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Can Putin be punished as a war criminal?

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After more than a month of fighting in Ukraine, the United States this week formally determined that Russian troops have committed war crimes there, raising the prospect of possible prosecution by the International Criminal Court or ICC.

Reports and images of the invasion have documented numerous atrocities, including indiscriminate shelling of population centers and the killing of refugees and journalists

In the besieged city of Mariupol alone, thousands of Ukrainians have been killedand civilian buildings, including a theatera art schooland a maternity hospital, are the target of Russian bombs. The real death toll is believed to be much higher — possibly as high as 20,000, a Mariupol official said earlier this month — but an ongoing shelling campaign has made casualties difficult to confirm.

In Mariupol and across Ukraine, numerous reports of Ukrainians are also circulating showing mountains of rubble left behind from houses and buildings destroyed by Russian troops, as well as injured residents.

Certain acts of war are considered direct violations of international humanitarian law, such as deliberately attacking healthcare facilities. The World Health Organization has verified During the conflict, 43 attacks on healthcare facilities took place, killing 12 people and injuring 34, many of whom were healthcare workers.

Russia has consistently denied that civilian targets were deliberately attackeddespite an increasing body of evidence to the contrary.

However, Wednesday’s announcement by Secretary of State Antony Blinken goes a step further than earlier, less formal allegations against Russia.

“Today I can announce that, based on the information currently available, the US government is assessing that members of the Russian armed forces have committed war crimes in Ukraine,” Blinken said in a statement. statement† “Our assessment is based on a careful assessment of available information from public and intelligence sources.”

“We are committed to pursuing accountability using every tool available, including criminal prosecution,” Blinken added.

Blinken’s appointment raises a number of questions, including its implications for Russian President Vladimir Putin, who the foreign ministry described as unleashing “continuous violence that has caused death and destruction across Ukraine”. It is also very likely just the beginning of the reckoning process with increasing reports of atrocities in Ukraine.

The US says Russia is committing war crimes. What does that actually mean?

Wednesday’s statement isn’t the first time a US official has suggested war crimes are taking place in Ukraine, but it’s the first with the US government’s full weight behind it.

According to Beth Van SchaackU.S. Ambassador General to Global Criminal Justice, the appointment is the result of a thorough assessment of credible media reports of the destruction of critical civilian infrastructure by Russian forces in Ukraine, as well as intelligence reports on the conflict.

“The UN and other credible observers have confirmed hundreds of civilian deaths, and we believe the exact civilian death toll will run into the thousands,” Van Schaack said at a press conference on March 23.

The designation also indicates that the US intends to pursue accountability. As Deputy Secretary of State Wendy Sherman explained on CNNeven if the public “feels it all personally,” a strong body of evidence showing that war crimes were indeed committed by the Russian military must be presented to the international court to have real effect.

“In terms of international law, you have to have proof, you have to have proof that in fact there was intent,” Sherman said.

The State Department’s formal designation comes about a week after President Joe Biden made a more superficial comment about Putin himself. Biden described Putin as a “war criminal” in public comments on March 16, a label that blink said: he “personally” agreed.

The White House has so far avoided putting that label formally on Putin, referring to ongoing investigations by international parties to the alleged war crimes committed by Russian forces, and White House press secretary Jen Psaki explained that Biden was simply “speak from the heart” after seeing the images of war coming from Ukraine.

Of course, there’s a difference between calling a sovereign state leader a “war criminal” in a moral sense and using that designation in factual legal terms — but Wednesday’s statement, which refers to Putin by name as he accuses his troops of war crimes, is one step closer to formalizing the label.

Legally, the term “war criminal” refers to a specific set of offenses and has the potential for actual consequences. Many long-standing “rules of war” have been defined and agreed upon within the parameters established in the 1949 Geneva Conventions – treaties and protocols that establish humanitarian standards in the context of war instituted in the aftermath of World War II.

According to Article 147 of the Fourth Geneva Convention, which deals with the protection of civilians, war crimes are violations of persons or property protected by the Treaties, including “deliberate killing, torture or inhumane treatment, including biological experimentation, involving intentional great suffering or serious injury to limb or health, unlawful deportation or transfer or unlawful imprisonment of a protected person … hostage and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and willfully.”

In addition, the Rome Statute of the ICC has its own list that expands on which violations are considered war crimes.

These rules of war have been established precise definitions about what exactly constitutes a war crime, which do not always correspond to what the public morally considers war crimes. For example, bombing a school building, while horrific, should not be a war crime if it can somehow be justified as a military necessity by the executive forces.

However, attacking purely civilian targets is considered a war crime

If there is sufficient evidence to meet the criteria for war crimes under international law, a person accused of committing war crimes, particularly in the context of a conflict, may be reported to and potentially prosecuted by the ICC , an international tribunal based in The Hague in the Netherlands.

Can Putin be prosecuted for war crimes?

Given the legal parameters that must be met in order to potentially prosecute Putin as a war criminal in front of an international gallery, the first step is to gather as much evidence as possible of war crimes committed by the Russian military, and establishment Putin’s fault in those transgressions.

According to Foreign Ministry adviser Derek Chollet, shortly after the Russian invasion of Ukraine, a team… assembled under the US government to gather evidence of humanitarian violations in the conflict. The US, like Russia, is not a member of the ICC, but it can still provide evidence to support other countries in the case against Putin.

Other international efforts are underway; missions to collect evidence of war crimes in Ukraine carried out by the UN Human Rights Council and the Organization for Security and Co-operation in Europe, the US joint operations with 44 other countries to investigate possible abuses through conflict, and the ICC has opened an investigation into Russia’s alleged humanitarian violations in the war.

Damaged buildings are seen as Ukrainian civilians are evacuated along humanitarian corridors of the city of Mariupol on March 26, 2022.
Stringer/Anadolu Agency via Getty Images

Ukrainian officials have also launched their own operations to document war crimes on the ground, and have provided evidence to international prosecutors, including ICC chief prosecutor Karim Khan.

“We can help him with our information, with our witnesses, with our victims,” ​​Ukrainian Prosecutor General Iryna Venediktova said. said of her country’s efforts to support the ICC’s investigation. “I will do everything I can to help him be successful, because if he will be successful, Ukraine will be successful.”

There are notable limitations in following this route.

Since Russia is not a member of the ICC, the court’s universal jurisdiction essentially does not apply to Russia or any other third state, posing a challenge in prosecuting a case against Putin even if there is a charge against him or her. other Russian officials is submitted

In addition, the ICC does not have its own enforcement agency, so it relies heavily on the cooperation of other countries to enforce its procedures – including making physical arrests and transporting people to The Hague to be tried. As such, there is little chance of prosecution for war crimes against Putin as long as he remains in office.

Previous war crimes charges by the ICC only serve to demonstrate the difficulty of prosecuting such cases: in particular, despite a 2009 indictmentformer Sudanese President Omar al-Bashir — de first sitting head of state to face an ICC war crimes arrest warrant — has yet to be prosecuted.

Despite these restrictions, branding Putin as a “war criminal” could have legal consequences, especially in the (unlikely) scenario where Putin loses power and wants to flee the country. As political scientists Alexander Downes and Daniel Krcmaric noted in the Washington Post last week, “there is little chance of the incumbent leader of a major nuclear power being dragged before the ICC. But the ICC investigation and Biden’s ‘war criminal’ label mean that a foreign retirement — or even a trip abroad — is likely off the table.”

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