How Putin and Russian Commanders Could Avoid War Crimes Prosecution

A Russian withdrawal from towns around the Ukrainian capital, kyiv, led to the discovery of corpses.

Associated Press reporters in Bucha counted dozens of plainclothes and apparently unarmed bodies, many of whom were said to have been shot at point-blank range, and some had their hands tied or their flesh burned.

All of this prompted Russian war crimes charges.

CBC explains how such apparent war crimes would be prosecuted and the challenges prosecutions might face.

Would apparent Russian attacks on Ukrainian civilians be considered war crimes?

During the war, the Geneva Conventions of 1949, as well as the Additional Protocols of 1977, defined certain protections for civilians and prisoners of war. Any serious violation of these protections can be considered a war crime. This includes willful killings, torture or inhuman treatment, intentionally directing attacks against civilians and killing a combatant who has laid down his arms.

Since the start of the invasion of Ukraine on February 24, Russia has been accused of committing war crimes. These allegations include the bombing last month against a theater and a maternity hospital in the city of Mariupol, in southeastern Ukraine.

Tom Dannenbaum, assistant professor of international law at Tufts University in Massachusetts, said both incidents may well have been war crimes. But determining that could be problematic, he said, because it could be difficult to prove those sites were intended targets or that the individuals responsible for the attack knew they were hitting a theater or hospital.

The challenge, he said, is to distinguish the deliberate targeting of such objects or their destruction in indiscriminate attacks from errors attributable to the “fog of war”.

“But once you see people with their hands tied behind their backs, clearly being executed, it’s just plain simple,” Dannenbaum said. “It’s very difficult to understand this as anything other than a deliberate killing of someone who is a person protected by law.”

Even if they were combatants, as soon as they were captured they would have been protected by the Geneva Conventions from being killed as prisoners of war, Dannenbaum said.

A satellite image of the land behind the Church of St. Andrew and Pyervozvannoho All Saints in Bucha, Ukraine, reveals the probable existence of a mass grave. (Maxar Technologies)

Gregory Gordon, a law professor at the Chinese University of Hong Kong, said while it seems clear that recent footage from Ukraine of people being tied up and shot suggests war crimes have been committed, “the question is know by whom”.

“If we’re talking about bringing people to justice, it becomes a much more complicated issue,” said Gordon, who has worked with the Office of the Prosecutor of the International Criminal Tribunal for Rwanda.

Who investigates allegations of war crimes?

The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations of war crimes, and last month ICC prosecutor Karim Khan said he was opening an investigation ” on the situation in Ukraine”.

But countries can open their own war crimes investigations, regardless of where the war crimes were committed or the nationality of the perpetrator. They must, however, adopt national legislation authorizing universal jurisdiction for war crimes. (Canada did, with its Crimes Against Humanity and War Crimes Act, enacted in 2000.)

So far, a number of countries, including France, Germany, Norway, Poland and Ukraine, have opened investigations into alleged war crimes committed in Ukraine.

The RCMP announced that it would launch its own investigations in Canada.

How do you build a case to prove that a war crime has been committed?

Human rights groups and field investigators will gather evidence which may include documents, photographs, videos and witness statements.

In the case of Ukraine, “ideally you want to supplement that with communications intercepts, for example, that show what Russian troops were saying to each other, what commanders were saying to their troops, what troops were saying to their commanders and how it was going up the chain,” Dannenbaum said.

WATCH | Evidence of war crimes, crimes against humanity in Ukraine, but not genocide, veteran investigator says:

Evidence of war crimes, crimes against humanity in Ukraine but not genocide: veteran investigator

“This is clearly a war crime and indeed its breadth and depth suggests that there are also crimes against humanity,” said veteran war crimes investigator Bill Wiley. “There is no evidence of genocide at this point.” 7:16

The challenge then is determining who to charge, said Gary Solis, contributing author of the International Committee of the Red Cross’ Commentaries on the Geneva Conventions.

A commander, for example, bears responsibility for the actions of his subordinates, even if the commander was not there at the time of the alleged war crime, Solis said.

“If he closed his eyes to what he knew or reasonably should have known about what was going on, he could be convicted.”

But Solis said it was important to get to “the root” – the commander, officer or politician who was in a position of authority, who gave the word to commit the crime in question.

“It doesn’t have to be explicit. It can be as little as a wink and a nod,” Solis said. “The problem is identifying this individual.”

Who are the usual targets of a war crime investigation?

While anyone implicated in an alleged war crime can be the target of prosecution, the International Criminal Court focuses on what it calls those most responsible, which means it tends to focus on those most highly placed. , Dannenbaum said.

“A lot rests on … the link between an individual and the wrongdoing,” he said. “Proofs of linkage can get quite complicated, because certainly the higher you go, the harder it is to show exactly who knew what at what time.”

WATCH | Ukrainian president calls Bucha’s assassination ‘genocide’

Ukrainian president calls Bucha’s assassination ‘genocide’

Ukrainian President Volodymyr Zelensky visited Bucha, a town near kyiv, on Monday, where an unknown number of people were killed during the Russian invasion, some of whom appear to have been shot at close range. 5:49

The ICC has also prosecuted those who perpetrated the crimes themselves. For example, Dominic Ongwen, commander of the Lord’s Resistance Army in Uganda, was sentenced last year to 25 years in prison for a litany of crimes including murder, rape and forced marriages in northern Uganda. Uganda between July 2002 and December 2005.

Gordon said that in his time as a prosecutor at the International Criminal Tribunal for Rwanda, established by the UN Security Council, it was often a question of who they could detain.

But he said the ICC could also prosecute at the lower level, “just so that there is some sense of justice”.

What might be the challenges of prosecuting potential war crimes in Ukraine?

For Ukraine, a state party to the International Criminal Court would have the duty to detain any Russian commander accused of war crimes and who would have been the subject of an arrest warrant.

But since Russia is not a state party to the ICC, those accused of war crimes can avoid prosecution by avoiding countries where they could be arrested.

That’s the loophole in the law, said Solis, who is also a former adjunct professor at Georgetown University Law Center in Washington, DC.

“You’re not going to try someone in absentia,” he said. “You want the body in court, or what the law calls in personam jurisdiction.”

However, there is no statute of limitations for war crimes charges, which means that a warrant of arrest will always be suspended for someone accused of such crimes.

What about the prosecution of Russian President Vladimir Putin?

Putin can certainly be held responsible for war crimes in Ukraine, say legal experts, especially if he gave direct orders. Otherwise, his guilt would be based on what he knew and what he could have done to stop him.

WATCH | World leaders condemn Russia for alleged civilian killings in Bucha:

World leaders condemn Russia for alleged civilian killings in Bucha

Among condemnations from world leaders, US President Joe Biden didn’t mince words – calling for a war crimes trial against Russian President Vladimir Putin for the civilian deaths in Bucha. Despite mounting evidence, it remains unclear whether Putin could even be brought to justice. 1:49

On prosecution, Dannenbaum said a doctrine known as head of state immunity would mean the Russian leader would be immune from prosecution by countries that have accused him of war crimes. , as long as he remains in power.

But one wonders if he would be protected from the International Criminal Court, if Russia were not a party to it.

For example, an arrest warrant was issued in March 2009 against Omar al-Bashir, then President of Sudan, for war crimes, but several states refrained from arresting him because he was the leader of the State of Sudan and not a State Party. at the ICC.

Al-Bashir, who has been in prison in Khartoum since being ousted from power in 2019, also faces charges of genocide and crimes against humanity related to the Darfur conflict.

“The ICC repeatedly concluded that it had a duty to arrest him and ultimately said the reason was that we were an international tribunal and therefore its immunity did not apply to us,” Dannenbaum said. “And so Putin’s head of state immunity would not protect him at the ICC, at least as the rule is currently understood by the International Criminal Court..”

Dannenbaum said, “If he is no longer head of state, he would be fully exposed to criminal prosecution in foreign domestic courts or before the International Criminal Court.”

Moreover, if there was a regime change in Russia, “he would still be liable to prosecution in Russian courts.”