By Nandini Agarwal
Clashes between Russia and Ukraine have been a mainstay for the last few years. Russia invaded and captured Crimea in 2014 and has unleashed a full blown war on Ukraine in 2022. This war is illegal and has broken multiple international criminal, humanitarian and human rights laws. This article focuses on the international criminal aspects that have been breached by Russia by initiating the conflict.
On 24th February, 2022, Russia started invading Ukraine in a full-fledged manner leading to the deaths of thousands of people and forced millions to flee their homes. There have been multiple reports of Russian soldiers raping women amongst other atrocities being committed. However, this war started a few years ago in 2014 when Russia invaded Crimea which is a part of Ukraine.
An investigation was initiated on 2nd March 2022 by Prosecutor Karim Khan of the International Criminal Court (“ICC”) under Article 12(3) of the Rome Statute. Section 12(3) of the Rome Statute allows the non-member states to extend their. Considering that Russia is not a state party, the crime of aggression cannot be assessed by the ICC. Upon the reference of the case to the prosecutor by 39 states to the ICC the Prosecutor Karim Khan stated that an investigation will be initiated.
The investigation covers the allegations of war crimes, genocide and crimes against humanity committed in Ukraine by any person starting from 21st November 2013.
Possible Charges :
International law related to war does not allow killing, sexual violence or any other form of inhumane actions towards the citizens or prisoners of war in one’s custody. Anybody who commits these acts deliberately can be charged with war crimes. The leaders of such forces who had the power and authority to not only order but also know about such criminal actions are criminally liable for war crimes as per the Command Responsibility Principle because they did not use their power to stop such actions from occurring.
The invasion of Ukraine by Russia can be seen as crimes against humanity. These crimes include murder, deprivation of civil liberty, sexual violence etc and are committed in the form of purposeful systematic attacks on citizens irrespective of their nationality.
Further, the claim of genocide may also be investigated by the prosecutors. Genocide is the systematic destruction of a certain ethnic, religious or racial group of people. This crime does not only refer to the killing but also to the mental and bodily harm that is caused to people of a particular group. In the given case, the Russians are aiming their aggression towards the people who are of Ukrainian nationality. Even if there is physical harm caused throughout the nation there is an equally great amount of emotional turmoil that is taking place.
Those who are in positions of power may be charged for genocide. However, it may prove to be difficult because the acts of aggression did not affect only the Ukrainians even though the intention was to harm those in that country for frivolous reasons such as the assumption that Ukrainians are Nazis or the assumption that the Ukrainians are persecuting ethnic Russians. Another claim is that the reason for these attacks is a greater Russia which is only possible upon invading and conquering countries like Ukraine. There is a frightening similarity in the claims that encouraged the violence by the Nazi playbook on Munich and Slobodan Milosevic’s hopes for a greater Serbia.
The most obvious crime being committed by the Russians is the crime of aggression. This was known as crimes against peace in the Nuremberg trial. The war being waged by President Putin is illegal as it has not arisen out of the need for self-defense, humanitarian concerns nor is it authorized by the security council. Individual criminal responsibility is a practice that is unique to international criminal law and the International Criminal Court. It allows for individuals to be prosecuted for crimes that they committed or aided in the commitment of by their inaction especially if they are in a position of power. The recourse to war is the crime of aggression and therefore Putin along with his inner circle would face individual criminal responsibility as well as the command responsibility for being in a position of power and misusing this power to start an illegal war which has affected the lives of millions of individuals not only in Ukraine but also in Russia. Russians who are against the war but are facing the brunt of the actions of the country’s leaders are also victims of this incident.
There is a statement calling for the creation of a special tribunal for the punishment of the crime of aggression against Ukraine and this statement has also been signed by Benjamin Ferencz who was a prosecutor in the Nuremberg trials along with 37 other distinguished individuals in their own fields. This shows an immense amount of support for the persecution of the leaders in Russia who contributed to the crime.
When asked about whether there is any realistic possibility of there being a tribunal or of Putin being brought before the ICC for his crimes, Philip Sands states that there is a very big possibility but for that to happen there needs to be some political consensus. There is no need for the acceptance of other countries. Ukraine can establish a tribunal with the help of the United Nations or 5-6 other countries or the European Union.
Furthermore another question that arises is whether Putin can be held responsible as like many other heads of states he enjoys the immunity of heads of state which exempts him from national criminal jurisdiction. Despite Article 27 of the Rome Statute stating that the position of the individual will not bar the jurisdiction of ICC, it is a well accepted customary international law to provide immunity to the heads of state. Further, Article 98 of the Rome Statute provides that the court cannot continue with a request for surrender if it means that the state would have to act in a manner that is inconsistent with obligations that are required as per international law regarding the immunity of officials with relation to a third state. But this can be answered with the help of precedents such as that of where the ICC has held heads of states accountable.
Despite the substantive law allowing for the leaders of a state to be prosecuted at the ICC, the procedural provisions prevent the same. Considering that there are certain immunities provided by the international law that prevent such action from being taken against the leader of a country while they are in that position, once their term ends, they are no longer recipients of said immunity and therefore can be persecuted for their action or inaction which led to the atrocities from committed. In the case at hand, once President Putin’s term ends, he would be held liable for waging a war against Ukraine in a systematic manner.
The war is still ongoing, and millions have been affected. It has taken an economic and emotional toll across the planet. This war is brutal enough to make Switzerland take a side after 500 years. The only thing that stands between the current scenario and the President of Russia being convicted for his crimes is the gathering of some countries in order to form a tribunal for the same.
Nandini Agarwal is a fourth year law student at Jindal Global Law School.
Image credits – The New Yorker