Hi, this is Emily Channell-Justice. I'm the director of the Temerty Contemporary Ukraine Program at the Harvard Ukrainian Research Institute. This is TCUP Briefs where I talk about the main takeaways of a recent event or publication about the war in Ukraine.
In today's Brief, I want to address the question of war crimes. This is something that has been in the news regularly since the liberation of Bucha by the Ukrainian forces in early April.
So far, we know that there were at least 300 people killed in Bucha, a place with no military targets to speak of.
We know hundreds more civilian deaths in nearby towns, such as Irpin and Borodianka, are being discovered now.
We do not yet know the death toll among civilians in Mariupol, which has been under siege since the end of February. Local authorities estimate that up to 22,000 civilians could have been killed, but we can't know for sure.
Even before the rest of the world started to see evidence of mass civilian casualties in Bucha, the United Nations established an independent panel to investigate war crimes in Ukraine on March 30. US President Joe Biden called Vladimir Putin a war criminal, and the United States also accused Russia of war crimes.
So the question now is what constitutes a war crime, and how can war crimes be prosecuted.
According to an article in Wall Street Journal, war crimes are broadly defined and and include willfully killing or causing suffering, widespread destruction, seizing a property, deliberately targeting civilian populations, in addition to other serious violations of laws applicable in armed conflict.
The International Criminal Court also prosecutes three other main offenses: crimes against humanity, genocide, and the crime of aggression.
Karim Khan, an ICC prosecutor, said that there was already a reasonable basis to believe that both war crimes and crimes against humanity had taken place in Ukraine.
The crime of aggression is the resort to war in violation of the United Nation’s Charter. Because this war was entirely unprovoked by Ukraine, Putin's actions here qualify as a crime of aggression.
However, all of this evidence – so both the decision to go to war being a crime of aggression and the evidence of war crimes that have been committed in Ukraine – does not mean that war crimes can easily be prosecuted. Neither Ukraine nor Russia is party to the International Criminal Court and, by the way, neither is the United States or China.
Ukraine has allowed the ICC jurisdiction to bring its own case against Russia. In other words, Ukraine can't refer alleged crimes to the Court but the ICC can investigate crimes itself.
The ICC can also charge Putin and other Russian authorities, but they cannot be tried in absentia, and because neither Russia nor Ukraine is a signatory to the Rome statute, Russia and Putin can't be charged with a crime of aggression, at this point.
Despite these limitations, the ICC was actually already investigating Russia for war crimes in Ukraine since the annexation of Crimea in 2014.
In 2018 the courts prosecutor stated that there was a reasonable basis that war crimes have been committed in the occupied Donetsk and Luhansk regions—including torture, rape, and the intentional targeting of civilians.
Now we have additional evidence of all of these war crimes having taken place since February of 2022, not just in Bucha, but in many places across Ukraine.
The ICC can now issue a warrant for the arrest of Vladimir Putin and other Russian leaders. However, it is unlikely that Putin would be turned over to the ICC, while he's still in power, and it would have to be Russians turning over to the ICC.
As I mentioned before, he cannot be tried in absentia, and because Russia remains on the UN Security Council, they can also veto any moves by the UN to refer a war crimes case to the ICC.
So, right now, this does not leave a lot of room for Russia and Putin to be held accountable, but it's really important that evidence gathering takes place. It's really important that the United States has declared Russia having committed war crimes, because that encourages the United States to support Ukraine's efforts in gathering evidence.
The ICC has to be ready for any potential opening to hold Russian leaders accountable and their commitment to this gathering of evidence of war crimes does show that international institutions are supporting Ukraine.
This topic will be one that TCUP Briefs returns to as new evidence continues to come to light.
Thanks so much for tuning in.