Crime and the Criminal #4: What Crimes Could Russians Be Charged With in Ukraine?
Because of a technicality, Putin can't be charged with the "crime of agression." But there are other war crimes.
(Kharkiv after Russian bombing. Photo by Getty Images.)
Last week, the International Criminal Court announced it was opening an investigation into alleged war crimes and crimes against humanity committed by the Russian military in Ukraine after an unprecedented 39 member states petitioned the court to launch a probe.
As I explained in my previous newsletter, because neither Russia nor Ukraine are state parties to the International Criminal Court, the court can’t investigate Russian president Vladimir Putin for launching an illegal war of aggression, which the International Military Tribunal at Nuremberg called “the supreme international crime" because all other war crimes stem from it.
However, because Ukraine accepted the ICC's jurisdiction in 2015 to allow the court to investigate Russia’s takeover of Crimea, Putin and his military leaders can be investigated for ancillary war crimes committed during the invasion.
As Russia continues to bombard Ukraine and evidence of atrocities mounts, what war crimes charges do Putin and his generals potentially face?
1. The Use of Banned Munitions
Amnesty International and Human Rights Watch claim to have evidence the Russian military is using cluster bombs to target residential neighborhoods in Ukrainian cities.
Cluster munitions scatter dozens of small bombs over a wide area, leaving behind unexploded bomblets, which even after the fighting is over, pose a danger to civilians.
The Convention on Cluster Munitions bans cluster bombs because of their inherently indiscriminate nature, but since Russia—like America and Ukraine—isn’t a signatory to the convention, it’s unclear whether the ICC can criminally charge Russian military personnel for using these munitions.
Human rights groups have also accused Ukraine of using cluster bombs against Russian-backed rebels in Eastern Ukraine.
Besides cluster bombs, the Ukrainian government claims Russia is using so-called vacuum bombs, weapons that suck in oxygen from the surrounding environment to generate a high-temperature fireball, but unlike cluster bombs, there’s no specific treaty banning their use.
(Cluster bomb showing bomblets)
2. Destroying Civilian Infrastructure
Putin’s bombing of schools, hospitals and apartment building in Ukraine has been widely labelled a war crime.
According to the International Criminal Court, “extensive destruction of property, not justified by military necessity” is illegal under international law.
The principle of military necessity allows an army to bomb so-called “dual use objects,” targets such as bridges and roads that are used by both soldiers and civilians, but not buildings with no military purpose.
Last Friday, the U.S. Embassy in Kyiv alleged Russia committed a war crime by attacking a nuclear power plant in Zaporizhzhya in southern Ukraine.
Article 56 of Additional Protocol 1 of the Geneva Conventions forbids attacks on nuclear plants “if such attacks may cause the release of dangerous forces and consequent severe losses among the civilian population.”
The Soviet Union adopted Protocol 1 in 1989. But Putin withdrew Russia in 2019. The United States has never ratified Protocol 1.
The U.S. government walked back the initial accusation that Russia had committed a war crime after it became apparent no radiation was released because of the attack, saying instead that Russia’s actions were “extremely reckless and dangerous.”
3. Failing to Distinguish Between Combatants and Civilians
On Sunday, Ukraine accused Russia of ignoring a ceasefire and shelling civilians trying to flee the city of Mariupol, killing eight people, including an 8-year-old.
The Rome Statute of the International Criminal Court says “intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities” is a war crime.
The United Nations has confirmed 474 civilian deaths. The actual body count is probably far higher. But not every dead civilian is a war crime. The laws of war allow for collateral damage. A modern war has yet to be fought with zero civilian casualties.
As Bill Wiley, director of the Commission for International Justice and Accountability, told the Guardian: “International humanitarian law makes tremendous allowance—more than people realize—for incidental, or what the media calls collateral damage.”
Whether Russian military personnel can be prosecuted hinges on the issue of intent.
Can a court prove the military deliberately targeted non-combatants or waged war in such a reckless manner that it effectively amounts to the same thing?
Proving intent to commit war crimes is always difficult, which is one reason the ICC has only successfully convicted a handful of war criminals.
(The evacuation of Mariupol. Photo by Vadim Ghirada/ Associated Press)
4. The Disproportionate Use of Force
Under international law, the force used to achieve a military objective must be proportional to the advantage sought.
Former ICC prosecutor Luis Moreno-Ocampo, who investigated war crimes during the Iraq War, defined the principle of proportionality in war: “A crime occurs if an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.”
For instance, you can’t wipe out an entire village to kill one enemy fighter.
Proportionality is a core principle of international law intended to balance out the principle of military necessity and limit the damage caused to civilians by military operations, but it’s difficult to define because it’s a subjective standard.
So far Putin hasn’t unleashed the overwhelming firepower Russia inflicted on Grozny during the Second Chechen War or on Aleppo during the Syrian civil war, but that may change if Russia continues to meet resistance.
As the BBC’s veteran war correspondent Jeremy Bowen recently wrote: “Rather than send in men to fight from house to house and room to room, their military doctrine calls for a bombardment by heavy weapons and from the air to destroy their enemies.”
(The ruins of Grozny. Photo by Getty Images)
5. Rape
In the southern Ukranian city of Kherson, residents allege Russian troops have raped local women after seizing control of the city. The International Criminal Court recognizes rape as a “crime against humanity” if it’s part of a widespread pattern.
The reports are as yet unconfirmed by outside human rights groups, but it wouldn’t be surprising to discover the allegations are true given the Russian military’s history of sexual violence.
During the invasion of Afghanistan, for instance, credible reports accused Russian soldiers of kidnapping Afghan women in Kabul and taking them to military bases to rape them.
Most infamously, historians claim the Red Army raped hundreds of thousands of German women after the fall of Berlin in 1945.
If prosecutors can show the rapes weren’t just isolated incidents, or that the leadership knew but did nothing to stop them, then the ICC could charge Russian officials with crimes against humanity.
Already, human rights groups are interviewing Ukrainian refugees and compiling evidence of war crimes committed by Russian forces to submit to the International Criminal Court, but don’t expect to see Putin in the dock soon.
ICC investigations can last over a decade. In its twenty-year existence, the ICC has issued only 35 arrest warrants, resulting in 10 convictions, leading critics to question the court’s effectiveness.
If the court finds evidence Putin committed war crimes, it can indict him. But charging him and arresting him are two different things. As I pointed out in last week’s newsletter, because the ICC can’t try suspects in absentia, the Russian government would have to deliver Putin to the court, which is unlikely unless there’s a regime change in Moscow. No leader of a major power has ever faced prosecution by the ICC.
But there may be another way to hold Putin to account: a special international tribunal modeled on the Nuremberg trials in the wake of World War 2, a proposal supported by Ukraine’s foreign minister, Dmytro Kuleba, and former British prime minister Gordon Brown.
A Nuremberg-style tribunal to try Putin for war crimes sounds like a good idea. But it ignores one obvious problem. The only reason the Nazis faced justice at Nuremberg was because they lost a war, which underscores an important point: only losers get prosecuted for war crimes.