How are war crimes prosecuted? Ways Putin could face justice

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After receiving referrals from 39 countries, International Criminal Court (ICC) prosecutor Karim Khan announced the court has commenced an investigation into possible war crimes and crimes against humanity in Ukraine made by Russia. Evidence is mounting up against Russian president Vladimir Putin, but it’s not an easy process to carry through with prosecution.

What is a war crime?

War crimes encompass some of the gravest crimes in international humanitarian law, and take place when civilians are not distinguished from military troops, when harm for civilians is not minimised, and when there is unnecessary destruction, suffering, and casualties.

In order to indict someone, the ICC prosecutor must prove the alleged crimes to be atrocity crimes, which can be found in genocide, crimes against humanity, war crimes and torture.

Throughout the invasion, Ukraine has faced untold suffering at the hands of Russia. On Wednesday, Ukraine endured another airstrike – this time, on a maternity hospital in Mariupol.

Three people were killed, including a child, and 17 were injured. Ukrainian President Volodymyr Zelensky described the attack as a war crime.

Russian troops also reportedly targeted Ukrainian civilians on their route to the country’s capital, and cluster bombs were evidenced to have hit civilian areas of Kharkiv.

Prime Minister Boris Johnson said at Prime Minister’s Question Time last week: “What we have seen already from Vladimir Putin’s regime in the use of the munitions that they have already been dropping on innocent civilians, in my view, already fully qualifies as a war crime.”

How are war crimes prosecuted?

Each country signed to the International Criminal Court’s Rome Statute has a duty to investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and prosecute the suspects when appropriate.

It is also expected the countries investigate other war crimes over which they have jurisdiction, have the power to prosecute these where necessary.

There are 123 countries signed into the law spanning regions across Europe, Africa, Asia-Pacific, South America, and more.

The International Criminal Court (ICC) and the International Court of Justice (ICJ) play different roles in upholding the rules of war.

The ICJ, for example, has authority over disputes between states, but cannot prosecute individuals.

In view of this, Ukraine has launched a case against Russia with the ICJ over the invasion – instead of just Putin.

If the ICJ were to rule against Russia, judgement would fall on the shoulders of the UN Security Council (UNSC).

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However, Russia, as one of the five permanent members of the UNSC, has the power to veto any proposal of sanctions.

The ICC, on the other hand, has the power to investigate and prosecute war criminals individually, of which an investigation into Russia’s actions is currently underway. [link to Express article]

However, it can be difficult to link head of states directly to war crimes, as it could be argued they may not know of the events occurring on the ground.

What’s more, even if Putin were to be charged, he would have to be arrested in a state that – unlike Russia, who opted out of the Rome Statute in 2016 – accepts the jurisdiction of the court.

It is very unlikely that Putin would extradite himself or any other suspects, and enter into a country signed to Rome Statute, that could potentially arrest him.

Can Mr Putin face justice?

Although it is proved difficult to prosecute heads of states for war crimes, the ICC can hold them criminally responsible for the event of “waging aggressive war”.

These events can include, among others, invasion, military, occupation, and annexation by the use of force.

However, as Russia is no longer a signatory to the ICC, it couldn’t technically prosecute Russia’s leaders for offences, and if passed onto the UN, as mentioned above, Russia has the power to veto it.

At the moment, it seems more possible that Russia could be prosecuted before Putin individually.

The ICJ commenced public hearings for the case posed against Russia at the start of the week.

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