(This article was originally published on 8 March 2022. It is being republished from The Quint's archives in light of US President Joe Biden calling for Russian President Vladimir Putin to be tried for war crimes, as evidence of atrocities against Ukrainian civilians emerge.)
During a hearing in the International Court of Justice on Monday, 7 March, where it was requesting provisional measures, Ukraine alleged that Russia was committing war crimes in the course of its invasion of Ukraine, and violating core tenets of international humanitarian law.
"It is equally obvious that this invasion has caused, is causing, and will continue to cause huge human suffering, including through the widespread commission of war crimes, the displacement of millions of civilians, and the privations of many more millions bombarded by Russian forces."Ukraine's counsel to the International Court of Justice on 7 March
Ukraine's claims of these violations of international humanitarian law come at a time when 39 countries referred the situation in Ukraine to the office of the Prosecutor of the International Criminal Court (ICC), Karim Khan.
Following the receipt of these referrals, the ICC Prosecutor had announced on 2 March that he was immediately opening an investigation into allegations of war crimes, crimes against humanity and genocide on the territory of Ukraine. The ICC prosecutor's office has already begun the collection of evidence for its investigation.
But what is Russia being accused of here? And is it possible for the ICC to prosecute Russian President Vladimir Putin for any violations of international humanitarian law that its investigation finds?
What is International Humanitarian Law?
International humanitarian law is essentially the set of rules that govern the conduct of war, or more accurately, 'armed conflicts'. It encompasses treaties and conventions as well as customary international law (ie norms which are accepted as having legal validity by multiple countries).
The Geneva Conventions are some of the most well-known examples of international humanitarian law. They prohibit attacks on civilians, the usage of human shields, attacks on non-military targets like hospitals and schools, and the killing or mistreatment of injured or captured soldiers and servicemen.
The proscriptions in international humanitarian law are subject to the doctrines of necessity and proportionality.
These doctrines protect military actions that result in deaths of civilians or damage to non-military targets if there was an urgent military necessity to conduct those actions (for instance to take out a high-value military target) and they were carried out in a proportionate manner (for instance by using weapons that minimise the risk of collateral damage).
Failures to adhere to the principles and standards of international humanitarian law during an armed conflict (whether of an international or non-international nature) leads to commission of war crimes and crimes against humanity.
War crimes include grave breaches of the Geneva Conventions and humanitarian law principles including wilful killing, torture, executions of prisoners of war, intentional attacks on civilians, pillaging towns, excessive destruction of civilian property, refusing to accept the surrender of military forces, etc.
Crimes against humanity refer to widespread and systematic attacks against civilian populations including murder, extermination, enslavement, rape and sexual slavery, enforced disappearances, persecution of a particular group, forcible transfers of populations, etc. [NOTE: When such actions take place outside of an armed conflict, they fall within the scope of human rights law rather than humanitarian law]
Genocide is also often considered a violation of international humanitarian law, although by definition it doesn't need to take place within an armed conflict, like war crimes or crimes against humanity.
Violations of humanitarian law can lead to consequences at a state and individual level. A country can be taken to the International Court of Justice by another country for committing war crimes or crimes against humanity or even genocide, as we saw with Bosnia's case against Serbia (decided in 2007).
The individuals responsible for the commission of war crimes, crimes against humanity and genocide can also be prosecuted under international criminal law. The Nuremberg and Tokyo Trials after the second world war were examples of this, as were the International Criminal Tribunals for Yugoslavia and Rwanda.
The International Criminal Court (ICC) was set up with the objective of having a permanent court to conduct such trials as well, though as will be discussed later, its jurisdiction is a complicated matter.
Possible Violations of International Humanitarian Law by Russia in Ukraine
Russia began its 'special military operation' against Ukraine on 24 February, which was justified by Russian President Vladimir Putin as necessary to prevent a genocide of Russian-speaking people in the Donbas region of eastern Ukraine.
Ukraine filed its case in the ICJ on 26 February, arguing that the Russian claims about genocide were false and fabricated, and an abuse of the Genocide Convention. The ICJ heard Ukraine's request for provisional measures (ie for an interim order) on 7 March.
Jonathan Gimblett, an international law expert representing Ukraine during the hearing at the ICJ, listed several examples from 24-26 February to back up claims of Russian war crimes.
These included the willful killing of a civilian filming a Russian column's advance, an attack on a civilian bus, bombings of non-military targets such as the Kharkiv Regional Children's Hospital No. 1, and the shelling of an ambulance carrying injured Ukrainian soldiers.
It was pointed out that since Ukraine had filed its request for provisional measures on 26 February, "much worse" had happened.
Gimblett argued that because Russia's advance had failed to make the gains expected over the first week, it was now "resorting to tactics reminiscent of medieval siege warfare, encircling cities, cutting off escape routes and pounding the civilian population with heavy ordnance.”
He also informed the court about Russian forces' repeated violations of an agreement for setting up a humanitarian corridor for evacuation of civilians from the city of Mariupol. Ukraine also warned of the "inevitability of further war crimes" because of the use of indiscriminate weapons by Russian forces including GRAD missiles and the TOS thermobaric rockets.
The Quint spoke to Radhika Kapoor, a Program Fellow at the Harvard Law School Program on International Law and Armed Conflict, to understand what are the key concerns that have arisen over the course of Russia's operations in Ukraine.
"There are several areas of concern here," she said. "The first of course is the notion of distinction. Under that notion, only military objectives ought to be attacked. Civilian objectives – these may include hospitals, schools, universities – ought not to be attacked."
From multiple reports emerging out of Ukraine, Russia appears to be in violation of at least some aspects of this notion of distinction, Kapoor noted.
"Another related notion is that of indiscriminate attacks. These are prohibited under both custom as well as Additional Protocol I to the Geneva Conventions, to which both Russia and Ukraine are parties. 'Area bombardment' is a type of indiscriminate attack that Russia might be engaged in. Essentially, this means that the attacker ought not to indiscriminately bombard cities, towns, villages or other areas with military objectives, where a similar concentration of civilians or civilian objects are present."Radhika Kapoor, Program Fellow at the Harvard Law School PILAC
It should be noted that at this stage, it is impossible to make a conclusive determination of violations of international humanitarian law by Russia. Some of Ukraine's claims in the ICJ can be corroborated by news reports from international media organisations, but there has been no conclusive independent investigation or finding of potential war crimes or crimes against humanity just yet.
Could Putin be Prosecuted by the ICC?
With the ICC Prosecutor now conducting an investigation of violations of international criminal law, the big question is whether of course this might lead to the prosecution of the man responsible for the ongoing conflict, Russian President Vladimir Putin.
First off, it should be noted that the ICC investigation is not just about the Russian invasion from 24 February 2022. The investigation actually relates to events from 21 November 2013 onwards, beginning with the response to the Maidan protests that led to the toppling of Ukraine's then pro-Russian president Viktor Yanukovych.
Karim Khan's predecessor as ICC Prosecutor, Fatou Bensouda, had in fact completed a preliminary examination of the situation in Ukraine which was opened back in April 2014 at the request of Ukraine, which covered the events in Crimea and eastern Ukraine at the time.
Her office's report "found a reasonable basis to believe" that war crimes and crimes against humanity took place during the occupation of Crimea, including wilful killings, torture, forcible transfer of parts of a population, murder, persecution and enforced disappearances.
It also concluded that there was a reasonable basis to believe that war crimes were committed in eastern Ukraine, including intentional attacks against civilians and protected buildings, wilful killings, torture and rape and other forms of sexual violence.
Karim Khan expressly said in his first announcement of his intention to open an investigation on 28 February, that "this investigation will also encompass any new alleged crimes falling within the jurisdiction of my Office that are committed by any party to the conflict on any part of the territory of Ukraine."
As a result, the ICC Prosecutor's office will be investigating claims of international criminal law violations which have taken place since 24 February as well.
However, even if war crimes and crimes against humanity are found to have been committed in Ukraine by Russian forces (whether before or after 24 February), this would not automatically lead to the prosecution of Putin.
Under international criminal law, those directly responsible for these crimes can obviously be prosecuted, and military leaders who had command responsibility over such perpetrators can also find themselves in the dock.
Prosecuting a political leader would require evidence that they either directed the commission of the crimes, or were aware that the crimes were being committed and, having the power to stop them, did nothing to do so.
Even assuming such evidence tying Putin to war crimes and crimes against humanity could be found, it would be nearly impossible to get him to stand trial.
The first stumbling block comes from the fact that Russia is not a party to the Rome Statute, under which the ICC operates. Russia had signed the treaty in 2000 but never ratified it, and withdrew its signature in 2016 after the ICC Prosecutor's office termed the annexation of Crimea as an 'occupation'.
Ukraine is also not a party to the Rome Statute, but it has made two declarations accepting the ICC's jurisdiction, which in conjunction with the referrals by 39 other countries has allowed the investigation to begin.
It is technically possible for Putin to be arrested on the territory of a country which has ratified the Rome Statute, for example the United Kingdom or Lithuania or Bangladesh or the Ivory Coast, and then made to stand trial at the ICC.
However, as long as he is a head of state this would be virtually impossible. In the event he loses power in Russia, a new Russian government could allow him to be prosecuted as well, or his arrest in another country would become possible.
While building a case to prosecute Putin for possible war crimes or crimes against humanity would be difficult on merits, it would perhaps have been easier to build a case against him for the crime of aggression, ie an invasion or attack by one state on another which violates the UN Charter (ie any war which isn't in self-defence).
Unfortunately, the office of the ICC Prosecutor cannot launch an investigation into a potential crime of aggression unless the country in question is a party to the Rome Statute (and the 2017 amendment which added the crime of aggression). The only exception is if the Security Council refers a case to the ICC Prosecutor, but this is obviously impossible in Putin's case because of Russia's veto as a permanent member.
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