Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
Vladimir Putin clearly believes that might makes right. But so did Slobodan Milosevic, the former Yugoslav president who died of a heart attack in prison while standing trial for war crimes in The Hague.
Ukrainian president Volodymyr Zelensky has accused Russia of deliberately targeting civilians and thereby committing war crimes.
The prosecutor of the International Criminal Court has opened an investigation, saying “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed.”
Could Mr. Putin, like Mr. Milosevic before him, end up in the dock?
The ICC has jurisdiction in Ukraine because that country recognized the court’s jurisdiction over war crimes for “an indefinite duration” in 2015.
As for the laws of war, they were first set out in The Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949, and then the Additional Protocols of 1977 – all treaties that Russia either ratified or succeeded to when the Soviet Union dissolved.
The laws of war are sometimes referred to as “international humanitarian law” because of three core principles.
Under the principle of military necessity, legal targets are restricted to “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization … offers a definite military advantage.”
Under the principle of distinction, attacks that “employ a method or means of combat which cannot be directed at a specific military objective” are prohibited.
Finally, the principle of proportionality precludes attacks that “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects … excessive in relation to the concrete and direct military advantage anticipated.”
Consider these principles in the context of The Globe and Mail’s reporting from earlier this week: “Russia intensified its bombardment of Ukraine’s two biggest cities on Tuesday, using air strikes to target densely populated areas … The day began with a missile attack on the main public square in Kharkiv, the second-largest city in Ukraine, that killed 10 people and damaged the regional administration building.”
Hold the principles up against a video, verified by the New York Times, showing major damage to two large apartment buildings in Borodyanka, about 50 kilometres northwest of Kyiv.
The Russian government denies these and other accusations. According to a statement from their embassy in Ottawa, “The Russian army … takes all measures to preserve the lives and safety of civilians. The strikes are targeting military facilities only, being carried out exclusively with high-precision weapons.”
Such denials would normally be part of the “fog of war.” But the war in Ukraine is being documented like none before it, with video from thousands of cellphones being shared worldwide in real time.
All this footage is potential evidence in war crimes trials – and already being collected and stored for that purpose.
Moreover, ordinary people everywhere can make their own assessments as to whether Russia is targeting civilians or putting them at unnecessary risk.
Collectively, these assessments are powerful drivers of public opinion. They give politicians courage to adopt wide and deep-reaching sanctions. They shame companies and pension funds into divesting from Russia.
And yes, Mr. Putin could end up in court – because of the principle of “command responsibility.” This rule makes a military commander or other superior culpable if they “knew or should have known” that their “forces were committing or about to commit” war crimes and “failed to take all necessary and reasonable measures … to prevent or repress their commission.”
This quote is from the 1998 Rome Statute of the International Criminal Court, but this principle also applies universally – and binds the Russian leadership – as a rule of customary international law.
These rules were not invented by Western governments. As professor Philippe Sands has reminded me, it was the ideas of a Soviet jurist, Aron Trainin, that persuaded the United States and Britain to include “crimes against peace” in the Nuremberg Charter and the indictments of Nazi defendants.
Today, this “crime of aggression” prohibits invasions. And while it does not fall within the jurisdiction of the International Criminal Court in this instance, the UN General Assembly, unlike the Security Council, is not subject to Russia’s veto power. It could decide to establish a special international criminal tribunal to prosecute Mr. Putin and his generals for the crime of aggression. And because the General Assembly has 193 member states, any such decision would – if widely supported – have global legitimacy.
Vladimir Putin, drunk on power and shielded by nuclear weapons, would laugh at such warnings. This is what war criminals always do – until the day when, like Slobodan Milosevic, they are bundled onto a plane and flown to The Hague.
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