Establishing guilt for war crimes is not straightforward

Thursday, 7 April 2022

Stephen Hoadley is Associate Professor of Politics and International Relations at the University of Auckland; series editor of five volumes on International Human Rights published by Springer, and former coordinator of the graduate degree of International Relations and Human Rights at the University of Auckland

OPINION: Is Putin a war criminal? Yes, according to US President Joe Biden, Polish PM Mateusz Morawiecki, and Ukraine’s president Volodymyr Zelenskyy. This accusation is echoed by Australian PM Scott Morrison and a growing number of other leaders.

Evidence of heinous crimes by Russian troops is visible to anyone watching TV news about the executions in Bucha and the shelling of hospitals, schools, and residential neighbourhoods in Mariupol, Kyiv and Kharkiv by Russian artillery and missiles.

More cautious leaders have avoided publicly pinning the ‘‘war criminal’’ label on Putin, including New Zealand’s PM Jacinda Ardern and Foreign Minister Nanaia Mahuta. But both acknowledge that war crimes ‘’beyond reprehensible’’ have been committed, and they back an investigation by the International Criminal Court.

In stark contrast, Kremlin spokespersons, and leaders aligned with Russia, such as those of China, Belarus, Syria, Pakistan, and even India, Hungary and Serbia, ignore the crimes, say that they didn’t happen, or assert that they were faked by the Ukrainians.

**READ MORE:

* Is Russia committing genocide in Ukraine?

* Biden calls for Putin to face war crimes trial over atrocities in Bucha, Ukraine

* Jacinda Ardern: Reports of war atrocities in Ukraine 'beyond reprehensible'

* How would those accused of Ukraine war crimes be prosecuted?

* The International Court of Justice has ordered Russia to stop the war. What does this ruling mean?

* Who is a war criminal, and who gets to decide?

**

Ardern’s caution is justified: establishing guilt for war crimes abroad is not as straightforward as bringing domestic criminals to justice. Accusations can polarise protagonists and jeopardise diplomacy. And the principle of innocence until proven guilty by a legitimate court still applies, even to Putin and his soldiers.

Nevertheless, Putin cannot claim immunity as a head of state, or object that he has not personally killed a Ukrainian civilian or launched a bomb at a hospital. The Nuremburg and Tokyo trials after World War II firmly established the doctrine of command responsibility. There is no sovereign immunity in international law. Putin is responsible for atrocities committed by Russian soldiers under his presidency.

What then is required to convict Putin? Simply put: a court is required. Two possible international courts stand out: the International Court of Justice (1945) and the International Criminal Court (2002). The former rules on inter-state disputes and the latter on crimes by individuals. Both are seated in The Hague, Netherlands.

Ukraine has already lodged a complaint in the International Court of Justice (ICJ) against Russia for its invasions of Crimea and Donbas in 2014. Ukraine lodged a further complaint on February 27, 2022, after the expanded invasion by Russia. On March 16, after hearing Ukraine’s evidence, the ICJ justices issued an interim order for Russia to suspend military and clandestine operations in Ukraine.

Only two of the 15 justices, one from Russia and the other from China, dissented. Russian leaders refused to recognise the ICJ’s authority, did not attend the hearing, counterclaimed without evidence that its ‘‘special military operation’’ was aimed at protecting Russian-speaking Ukrainians from ‘’genocide’’ by Nazi Ukrainians, and asserted that no civilians had been killed by Russian troops.

Because cooperation with the ICJ is voluntary, and the ICJ has no enforcement powers and cannot arrest suspects of crime, this route to accountability by Putin and justice for Ukraine is blocked by Russia’s obfuscation and evasion. Nevertheless, a moral gain for Ukraine is expected when the ICJ rules favourably on the substance of the case.

To try Putin as an individual, the appropriate court is the International Criminal Court (ICC). The same would be true of trying any individual Russian official, commander or soldier.

What would be the charge against Putin? The ICC Statute, adopted in 1998 and effective from July 1, 2002, specifies four crimes:

• war crimes,

• crimes against humanity,

• genocide, and

• aggression.

War crimes are essentially those actions prohibited by the Geneva Conventions 1949 as amended. They prohibit gross cruelty by military personnel and irregular fighters against fallen combatants, prisoners of war, and civilians under military occupation not justified by military necessity.

Crimes against humanity are widespread offences by any agency against civilians, such as murder, rape, enslavement, theft or displacement. These two sets of crimes are relatively well defined and supported by precedents, and are thus less controversial in conception.

The crime of genocide, adopted from the Genocide Convention of 1949, is comprised of ‘’acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group’’. However, it is difficult to prove inasmuch as its elements and thresholds are ill-defined, and judicial precedents are few.

Equally problematic is the crime of aggression. The ICC negotiators in 1998 were unable to agree on a justiciable definition of aggression, so left this crime undefined in the ICC Statute. After two decades of inconclusive debate, the ICC parties in 2019 delegated to the UN Security Council the prerogative identifying a military action as aggression.

However, any one of the Permanent Five, such as Russia, may exercise its veto, thus precluding any Security Council censure. So the ICC is unlikely to be tasked by the Security Council to charge Putin with aggression as long as Putin remains in power.

Nevertheless, the Prosecutor of the ICC had already, in 2014, inaugurated an investigation of Russia’s incursions in Crimea and Donbas, precipitating armed clashes that have so far resulted in 14,000 Ukrainian fatalities. The investigation was renewed following Russia’s February 2022 invasion. It was requested by Ukraine and supported by New Zealand and over a dozen other governments.

Evidence of war crimes, crimes against humanity, genocide and aggression is being collected, assembled and assessed. Alongside evidence collected by other international, state, and NGO investigators, it will become part of the public record, a standing moral indictment of Russia’s crimes presided over, and probably ordered, by Putin.

Regrettably, the ICC role may stall there. Neither Russia nor Ukraine is a member of the ICC. Russia withdrew in 2016, objecting to the ICC investigation of its interventions in Donbas and Crimea. Ukraine signed but never ratified the ICC Statute. It has now requested ICC jurisdiction, but Russia is unlikely to follow suit. So the ICC lacks clear jurisdiction over the venue, victims, and perpetrators of the crimes.

There is another route to the ICC: the UN Security Council is empowered to request the ICC Prosecutor to initiate an indictment of people anywhere who threaten ‘’international peace and security’’. But the Russian veto would block this route to conviction of Putin.

So under current circumstances, the outlook is dim for securing international court judgments to condemn Putin, or any of his subordinates or soldiers, as a war criminal.

The recourse of those seeking justice is to support institutions such Ukraine’s national courts, the European Court of Human Rights, and unofficial tribunals set up by NGOs. These institutions can present compelling evidence, issue credible opinions, and conclude incisive judgments condemning the criminality not only of Russian soldiers but also of their commander, Putin.

By the court of world opinion and the tribunal of history, Putin will be condemned as a war criminal.