EXPLAINER | How are war crimes being investigated over Russia’s invasion of Ukraine?

The International Criminal Court’s arrest warrant against Russian President Vladimir Putin on Friday is just one strand in a complex web of international and national legal moves over alleged war crimes in Ukraine.

Russia has, however, repeatedly denied that its forces have committed atrocities or attacked civilians.

The ICC’s role

The Hague-based tribunal has led the most high-profile investigations into the most prominent suspects, looking into war crimes as well as broader crimes against humanity and genocide.

Since his investigation was launched a year ago, ICC prosecutor Karim Khan has visited Ukraine four times.

He has visited the Kyiv region, where civilians were massacred in Bucha, and the Kharkiv region, home to residential neighbourhoods in the town of Borodianka devastated by shelling, as well as a home for children in southern Ukraine.

The arrest warrants for Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, theoretically mark the first step towards an eventual trial – though under current conditions, the capture and arraignment of Russia’s president is almost inconceivable.

Even if that did happen, previous ICC cases have shown it is hard to convict the most senior officials. In more than 20 years, the court has only issued five convictions for core crimes, and none were top officials.

But the ICC investigations into international figures are not the only option. War crimes can also be prosecuted in Ukraine’s own courts, as well as a growing number of countries conducting their own investigations.

News24 analysis | Ukraine war: One year on and the ramifications for SA and the world

There are also plans to create a new tribunal to prosecute the Russian invasion – which Moscow calls a “special military operation” – as a the crime of aggression. The ICC cannot bring such a charge due to legal constraints.

Who is investigating war crimes on the ground?

Ukrainian war crimes prosecutors are working with mobile justice teams supported by international legal experts and forensic teams. They have been investigating alleged violations of international law since shortly after the invasion started 24 February 2022 mainly in the south and east, where land has been recaptured from Russian forces.

Domestic courts are focusing on “direct perpetrator” crimes, and at least 26 war crime suspects have been tried and convicted of rape and murder, shelling of residential infrastructure, cruel treatment and pillaging, according to Ukrainian prosecutors.

But trying to hold Russian leaders and commanders accountable for actions committed on their orders will most likely take years.

“The more difficult job of trying to build complex aggregate cases which establish the responsibility of those in the higher political and military leadership is a task which still remains to be done,” said Wayne Jordash, leader of the mobile justice teams deployed to support Ukraine’s investigations.

Evidence is being amassed, however.

“What’s clear from the prosecution’s investigations over the last year is that there is a criminal plan and the Russian military operation is inherently criminal, in the sense that you cannot seek to extinguish Ukrainian identity without the massive commission of war crimes and crimes against humanity and possibly genocide,” Jordash said.

What other avenues are available

The European Union recently announced the creation of an international centre for the prosecution of “aggression” in Ukraine, which is under the European prosecuting authority Eurojust, also in The Hague. This could eventually form the basis of a new tribunal – see below.

War crimes can be defined under customary international law or national law. Ukraine’s war crime definitions are narrower than those of the ICC, for example.

A number of mostly European states have universal jurisdiction laws that would also allow them to prosecute Ukrainian war crimes.

The ICC has joined a Joint Investigative Team with Lithuania, Poland, Estonia, Latvia, Slovakia, Romania and Ukraine itself to support possible trials inside or outside Ukraine.

In addition, a United Nations Independent International Commission of Inquiry for Ukraine is collecting and documenting violations of international humanitarian law, to feed into the evidence being collected and shared at Eurojust. This could also could also support cases taken on by the ICC.

What is the crime of aggression?

The crime of aggression is broadly defined as the invasion of, or attempt to gain political and military control over, another sovereign state. While the ICC is the world’s permanent war crimes court, it cannot prosecute aggression.

“War is a crime, but not a war crime,” said Astrid Reisinger Coracini, international law lecturer at the University of Vienna and expert on the crime of aggression.

READ | Missile fragments found in Moldova near Ukraine border as Russia launches another barrage

To bridge this “impunity gap”, Ukraine and several backers, including the United States and the European Union, are pushing for an ad-hoc tribunal for aggression.

Under customary international law, heads of state, heads of government and foreign ministers are immune from prosecution before national courts, Reisinger Coracini said.

A tribunal that could prosecute Russian President Vladimir Putin for aggression would therefore have to be a new international one, founded on a source of international law through a multilateral treaty.

Related Posts

Six recycling innovations that could change fashion

Six recycling innovations that could change fashion

The fashion industry’s enormous waste problem is pushing European governments towards ambitious recycling targets. Recycling textiles is a highly complex task, and technical solutions are still in…

A woman pulls her suitcase as she walks through the departures area of Glasgow Airport.

Glasgow Airport runway open, flights to resume after heavy snow

A woman pulls her suitcase as she walks through the departures area of Glasgow Airport. Glasgow Airport on Saturday said its runway was now fully operational…

Inmate charged with stabbing George Floyd killer Derek Chauvin 22 times

Inmate charged with stabbing George Floyd killer Derek Chauvin 22 times

A prison inmate in the United States has been charged with attempted murder in the stabbing of Derek Chauvin. Chauvin was attacked last month in the law…

Who are the remaining 136 Gaza hostages?

Who are the remaining 136 Gaza hostages?

Over the course of the past week Hamas released 80 Israeli women, children and teenagers as part of a truce agreement in exchange for Palestinians held in…

Former US President Donald Trump speaks to members of the media after testifying in his civil fraud trial at the New York State Supreme Court in New York City on 6 November 2023. A combative Donald Trump clashed repeatedly with the judge on 6 November 2023 as he took the stand in the New York civil fraud case threatening to cripple his real estate empire. One year out from an election he hopes will return him to the White House, Trump became the first former US president to testify as a defendant in a court case in more than a century.

US appeals court says Trump must face lawsuits over US Capitol attack

A US court ruled former US president Donald Trump can be sued for the 6 January 2021 Capitol riots. A US appeals court on Friday ruled that…

A Red Cross bus arrives amid supporters during a welcome ceremony following the release of Palestinian prisoners from Israeli jails in exchange for Israeli hostages held in Gaza by Hamas since the 7 October attacks in Ramallah in the occupied West Bank early on 1 December 2023. Hamas is willing to further extend a truce for hostage and prisoner exchanges, a source close to the militant group said on 30 November 2023 and the United States urged Israel to set up safe zones for Gaza civilians as a pause in their deadly war neared expiry.

Hamas open to truce extension as expiry nears

More hostages and prisoners have been swapped between Israel and Hamas as the pause on fighting nears expiry. Hamas expressed willingness to extend the truce. However, it…

Leave a Reply

Your email address will not be published. Required fields are marked *