Explanation: Will Putin be tried for genocide or crimes against humanity?
US President Joe Biden has called on Russian President Vladimir Putin to stand trial for war crimes after bodies were found with gunshot wounds at close range and their hands tied behind their backs in the Ukrainian town of Bucha, northwest of the capital Kyiv.
Ukrainian President Volodymyr Zelenskyy called the killings “genocide”, and his remarks were echoed by Polish Prime Minister Mateusz Morawiecki.
New Zealand Prime Minister Jacinda Ardern did not explicitly call Putin a war criminal, but said that so far all the evidence “points to war crimes being committed by Russia in Ukraine” at Putin’s hands.
But national leader Christopher Luxon went further and slapped the “war criminal” tag on the Russian leader.
* Russia faces a new wave of outrage and outrage over bodies on the streets of Ukraine
* Biden calls on Putin to face war crimes trial for atrocities in Bucha, Ukraine
* Biden enters ‘dark zone’ in bid to unseat Putin – New Zealand scholar
So what are war crimes?
Even in wartime, countries have to follow rules about what they can or cannot do on the battlefield. They are defined by various international treaties, such as the four Geneva Conventions and the Hague Conventions of 1899 and 1907.
The International Committee of the Red Cross affirms that the purpose of the rules of war is to limit the effects of armed conflict and to protect people who are not or no longer taking part in the fighting.
Breaking these rules could be a war crime.
The International Criminal Court (ICC) in The Hague, which could hold individuals responsible for war crimes, has actions listed which could constitute a war crime. These include attacks on civilians, torture, summary executions, looting or the use of weapons and tactics that cause “superfluous injury or unnecessary suffering”.
The list also includes “attacking or bombarding” towns or buildings which are not military objectives and which are undefended, deporting civilians and taking hostages.
One example is former Bosnian Serb leader Radovan Karadžić, who was convicted of four counts of war crimes in 2016, including bombing civilians in the Bosnian capital of Sarajevo and taking peacekeepers hostage from the UN during the war in Bosnia.
What is a genocide?
The United Nations Genocide Convention in 1948 describe genocide as an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and it can occur during armed conflict or in peacetime.
It is achieved by:
- Kill party members;
- Serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children from one group to another group.
Reports of wartime atrocities in Ukraine are “more than reprehensible”, Prime Minister Jacinda Ardern has said.
International tribunals have found that genocide occurred during the Holocaust; in Rwanda, where an estimated 800,000 Tutsis and moderate Hutus died in 1994; and the 1995 Srebrenica massacre, in which more than 8,000 Bosnian Muslim men and boys were killed.
However, scholars and organizations like the International Committee of the Red Cross have said the word “genocide” is wrong. overused when it does not apply.
What are crimes against humanity?
While “war crimes” refers to actions committed against civilian or enemy combatants, the ICC Statute describe crimes against humanity as “widespread or systematic attacks” directed against civilians. Attacks include the murder, enslavement, torture or enforced disappearance of people.
Similar to genocide, the statue also says that crimes against humanity don’t have to happen during war, but also in times of peace.
Former Liberian President Charles Taylor was convicted in 2012 of five counts of crimes against humanity during the country’s civil war between 1999 and 2003, including murder, enslavement and sexual slavery.
And the newcomer: the crime of aggression?
The ICC Statute describes the crime of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”.
Until 2010, aggression was not considered a core crime in international criminal law alongside war crimes, genocide or crimes against humanity.
However, for international criminal tribunals to prosecute aggression, they must rely on the UN Security Council, of which Russia is a permanent member and can veto any resolution, to determine whether military action is an assault.
University of Auckland associate professor Stephen Hoadley said the crime of assault is “pretty vague” and “uncharted territory without precedent”.
He said the Security Council could take its own course without the ICC if it deemed such aggressive action, such as the deployment of peacekeepers, the imposition of economic sanctions or any military action to restore peace. and international security under Article 42 of the United Nations Charter. .
Could Russians be tried by the International Criminal Court for any crime?
Yes, but it will be difficult to bring Russian politicians or military leaders to The Hague.
Days after the Russian invasion, ICC prosecutor Karim Ahmad Khan said he received complaints of 39 member countries, including New Zealand, to open an investigation into the situation in Ukraine.
If the investigation identifies a suspect, the prosecutor may ask the judges of the ICC to issue summonses for suspects to appear voluntarily, or an arrest warrant for its member states to execute and extradite suspects to The Hague, before proceeding to the pre-trial phase.
Three judges will decide if there is enough evidence for the case to go to trial, but it cannot go to trial without a defendant – in this case, Putin – because the court’s statute disallows trials in absentia.
But Ukraine and Russia are not members of the ICC, as Kyiv never ratified the Statute while Moscow pulled out in 2016 to protest the court’s investigations into Donbass and Crimea.
This means that even if the ICC investigation accuses Russians of wrongdoing, as long as Moscow refuses to recognize the Court’s jurisdiction and the defendants stay away from countries that can execute an arrest warrant, they cannot be judged for their actions.