In the early stages of Russia’s war in Ukraine I was somewhat concerned about Ukraine and the news media’s repeated use of the phrase “war criminal.” Like the words “racist,” “torture,” “undemocratic” and “fascist,” such allegations often are inaccurate and lose meaning with overuse. Many of us remember the leaders of the United States and our military being labeled war criminals by the North Vietnamese, communists and protesters during the Vietnam War when our air attacks accidentally hit hospitals or shelters. I also questioned when current news commentators and politicians stated that “Putin attacked refugees” or “Putin attacked a maternity hospital,” as if Russian President Vladimir Putin were sitting behind a desk in the Kremlin picking out hospitals on a satellite map so he could blast them with a cruise missile.
But after weeks of observing the destruction of Mariupol, Kharkiv and other Ukrainian cities, it is clear the Russian action has crossed the line that exists between unintentional or even justified military destruction on one hand, and war crimes on the other. What we should have heard after discovery of the Bucha and other massacres was a loud pronouncement from the Russian Ministry of Defense that they were investigating these claims and that if their forces were involved, then the responsible captain or colonel would be punished severely.
That is what we did in Vietnam after My Lai and other atrocities, although we could have done better in following up the investigations. Instead, we heard the claim from Russia that the brutalities in Ukraine were faked. Perhaps that happened in some cases. The Ukrainians are not without propaganda sins of their own, but I doubt such was the case with atrocities of this scale. In addition, the Ukrainians certainly did not destroy all the civilian structures we see obliterated in their largest cities. They were not all fortresses for Ukrainian troops. The U.S. may have been chastised rightly for the destruction of Dresden in World War II, but based on the status of international law today, as opposed to 1945, it appears this latest destruction is a crime beyond “military necessity.”
So, the question is this: We know that Putin is morally responsible for all of this, but who is “criminally responsible”? In the first instance, the answer is the field commanders. They ordered these attacks. But Putin is also legally and criminally responsible under the criminal responsibility provisions of the International Criminal Court (ICC), and probably criminal law in general. Article 28 of the ICC states that the “commander shall be criminally responsible for crimes … committed by forces under his or her effective command and control, or effective authority … as a result of his or her failure to exercise control properly over such forces where (he or she) knew or … should have known that the forces were committing such crimes.”
In addition, “a superior shall be criminally responsible for crimes committed by subordinates under his effective authority … as a result of his or her failure to exercise effective control properly … where the superior knew or consciously disregarded information which clearly indicated that the subordinates were committing … such crimes.” So, Putin has known or should have known, unless he somehow is in an impenetrable bubble, exactly what is happening in Ukraine.
Does the ICC have jurisdiction in cases such as this, where neither Russia nor Ukraine has signed on to the ICC? The answer is yes. Ukraine in 2015 accepted ICC jurisdiction for war crimes or crimes against humanity committed on its territory. The ICC also has jurisdiction when state parties refer a case to the prosecutor, or the prosecutor initiates a case on his own motion. Almost 40 state parties have made such referrals against Russia, and ICC prosecutor Karim Khan has started his own investigation. His case will be referred to a Pre Trial-Chamber and the case will go forward if those judges determine the charges have a reasonable basis. The Security Council can vote to delay the investigation for 12 months, but such a vote is unlikely.
A Russian veto should not be able to stop this case. If Russia were to start its own investigation of its crimes, under the principle of complementarity — the home state goes first — then the case could be delayed, but Russia likely will be deemed “unwilling or unable” to proceed with its own investigation.
That, of course, leaves the question of whether Putin will ever be arrested. The answer is: No one knows what will transpire in Russia. I am one of a minority who has believed that Russia’s goal was to seize only the south and east, and if Putin’s population believes the same he may survive. But Putin would be wise to study the case of Slobodan Milošević who, as president of Serbia from 1989 to 1997, probably did not feel that he would find himself in the dock at the ICC a few years later, charged with genocide, crimes against humanity and war crimes. Putin should not make many travel plans outside of Russia.
As for the future of world peace, international leaders should pay close attention to Ukrainian President Volodymyr Zelensky’s United Nations speech on April 5. In effect, he told the U.N. Security Council, “Design effective procedures to get around the five-power veto and accomplish something, or dissolve.”
The U.N. had some success by empowering the General Assembly in the 1950s with Dean Acheson’s Uniting for Peace proposals, and the U.N. Panel on Threats and Challenges made similar efforts to overcome the veto in humanitarian matters in 2004. It will be interesting to see if inspired leaders can implement such an essential change in the years to come.
Ron Sievert is Associate Professor of the Practice and director of the Certificate in Advanced International Affairs Program, Bush School of Government & Public Service, Texas A&M University. A former Department of Justice counsel, in 1990 he was assigned to DOJ’s National Security Working Group and as an International and National Security Coordinator for the department.