Can Putin be tried for war crimes in Ukraine?

Of Michele Farina

For US Vice President Kamala Harris “we must investigate”, London warns the Russian military. In The Hague the International Criminal Court has opened a proceeding, but the hypothesis of a special court for Ukraine arises

Putin like Milosevic? Russian generals one day in the dock, like Charles Taylor or the Congolese warlords? The former Serbian president, wanted by the UN-created International Criminal Tribunal for the former Yugoslavia, was arrested by the police of his country and sent to The Hague in 2001, six years after the Srebrenica massacre. The former leader of Liberia was sentenced by the Special Court for Sierra Leone in 2012, a decade after his fall. Justice does not keep pace with the news and (assuming it reaches its destination) is much slower than the massacres it is called upon to judge. Or the proclamations of politicians: yesterday, US vice president Kamala Harris said that «there absolutely should be an investigation into war crimes “ attributed to the Russians in Ukraine. At the same time, the British government also warned the invading army soldiers: “Everyone will be held accountable for the war crimes committed, at every level of the chain of command.” Strong words, uncertain horizon. Will the mothers and nurses at Mariupol hospital ever be called to testify in a courtroom? And for which crimes, before which judges?

Ukraine-Russia: the latest news on the war

What are the offenses?

War crimes are those put down in black and white by Geneva Conventions of 1949and more recently by Rome Statutewhich was approved at the FAO headquarters (in the Italian capital) in 1998and that in the 2002 led to the inauguration of the International Criminal Courtafter the ratification of 60 signatory states. They are considerate war crimes deliberate attacks on civilians, attacks that cause a disproportionate number of civilian victims compared to the military objective, attacks on hospitals, schools, historical monuments.

What is said about the use of chemical and thermobaric weapons?

International law also prohibits the use of chemical weaponswhile the use of devastating thermobaric bombs (which Moscow has admitted to using in Ukraine) could only constitute a crime if it were proved that no measures were taken to avoid civilian casualties. For the atrocities committed in Bosnia in the 1990s, Milosevic was indicted for genocide, war crimes and crimes against humanity. The latter comprise a vast umbrella of criminal “acts” (from extermination to torture, from rape to deportation). But such acts, the Rome Statute provides, must be “extensive” and “systematic”, conditions that are not always easy to prove.

Has an investigation already been opened?

The Attorney General of the International Criminal Court,
Karim Khan, as early as February 28 had announced the opening of an investigation believing that the suspicions of war crimes and crimes against humanity committed in Ukraine are well founded. Unlike in 2014 (when no country had asked for a similar initiative due to facts related to the Russian annexation of Crimea), this time around forty nations (including Italy) requested the intervention of the CPI. The European Union has also decided to collaborate in the collection of evidence, through the Judicial Cooperation Unit known as Eurojust. “What Putin and Lukashenko are doing in Ukraine is a war crime”, confirms the president of the EU parliament, Roberta Metsola, urging a trial “when the time comes”. Of course, the CPI does not shine for its dynamism: 900 people from 100 countries on staff, based in The Hague (Netherlands), budget of 150 million euros, six official languages ​​(including Russian), 30 cases handled, 35 arrest warrants , 10 convictions (the first in 2012, against a Congolese militia leader) and 4 acquittals.

Who supports the CPI?

The CPI is supported by 124 (out of 193 represented at the UN). This is not a United Nations tribunal, although the Security Council may ask to take action on specific cases. But three of the five permanent members (with the right of veto) have not ratified the Rome Statute. In addition to China and Russia, also the US. Even in 2020 Trump signed a decree to impose economic sanctions on CPI officials, after the announcement of an investigation in The Hague on possible crimes against humanity committed in Afghanistan since 2003.

A special court for Ukraine?

When Kamala Harris calls for an investigation into war crimes after the Russian attack on Mariupol hospital, she evidently cannot think of a court that Washington does not recognize.. In the recent past, the UN has created ad hoc courts (from the one for the former Yugoslavia to the one for Rwanda). A special court for Ukraine too? Unthinkable for Putin and his generals, as long as the Tsar sleeps soundly in the Kremlin. But time doesn’t necessarily play in their favor. In 1995 Milosevic never thought that in six years, after an electoral defeat, Serbian Prime Minister Zoran Dindic would send him to The Hague.

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