Many are saying that President Putin has committed war crimes. Can he be arrested and tried and what are the crimes since he has not personally committed them?
April 1, 2022 | View PDF
War crimes are defined by the four Geneva conventions, which speak to certain aspects of war crimes. Additionally the Hague convention also speaks to war crimes. War crimes began to be addressed as early as the 1400s.
The International Crimes Court could be a court to address Putin’s crimes. While many countries are signatories to the ICC, there are several that do not accept it’s jurisdiction. To accept it’s jurisdiction could mean that a matter could be taken from the hands of a sovereign nation and tried on an international stage. Interestingly enough Russia does not accept the jurisdiction of the ICC. But neither does the United States or Ukraine.
The Court is a court of last resort meaning it does not hear a case until all other outlets have been exhausted. The Court tries individuals and not nations. Often time they are military leaders that have been tried and even in a few instances have leaders of a country been tried. Individuals brought on charges are not tried “in absentia” and must be present. So for Putin to be tried he would have to be tried in person. That gets pretty tricky because he would either need to be turned over by the Russian people/ government or be snagged after going outside of Russia. I think to snag Putin outside of Russia would be extremely hazardous if Putin is still President. Grabbing Putin would be akin to abducting the head of a state and I think Russia would respond militarily regardless of how despicable he is to many Russians.
Looking at the ICC website, war crimes are defined as below:
Crimes Within the Jurisdiction of the ICC
The mandate of the Court . . . to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression.
According to the Rome Statute, “genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
killing members of the group;
causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group;
forcibly transferring children of the group to another group.
“Crimes against humanity” include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
deportation or forcible transfer of population;
rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
enforced disappearance of persons;
the crime of apartheid;
other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:
mutilation, cruel treatment and torture;
taking of hostages;
intentionally directing attacks against the civilian population;
intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
rape, sexual slavery, forced pregnancy or any other form of sexual violence;
conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
As adopted by the Assembly of States Parties during the Review Conference of the Rome Statute, held in Kampala (Uganda) between 31 May and 11 June 2010, a “crime of aggression” means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.
The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.
In the context of war it is interesting to consider what events are more horrid than killing other people with not just small arms and bombs or missiles, but weapons that wreak such havoc on people that is more unconscionable than the usual rigors of war. When you include vulnerable noncombatant civilians being targeted it is especially sickening to the senses. But within the realm of combatants it is criminal to kill prisoners of war or to kill those under a flag of truce. It is interesting that one can shoot paratroopers landing to fight but one cannot shoot one parachuting down from a disabled aircraft or shoot survivors from a disabled or sinking combatant watercraft.
War crimes are not wholly found as being perpetrated by our enemies in history but by American soldiers as well. Consider the massacre at My Lai during the Vietnam war where Americans under the command of Lt. Calley and Capt. Medina killed over one hundred villagers. Calley was jailed for awhile until pardoned by President Nixon for time served.
Consider Union General Sherman and his march to the sea. Targeting civilians in a manner to destroy the homes, livestock and crops of southern civilians and even the rape of women, mostly aimed at African American women. Sherman was never tried for crimes and of course neither was Grant who was complicit as was Lincoln who was assassinated.
One writer writing about a United States military officer during World War II referenced the trials of certain Nazi’s at Nurembourg pointed out that atrocities that may be committed by the winners in a military conflict may be overlooked but not those of militaries defeated. A military officer exclaimed that had it not been for an American and allied win, it would have been allied officers on trial at Nurembourg. A Union victory in the War Between the States kept Sherman and other Union officers and Lincoln if he would have survived from being tried for war crimes.
Looking at the ICC definitions of war crimes, I think it is undeniable that Putin is a war criminal and almost forty countries have pressed war crimes on Putin. Being able to bring Putin to trial is another matter and would have to be able to reach beyond a Russian court without invoking a Russian military response.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney-client relationship. The reader should seek counsel from their attorney should any questions exist.”No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers.” As always if you do not have an attorney, ask a trusted friend or family member or contact the Alabama State Bar, Lawyer Referral service.