Commentary: How could Russia be prosecuted for alleged war crimes in Ukraine?

BIRMINGHAM, England: Claims that Russia has violated the rules of war are growing louder with each day of its invasion of Ukraine, now in its seventh week. 

There has been widespread coverage of atrocities allegedly committed by Russian forces, including mass killings of civilians in Bucha, the bombing of residential buildings in Borodyanka and the destruction of a maternity hospital and a theatre sheltering civilians in Mariupol. 

On Friday (Apr 8), a deadly attack struck a railway station in Kramatorsk that was being used for civilian evacuations. US President Joe Biden has called Russian President Vladimir Putin a “war criminal” and accused Moscow of genocide.

Condemnation and calls have followed to hold those who may have committed or ordered such war crimes accountable. Ukraine President Volodymyr Zelenskyy, speaking to the United Nations, called for a tribunal like the one at Nuremberg after World War II. 

The protection of civilians in international conflict is enshrined most comprehensively in the 1977 Additional Protocol to the Geneva Conventions. Russia was a signatory party to this protocol until Putin revoked it in 2019. However, this does not mean civilians are unprotected - many of the allegations involve acts already banned by the fourth Geneva Convention of 1949.

Holding individuals accountable for such violations has been notoriously difficult, as it involves clearly establishing a case on which an indictment can be based.

NO GUARANTEED TRIALS OR CONVICTIONS FOR WAR CRIMES

How difficult can this really be when hospitals are destroyed and civilian bodies are strewn across embattled neighbourhoods? As it turns out, it isn’t that straightforward.

Under the terms of the Rome Statute, which established the International Criminal Court (ICC), only individuals - not states - can be held responsible for specific crimes that they have committed, facilitated or incited, in the case of genocide for example. 

This notion of individual responsibility, however, also includes so-called “command responsibility” – which means that commanders can be held criminally liable for crimes committed by their subordinates. The Rome Statute also specifically excludes the possibility of immunity from prosecution for heads of state or government and other senior officials.

Then, there is the challenge of indicting those accused in the ICC or in national courts.

Russia signed but never ratified the Rome Statute. In 2016, Russian President Vladimir Putin announced Russia’s withdrawal from the ICC, partly in response to the court opening a preliminary investigation into possible Russian war crimes committed in Georgia in 2008 and the looming threat of the same in Syria and in eastern Ukraine in 2014 and 2015. 

This does not mean that Russians indicted for war crimes cannot be prosecuted before the ICC. ICC Prosecutor Karim Khan has opened an investigation and started evidence collection, after 41 States Parties referred the situation in Ukraine to the ICC, an indication that future indictments are at least possible.

But indictments offer no guarantees for trials or convictions. Former Sudan President Omar al Bashir has yet to be extradited to the ICC, despite arrest warrants issued in 2009 and 2010, and the court does not try people unless physically present. 

Another prominent trial, against former Serbian president Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia, ended before a judgement could be passed because the defendant died in his cell. 

COULD VLADIMIR PUTIN BE PROSECUTED FOR THE INVASION?

Some have also asked if the ICC can prosecute crimes of aggression, such as Russia’s invasion of Ukraine. But this would only be possible if Ukraine or Russia were States Parties to the ICC, which they are not. 

Based on the principle of universal jurisdiction, individuals can also be prosecuted for war crimes by national courts. Several countries, including Lithuania, France and Poland, have already launched investigations into such crimes having been committed by Russia in Ukraine. 

Moreover, Ukraine itself, alongside more than ten other countries, has incorporated the crime of aggression into its domestic criminal code and previously tried former President Victor Yanukovych in absentia for complicity with Russia’s aggression against Ukraine in 2014. But it is unlikely he will leave Russia for fear of being arrested elsewhere.

The political reality is that trials and convictions are, for the foreseeable future at least, highly unlikely. 

Putin and Russia are unlikely to cooperate with the ICC or other national or international judicial bodies. So long as the accused don’t physically leave Russia, there will be no extraditions. Russia will ignore, as it has in the past, any rulings by the European Court of Human Rights or the ICC. 

PEACE NOW, JUSTICE LATER?

Any discussion on punishing war crimes – no matter how necessary – will amount to little without an end to the fighting. The civilian death toll stands at 1,892 on Apr 11, according to the Office of the United Nations High Commissioner for Human Rights, of which 153 are children.

Though peace negotiations between Russia and Ukraine are becoming more difficult, both sides emphasised that they remained committed to the process. 

Amnesties are often part of the bargaining during peace negotiations. The 2015 Minsk Agreement, for example, included a provision to rule out the prosecution and punishment of individuals for acts committed during the violence in Donbas at the time. Such a deal would not be possible in the current war, given the gravity of the alleged crimes and the jurisdiction of the ICC.

Focusing on peace now does not rule out justice – for victims and survivors alike – later. 

However unsatisfactory this might be for survivors and victims now, they have only started the important process to establish the truth and pave a road to justice, even if this takes many years to conclude. 

Milosevic was indicted in 1999 while still president and only detained in 2001 after being ousted from power. Two of his associates, Radovan Karadzic and Ratko Mladic, were found guilty of war crimes in 2016 and 2017 respectively – more than 20 years after the Bosnian War.

The international community and judicial institutions have an obligation to establish the truth about Russian war crimes in Ukraine and secure the evidence that will make later prosecutions possible. Hopefully, this also keeps the pressure on Russian soldiers and politicians to keep within the rules of engagement. 

Stefan Wolff is a Professor of International Security at the University of Birmingham.