President Biden called Russian President Vladimir Putin a "war criminal" in mid-March, after Russian forces bombed Ukrainian hospitals, schools, and a theater with "children" written in large letters in Russian outside. But as Russia retreated from towns like Bucha, in northern Ukraine, scenes of torture, brutalization, and the execution of civilians were revealed. Other Western leaders started publicly agreeing with Biden's assessment.
"You may remember I got criticized for calling Putin a war criminal," Biden said Monday. Well, "you saw what happened in Bucha. He is a war criminal. But we have to gather the information" and "all the detail so this can have an actual war crimes trial." A senior Pentagon official noted Wednesday that "while Bucha certainly and rightly has captured the world's attention, it's not the first time in these last 41 days or 42 days of conflict where the Russians have been committing war crimes and it's not the first example of brutality, as brutal as it is."
The chief prosecutor of the International Criminal Court (ICC), British lawyer Karim Khan, said Monday that he is opening an investigation into potential war crimes in Ukraine, building on an investigation stretching back to Ukraine's Maidan revolution in November 2013, and Ukrainian investigators are already gathering evidence to be used in a potential trial.
How does prosecuting war crimes work, and what are the odds Putin or any other Russians will face trial for the atrocities in Ukraine?
What are war crimes?
Believe it or not, "even wars have rules," the International Committee of the Red Cross explains. "The rules of war, or international humanitarian law, set out what can and cannot be done during an armed conflict." The core of these laws is enshrined in the Geneva Conventions (1949) and their Additional Protocols, though their roots stretch back centuries earlier.
The conventions plus other treaties making up international humanitarian law (IHL) "set out limits to war, offering protection to civilians, and parameters as to what is acceptable and what isn't on the battlefield and beyond," the Red Cross says. Basically, "you do not attack civilians. You limit as much as you can the impact of your warfare on women and children, as well as on other civilians. You treat detainees humanely. You do not torture people." These rules are universal, and serious violations are known as war crimes.
Who prosecutes these crimes?
Today, the ICC and International Court of Justice are charged with upholding the laws of war, with the ICJ responsible for disputes between nations and the ICC prosecuting individuals who aren't being tried by national courts. Ukraine has filed a case against Russia at the ICJ, but if that court rules against Russia, the body to enforce any punishment would be the United Nations Security Council, over which Russia holds veto power, BBC News reports.
The International Criminal Court is meant to be the permanent successor to a series of ad hoc international war crimes tribunals, starting with the Nuremberg Trials of leading Nazis between 1945 and 1949, followed closely by similar trials for 28 Japanese war criminals in Tokyo. "And in these trials, some new concepts were introduced, particularly the idea of a crime against humanity," or "the intentional targeting of a particular group of people, of civilians, in order to eliminate them," Roger Cohen explains in Wednesday's New York Times "The Daily" podcast.
"So these trials were held and they resulted in convictions in many cases," Cohen said. "And that was really the beginning of the serious thought about setting down international rule[s]."
Have there been any other one-off tribunals?
Yes, most famously for Serbia's war crimes in Bosnia after Yugoslavia broke up and for the 1994 Rwanda genocide. After the Nuremberg Trials, there "was a very, very long pause of about a half century during which no International Criminal Court or international tribunal was set up that could prosecute anyone using this new range of laws that had emerged from the horrors and the Holocaust of World War II," Cohen explains. "So in essence, during the Cold War, you just had a big gap, a big vacuum during which, having established the laws, nobody seemed prepared to act on them."
Bosnia shocked Europe out of this slumber, Cohen adds, but one big "lesson of the last 20, 30 years that came out of the Bosnian trials" is that "to get the evidence to bring a defendant to court, to go through all the investigation, is painstakingly difficult."
How do prosecutors gather evidence?
As with any other crime, investigators travel to the scene and gather forensic evidence, documents, first-hand accounts of atrocities, and other evidence — about 300 people gave testimony against Bosnian leader Slobodan Milosevic, Cohen notes.
In Bucha, investigators couldn't begin the "gruesome work" of cataloging the horrors, securing the site, and bringing in forensic experts "to look at the remains one by one," until the Russians had left, Human Rights Watch's Andrew Stroehlein tells Politico. "For us, it's slow and steady wins the race," he added. "That means collecting evidence that's going to stand scrutiny in national courts and elsewhere."
Ukraine will "present a test case for the ICC's ability to absorb and analyze massive amounts of user-generated evidence — evidence recorded on a smartphone by an ordinary citizen — in a complicated information environment," Rebecca Hamilton and Lindsay Freeman write at Just Security. Smartphone video of apparent war crimes can be "a boon for ICC prosecutors" but it "also comes with significant risks — for both those doing the documentation and those hoping to use the documentation."
The International Bar Association has created an app, eyeWitness, to help people document evidence of crimes in a way that will meet evidentiary standards, and a group of human rights experts, lawyers, investigators, and technologists hammered out international protocols to help people gather evidence with the best chance of being useful in court.
What about leaders who don't commit war crimes personally?
"It's far easier to pin a war crime on the soldier who commits it, than the leader who ordered it," BBC News notes. But the ICC can prosecute "waging aggressive war," which covers launching an unjustified invasion or attack, and prosecutors work hard to establish "chain of command" from executioner to commander to leader.
Linking foot soldiers to leader "could go all the way up the chain of command to kind of a ministerial level, top generals, and even President Putin," says Clint Williamson, an experienced U.S. war crimes prosecutor now leading the U.S.-European Union investigation in Ukraine. "The whole process of filing documents and bringing people to trial can be very, very lengthy," he tells Politico, but "this idea that heads of state are untouchable in these processes has gone away."
"When I first started at the Yugoslavia tribunal, the idea that the court was ever going to do more than kind of prosecute a few low-level camp guards seem far-fetched," Williamson said. But they eventually put Milosevic and Serbian military leaders on trial, and, Politico notes, "Iraq's Saddam Hussein, Liberia's Charles Taylor and Chad's Hissène Habré were also convicted in special trials, though not in the International Criminal Court."
Why do war crimes tribunals happen so rarely, then?
Milosevic incited war crimes against Bosnians for three and a half years before the world finally took action after the Srebrenica massacre in 1995, and Milosevic stayed in office until 2000. He was extradited and tried in The Hague, but died of a heart attack four years into his trial, Cohen said. The tribunal did convict General Ratko Mladic, the military commander in Srebrenica, but only in 2017, six years after his trial began and 22 years after the end of the war in Bosnia.
"Information is not the problem. Governments know when atrocities and crimes are happening in various places," HRW's Stroehlein tells Politico. "The problem is building the political will to actually do something about it in the short term, and then in the long term, having the structures of justice like the ICC that can help address those accountability issues."
Prosecuting Putin has extra challenges, Sabrina Tavernise reminds Cohen. He's "not going away anytime soon" and "it's very unlikely there'd be a change of power there. And even if there were, it's even more unlikely that a new government there would extradite him."
So is it worth it to pursue Putin and other Russians for war crimes?
"It can be a very long process; it doesn't provide maybe the immediate satisfaction that people are looking for," but it's important "to lay down these markers and show that there are consequences for these types of actions," Williamson tells Politico.
"Ukraine and the international community must seek out the entire Russian military chains of command that ordered the deliberate targeting of cities and their inhabitants," and Putin "and his advisers must also be brought to justice," retired Australian Maj. Gen. Mick Ryan writes in The Sydney Morning Herald. "There will be an important, over-riding principle" that "the international community must now adopt to bring Russian politicians and military leaders to justice: Never. Stop. Hunting. Them."
"The Russians who are responsible for this disastrous war must know that they will never be allowed to get away with their crimes," Ryan argues. "They must understand that regardless of where they go or what they do from here on, they will be hunted down and brought to justice. Even if this takes decades. And Western nations must provide the necessary resources over the coming decades to the ICC, Ukraine and other legitimate institutions to ensure that every perpetrator of crimes in Ukraine is brought to justice."
Putin will leave office at some point, "one has to assume," but the ICC can make it so he can't leave Russia, Cohen agrees. "So I don't think — even if it's cumbersome, even if it's long, even if it's difficult, I don't think that it's pointless. On the contrary, if we simply throw up our hands and say, it's just too difficult, it's just too complicated," he added, "then we'd simply offer impunity for war crimes."
"Those bodies lying in Bucha, they had families, right?" Cohen says. "They had kids. Some justice being brought, even if it's 10 years down the road, that will be meaningful."