By: Liana Brown
April 25, 2022
There are rules for almost everything, and war is no exception. The rules of war are contained in international laws and agreements, such as the Geneva Conventions. In 1949, following the horrors of the Second World War, world leaders gathered in Switzerland to sign the Geneva Conventions, which were meant to limit the savagery of war, to protect humanity from another Auschwitz, siege of Leningrad, or Dresden firestorm. The basic principles mentioned in the Geneva Convention include: medical staff in warzones must be protected and allowed to work freely; those wounded in battle and no longer fighting are entitled to medical treatment; and that warring parties are obliged to protect civilians. Violations of such principles of the Treaty may constitute as a war crime and could then lead to prosecution by the International Criminal Court (ICC). The ICC an international tribunal based out of the Hague in the Netherlands, has its own list expanding on what violations are considered war crimes The ICC is meant to be a court of “last resort” and is not meant to replace a country’s justice system. There are four offences that the ICC prosecutes: war crimes, crimes against humanity, genocide, and the crime of aggression.
These ‘rules of war’ have repeatedly been violated, according to U.S. Senate, which recently passed a resolution supporting a war crimes investigation by the ICC into Russian President Vladimir Putin for his military invasion of Ukraine. This resolution throws support behind the condemnation of the unfolding onslaught in Ukraine, where Russian military forces have intentionally bombed hospitals, maternity wards, and civilian homes across the country. Despite the large amount of innocent civilians who have lost their lives by such violence, Russia has repeatedly called its actions a “special military operation” to demilitarize and “denazify” Ukraine. Given the legal parameters that need to be met to potentially prosecute Putin as a war criminal in front of an international tribune, the first step is collecting as much evidence as possible of war crimes committed by the Russian military, and establishing Putin’s culpability in those offenses. International efforts to do so are underway; missions to collect evidence of war crimes in Ukraine are being carried out by the UN Human Rights Council and the Organization for Security and Co-operation in Europe, the US is conducting joint operations with 44 other countries to investigative possible conflict abuses, and the ICC has already opened a probe into Russia’s alleged humanitarian violations in the war.
As appealing as it might be to imagine Putin behind bars, getting to that point will not be an easy road. Since Russia is not a member of the ICC, the court’s universal jurisdiction essentially does not apply to Russia or any other non-member state, which presents challenges in pursuing a case against Putin, even if an indictment is brought against him or other Russian officials. Additionally, the ICC does not have its own enforcement body, so it relies heavily on the cooperation of other countries to enforce its procedures — including making physical arrests and transporting individuals to the Hague to be tried. Previous war crimes indictments by the ICC only serve to highlight the difficulty of prosecuting such cases: Most notably, despite a 2009 indictment, former Sudanese President Omar al-Bashir — the first sitting head of state to face an arrest warrant on war crimes charges from the ICC — has yet to face prosecution.
Even the mere threat of prosecution carries significant risks. Most notably, it forecloses Putin’s ability to flee abroad in the event of a domestic threat to his rule. The logic is straightforward: Why give up power and flee abroad if doing so will ultimately land you in a jail cell? Instead, leaders culpable for war crimes now cling to power at all costs. Sometimes this strategy results in leaders fighting to the death, as with Libya’s Moammar Gaddafi, but other times they manage to reassert control, as with Syria’s Bashar al-Assad. This means that if the war in Ukraine continues to go badly and Putin is cornered by a popular revolution or a palace coup, he has no way out. Instead, he is likely to double down, gambling that he can hold on to power either by winning the war or brutally repressing the uprising. A cornered Putin would be exceptionally dangerous. Unlike previous leaders making fight-or-flight decisions, Putin has nuclear weapons.
Yet hope still remains, as the international outcry against Russia is unique, and that could give the court the ability to operate differently, according to Ryan Goodman, a law professor at New York University and co-editor-in-chief of Just Security, an online forum. “It’s hard to judge the ICC’s investigation based on past practice,” Goodman said “in the Ukraine situation, the prosecutor is buttressed by an extraordinary outpouring of support from dozens of countries, which I expect will be followed by an infusion of resources.” The investigation could also, he argued, weaken Putin at home. “Russians may come to realize this is another reason Putin can no longer serve their country.” As foreign prosecutors, from Germany to Lithuania to Poland, are preparing to try various Russian perpetrators of all levels in their courts, it will be interesting to follow the progression of such investigations and the effect such cases will have on a global scale.