How Putin and Russian commanders could avoid war crime prosecutions

A Russian withdrawal from towns around the Ukrainian capital, Kyiv, hasled to the discovery of corpses.

Associated Press journalists in Bucha counted dozens of bodies in civilian clothes and apparently without weapons, many seemingly shot at close range, and some with their hands bound or their flesh burned.

All of this has prompted accusations of Russian war crimes.

CBC explainshow such apparent war crimes would be prosecuted, and the challenges the prosecutions might face.

Would the apparent Russian attacks on Ukrainiancivilians be considered war crimes?

During war, the Geneva Conventions of 1949, along with the 1977 Additional Protocols, have outlined certain protections for civilians and prisoners of war. Any serious breach of those protections may be considered a war crime. Thatincludes willful killing, torture or inhumane treatment, intentionally directing attacks against civiliansand killing a combatantwho has laid down their weapons.

Since the beginning of the invasion of Ukraine on Feb. 24, there have been accusations that Russia has committed war crimes.Such allegations include thebombing last month of a theatre andmaternityhospitalin the southeastern Ukrainiancity of Mariupol.

Tom Dannenbaum, an assistant professor of international law at Tufts University in Massachusetts,said those two incidentsmay well have been war crimes.But determiningthat couldpose challenges, he said, as it might be difficult to prove those sites were intended targetsor that the individuals responsible for bombing knew they were hitting a theatre or hospital.

The challenge, he said, is distinguishing the deliberate targeting of such objects ortheir destruction in indiscriminate attacks from errors attributable to the"fog of war."

"But once you see people with hands tied behind their back,clearly executed, that's just straightforward," Dannenbaum said. "It'svery difficult to understand that as anything other than a deliberate killing of somebody who's a protected person under the law."

Even if they were combatants, as soon as they were captured, they would have been protected under the Geneva Conventions against being killed as a prisoner of war, Dannenbaum said.

Gregory Gordon, a law professor at the Chinese University of Hong Kong, saidwhile it seems clear that the recent images from Ukraine of people bound and shot suggest war crimes have been committed,"the question is by whom."

'If we're talking about bringing people to justice, then that becomes a much more complicated question," said Gordon,whoworked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda.

Whoinvestigates allegations of war crimes?

The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations ofwar crimes, and last month,ICC prosecutor Karim Khan saidhe was opening an investigation"into the situation in Ukraine."

Butcountries canopen up their ownwar crimes investigations, regardless of where the war crimes happened or the nationality of the perpetrator. They must, however,pass domestic legislationauthorizing universal jurisdictionfor war crimes. (Canadahas done so, with itsCrimes Against Humanity and War Crimes Act, enacted in 2000.)

So far, a number of countries, includingFrance, Germany, Norway, Poland andUkraine, have opened up investigations into alleged war crimes committed in Ukraine.

The RCMPhas saidit will launch its own investigations in Canada.

How is a case builtto prove a war crime was committed?

Human rights groups andinvestigators on the groundwill gather evidence that may includedocumentation, photographs, video andstatements from witnesses.

In the case of Ukraine, "ideally,you want to supplement that with communication intercepts, for example, that show what Russian troops were saying to one another, what commanders were saying to their troops, what troops were saying to their commanders and how that was going up the chain,"Dannenbaum said.

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"It's clearly a war crime and indeed its breadth and depth suggest that there's crimes against humanity as well," said veteran war crimes investigator Bill Wiley. "There's no evidence of genocide at this point."

The challenge then is to determine who tocharge, said Gary Solis,acontributing writer to theInternational Committee of the Red Cross'sCommentaries to the Geneva Conventions.

A commander, for example,bears responsibility for the acts of his or her subordinates,even if the commander wasn't there at the time of the alleged war crime, Solis said.

"If he closed his eyes to what he knew or reasonably should have known what was going on, hemay be convicted."

But Solis said it's important to get to "the root" the commander, officeror politician who was in authority, who gave the word to commit thecrime in question.

"It need not be explicit. It can be as little as a wink and a nod," said Solis. "The problem is identifying that individual."

Who are the usual targets of a war crime investigation?

While anyone involved in an allegedwar crime can be a target for prosecution, the International Criminal Court zeroes inon what it calls those most responsible, whichmeans ittends to be focused on those higher up,Dannenbaum said.

"A lot rests on ...the linkage between an individual and the wrongful act," he said. "The linkage evidence can get quite complicated, because certainly the further you go up, the harder it is to show exactly who knew what at what moment."

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Ukrainian President Volodymyr Zelensky visited Bucha, a town near Kyiv Monday, where an unknown number of people were killed during the Russian invasion, some of whom appear to have been shot at close range.

The ICC has alsoprosecuted those who perpetrated thecrimes themselves. For example, Dominic Ongwen,commander in the Lord's Resistance Army in Uganda, was sentenced last year to 25 years in prison for a litany of crimes that included murder, rape and forced marriage committed in northern Uganda between July 2002 andDecember 2005.

Gordon said when he was a prosecutor with the International Criminal Tribunal for Rwanda, which was set up by the UN Security Council, often it was just a question of who theycould have in custody.

Buthe said the ICC might also go for prosecutions at the lower level, "just for purposes of there being some sense of justice."

What could bethe challenges ofprosecuting potential war crimesinUkraine?

For Ukraine, a state party to the International CriminalCourt would have a duty to take into custodyany Russian commander charged with war crimes and who had been issued an arrest warrant.

But sinceRussia is not a state party to the ICC, those charged with war crimes can avoid prosecution by avoiding the countries where they could be arrested.

That's the gap in the law,said Solis, who is also a formeradjunct professor at Georgetown University Law Centerin Washington, D.C.

"You're not going to be tryingsomebody in absentia," he said. "You want the body before the courts, or what the law calls in personamjurisdiction."

However, thereis no statute of limitations for war crime charges, meaning an arrest warrant will always hangover an individual charged with such crimes.

What about prosecuting Russian President Vladimir Putin?

Putin can certainly be held responsible for war crimes in Ukraine, legal experts say, most obviously if he gave direct orders.If not, his culpability would bebased on whathe knew and what could he have done to stop it.

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WARNING: This video contains graphic footage | Prosecuting Russian President Vladimir Putin as a war criminal would be tricky because its difficult to prove he directly ordered the atrocities being reported in Ukraine, former International Criminal Court prosecutor Luis Moreno Ocampo says. Even so, several war crimes investigations are underway in Ukraine with the hope of someday finding justice for the victims.

As for prosecution,Dannenbaum said a doctrine known as the head of state immunity would mean the Russian leader would be immune from prosecution from countries that had charged him with war crimes, as long as he remains in power.

But there is some questionover whether he would be protected from the International Criminal Court, if Russia isnot party to it.

For example, an arrest warrant had been issued in March2009for Omar al-Bashir, then the president of Sudan, for war crimes,but multiple states refrainedfrom arresting him because he was the head of state of Sudan, and not astate party to the ICC.

Al-Bashir, who has been in prison in Khartoum since he was ousted from power in 2019, also faces ICC charges of genocide and crimes against humanity related to the Darfur conflict.

"The ICC repeatedly foundtheyhad a duty to arrest himand ultimately said the reason is we're an international court and therefore his immunity doesn't attach as it pertains to us," Dannenbaum said."And so Putin's head of state immunity would not protect him inthe ICC, at least as the rule is currently understood by the International Criminal Court."

Dannenbaum said, "If he is no longer head of state, he would be fully exposed to criminal prosecution in foreign domestic courts or the International Criminal Court."

As well, if there's a regime change in Russia, "he would always be subject to prosecution in Russian courts."