Could Putin be prosecuted for war crimes?
The question has been brought up since the beginning of the conflict in Ukraine, as soon as the first atrocities allegedly committed by Russian troops came to light. Could Putin be prosecuted for war crimes?
Though it may not seem like it, “even war has rules,” as the International Committee of the Red Cross puts it. These are contained in the Geneva Convention, along with other international laws and agreements.
Civilians cannot be deliberately attacked, nor can the infrastructure that is vital to their survival.
Some weapons are banned because of the indiscriminate or appalling suffering they cause, such as anti-personnel landmines and chemical or biological weapons.
The sick and wounded must be cared for, including injured soldiers, who have rights as prisoners of war. Russians have killed at least 50 Ukrainian war prisoners by bombing a prison camp.
Serious offenses such as murder, sexual abuse, or mass persecution of a group are known as “crimes against humanity” or, in some circumstances, “genocide”.
Even though every war rule in the Geneva Convention has been broken by Russia, in order to prosecute Putin for war crimes, it is necessary to prove his direct responsibility for the crimes.
Unfortunately, it's way easier to pin a war crime on the soldier who commits it, than on the leader who ordered it. So far, there’s one convicted Russian soldier (pictured) and around 80 prosecutions, but none of them are against Russian leaders.
Ukraine has begun a case against Russia in the International Court of Justice. If the ICJ ruled against Russia, the UN Security Council (UNSC) would be responsible for enforcing that. But Russia, one of the council's five permanent members, could veto any proposal to sanction it.
The ICC can also prosecute the offense of “waging aggressive war”. This is the crime of an unjustified invasion or conflict, beyond justifiable military action in self-defense.
However, Professor Philippe Sands, an expert on international law at University College London, says the ICC couldn't prosecute Russia's leaders because the country isn't a signatory to the court. This means that it doesn’t accept the jurisdiction of the ICC.
Other countries that do not accept the jurisdiction of the International Criminal Court in The Hague are the United States, China, India, Cuba, Israel, and Iraq.
However, Josep Borrell, the European Union's High Commissioner for Foreign Affairs, has commented on more than one occasion that if war criminals in the Balkans were brought to justice, when it seemed impossible, Russian criminals could also end up in the Court of The Hague.
A good example is Milošević’s case. He faced 66 counts of crimes against humanity, genocide, and war crimes committed during the Yugoslav Wars of the 1990s. He pleaded not guilty to all the charges, but died before his trial ended in 2006.
In any case, there are three scenarios in which the International Criminal Court can launch a prosecution: by indication of a member state of the Court, by request of the UN Security Council and by ex officio action of the Prosecutor's Office.
The dilemma remains whether the president of a country is directly responsible for all the atrocities committed during a war.
For instance, would it have been pertinent to prosecute George W. Bush for war crimes? After all, the former US president promoted the invasion of Iraq where American troops committed documented atrocities.
In fact, humanitarian organizations such as Amnesty International called for the prosecution of Bush and Tony Blair (Prime Minister of the United Kingdom between 1997 and 2007) for war crimes, but they were never prosecuted.
Erik Larson wrote in The Washington Post: “Barring a regime change in Moscow, the outlook is not good. The ICC does not allow trials in absentia, and the court is unlikely to lay hands on Putin or his lieutenants. It depends on its member states to make arrests, and Russian officials could always avoid traveling to a country that can turn them over”.
Thomas L. Friedman, a columnist for The New York Times, writes: “When the leader of Russia, a country that spans eleven time zones, with vast resources of oil, gas, and minerals and more nuclear warheads than any other country, it is a war criminal and should be treated as a pariah from now on, the world as we knew it has profoundly changed. Nothing can work the same”.
In a statement made in April 2022, Biden said about Putin: "This guy is brutal, and what is happening in Bucha is scandalous and everyone has seen it (...) I think he is a war criminal and should be held accountable.”
Biden mentioned Bucha, one of the places where Russian troops carried out a real carnage (although Moscow said it was a set-up). For now, the war crime for which Putin could answer would be the killing of civilians by bombing or by his troops on the ground.
However, it would have to be proven that Putin ordered these bombings or massacres. If not, we would be talking about disasters of war whose perpetrators would be the soldiers.
It is true that Putin has not stopped his artillery fire on cities like Mariupol or Odesa, where many civilians have died. Crime of omission, or simply the cruelty of any war?
The atomic horror of the bomb dropped on Hiroshima by the United States is always at the center of the moral debate about what is or is not considered a war crime. Was the killing of 200,000 people (the vast majority of them civilians) a war crime or an inevitable military action?
In the same way, Putin is seen by the United States and many European countries as the perfect villain, but in other latitudes, his quarrelsome attitude in defense of a great Russia has heroic overtones. Will he end up in prison as a war criminal? It is unlikely, but not impossible.