Putin must be held accountable for war crimes

The world must hold Vladimir Putin and his inner circle accountable for international crimes — war crimes, crimes against humanity, and the crime of aggression. Crimes should be investigated and the appropriate tribunal found to ensure that the perpetrators face justice. Gathering and preserving evidence is critical.

War crimes are violations of the laws of war as set out in the Geneva Conventions. They include the willful killing of civilians, starvation of the civilian population by blocking food and humanitarian assistance as in Mariupol, unnecessarily destroying property, sexual violence, ethnic cleansing, and using banned weapons that cause indiscriminate suffering. National Security Adviser Jake Sullivan, said on ABC’S “This Week,” that the war crimes committed by Russian forces in Ukraine are part of Putin’s master plan for the invasion, and that before the war began, the U. S. declassified and presented intelligence, showing that the plan from the highest level of the Russian government was to target civilians, to use violence against them and brutalize them “in order to terrorize the population and subjugate it.”

The evidence is overwhelming that Russia targeted civilian sites with widespread air and artillery barrages, indiscriminately hitting a train station, schools, churches, hospitals, and theaters. As forces retreated from the area around Kyiv, they left a trail of atrocities — civilians executed with hands tied behind their backs, bodies lying on city streets, and mass graves where bodies were dumped. 10,000 civilians were reportedly killed in Mariupol.

In this digital age of cell phones and video recordings of these atrocities, sufficient evidence with photos, interviews, and documentation is available, based upon investigative reporters’ findings, intelligence available to the U. S. and its allies, and information gathered by Ukraine, international organizations, and NGOS.

Past precedents of prosecuting those accused of war crimes include the Nuremberg Tribunal trying Nazis for war crimes and the prosecution of Khmer Rouge leaders in Cambodia. Currently, The Hague Tribunal is hearing a case of war crimes committed by an accused leader of the Janjaweed militia in the Darfur region of Sudan.

Crimes against humanity are defined as those “committed as part of a widespread

or systematic attack directed against any civilian population,” which include murder, torture, and sexual violence. The legal difference between “war crimes” and “crimes against humanity” is that war crimes exist in an armed conflict. The evidence in

Ukraine supports both war crimes and crimes against humanity.

Under the 1948 Treaty on Genocide, the crime of “genocide” requires showing of intent to destroy, “in whole or in part, a national, ethnical, racial, or religious group.” While the egregious crimes in Ukraine have indeed been horrific, they do not meet the definition of “genocide,” and President Zelensky’s calling Russia’s actions as “genocide” was a political statement, not having the legal meaning.

The International Criminal

Court can prosecute war crimes as well as crimes against humanity committed by the Russian forces in Ukraine, for which there is massive evidence to bring these cases. Ukraine is not a party to the Court, but it has accepted the Court’s jurisdiction for crimes committed on its soil. Kahrim Khan, Chief Prosecutor of the ICC, has already opened the initial investigation of war crimes after referral by 39 nations, an unprecedented move.

But the challenge will be to link Putin to these crimes through the command chain, which is always a major hurdle. And although the ICC can now prosecute the crime of aggression, after this was recently added to its statute, it is yet unable to try those responsible for the Russian invasion because a country that is not a party to the Court is not subject to its jurisdiction, and Russia is not a party. As a promising development, after several years of U. S. hostility toward the ICC, the Biden administration is now seriously considering assisting the Court in its investigation of Russian atrocities.

National courts that are authorized under their laws to exercise universal jurisdiction can also try war crimes and crimes against humanity, no matter where they occur or by whom committed. For example, German courts have recently prosecuted some accused from Syria. A hybrid international court, set up jointly by a nation with the United Nations, such as the special tribunal for Cambodia, is another possibility.

British Prime Minister Gordon Brown, joined by experts from all over the world, has called for the creation of a special tribunal for the punishment of the crime of aggression against Ukraine, a crime not covered by the International Criminal Court, an idea first floated by Phillipe Sands, a professor of international Law at the University of London. Thus, individuals who planned and ordered the invasion, with Putin at the top, can be brought to justice.

Among several possibilities is constituting a special tribunal under a treaty between the United Nations General Assembly and the government of Ukraine on the recommendation of the General Assembly or perhaps the European Council and Ukraine, and even by a group of likeminded countries and Ukraine along the lines of the creation of the Nuremburg Tribunal.

I asked David Akerson, a former colleague and an expert on international criminal law, who was the lead attorney on both the Yugoslavia and Rwanda Tribunals. He prefers both the ICC and Special Tribunal, and I agree.

Further international action on the Russian invasion includes two UN General Assembly Resolutions — one demanding that Russia immediately end all military operations and the other calling for aid agency access and civilian protection. The International Court of Justice and the European Court of Human Rights have also called upon Russia to immediately stop its illegal invasion. The International Court of Justice ( World Court) has on its docket Ukraine vs. Russian Federation, a case on allegations of genocide.

A major failing of the UN system is that the Security Council, the only body that can take action against the violation of sovereignty and territorial integrity, is paralyzed because Russia, a permanent member, can veto any action.

In international tribunals, there is no head of state immunity or statute of limitations, as Serbia’s Slobodan Milosevic, Liberia’s Charles Taylor, and Chad’s Hissène Habré found out. David Crane, who charged Taylor with war crimes and crimes against humanity, predicts that Putin will be an indicted war criminal, as well.