(Bloomberg) — Russia’s February 24 invasion of Ukraine and repeated attacks on civilian targets have sparked calls in the US, UK and Europe to hold President Vladimir Putin and his subordinates accountable. US President Joe Biden called Putin a war criminal on March 16 when news broke that a theater in the Ukrainian city of Mariupol had been razed to the ground. The International Criminal Court has opened an investigation into war crimes in Ukraine. However, it is far from certain that anyone will be brought to justice under international law, especially if Russia does not lose the war.
The definition used by the International Criminal Court in The Hague has been expanded. It includes intentional killing, torture, rape, forced prostitution, corporal punishment, hostage-taking, unlawful deportation, the use of hunger as a weapon, and the shooting of surrendered combatants, among many other acts. War crimes can also include the use of prohibited weapons such as chemical and biological weapons, the deliberate attack on civilians and non-military targets, the targeting of hospitals and other places where the sick and wounded are gathered, looting, and carrying out attacks that cause serious damage to will inflict on the environment. The invasion of Russia can also be considered a so-called crime of aggression.
2. What is a crime of aggression?
It is the planning, preparation and execution by a state military or political leader “of an act of aggression which, by its character, seriousness and magnitude, constitutes a clear violation of the Charter of the United Nations,” the ICC said. the fourth crime under its jurisdiction as of 2018, after war crimes, genocide and crimes against humanity. An act of aggression means “the use of armed force by one state against the sovereignty, territorial integrity or political independence of another state” and can include invasion, occupation and annexation through the use of force, as well as the blockade of ports. The crime only applies to top leaders who “control” or “direct the political or military action of a state”.
3. How are war crimes prosecuted?
The ICC grew out of an international treaty called the Rome Statute in 2002 as the first permanent, independent arena to hold people accountable for acts of mass inhumanity. It started with 60 countries and membership has since doubled. Notable countries that have not ratified the treaty are the US, China, Russia and India. (The US says it would violate its constitutional rights by placing its citizens under the jurisdiction of the court.) The ICC can prosecute war crimes cases when alleged crimes have been committed by a citizen of a member state, or on the territory of a member state or a non-member state that has accepted the jurisdiction of the court, or when charges are referred by the United Nations Security Council to the prosecutor. The ICC’s public prosecutor’s office can prosecute violent crimes on referral from the Security Council, at the request of a member state or on its own initiative.
4. What does this mean for Ukraine?
Ukraine is not a member of the ICC, but accepted the court’s jurisdiction for incidents on its territory as of November 2013. That enabled the court to investigate alleged crimes committed during and after the Russian invasion and annexation of the Ukrainian peninsula. Crimea in early 2014. On February 28. The court’s chief prosecutor, Karim Khan, said that based on a preliminary assessment by his office conducted mainly in 2020, “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” .” He said the investigation he opened would also include any new violations committed in the expansion of the conflict since Russia’s large-scale invasion. Dozens of countries have asked the ICC to investigate this action.
5. What are the challenges in prosecuting war crimes?
It’s easy enough to prove that Russian troops attacked civilian targets, including apartment buildings, hospitals, public squares, municipal buildings and a nuclear power plant. A deluge of video footage has been posted on social media, sometimes within minutes of such attacks taking place. And there is the testimony of Ukrainians who witnessed the massacre. But such evidence does not link specific strikes to specific individuals, which would be necessary for a prosecution. On the other hand, the US has said it is already on the ground looking for evidence of who is guilty.
6. What are the prospects for trying Russian officials?
Not good. The ICC will not allow trials in absentia, and the court, which has no police force, is unlikely to get its hands on Putin or his lieutenants. It relies on its member states to make arrests. But they have not always fulfilled their obligations to follow the orders of the court. And the accused could always avoid traveling to a country that could transfer them. In particular, the ICC has been able to prosecute war crimes in cases where the accused was on the losing side of a conflict and was reported by the winning side.
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