The Geneva Conventions of 1949 conceptualise war crimes as any act wherein commanders and combatants disrespect civilians and/or illegally target them. In other words, no distinction is made between combatants and the civilian population. The ongoing crisis in Ukraine following the Russian invasion raises fundamental concerns in this regard. The Russians have conveniently labelled the war as a ‘special military operation’.
Technically, war crimes, as per the International Criminal court (ICC), include murder, torture, enslaving of civilians and prisoners of war, taking of hostages, raping, looting, reckless destruction of civilian property and drafting of children under 15 years of age into the military. The ICC, based in the Hague, is technically empowered to prosecute individuals in four contexts -- war crimes, genocide, the crime of aggression, and crimes against humanity. Many countries are yet to sign the Rome Statute. The US has signed but not ratified it.
Russia, it may be recalled, walked out of the ICC soon after the Court in 2016 contended that Russia’s hold on Crimea amounted to an occupation. Even during the Chechnyan conflict, Russia had carpet-bombed its capital Grozny and other towns, resulting in thousands of casualties. Russia did the same during its occupation of South Ossetia in Georgia in 2008 and the annexation of Crimea in 2014.
With each passing day, more countries are demanding an investigation into the Russian genocide in Ukraine. Attacks are being launched by Putin’s forces even inside humanitarian corridors meant to be used to supply food, water and medicines to the populace. Appalling atrocities are being committed on civilians. The use of cluster bombs by Russia constitutes a war crime. Cluster bombs were banned by the Convention on Cluster Munitions. Ukraine’s ambassador to Washington has accused Putin of even using vacuum bombs. These bombs create a devastating fireball, destroying everything in their vicinity.
Putin’s soldiers were initially accused of brutally firing into residential areas in Kharkiv, Kyiv and Bucha. The last straw was the targeting of a maternity hospital in Mariupol. Even the WHO has identified close to 40 attacks on healthcare facilities in Ukraine. Bucha clearly reflected a wider pattern of war crimes and is nothing short of genocide, according to President Zelensky. The US Senate has even passed a resolution to initiate proceedings against President Putin for war crimes. President Biden recently called Putin a “war criminal”.
In case an arrest warrant is issued on Putin, it would restrict his travels worldwide, as he would have to be handed over if he travels to any member state of the ICC. However, the prosecution is a very cumbersome and long process. Even the investigation into war crimes in Darfur, which commenced in 2005, is still on. The only person indicted by the ICC was Sudan’s Omar Hussain Ahmad al-Bashir. He was charged in 2009 and 2010 with two counts of war crimes, and five counts of war against humanity for genocide in Darfur. Though he lost power due to popular protests, he is yet to be handed over to the ICC.
In Putin’s case, too, there would be many practical difficulties in pursuing a prosecution. Arraigning Putin before a tribunal would be quite difficult unless he is overthrown in Russia. It is also contingent on the type of documents the court would have access to. In terms of evidence -- orders, memos, and records of conversations -- would have to be accessed. Photographs of destroyed apartments and hospitals may be necessary but not sufficient. Without clear records, Putin may be tried only for the crime of aggression.
The problem is also compounded by the fact that Russia does not recognise the Court. Technically, the Court does not try anyone who is not physically in the Court. The other option is for the UN Security Council to set up a special tribunal to try Putin. But even this won’t work as Russia is on the Security Council as a permanent member.
Though getting to charge Putin and his commanders will be a long legal process, the process must be taken forward. To add to the complexity, Russia, the US and China are not parties to the ICC. It seems perhaps easier to try the commanders on the ground than the political leaders. In Putin’s case, he would have to be arrested in a country that accepts the jurisdiction of the ICC, and this is unlikely to happen. The challenge is to prove that Russia specifically targeted civilian areas. Though Ukraine is not a party to the Rome Statute, Kyiv has accepted the Court’s jurisdiction for incidents on its territory since 2013. A well-known war crime prosecutor said recently, “We’re only at the beginning of the beginning”. Yet, a beginning has to be made.
(The writer is a Professor, Dept. of International Studies, Political Science and History, Christ (deemed-to-be University))
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