What are war crimes, what evidence is needed, and which court can try Putin?

US President Joe Biden has demanded that Vladimir Putin be prosecuted for war crimes after mass graves and bodies of civilians were found in Bucha, Ukraine. But judging the Russian president will not be easy.

What are war crimes?

The International Criminal Court (ICC), the world’s first permanent military tribunal, defines “war crimes” as a “serious violation” of the Geneva Conventions, a set of humanitarian laws to be enforced in time of war.

Jonathan Hafez, a specialist in international criminal law and national security at Seton Hall University School of Law, told Reuters that executions of civilians, such as those convicted in Bucha, were “a major war crime.”

Russia continues to deny the crime. The Russian Defense Ministry on Sunday insisted that “no civilians have met with violence by the Russian military.”

How can such a case be built?

White House National Security Adviser Jake Sullivan told a news conference Monday that there are four main sources of evidence: information gathered by the United States and its allies, including intelligence sources; Ukraine’s own attempts to develop a case and substantiate forensic evidence of the murder; Materials from international organizations, including the United Nations and non-governmental organizations; And international independent media findings, obtained through photographs, interviews, and documentation.

Could Putin be responsible for the actions of his troops?

Prosecutors could argue that Putin and his circle committed war crimes directly by ordering an illegal attack or knowing that crimes had been committed and could not be prevented. Proving this case separately may be difficult, but if it fits the larger example set in Ukraine, it becomes more convincing. The United States has already accused Russia of war crimes, even to the point of extinction.

Philip Sands, a professor at University College London, told the Associated Press: “You have to show that they knew, or could have known, or should have known. There is a real risk that in three years, middle-class people will be brought to justice, and those responsible for this horror – Putin, Lavrov, the Minister of Defense, intelligence agents, the military and those who fund it – are free. From any crime. ”

Who will conduct the trial?

The ICC was created 20 years ago to prosecute perpetrators of genocide and crimes against humanity. But the United States, China, Russia and Ukraine are not members of the judiciary who have been criticized for focusing too much on Africa and using “selective justice”.

ICC Chief Prosecutor Karim Khan said in February that he had launched an investigation into war crimes in response to Russia’s invasion of Ukraine. Although Ukraine was not a signatory, it had previously approved an investigation since 2013, including the annexation of Crimea by Russia.

The ICC will issue an arrest warrant if prosecutors can confirm that there is a “reasonable basis” for committing war crimes. But Russia is unlikely to obey, and the ICC cannot prosecute anyone in absentia. Also, the U.S. did not want to join the tribunal, it is diplomatically embarrassing and, if it does, it might provoke accusations of “Western hypocrisy.”

“As for the United States, the ICC has no jurisdiction, no legitimacy, no authority,” Donald Trump once told the UN General Assembly. His government has announced that the United States will impose a visa ban on ICC officials involved in a possible American judicial investigation into alleged crimes committed in Afghanistan.

But Sullivan said Monday: “In the past, the United States has been able to cooperate with the International Criminal Court in a different context, even though it was not a signatory. “But there are many reasons why alternative courts may be considered.”

What are these “alternative courts”?

The UN seems to be the obvious starting point. But one of the problems with the passage of the UN Security Council is that Russia is a permanent member. “It’s hard to imagine that they would not try to use their veto to block something,” Sullivan said.

Another option might be a special court organized by a group of countries. The Nuremberg Trials were set up by the United States, the United Kingdom, France, and the Soviet Union to hold Nazi leaders accountable after the end of World War II.

Potential models of the Ukrainian case could be the courts set up during the war crimes committed during the Balkan wars in the early 1990s and the 1994 Rwandan genocide. Another example was the Special Court of Sierra Leone, established in 2002 with the support of the United Nations. Prosecution of those responsible for atrocities committed during the country’s civil war that began in 1996.

And other charges?

It would be easier to prosecute Putin for the crime of aggression because he waged an unprovoked war against another sovereign country. The ICC has no jurisdiction over the crime of aggression against Russia because Russia is not a signatory.

Last month, dozens of prominent lawyers and politicians – including Ukrainian Foreign Minister Dmitry Kuleba and former British Prime Minister Gordon Brown – launched a campaign to set up a special tribunal to prosecute Russia for its aggression in Ukraine.

How long can the trial last?

Probably many years. The former Yugoslav International Criminal Tribunal for the former Yugoslavia (ICTY) has indicted his first head of state, then Yugoslav President Slobodan Milosevic, in 1999 and arrested him in 2001. His trial began in 2002 and was still ongoing when Milosevic died in The Hague in 2006.

Former Liberian President Charles Taylor has been convicted of war crimes and crimes against humanity for backing insurgents who committed atrocities after a four-year hearing at The Hague Sierra Leone Special Court.

Translated by Julian Knochaert