LAST UPDATE | 5 Mar 2022
A TEAM OF investigators from the International Criminal Court (ICC) is probing possible war crimes in Ukraine as Russia continues its attack on its neighbour. But what are war crimes, and what could happen to Russia’s President Vladimir Putin if he is found guilty?
The situation unfolding in Ukraine was referred to the ICC by a host of nations, including Ireland. Foreign Affairs Minister Simon Coveney has made his feelings known, accusing Russia of “completely unacceptable breaches of international law.”
“They’re war crimes and they should be called that,” Coveney said.
The crime of aggression
The ICC is the only court with jurisdiction to prosecute people for war crimes, the crime of aggression, genocide and crimes against humanity.
Human Rights expert Professor Ray Murphy believes Putin is guilty of the crime of aggression, which involves large-scale and serious aggression using state military force.
“When you’re looking at war crimes, the crime of aggression is a big grey area,” the NUI Galway academic explains.
“But we have to determine there is a clear act of aggression by the Russians against Ukraine, and Putin is an autocratic leader so he bears the most responsibility. Therefore, he should be investigated for the crime of aggression.”
Other Russian military leaders may also be investigated for this crime, but it’s not the only avenue open to prosecutors.
Targeting civilians
The list of war crimes set out in the Rome Statute of the International Criminal Court includes a long index of offences including “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.”
It also includes “attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.”
Murphy says there’s a lot of evidence to suggest that Russian forces on the ground are using weapons in an indiscriminate way. In which case, they would be failing to clearly identify military objectives.
Amnesty International has already highlighted one attack involving the use of widely-banned (though not in Russia or Ukraine) cluster munitions on a pre-school in northeastern Ukraine, which it said “may constitute a war crime”.
Murphy, a military veteran who worked as a United Nations peacekeeper, says all sides in an armed conflict are supposed to distinguish between military objectives and civilian objects.
“From the reporting that I can see – you’d have to go on the ground and establish these things as a fact – but certainly there’s overwhelming evidence that there is indiscriminate use of force, and that certain weapons are being used in an illegal manner,” Murphy says.
“The weapons themselves may not be illegal, but the way that they’re being used; multi launch rockets, high explosive cruise missiles hitting civilian areas, that’s indiscriminate use of force that needs to be investigated.”
As Russian forces appear to be laying siege to Ukrainian cities, one previous case that may prove relevant is the Siege of Sarajevo, during the Bosnian War, which lasted nearly four years in the early to mid 1990s. It was among the war crimes for which Bosnian Serb leaders were prosecuted.
“Siege of itself is not a war crime, but if you lay siege in a way which deprives the population of food, water, medical supplies, and indeed you subject them to indiscriminate shelling, that clearly is war crime,” Murphy noted.
What will the ICC investigators do in Ukraine?
The ICC team in Ukraine, which includes investigators, lawyers and operational experts, have been tasked with investigating crimes in the conflict dating back to 2014, when Russia annexed Crimea and pro-Russian separatists began an offensive in the Donbas region.
The process of investigating war crimes is lengthy and difficult as even getting people on the ground to probe the matter can be challenging.
The tribunal’s top prosecutor Karim Khan announced that it will investigate all parties involved in the conflict.
Murphy notes that this is an important point; the ICC team is charged with investigating the entire situation, not merely the actions of Russia.
“Ukrainians are the victims, but I’m confident that, at the end of this conflict, all sides will have to account for some of their actions. It’s never all devils and all angels,” he said.
“Russia has violated international law by initiating this armed conflict, but international humanitarian law is what governs armed conflict itself and the conduct of hostilities by parties.
It doesn’t concern itself with who are the good guys, and who are the bad guys. It’s only concerned with: ‘This is a situation of armed conflict. These are the rules that everybody’s supposed to abide by.’ And if you don’t you should be held accountable.
Murphy, a former Captain in the Irish Defence Forces, says it’s important that all sides are investigated.
“You must investigate the situation, not any one side, and you have to look at what’s happened. Unfortunately due to the nature of conflicts – I’m ex-military myself, I have worked in many conflict zones – all sides commit violations and therefore all sides must be held accountable.”
“If you’re investigating war crimes, the first thing you have to establish is that a crime occurred. You don’t say ‘the Russians are guilty of a range of war crimes’.
“You establish that ‘on 5 March in Kyiv at 12pm the following happened’, and who was responsible. That’s critical, who were the commanders, etc.
“The generic thing of saying ‘they’re guilty of war crimes’, that’s fine in theory, but in practice, you have to establish that particular crimes occurred at a particular time and then find out who was responsible, because the hallmark of this area of law is individual criminal responsibility.”
What would happen if Putin was prosecuted?
The ICC has 123 member states, however neither Russia or Ukraine are among that number. Moscow also doesn’t recognise the tribunal, which was established in The Hague, Netherlands, in 2002.
Unlike normal international law, the court has the power to investigate heads of state. Therefore Putin could be investigated and a warrant could be issued for his arrest.
However the ICC doesn’t have a police force and there are plenty of countries, including Russia, where the arrest warrant wouldn’t be implemented.
Despite this glaring shortcoming, Murphy says he is confident that international law “will catch up with Putin.”
“I believe he will weaken his own hold on power in Russia and it will be very convenient for a new regime to distance themselves from Putin and maybe to hand him over,” he said.
“Justice has a way, in recent years, of catching up with these perpetrators. Right now, it may seem almost a waste of time, but it’s really important that people be held to account, but we do it in a proper way.
“The International Criminal Court is that mechanism. Slow and frustrating though it may be for ordinary people to see what the response is.
“But the investigation of war crimes takes time, it takes resources. The court has been a remarkable breakthrough in the repression of violations of international humanitarian law,” the human rights professor concluded.
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