War crimes: Here’s how prosecutions work

The ICC’s top war crimes prosecutor traveled to Ukraine to investigate, and the US Embassy in kyiv argued in the early days of the war that specific Russian attacks constituted war crimes.

The Russian bombing of hospitals and a theater where children were seeking refuge along with the suspected use of cluster bombs and so-called vacuum bombs in densely populated areas with many civilians have also been described as war crimes.
“The law is clear on this, it’s a crime to intentionally target civilians, it’s a crime to intentionally target civilian objects,” ICC Chief Prosecutor Karim Khan told CNN’s Anderson Cooper.

But Khan added that there is a burden of proof and a process that needs to be developed.

Here is a very broad look at war crimes and the international justice movement.

Note: Some of what follows comes from the CNN Research Library, which compiled information on the International Criminal Court.

What is a war crime?

The International Criminal Court has specific definitions for genocide, war crimes, crimes against humanity, and the crime of aggression. Read about them in this guide published by the ICC.

Specifically, targeting civilian populations, violating the Geneva Conventions, targeting specific groups of people, and more could be potential Russian war crimes.

Khan said there may be justified attacks on civilian areas if they are used to launch attacks. But even then, he said, attacks on civilian areas cannot be disproportionate.

There is a method of collecting evidence from testimony, satellite imagery, and other places to meet the burden of proof.

What is the International Criminal Court?

Located in The Hague, the Netherlands, and created by a treaty called the Rome Statute first brought to the United Nations, the International Criminal Court operates independently.

Most of the countries on Earth, 123 of them, are parties to the treaty, but there are very large and notable exceptions, including Russia and the US and, for that matter, Ukraine.

Who can be tried by the court?

Anyone accused of a crime in the court’s jurisdiction, which includes countries that are members of the ICC, can be tried. The court judges people, not countries, and focuses on those who bear the greatest responsibility: leaders and officials. Although Ukraine is not a member of the court, it previously accepted its jurisdiction.

Therefore, in theory, Putin could be indicted by the court for previously ordering war crimes in Crimea.

However, the ICC does not conduct trials in absentia, so he would have to be surrendered by Russia or arrested outside of Russia. That seems unlikely.

What crimes does the court handle?

The ICC is intended to be a court of “last resort” and is not intended to replace a country’s justice system. The court, which has 18 judges serving nine-year terms, tries four types of crimes: genocide, crimes against humanity, crimes of aggression and war crimes.

How does the ICC initiate the procedure?

Judicial proceedings can be initiated in two ways: a national government or the UN Security Council can refer cases for investigation.

Russia, a permanent member of the UN Security Council, has veto power over the council’s actions. It was requests from 39 national governments, most of them European, that prompted this current investigation.

Khan previously told CNN: “I want to emphasize that I am ready to talk to all parties, and not only the Ukrainian side, but also the Russian Federation, state parties and non-state parties alike. This institution is not political. They are not part of the geostrategic or geopolitical divisions that we see around the world.”

What will the ICC investigate in relation to Ukraine?

In its new investigation into possible Russian war crimes, the ICC has said it will look at all actions in Ukraine from 2013 to the present.

Russia first entered Crimea, which has been part of Ukraine, in 2014. The ICC was already investigating the crackdown on protesters by a previous Ukrainian government that was pro-Russian. This new reference seems to bring together all possible war crimes.

How long do these investigations take?

If justice in general moves slowly, international justice barely moves. Investigations at the ICC have been going on for many years. They have only earned a handful of convictions.

A preliminary investigation into hostilities in eastern Ukraine lasted more than six years, from April 2014 to December 2020. At the time, the prosecutor said there was evidence of war crimes and crimes against humanity. The next steps were slowed down by the covid-19 pandemic and a lack of resources at the court, which is conducting multiple investigations.

That perception of slow and ineffective justice will test the international law system, Khan told Cooper.

“This is a test for the court. It’s a test for me, it’s a test for the office,” she said.

What are cluster bombs and vacuum bombs?

In addition to attacks on civilian hospitals and apartment buildings, the feared use of prohibited weapons intended to kill without discrimination is another very specific war crime.

With a cluster bomb, a missile is fired and explodes thousands of feet in the air, releasing smaller bombs that detonate when they hit the ground. See an illustration from The Washington Post. Amnesty International said a Russian cluster bomb fell on a Ukrainian preschool.

“Vacuum bombs,” or thermobaric weapons, suck in oxygen from the surrounding air to generate a powerful explosion and large pressure wave that can have enormous destructive effects. Russia previously used them in Chechnya.

‘This is genocide’

Now Russia is facing more war crimes charges after its forces began withdrawing from areas near kyiv, including Bucha, following a failed attempt to encircle the capital.

Asked during an appearance on CBS on Sunday if Russia was carrying out genocide in his country based on Bucha’s footage, Zelensky said: “Certainly. This is genocide.”

The alleged atrocities in Bucha have sparked outrage from leaders outside Ukraine, with Western leaders including US Secretary of State Antony Blinken calling for war crimes investigations and increased sanctions against Russia. .

“Since the aggression, we have come out and said that we believe that Russian forces have committed war crimes, and we have been working to document that, to provide the information that we have to the relevant institutions and organizations that will put all of this together. And there must be responsibility for it,” he told CNN.

CNN has not been able to independently confirm details about the deaths.

Why would a trial in Ukraine be any different?

The international outcry against Russia is unique, and that could give the court the ability to operate differently, according to Ryan Goodman, a law professor at New York University and co-editor-in-chief of Just Security, an online forum.

“It is difficult to judge the ICC investigation based on past practice,” Goodman said in an email after the court initially launched its investigation. “In the Ukraine situation, the prosecutor is backed by an extraordinary outpouring of support from dozens of countries, which I hope will be followed by an infusion of resources.”

How would an ICC case affect the conflict?

“For better or worse, the ICC investigation may affect the diplomatic space for negotiations,” Goodman said, arguing that Putin and other Russians might not want to risk arrest if they travel outside the country.

The investigation could also, he argued, weaken Putin at home.

“The Russians may come to realize that this is another reason why Putin can no longer serve his country,” Goodman said.

What happened before the ICC?

Previous war crimes trials have been brought by special UN tribunals, such as those set up for the former Yugoslavia, focused on Serbian autocrat Slobodan Milosevic, and for the Rwandan genocide.

All of this stems from the precedent of the Nuremberg trials to bring Nazis to justice after World War II and into the hands of allies including the US, Soviet Union, France and Germany.

So it is interesting that neither the US nor Russia is a member of the ICC.

Why are the US and Russia not members of the ICC?

Both the US and Russia are signatories to the treaty that created the court, meaning their leaders signed it, but neither is a member of the court.

Russia withdrew from the court in 2016 days after an ICC report published what CNN called a “convicting verdict” on Russia’s 2014 occupation of Crimea. The court also launched a 2016 investigation into Russia’s efforts to 2008 to support breakaway regions in Georgia.

At the time, France also accused Russia of committing war crimes in Syria.

As for the US, while President Bill Clinton signed the treaty creating the court in 2000, he never recommended that the Senate ratify it.

The George W. Bush administration, in the face of its fair share of criticism, withdrew the US from being a party to the treaty in 2002. The Pentagon and many US lawmakers have long opposed joining a system international judicial proceedings of this kind, as it could expose US service members to indictments. of war crimes.

“The President (George W. Bush) believes that the ICC is fundamentally flawed because it puts American military men and women at fundamental risk of being tried by an entity that is beyond the reach of the United States, beyond the laws of the United States and can subject American civilians and military personnel to arbitrary standards of justice,” then-White House press secretary Ari Fleischer said at the time.

How has the United States supported the court?

Opposing the United States joining the court did not mean that the Bush administration opposed the court itself. He supported the ICC’s efforts to seek justice for the genocide in Sudan.

There has always been an awkwardness in the way American presidents deal with the court, CNN’s Tim Lister noted in 2011. He wrote about Barack Obama applauding the ICC’s efforts to bring justice to the likes of former Serbian general Ratko Mladic and the Libyan leader Moammar Gadhafi, while not endorsing the court for the supervision of the US.

This story and its headline have been updated with additional developments.

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