The definition used by the International Criminal Court in the Hague is extensive. It includes willful killing, torture, rape, forced prostitution, corporal punishment, hostage taking, unlawful deportation, using starvation as a weapon and shooting combatants who’ve surrendered, among many other acts. War crimes can also include using banned weapons such as chemical and biological arms, deliberately attacking civilians and non-military targets, targeting hospitals and other places where the sick and wounded are gathered, looting and carrying out attacks that will cause severe damage to the environment. Russia’s invasion could also be considered a so-called crime of aggression.
2. What’s a crime of aggression?
Essentially, it’s an attack by one country on another where there’s no justification of self-defense, according to former ICC President Chile Eboe-Osuji. The court defines it as the planning, preparation and execution by a state military or political leader “of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” An act of aggression means “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another State” and can include invasion, occupation and annexation by the use of force, as well as the blockade of ports. The crime applies only to the highest ranking leaders who “exercise control over” or “direct the political or military action of a state.” The ICC adopted aggression as the fourth crime under its jurisdiction as of 2018, after war crimes, genocide, and crimes against humanity.
3. How are war crimes prosecuted?
The ICC was born out of an international treaty called the Rome Statute in 2002 as the first permanent, independent arena for holding people accountable for acts of mass inhumanity. It started with 60 countries and its membership has more that doubled since then. Notable countries that have not ratified the treaty are the U.S., China, Russia and India. (The U.S. says putting its citizens under the court’s jurisdiction would violate their constitutional rights.) The ICC can pursue war crimes cases when alleged offenses were committed by a citizen of a member state, or in the territory of a member state or a non-member state that’s accepted the court’s jurisdiction, or when allegations are referred to the court’s prosecutor by the United Nations Security Council.
4. What’s this mean for Ukraine?
Ukraine is not an ICC member but it accepted the court’s jurisdiction for incidents on its territory starting in November 2013. That enabled the court to consider alleged crimes committed during and after Russia’s invasion and annexation of Ukraine’s Crimea peninsula in early 2014. On Feb. 28, the court’s chief prosecutor, Karim Khan, said that based on a preliminary assessment by his office conducted mostly in 2020, “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.” He said the investigation he was opening would also encompass any new offenses committed in the expansion of the conflict since Russia’s full-scale invasion. Dozens of countries have asked the ICC to investigate in the wake of that action.
5. What about prosecuting the crime of aggression?
The ICC prosecutor’s office can pursue crimes of aggression upon referral by the UN Security Council, upon request by a member state, or on its own initiative but only where the alleged offense was committed by a national or on the territory of a participating state. That takes prosecuting this crime off the table in the case of the Ukraine war because Russia, as a permanent member of the Security Council, can veto any of its decisions, and neither Ukraine nor Russia are ICC members.
6. What are the challenges to prosecuting war crimes?
It’s easy enough to prove that Russian forces have struck civilian targets, including apartment blocks, hospitals, public squares, municipal buildings and a nuclear power plant. A flood of video recordings have been posted on social media, sometimes within minutes of such attacks occurring. And there’s the testimony of Ukrainians experiencing the carnage. But such evidence doesn’t tie specific strikes to specific individuals, which would be necessary for a prosecution. On the other hand, the U.S. has said it is already on the ground searching for evidence of who’s culpable. After the discovery of bodies in Bucha, Biden said that “we have to gather all the details” in order to “actually have a war crimes trial.”
7. What are the prospects of trying Russian officials?
Not good. The ICC doesn’t permit trials in absentia, and the court, which has no police force, is unlikely to gets its hands on Putin or his lieutenants. It relies on its member states to make arrests. But they haven’t always respected their obligations to honor the court’s warrants. And the accused could always avoid traveling to any country that might turn them over. Of the two dozen people against whom the ICC has pursued war crimes cases, about a third remain at large. A few turned themselves in and the rest were handed to the ICC, in roughly equal number, by authorities in their own country or a different one. The ICC has brought cases predominantly against members of armed groups rather than political or state military leaders. The court did issue arrest warrants for Sudan’s then-president, Omar al-Bashir, and two of his ministers for war crimes during a counter-insurgency campaign in the country’s Darfur region. After al-Bashir was deposed in 2019 and the three were jailed, transitional authorities said they favored surrendering them to the ICC, but that government was toppled in a military coup in October.
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