Proving war crimes is a legal long throw. Pursuit has begun in Ukraine.
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Noah Robertson Staff writer
| Washington
Last week, soon after granting $800 million of military aid to Ukraine, President Joe Biden responded to a reporter鈥檚 question with his harshest description of Russia鈥檚 invading leader yet.
鈥淚 think he is a war criminal,鈥� President Biden said of Russian President Vladimir Putin.听
The echoed a unanimous resolution the day before from the Senate, . In terms of accountability, though, it鈥檚 just that 鈥� a label 鈥� until proved in court.听On March 23,聽the U.S. government issued a formal assessment that war crimes have been committed during the invasion of Ukraine. Multiple countries and international organizations are already investigating. Even if their findings resulted in charges, there鈥檚 no guarantee any Russian leaders would ever face trial.
Why We Wrote This
Vladimir Putin has become a colloquial war criminal, but is he a legal one? Our reporter explains the technical criteria for war crimes that would have to be applied to prove the Russian leader a war criminal.
What is a war crime?聽
鈥淭he classic definition is serious violations of international humanitarian law that give rise to individual criminal responsibility,鈥� says Rachel Kerr, a professor at King鈥檚 College London and co-director of the War Crimes Research Group.听
That means two things. One, infractions of international humanitarian law 鈥� a decades-old patchwork of treaties like the Geneva and Hague conventions 鈥� are severe. Two, a person or group of people is responsible, not a country.听聽
War crimes include attacks that intentionally target civilians or civilian property, or military objectives that recklessly endanger civilians. They can also include use of munitions, such as chemical weapons, that inflict severe or indiscriminate damage.听
Because war inevitably involves civilian harm, says Professor Kerr, the key rule is proportionality 鈥� any target or tool requires a proportionate military objective. Intentionally bombing a school is off-limits. But bombing a school housing enemy troops or ammunition may be more complicated.听聽
鈥淚t鈥檚 military necessity versus humanity,鈥� says Professor Kerr.听
How are war crimes investigated?聽
It depends on who鈥檚 investigating. Because potential war crimes are occurring on Ukrainian soil, Ukraine has unquestioned authority to investigate. But war crimes operate under universal jurisdiction 鈥� any country has the right to investigate, regardless of location. Germany, Spain, and Poland have all begun their own inquiries.听
The International Criminal Court (ICC), as well, launched an investigation on March 2, and聽an unprecedented 41 member states petitioned for one, says Ryan Goodman, professor of human rights law at New York University.
鈥淚 am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine,鈥� wrote ICC Prosecutor Karim Khan before the investigation began. (War crimes, unlike crimes against humanity, can only occur during armed conflict, can be committed against combatants and civilians, and can be isolated incidents.)
The process is arduous, beginning with specific allegations 鈥� such as a strike on a hospital or fleeing civilians 鈥� and builds a record of what happened and who鈥檚 responsible through eyewitnesses, videos, and other verified evidence. Then investigators attempt to assess intent and information at the time of the strike, which likely requires inferences because Russia almost certainly won鈥檛 cooperate.听
鈥淭hat鈥檚 not an easy task, especially with the conflict ongoing,鈥� says Karima Bennoune, visiting professor at the University of Michigan Law School and an international human rights lawyer. 鈥淓very day there鈥檚 more things that have to be investigated, and the conflict itself is a significant obstacle to the investigation.鈥�
Human rights groups, Ukrainian citizens, and the are all helping document evidence in support. While each investigation has its own timeline, some could take years, says Professor Bennoune.
What consequences can investigations bring?
鈥淎t the moment, it鈥檚 so hard to see any,鈥� says Professor Kerr.听
The ICC doesn鈥檛 conduct trials in absentia 鈥� defendants must be in custody. When charges are filed, that rule can amount to a travel ban because leaders won鈥檛 risk being taken into custody outside their borders. As long as they remain in power, leaders like Mr. Putin and Foreign Minister Sergei Lavrov are sheltered.听
Russia, not an ICC member, wouldn鈥檛 be the first major power to fight the court鈥檚 legitimacy. The United States isn鈥檛 a member either and has resisted investigation of Americans, says Professor Goodman. Since the war in Ukraine, the Biden administration has begun an聽.听
That doesn鈥檛 mean the investigations don鈥檛 matter, Professor Bennoune says.听
鈥淚t鈥檚 very positive that there has been such a strong reaction to the reports of war crimes that we鈥檝e seen,鈥� she says. 鈥淚 think that public outrage and response is critical to actually trying to stop further war crimes.鈥�
