EXPLANATION |: How are war crimes related to Russia’s invasion of Ukraine investigated?

Friday’s arrest warrant by the International Criminal Court for Russian President Vladimir Putin is part of a complex web of international and national legal action over alleged war crimes in Ukraine.

Russia, however, has repeatedly denied that its forces committed atrocities or attacked civilians.

The role of the ICC

The Hague Tribunal has led the most high-profile investigations into the most notorious suspects, looking into war crimes as well as wider crimes against humanity and genocide.

Since his investigation began a year ago, ICC prosecutor Karim Khan has visited Ukraine four times.

He visited Kyiv region, where civilians were killed in Bucha, and Kharkiv region, where residential areas in the city of Borodyanka were destroyed by shelling, as well as a children’s home in southern Ukraine.

The arrest warrants for Putin and Maria Lvova-Belova, the commissioner for children’s rights, are theoretically the first step toward an eventual trial, although under current circumstances the arrest and indictment of the Russian president is almost impossible to imagine.

Even if that happens, previous ICC cases have shown that it is difficult to convict the highest-ranking officials. In more than 20 years, the court has handed down only five convictions for major crimes, none of which involved high-ranking officials.

But an ICC investigation of international figures is not the only option. War crimes can also be prosecuted in Ukrainian courts, as are a growing number of countries that are conducting their own investigations.

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There are also plans to set up a new tribunal to prosecute the Russian invasion, which Moscow calls a “special military operation,” as a crime of aggression. The ICC cannot file such charges due to legal restrictions.

Who investigates war crimes on the ground?

Ukrainian war crimes prosecutors work with mobile justice teams supported by international legal experts and forensic teams. They are investigating alleged violations of international law shortly after the invasion began on February 24, 2022, mainly in the south and east, where land was recaptured from Russian forces.

Domestic courts focus on crimes by “direct criminals” and at least 26 war crimes suspects have been tried and convicted of rape and murder, shelling of residential infrastructure, ill-treatment and robbery, according to Ukrainian prosecutors.

But attempts to bring Russian leaders and commanders to justice who acted on their orders are likely to take years.

“The more difficult task of trying to build complex common cases that establish accountability for individuals in the highest political and military leadership is the task that has yet to be done,” said Wayne Jordash, head of mobile justice teams deployed To support Ukraine. investigations.

However, evidence is being collected.

“From the prosecution’s investigation last year, it is clear that there is a criminal plan, and the Russian military operation is inherently criminal in the sense that you cannot erase the Ukrainian identity without committing war crimes and crimes against humanity and crimes against humanity on a massive scale. genocide is possible,” said Jordash.

What other ways are there?

Recently, the European Union announced the creation of an international center for the prosecution of “aggression” in Ukraine, which is under the European Prosecutor’s Office of Eurojust, also in The Hague. This could eventually be the basis for a new tribunal. see below.

War crimes can be defined under customary international law or under national law. Ukraine’s war crime definitions are narrower than those of the ICC, for example.

A number of mostly European states have universal jurisdiction laws that would also allow them to prosecute Ukrainian war crimes.

The ICC has joined a joint investigation team with Lithuania, Poland, Estonia, Latvia, Slovakia, Romania and Ukraine itself to support potential trials inside or outside of Ukraine.

In addition, the UN Independent International Commission on Ukraine collects and documents violations of international humanitarian law to feed into the evidence collected and disseminated at Eurojust. This can also support cases taken by the ICC.

What is the crime of aggression?

The crime of aggression is broadly defined as an invasion or attempt to gain political and military control over another sovereign state. Although the ICC is the world’s permanent war crimes court, it cannot prosecute aggression.

“War is a crime, but not a war crime,” says Astrid Reisinger Corasini, a professor of international law at the University of Vienna and an expert on the crime of aggression.

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To bridge this “impunity gap,” Ukraine and several allies, including the United States and the European Union, are calling for an ad hoc tribunal for aggression.

Under customary international law, heads of state, heads of government and foreign ministers are immune from prosecution in national courts, Reisinger told Coracini.

A tribunal that could prosecute Russian President Vladimir Putin for aggression would therefore have to be a new international court based on a source of international law through a multilateral treaty.

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