Gathering evidence of war crimes in Ukraine will be a fairly straightforward process, international prosecutors have said. The most difficult task will be linking those crimes to Russian President Vladimir Putin, who may escape accountability altogether.
The International Criminal Court (ICC) has launched an investigation into the atrocities committed in Ukrainian cities such as the scenes witnessed in Bucha, where horrific images appeared to show dozens of civilians shot at close range with hands bound behind their backs. The gruesome discovery was made after Russian troops abandoned the city on 30 March.
Experts say the images show a clear violation of international laws which protects civilians in armed conflict, as well as prisoners of war, the sick and soldiers who have surrendered and have laid down their arms.
The Ukrainian leader Volodymyr Zelensky has denounced the killings as war crimes and US President Joe Biden said Mr Putin was a “war criminal” who should be brought to trial.
But the likeliness of Mr Putin being tried at The Hague is extremely slim.
“It’s not going to happen,” Alex Batesmith, a former UN war crimes prosecutor in Kosovo and Cambodia and lecturer at the University of Leeds law school, told i.
“I can’t see it happening through any means other than the collapse of the regime in Russia. And even then is it going to happen soon? Quickly? Easily? I very much doubt it.”
While neither Ukraine nor Russia are signatories to the ICC’s founding Rome Statute, the court prosecutor Karim Khan has opened an investigation over alleged crimes committed in Ukraine after the country accepted the court’s jurisdiction twice before in 2014.
The British lawyer said there is “a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine”.
Kremlin spokesman Dmitry Peskov said Moscow does not recognise the ICC and would only take part in “objective” inquiries. When asked by Sky News on Thursday whether Mr Putin worried about ending up in the dock at a war crime court, he replied: “We don’t see any possibility for that… we don’t consider it to be realistic.”
Prosecuting war crimes, crimes against humanity and genocide is an extremely lengthy and difficult process. Unlike other courts, there is no possibility for a trial in absentia and so the accused has to be in the dock to hear the allegations and be given an opportunity to challenge them. The ICC also has no enforcement mechanism and cannot arrest Mr Putin – should he be charged – in Russia to take him to custody.
Since it was established in 2002, the ICC has indicted more than 40 individuals – all from African countries – and issued 10 convictions. The central challenge of cases is linking the most senior leaders to the killings, as they are typically not on the ground and are unlikely to have given direct orders for the crimes.
One way it could be done is by proving a pattern of criminality has occurred across different sites.
“If this pattern continues to repeat itself, that makes it less credible for the senior leadership to say that they didn’t know what was going on,” Mr Batesmith added.
Time can also help with investigations, Alex Whiting, a former ICC prosecutions coordinator and visiting professor at Harvard Law School in the US, told i.
Given the enormous power he yields and the great amount of support he enjoys at home, it seems unlikely that Mr Putin would be surrendered to the ICC by his loyal inner circle if he were to be charged with war crimes. But those close ties could erode as time goes on, especially as the leadership comes under intense pressure from sanctions and international condemnation, Professor Whiting said.
He likened the situation to the trials of Radovan Karadzic and Ratko Mladic, the political and military leaders of the Bosnian Serbs who were brought to justice at the International Criminal Tribunal for the former Yugoslavia (ICTY) in 2016 and 2017 for atrocities committed in Bosnia during the 1990s. They were arrested without opposition from Serbia after spending years evading capture.
“Right now people may appear closely bound to Putin but over time there will be betrayals, intrigues and conflicts that arise and people could turn against him,” Professor Whiting said.
“Over time those close ties tend to fracture and dissipate.”
Should a warrant be issued for his arrest, Mr Putin may find himself in the same situation as Omar al Bashir, the ousted Sudanese president who faces 10 counts of war crimes, crimes against humanity and genocide for his role in the Darfur conflict between 2003 and 2008. The arrest warrants issued in 2009 and 2010 have made it more difficult for him to travel out of the country.
Due to the complexity of the crimes and the detail of evidence that is required, convictions at the ICC are both difficult and rare and the court has been criticised for the sheer amount of time it takes to bring prosecutions to The Hague.
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One such example took place this week, when the first trial for atrocities committed in Darfur began on Tuesday, nearly two decades after western Sudan was racked by widespread violence that killed hundreds of thousands of people.
Mr Batesmith described it as a “flawed and imperfect” system, but argued that if the world wants to be serious about accountability then there needs to be cooperation. As well as Russia, neither the US, India or China are signatories to the ICC “because they don’t feel it is in their own best interests”.
South Africa, a member of the ICC, was heavily criticised for not arresting Mr Bashir when he visited Johannesburg for an African Union meeting in 2015.
“It’s very frustrating to see the lack of progress of multilateralism and the cooperation that’s needed for these courts to be successful,” Mr Batesmith added.
Investigating war crimes such as those alleged in Ukraine is not a futile exercise, he argued, saying that it is important for the aims of memory and the dignity of the victims that there is a record of what has taken place “because it clearly is appalling and abominable”.
There is no statute of limitation and so Mr Putin could remain a fugitive his entire life, he added.
Professor Whiting seconded those sentiments, saying that international criminal justice is still being created and still being developed, and that he would not go as far as saying it is flawed but can admit it is “incomplete”.
“People are concerned that if Putin isn’t put in a courtroom by this summer then it’s a waste of time, but I don’t think that’s the case,” he said.
“Even if there’s an arrest warrant that never gets executed, that will hang over his head and define his legacy until the end.”
