime?

The International Criminal Court has specific definitions for genocide, war crimes, crimes against humanity and the crime of aggression. Discover them in this guide published by the ICC.

Specifically, targeting civilian populations, violating the Geneva Conventions, targeting specific groups of people and more could be potential Russian war crimes.

What are cluster bombs and vacuum bombs?

The dreaded use of prohibited weapons intended to kill indiscriminately is what people are now discussing as a very specific war crime.

With a cluster bomb, a missile is fired and explodes thousands of feet in the air, releasing smaller bombs that each explode as they fall to the ground. See an illustration from The Washington Post. Amnesty International said a Russian cluster bomb fell on a Ukrainian kindergarten.
“Vacuum bombs”, or thermobaric weapons, suck oxygen from the surrounding air to generate a powerful explosion and large pressure wave that can have enormous destructive effects. Russia previously used them in Chechnya, and a CNN crew spotted a Russian thermobaric multiple rocket launcher near the border with Ukraine late last month.

Does Russia use these weapons?

US Ambassador to the UN Linda Thomas-Greenfield told the UN General Assembly on Wednesday that Russia was preparing to use these weapons.

The United States fears that Putin and the Russian military will become more brutal since the invasion does not go as well as they had expected.

What are world leaders saying?

Ukrainian President Volodymyr Zelensky said on Monday that the targeting of civilian areas by Russian aircraft was a war crime.

President Joe Biden and British Prime Minister Boris Johnson have both said Putin appears to be targeting civilian areas.

“What we’ve already seen from Vladimir Putin’s regime in the use of ammunition that they’ve already dropped on innocent civilians…in my view, (this) is already fully qualified as a war crime,” Johnson told the British parliament. Wednesday.

But Biden on Wednesday stopped saying that Putin had committed a war crime.

“We are following it very closely,” Biden said. “It’s too early to say that.”

Meanwhile, on Capitol Hill, there is bipartisan support for a resolution backing the ICC investigation.

What is the International Criminal Court?

Located in The Hague, Netherlands, and created by a treaty called the Rome Statute first presented to the United Nations, the International Criminal Court operates independently.

Most countries on Earth – 123 of them – are parties to the treaty, but there are very important and notable exceptions, including Russia and the United States. And, by the way, Ukraine.

Who can be judged by the court?

Anyone accused of a crime within the jurisdiction of the Court, which includes ICC member countries, can be tried. The tribunal judges people, not countries, and focuses on those who hold the most responsibility: leaders and officials. Although Ukraine is not a member of the Court, it has previously accepted its jurisdiction.

Putin could therefore theoretically be indicted by the court for having previously ordered war crimes in Crimea.

However, the ICC does not conduct trials in absentia, so he would either have to be handed over by Russia or arrested outside of Russia. It seems unlikely.

What crimes does the court deal with?

The ICC is meant to be a court of “last resort” and is not meant to replace a country’s judicial system. The tribunal, which has 18 judges serving nine-year terms, tries four types of crimes: genocide, crimes against humanity, crimes of aggression and war crimes.

How does the ICC prosecute?

Judicial proceedings can be initiated in two ways: Either a national government or the UN Security Council can refer cases for investigation.

Russia, a permanent member of the UN Security Council, has a right of veto over the actions of the Council. It was the demands of 39 national governments, mostly European, that triggered this ongoing investigation.

What will the ICC investigate regarding Ukraine?

In its new investigation into Russia’s possible war crimes, the ICC said it would examine all actions in Ukraine from 2013 to the present day.

Russia first entered Crimea, which was part of Ukraine, in 2014. The ICC was already investigating the crackdown on protesters by a former pro-Russian Ukrainian government. This new referral seems to group together all potential war crimes.

How long do these surveys take?

ICC investigations can take a very long time.

A preliminary investigation into the hostilities in eastern Ukraine lasted more than six years, from April 2014 to December 2020. At the time, the prosecutor said there was evidence of war crimes and crimes against humanity. The next steps have been slowed by the Covid-19 pandemic and a lack of resources at the court, which is carrying out multiple investigations.

Why would a prosecution in Ukraine be any different?

The international outcry against Russia is unique, and it could give the court the ability to operate differently, according to Ryan Goodman, a law professor at New York University and co-editor of Just Security, an online forum.

“It is difficult to judge the ICC investigation based on past practice,” Goodman said in an email. “In the situation in Ukraine, the prosecutor is backed by an extraordinary outpouring of support from dozens of countries, which I hope will be followed by an injection of resources.”

How would an ICC case affect the conflict?

‘For better or worse, the ICC investigation may affect the diplomatic space for negotiations,’ Goodman said, saying Putin and other Russians might not want to risk arrest if they travel outside the country.

The investigation could also, he argued, weaken Putin at home.

“The Russians might realize that’s another reason why Putin can no longer serve their country,” Goodman said.

What happened before the ICC?

Previous war crimes trials have been brought by special UN tribunals, such as those set up for the former Yugoslavia, focusing on Serbian autocrat Slobodan Milosevic, and for the Rwandan genocide.

This all stems from the precedent of the Nuremberg Trials to bring Nazis to justice after World War II and held by the Allies, including the United States, Soviet Union, France, and Germany.

It is therefore interesting to note that neither the United States nor Russia are members of the ICC.

Why are the United States and Russia not members of the ICC?

The United States and Russia are both signatories to the treaty that created the tribunal — meaning their leaders signed it — but neither is a member of the tribunal.

Russia withdrew from the tribunal in 2016, days after an ICC report published what CNN called a “damning verdict” on Russia’s occupation of Crimea in 2014. The tribunal also launched a investigation in 2016 into Russian efforts in 2008 to support breakaway regions of Georgia.

At the time, France also accused Russia of committing war crimes in Syria.

As for the United States, if President Bill Clinton signed the treaty creating the court in 2000, he never recommended that the Senate ratify it.

The George W. Bush administration, to much criticism, withdrew the United States from joining the treaty in 2002. The Pentagon and many U.S. policymakers have long opposed joining such an international judicial system because it could open the US military to allegations. of war crimes.

“The President (George W. Bush) believes the ICC is fundamentally flawed because it exposes the US military to the fundamental risk of being tried by an entity that is beyond America’s reach, beyond US law. and may subject American civilians and military personnel to arbitrary standards of justice,” White House press secretary Ari Fleischer said at the time.

How did the United States support the tribunal?

Opposing America’s membership in the court did not mean that the Bush administration opposed the court itself. He supported the ICC’s efforts to seek justice for the genocide in Sudan.

There has always been an awkwardness in the way US presidents treat the court, noted CNN’s Tim Lister in 2011. He wrote about Barack Obama applauding the ICC’s efforts to bring justice to people like the former general Serbian Ratko Mladic and Libyan leader Muammar Gaddafi, without endorsing the court for US surveillance.

This story and headline were updated with additional developments on Friday.

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