President Biden has denounced Vladimir Putin as a war criminal. Whether he is guilty of war crimes would be for a court to determine, but on the evidence so far, there is a very strong case for Putin to answer. The shelling of a maternity hospital in Mariupol and a bread factory outside Kiev are just two examples of civilian objects being destroyed by Russian forces.
Investigation Into Russia's Alleged War Crimes
The conflict in Ukraine is perhaps the first instance of a conflict in which, as it is being waged, observers are asking whether specific acts of aggression constitute war crimes.
Certainly, it is a conflict in which the opportunities to document alleged war crimes are greater than they ever have been. The ICC Prosecutor Karim Khan has sent a team of investigators to Ukraine to document the evidence. However, it is not only professional investigators who have a role to play. Mobile phone cameras are an invaluable tool in the quest to document war crimes. The Russians have recognised this: in those areas which they have occupied they have confiscated mobile phones. It has been possible to record possible war crimes through blogging and podcasts.
The criminal charges likely to arise out of the conflict are grave breaches of the Geneva Convention of 1949; crimes against humanity and genocide. Putin, his fellow ministers and generals could be charged on the basis of command responsibility whilst foot soldiers would also be liable.
War Crimes Prosecutions
There are several possible venues for any war crimes prosecutions. The International Criminal Court in The Hague is perhaps the most obvious choice, but there is a discussion of establishing a special tribunal to try war crimes arising out of the conflict. If there is a special tribunal, every effort must be taken to ensure that it has the authority to try war crimes. However, neither of these options prevent war crimes prosecutions from taking place in Ukraine. Indeed, prior to the current conflict Ukraine was developing a strategy of prosecuting war crimes committed in the Donbas region.
Indicting Putin with war crimes is likely to be easier than putting him on trial. His appearing before any court is unlikely unless there is political change in Russia. However, political change in Russia is not impossible. Once the strong man of Serbia, Slobodan Milosevic appeared before the International Criminal Tribunal for the former Yugoslavia after he was deposed from office in Serbia. All it would take would be for those around Putin to decide that their future is better secured without him.
However, merely indicting Putin with war crimes would be extremely powerful. He would be a head of state charged with being a war criminal. A warrant would be out for his arrest. His movements would be severely circumscribed.
Those who wage war are accountable for their actions. Indicting Putin would be a blow against impunity.
About the author: Mark Guthrie is a member RLConsulting which is associated with Red Lion Chambers. He is a former Rule of Law Advisor and Senior Human Rights Officer in the OSCE Mission to Bosnia and Herzegovina where he analysed war crime prosecutions.
