Can Putin be tried for war crimes over civilian killings in Ukraine?

As the horrifying images of civilian mass graves emerged from the town of Buchanear Kyiv in Ukrainethe world leaders have called for the most stringent action against Russia and its president Vladimir Putin. Germany, France and other NATO countries have accused Russia of war crimes. The loudest voice, however, was that of US president Joe Biden who has accused Putin of being “a war criminal.”

The images from Bucha released over the weekend showed corps in civilian clothes, some with their hands bound, in mass graves and lying in the streets.

As per a Reuters report, the mayor of Bucha said on Saturday that at least 300 Ukrainian residents had been killed by Russian troops during a month-long occupation. Even before Bucha, the Western countries have been accusing Russian troops of targeting civilians indiscriminately as in the case of the bombing of a maternity hospital and a theater marked as sheltering children in Mariupol.

The accounts are horrifying and the rest of the world cannot turn a blind eye to Ukraine any longer. However, the question now comes whether Putin could personally be held responsible for his troops’ actions and tried as a criminal war.

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Before we get into the debate, the first question is what are ‘war crimes’?

As per International Criminal Court (ICC), war crimes are “grave breaches” of the Geneva Conventions, which are a set of humanitarian laws to be observed in war. Why do ICC’s words carry weightage? Because ICC is the world’s first permanent war crimes tribunal and “the court of last resort”. It is an intergovernmental organization and international tribunal where people and organizations accused of genocide, crimes against humanity, war crimes and the crime of aggression are tried. It exercises its powers when a state’s legal system collapses, or when a government is the perpetrator of heinous international crimes like the ones stated above. It was not created to supplant the authority of national courts and is based on the principle of international complementarity.

As per a Reuters report quoting Jonathan Hafetz, international criminal law and national security scholar at Seton Hall University School of Law, the execution of civilians as alleged in Bucha was a “quintessential war crime”. By this stance alone, Putin and Russian troops stand as war criminals. However, it cannot be as simple as that.

For starters, Russia has consistently denied culpability and has strongly stated that “not a single civilian has faced any violent action by the Russian military”.

Moreover, a case pointing to war crimes has to be built on strong grounds. As per Jake Sullivan, the US national security adviser, there are four main sources of evidence in the case of war crimes in Bucha:

1). Information gathered by the US and its allies including from intelligence sources

2). Ukraine’s own efforts on the ground to develop the case and document forensics from the killings

3). Material from international organizations including the UN and NGOs

4). Findings by global independent media with photos, interviews and documentation.

Based on these, the prosecution can argue that Putin ordered illegal attacks in

Ukraine or knew crimes were being committed and failed to prevent them, thereby being a war criminal. However, it is hard to prove this allegation.

The ICC has, meanwhile, opened a war crimes investigation in February itself as a response to Russia’s invasion of Ukraine, according to the ICC’s chief prosecutor, Karim Khan. However, and interestingly, Russia and Ukraine are both not members of the court, along with the US and China. This effectively means that the three first world powers are not part of the ICC — each for its own particular reasons.

Secondly, even if Putin is judged a criminal war by the Court and a sentence is pronounced against him, there is no way of enforcing the punishment. This is because the ICC is a judicial institution and does not have its own police force or enforcement body. Instead, it relies on cooperation with countries for support. This is essential for making arrests, transferring arrested persons to the ICC detention center in The Hague, freezing suspects’ assets, and enforcing sentences.

Considering it is Putin we are talking about, this seems a distant dream even if the ICC issues arrest warrants. Moreover, the prosecution could take years. For instance, it took the ICC four years of hearings to pronounce Charles Taylor, the former president of Liberia, guilty of aiding and abetting war crimes and crimes against humanity for supporting rebels who carried out atrocities.

However, this time the US has offered support despite not being a signatory. On Monday, Sullivan reportedly said, “The US has in the past been able to cooperate with the international criminal court in other contexts despite not being a signatory.” And with that, the question rolls back into the US vs Russia supremacy.

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