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Prosecuting Putin for war crimes committed in Ukraine will be difficult

Will Vladimir Putin stand trial at the International Criminal Court for war crimes committed by Russian forces in Ukraine?

Geoffrey P. Johnston

Russian dictator Vladimir Putin and his generals are responsible for the senseless deaths of innocent civilians and the destruction of civilian homes and infrastructure in Ukraine, but they may never stand trial for their war crimes.

Despite the Putin regime’s insistence that Russian forces are only attacking military targets, there is irrefutable evidence that civilians are being killed and hospitals, schools and residential neighbourhoods are being destroyed by Russian airstrikes and artillery shelling.

For example, there is video evidence of a family of four being killed by shelling on March 6th as they attempted to flee on foot from Irpin, a suburb of the capital city of Kyiv.

On March 9, a Russian airstrike destroyed a maternity hospital at the southern coastal city of Mariupol, killing three people and wounding 17.

The March 16th bombing of a theatre in Mariupol that sheltered women and children is yet another example of the Russian military’s blatant disregard for the laws of war. The Russian word for children was printed in large white letters on the ground on either side of the building. The words were clearly visible to Russian satellites and bombers. Yet the Russians still levelled the theatre. As of publication, approximately 130 people reportedly had been rescued from the rubble. However, as many a thousand of civilians could have been inside when the Russian bomb destroyed the theatre. Rescue efforts were impeded by continuous Russian shelling of the area. The ultimate death toll remains uncertain.

Attacking civilians

Under international law, is it a crime for combatants to indiscriminately target civilian areas? And is there a difference between indiscriminately attacking civilian population centres and deliberately targeting places where civilians are known to congregate or travel?

“In the laws of armed conflict, there are two separate, albeit interrelated, principles that govern targeting: the principle of distinction and the principle of discrimination in attack,” replied Noelle Quenivet, Professor of International Law at the University of the West of England.

“Both principles are found not only in treaty law such as the Additional Protocol I to the Geneva Conventions that both Russia and Ukraine have ratified, but also in customary international law,” said the professor, whose areas of expertise include: international humanitarian law, international criminal law, as well as use of force and collective security.

“The principle of distinction dictates that, when attacking, combatants must at all times distinguish between civilians and civilian objects on the one hand and combatants and military objectives on the other. The principle of discrimination ensures that combatants direct their attack only against the combatants and military objectives.”

Targeting civilians is a war crime under Additional Protocol I, Quenivet told the Whig-Standard in an email interview. “The Statute of the International Criminal Court reinforces this by specifying that intentionally attacking civilians or civilian objects are serious violations of the laws of armed conflict and thus war crimes. Therefore, deliberately targeting places where civilians are known to congregate or travel is a crime.”

Combatants are required under international law to use weapons “that can be directed at military objectives and whose effects can be limited to the effect that it distinguishes between civilian objects and military objectives,” the professor explained. “This is to avoid indiscriminate attacks, i.e., attacks that to not distinguish between civilian objects and civilians on the one hand and military objectives and combatants on the other. Classic examples of indiscriminate attacks would be carpet bombing or using cluster munitions in densely populated areas.”

An attack that causes excessive incidental civilian deaths or damage to civilian objects is deemed to be indiscriminate. “It is generally known as the principle of proportionality and refers to a test whereby so-called ‘collateral damage’ is measured against the military advantage combatants expect from the attack,” said Quenivet, co-author of the 2019 book ‘Child Soldiers and the Defence of Duress under International Criminal Law.’

“Indiscriminate attacks are grave breaches of Additional Protocol I and thus war crimes. The Statute of the International Criminal Court also states that such attacks are war crimes,” she said.

Is there a difference between striking a city with missiles, and shelling a walkway that civilians use to escape a war zone?

“There is a difference between the two situations,” Quenivet replied. “The first one is a violation of the principle of discrimination and possibly a violation of the principle of distinction if there are no military objectives or combatants in the city that are the object of the attack. The second one is undoubtedly a violation of both principles, as there are no military objectives or combatants that could be the object of an attack.”

Putin and his generals

Given that hospitals, schools, civilian neighbourhoods, and civilians themselves are being targeted by Russian forces, could Vladimir Putin and his generals be charged with war crimes?

Under the Statute of Rome of the International Criminal Court, such deliberate attacks are war crimes. “However, to charge an individual with war crime, it is not sufficient to show that the act has been committed but also that the individual had some responsibility in carrying out the act,” Quenivet responded.

“Given the remoteness between the commission of the crime and Putin and the generals, the only two modes of liability I could envisage are ‘ordering’ the crime and ‘command or superior responsibility’,” she continued. “If it can be proven that Putin or the generals ordered the targeting of civilians and civilian objects, then this mode of liability could be used as it requires demonstrating that they were in a position of authority and instructed a person to commit the act.”

However, the professor said such a prosecution would only be viable if there were “some form of direct link between the person who ordered the act and the person who carried it out.” Due to the hierarchical nature of the Russian military, she asserted that “command responsibility could be used to charge the generals with war crimes,” but such a prosecution would not be easy.

For example, in 2018, the International Criminal Court “acquitted a Congolese commander partly on the basis that he was too remote from the field and thus would have faced difficulties in investigating and prosecuting the crimes,” Quenivet noted.

“As for Putin, because he is in a hierarchical though non-military relationship with the forces, the test to assess whether he can be held responsible is even stricter,” she said. “Generally, it is very difficult to link a head of State--or any member of the government--directly to crimes committed by armed forces. Showing that chain of command is extremely challenging.”

In addition, the Rome Statute only gives the ICC jurisdiction over war crimes ‘committed as part of a plan or policy or as part of a large-scale commission of such crimes.’ Quenivet said that prosecutors “would need to prove that there was such a plan/policy or that the crimes were committed on a large scale.”

For example, former Ivory Coast President Laurent Gbagbo was the first former head of state to go on trial at the ICC. He was charged with committing crimes against humanity, but was acquitted of all charges in 2019. And the ICC appeals court upheld his acquittal in 2021.

The prosecution failed to convict Gbagbo, “because it was not possible to show that he had a policy of attacking civilians,” Quenivet concluded.

ICC jurisdiction

Even though Russia is not a party to the Statute of Rome, could Putin and his generals still be tried by the ICC?

“Although neither Russia nor Ukraine are parties to the Rome Statute, it is possible for the ICC to exercise its jurisdiction and thus try individuals who have committed genocide, war crimes and crimes against humanity,” the professor answered. “In fact, Ukraine made two declarations giving the ICC jurisdiction from 20 February 2014 onwards and the ICC Prosecutor opened on 28 February investigations into the situation in Ukraine.”

However, even if Putin and his generals were indicted, proceedings would not start anytime soon, because “the ICC does not prosecute individuals in absentia,” she said.

“In other words, it is highly unlikely that Putin will be sitting in the dock of the ICC any time soon.”

Other forums

However, “the ICC is not the only forum where Putin and his generals, or anyone who has committed war crimes, could be tried,” Quenivet added. “Indeed, it is possible to prosecute individuals for war crimes in national courts and in the past few years many individuals have been prosecuted in Europe for war crimes perpetrated in Syria.”

In fact, both Germany and Spain have opened investigations into possible war crimes committed in Ukraine by Russian forces. But Quenivet cautions that “it will take years before we see the first prosecutions and these will unlikely be against high ranking officials.”

Follow Geoffrey P. Johnston on Twitter @GeoffyPJohnston


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