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What would happen if those who are accused of war crimes in Ukraine were to be tried?

Every day, Ukraine is filled with shocking stories. Mariupol: A bombing at a maternity hospital. 

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What would happen if those who are accused of war crimes in Ukraine were to be tried?

Mother and her three children were killed when they fled Irpin via a humanitarian corridor. Apartment blocks on fire Mass graves. Dehydrated child in a city under siege.

These images have led to a growing consensus worldwide that Russia should be held responsible for the war crimes committed in Ukraine.

David Crane, who has been involved in numerous international war crimes investigations, said that "the world's strongmen look like crocodiles"

While the conflict is raging, a huge apparatus is being constructed to collect and preserve evidence of possible violations of international laws that govern war after World War II. The United States declared in less than a month that Russian forces had committed war crimes against Ukraine, just one month after Vladimir Putin ordered him to bomb his neighbor. It is not clear, however, who and how will be held responsible.

This article will explain what war crimes are, and the options available to bring those responsible to justice.

What are WAR CRIMES?

A violation of the laws regarding war is called a war crime. Although the international criminal law architecture has been developed over many decades, it is a simple concept.

"If there is no military reason to target something, it is a war crime." Crane stated that if you are shooting like Mad Max Thunderdome, it is a war crime.

The Geneva Conventions, which were the bulk of the international humanitarian law, came into effect after World War II. Also, the Rome Statute which created the International Criminal Court, 1998, enshrine the core principles of international human rights.

They protect civilians during wartime, as well as prisoners of war or the injured. There have been reports of possible war crimes in Ukraine, including widespread destruction of homes and firing on civilians while they evacuate via safe corridors. Targeting hospitals. Indiscriminate weapons such as cluster bombs were used in the civilian areas. Attacks on nuclear power plants were also reported.

However, intention is important. A hospital being destroyed is not enough evidence to prove a war crime. Prosecutors will need to prove that the attack was deliberate or at minimum reckless.

The crimes against humanity are defined in the statutes of several international criminal tribunals as when a state attacks civilians in a systematic or widespread manner. This could include murder, deportation or torture, disappearances, or other inhumane acts.

Putin's case may be complicated by the mass mobilization of Ukrainian citizens in order to resist Russian invaders. Russia may try to justify attacks on civilian areas by using the blurred line between combatant and civilian.

Here are some recent convictions

The International Criminal Court found Thomas Lubanga Dyilo guilty of recruiting children aged less than 15 to fight in an ethnic conflict within the Democratic Republic of Congo. He is currently serving a 14 year sentence.

Radovan Karadzic was the president of the Republika Srpska. This self-proclaimed Serb republic in Bosnia was convicted for war crimes, crimes against humanity and genocide. Most notably, the 1995 murders of over 7,000 people at Srebrenica. The International Criminal Tribunal for the Former Yugoslavia has sentenced him to a life imprisonment.

--Jean-Paul Akayesu was a former mayor who was convicted of genocide and crimes against humanity, including rape, as well as inciting to genocide during the 1994 Rwandan ethnic massacre. He was sentenced to life imprisonment by the International Criminal Tribunal for Rwanda.

What is the INTERNATIONAL CRIMINAL CRITY?

The International Criminal Court in Hague can bring individuals to trial for crimes against humanity, war crimes, genocide, and the crime of aggressive.

It has jurisdiction over all 123 members countries. Ukraine is not one of them, but the ICC has been granted jurisdiction. Karim Khan, the chief prosecutor of the ICC, stated that he would investigate any atrocities committed in Ukraine on February 28 after a record 39 member states requested him to. More states have since signed that request.

Khan stated at the time that Khan had a reasonable basis for believing that both alleged war crimes as well as crimes against humanity were committed in Ukraine.

The ICC has limitations. It does not have the authority to investigate Russia for the "supreme foreign crime" that Nuremberg Tribunal after World War II called, the crime of aggression. This is the decision to wage an unprovoked, ruthless war against another country. International lawyers believe this would be the best way to hold Putin responsible.

This is because Russia, just like the United States of America, is not a party to ICC.

The amendment to the ICC statute to include the crime, aggression, saw the United States, Russia, and China push for -and get -- a carveout that would protect citizens from countries that have not signed up to the court. Although the U.N. Security Council has the power to override this by voting to refer a matter the ICC, Russia holds a seat in the Security Council so could easily undermine any such initiative.

Another limitation of the ICC court is the inability to try individuals absentia.

David Scheffer, the U.S.'s first ever ambassador at large for war crimes issues, stated that there would be no case against Putin at the ICC of Putin unless he was physically present in the courtroom. Ambassador at Large for War Crimes Issues, Scheffer led the delegation of the United States at the talks to establish the International Criminal Court.

Scheffer stated that the ICC could indict Putin, even if he remains in Moscow and issues an international warrant for him arrest. This would severely limit Putin's ability to travel abroad and harm his standing at home as well as abroad.

AREN'T ANY COURTS COMING TO RUSSIA FOR IT'S ACTIONS IN UKRAINE YET?

Yes. Yes. On March. 16th March, the International Court of Justice (the U.N.'s highest court) ordered Russia to cease military operations in Ukraine. Both courts look at violations committed by states and not individuals.

Russia ignored them.

Ivan Lishchyna (an adviser to Ukraine's Ministry of Justice) said that there is no international force or police that can support any international court decision. He helped Ukraine present its case at the European Court of Human Rights. It's not as if you get a judgement and all is well. Everyone is sent to prison for violating international laws. It's more complicated.

Lishchyna is one of many Ukrainians who would like Russia to pay for its crimes and to cover the huge cost of repairing the damage caused by its bombs. Lishchyna stated that if compensation was paid, she would feel like she did something positive in her life.

Russia could be ordered by the ECHR to pay compensation. The only way the ECHR could get Russia to pay compensation is to expel it from the Council of Europe. This was already done on March 16. Although the ICJ could order Russia to pay reparations it would be enforced by the U.N. Security Council, where Russia has a permanent seat as well as veto power.

Professors, lawyers, and politicians are now discussing the possibility that Russian assets could be used to pay reparations to Ukraine in the future.

CAN OTHER COUNTRIES PROSECUTE RUSSIAN OFFICIALS IN WAR CRIMES?

Yes. Yes. They are allowed to do so under the legal concept "universal jurisdiction", which allows countries to use their domestic courts to prosecute individuals who have committed grave violations of international law like war crimes and crimes against humanity - even though they were committed abroad by foreign perpetrators against foreign victim.

This strategy has worked in the past. German courts have so far been able to convict Syrian officials for crimes committed during its long-running civil war. Members of other European countries have also been convicted by courts in Germany for crimes committed during wartime.

Polish prosecutors claimed that they had received 300 witness testimony from refugees who came over the border within the first month of Russia’s war against Ukraine. Poland, Lithuania, and Ukraine had agreed in March to form a joint international investigative group on Russian war crimes against Ukraine. There have been efforts to increase the scope of this collaboration.

Although the ICC only handles a few high-profile cases, national courts have the ability to prosecute more people and cast a wider net. However, they also have limitations: Former special counsel at the Department of Defense Ryan Goodman said that sitting heads of state like Putin and high-ranking officials like Sergey Lavrov can generally be protected from prosecution in other countries.

"This likely knocks out of contention independent national jurisdictions such as Poland, Germany and Poland. Goodman stated that Putin, Lavrov and possibly others were all possible targets. But they would be able to pursue a lot more senior Russian officials."

Is UKRAINE PROSECUTING RUSSIAN WORCRIMES CASES

Yes. Iryna Venediktova is Ukraine's general prosecutor. She stated that Ukraine opened investigations into over 2,500 war crimes cases in the first month of war and identified 186 suspects. This includes Russian military leaders and propagandists.

However, Putin and Lavrov are likely to be exempt from prosecution by Ukrainian courts because they are top government officials.

ARE THERE OTHER OPTIONS?

Yes. Yes. The Nuremberg Tribunal is a prime example of how Putin could face justice by a court established specifically for this purpose. Special tribunals were also established to investigate the crimes committed in Yugoslavia, Rwanda, and other locations.

The court could, theoretically, do what the ICC can't: Prosecute Putin, even if he remains in Russia, for the crime of aggressiveness.

The Justice for Ukraine campaign, which sought to establish a special tribunal to investigate Ukraine's aggression, began in March. It quickly gained momentum. Over 140 prominent lawyers, scholars and writers, as well as Dmytro Kuleba (the Ukrainian Foreign Minister), former British Prime Minister Gordon Brown, and former prosecutor at the Nuremberg Tribunal, have signed on. Within weeks, a public petition was signed in support of this effort.

This approach is not without criticism. It could be too expensive, take too long to put together, and lack legitimacy. Some question why there should be a special tribunal to investigate Russian aggression in Ukraine, when there is one against the U.S., its allies, and for invading Iraq.

Others argue that Putin's attack against Ukraine has demonstrated how inept the existing legal options are, and that a new approach to law enforcement is needed.

"Since World War II, we haven’t had a case where one sovereign European nation has attempted to inflict brazen, large-scale aggression against another," stated Mykola Gnatovsky. He is a prominent Ukrainian lawyer, professor, and was tapped by Ukraine's foreign ministry for his assistance in drafting a Nuremburg-style tribunal to deal with Russian aggression. "Accountability is important, because accountability is a means to prevent such things in the future."


 

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