Author’s Note: This blog was written at the beginning of March 2022. It focuses on several issues that occurred within the first three weeks of Russia’s invasion of Ukraine. Subsequent allegations of acts against humanity and war crimes are not mentioned in this blog.
The international community is calling for the International Criminal Court (“ICC”) to investigate Russian President Vladimir Putin for war crimes. Videos flood social media of the horrors ongoing in Ukraine. On February 24, 2022, a Ukrainian journalist filmed a tank intentionally switching lanes to run over a moving car on a highway in Kyiv, Ukraine’s capital. The same journalist later posted a video of the man inside the car being rescued. The next day, a video showed a Russian ballistic missile carrying a cluster munition striking a Ukrainian hospital. The missile killed four civilians, wounded ten, and significantly damaged the hospital. On March 7, 2022, CNN aired a video of two mortar or artillery shells striking an evacuation checkpoint in the Kyiv suburb of Irpin. As the dust settled, the video showed a family, including two children, instantly killed by the blast. Within two weeks, the United Nations reported that over 350 civilians have died as a result of Russia’s invasion, although the true numbers are likely “considerably higher.” The ICC already agreed to open an investigation against Russian actors for its invasion of Ukraine. However, the ICC works slowly and hardly presents sufficient reparations for crimes committed. This article will explain the laws of war, the authority of the ICC, what prosecution in the ICC means for Russia, and alternative ways to hold Russia accountable for its crimes.
The Law of War and the ICC
Rules, laws, treaties, and societal norms have regulated the conduct of war over the centuries. However, the concept of codified accountability for international crimes across states did not come to fruition until the nineteenth century. The first major shift in international criminal prosecution came in the aftermath of World War II. In 1945, the United Nations (“UN”) was created as an organization of states to “maintain international peace and security, aid humanitarian assistance, protect human rights, and uphold international law.” One crucial structure created within the UN is the Security Council, which holds real decision-making power for maintaining international peace and security. The UN also created the International Court of Justice as its judicial arm. The International Court of Justice can hear disputes between states, but not individual litigants, and only for certain international questions.
Shortly after its inception, the UN established the Nuremberg and Tokyo Tribunals. The Nuremberg and Tokyo trials were the first modern international criminal tribunals to strip states of domestic authority over war criminals and expanded state’s accountability for international crimes. Through further developments, scholars and world leaders began to craft contemporary humanitarian law that (1) mitigated harm and reduced suffering and (2) placed a larger weight of accountability on individuals, rather than states, for international crimes. To accomplish this, 123 state parties to the Rome Statute of the International Criminal Court (“Rome Statute”) created the ICC in 2002.
The ICC became the first permanent institution with jurisdiction over natural beings rather than countries. Additionally, the ICC is not a subsidiary of the UN, though the Security Council is given certain privileges. Ultimately, the ICC is independent of the UN and all state parties to the UN do not need to cooperate for the ICC to investigate and ultimately prosecute international crimes. However, the ICC cannot prosecute crimes committed by any government that has not joined the ICC or consented to its jurisdiction. The ICC can prosecute four major types of crime: (1) genocide, (2) 15 various forms of crimes against humanity, (3) war crimes, which are grave breaches of the Geneva Conventions, and (4) crimes of aggression.
Crimes against humanity are inhumane acts that willfully cause great suffering or serious injury to the body or to the health of civilians. These acts are committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ with “multiple acts of large-scale violence, carried out in an organized fashion and resulting in numerous victims. War crimes refer to grave breaches of international humanitarian law against civilians or enemy combatants during interstate conflict. These incidents must be willful and cause great suffering, or serious injury to the body or health. Most war crimes are committed against protected persons, as defined in the Geneva Conventions, primarily people who did not take part in the hostilities, particularly civilian populations and those put out of combat, like prisoners of war. The two crimes this article will focus on here are crimes against humanity and war crimes, specifically through the Russian invasion of Ukraine.
The Russian Invasion of Ukraine and the ICC
As the Russian military continues to invade Ukraine, several states have raised major concerns that Russia has already violated the Rome Statute. 39 ICC state parties, including several European, South American, and both Oceanic countries, have requested the Office of the Prosecutor to open an investigation into the “[s]ituation in Ukraine from 21 November 2013 onwards…within its scope any past and present allegations of war crimes, crimes against humanity, or genocide…”
Violations of the Rome Statute include breaches of the Geneva Conventions or attacks directed against civilian populations, knowing that the attack would cause “great suffering” or “serious injury to body or to mental health or physical health.” Breaches of the Geneva Convention include, but are not limited to, intentional attacks against civilian populations, extensive destruction of property that is not justified by military necessity, intentional attacks against personnel or vehicles providing humanitarian assistance, attacking or bombarding buildings that are undefended and not a part of a military objective, and attacks against works or installations containing dangerous forces, such as nuclear plants.
Currently, the most evident potential violations of the Rome Statute are Russian aggression toward Ukrainian civilians and civilian structures. U.S. Secretary of State Antony Blinken said there are “credible reports” of Russian troops targeting Ukrainian civilians. For example, in the second week of the conflict, Ukrainian officials posted on social media Russia began shelling a humanitarian corridor in Mariupol, which was meant to be used for the safe passage of civilians to evacuate the country. Ukrainian authorities additionally announced a convoy of humanitarian aid for Mariupol underwent fire from Russian troops. The city is now on its tenth day without water and electricity. This indiscriminate act is only one example of many against non-combatant people in Ukraine that have been broadcasted by journalists, authorities, and citizens on social media.
Additionally, several new sources confirm that Russia has attacked infrastructure protected by Geneva Conventions. One major incident occurred on March 4, 2022, when Russian troops seized, not only the biggest nuclear plant in Ukraine, but the biggest nuclear plant in Europe. The attack occurred in the middle of the night, and the Russian projectile hit a training center on the premises instead of the six reactors. Ukrainian President Zelensky accused Russia of intentionally firing at the nuclear plant and, again, begged the international community to prosecute this seizure as a war crime. However, the ICC may not be the answer to these pleas.
Legal scholars are unsure whether the ICC will hold Russian actors accountable for any crimes it committed. First, neither Russia nor Ukraine are state parties to the Rome Statute, but Ukraine has previously accepted its jurisdiction under Article 12(3) of the Rome Statute. Though this consent grants jurisdiction, the question remains as to whether Putin would appear in court. The ICC does not try defendants in absentia. Either Russian officials would need to deliver Russian President Putin to the ICC or Putin would need to be arrested outside of Russia by a party to the Rome Statute. Ultimately, the prosecution of Putin could take an ample amount of time before Putin could be brought in front of the court.
Another potential issue with assuming the ICC will hold Russia accountable is ultimately whether the Office of the Prosecutor decides to move forward with charges. In 22 years, the ICC only issued 35 arrest warrants and ten total convictions. Further, investigations can last about a decade. Under the Rome Statute, the Prosecutor must be able to prove intentional or willful harm to civilians and infrastructure, depending on the specific crime. This means that both the actual conduct and the consequences were done with intent.
Additionally, collecting evidence will likely prove to be a difficult task. First, the Office of the Prosecutor agreed to investigate Russian crimes against Ukraine since 2014, which broadens the amount of evidence the prosecutor’s office must go through. Further, current evidence of war crimes will be difficult to collect within an active hostile invasion. Ultimately, accountability is possible through the ICC, but this type of accountability will take mass amounts of resources and labor.
Current Actions Against Russia
Current world leaders have called for Russian accountability but have not outlined what that actually looks like. Though the spotlight is on the ICC, there are serious concerns about what the ICC can practically do. As of now, the only alternative action taken by several states to punish Russian action is through attacking its economy by sanctions, restricting trade, and mass exodus of corporations from the country. Several countries, including the United Kingdom, the U.S., and the European Union, have banned business dealings with Russia and Russian businesses. On March 8, 2022, U.S. President Biden banned Russian imports of oil and gas. Major buyers of Russian oil, such as Shell, have agreed to no longer buy Russian oil as well. Additionally, hundreds of companies announced that they would exit the Russian market. Notable companies include McDonald’s, Starbucks, Netflix, and Apple. Visa and Mastercard also restricted use by Russian holders. The value of the Russian currency, the ruble, has plummeted to a record low at less than one cent. The Russian Central Bank more than doubled its key interest rate due to the U.S. and European allies freezing its foreign reserves. These economic attacks have proved staggering in tandem with governmental and private actors, but have not yet stopped the Russian government from invading Ukraine. Further, these actions not only harm the guilty actors waging war, but harm citizens that may not agree with the invasion. Overall, the institutions in place to hold Russia accountable for its egregious actions will not likely seek retribution from the appropriate actors and harm bystanders in the process.
Ukrainian President Zelensky said in a speech, “When you attack us, you will see our faces, not our backs.” Zelensky communicates with his country and the world on a constant basis, encouraging his citizens to stay strong while begging the international community for aid. As the country is ravaged by Russian attacks, Ukrainian civilians still in the country are faced with true acts of horror. Zelensky has asked the ICC to aid in holding Russia accountable for its crimes. Though this request has been honored, the ICC faces countless barriers to implementing swift and timely justice. ICC investigations are slow, but the major issue here is the lack of jurisdiction the ICC has over Russian actors. As of now, Russia in its entirety pays for its actions through economic sanctions. However, these sanctions may not affect the true actors behind these horrific crimes.
- Josh Campbell, International Criminal Court begins war crime investigation in Ukraine, CNN (March 2, 2022), https://www.cnn.com/europe/live-news/ukraine-russia-putin-news-03-02-22/h_875af7462c483b7ea380fe484d423fdd. ↑
- Ella Lee and McKenzie Sadeghi; Fact check: Unclear whether armored vehicle shown crushing car in Kyiv is Russian; USA Today (Feb. 28, 2022), https://www.usatoday.com/story/news/factcheck/2022/02/28/fact-check-video-russian-tank-hitting-car-kyiv-lacks-context/6953727001/. ↑
- Id. ↑
- Ukraine: Russian Cluster Munition Hits Hospital, Human Rights Watch (Feb. 25, 2022), https://www.hrw.org/news/2022/02/25/ukraine-russian-cluster-munition-hits-hospital. ↑
- Id. ↑
- Tim Lister, et al., ‘A family died… in front of my eyes’: Civilians killed as Russian military strike hits evacuation route in Kyiv suburb, CNN (March 7, 2022), https://www.cnn.com/2022/03/06/europe/ukraine-russia-invasion-sunday-intl-hnk/index.html. ↑
- Id. ↑
- More than 350 civilians confirmed killed in Ukraine so far, U.N. says, Reuters (March 5, 2022), https://www.reuters.com/world/europe/more-than-350-civilians-confirmed-killed-ukraine-so-far-un-says-2022-03-05/. ↑
- Campbell, supra note 1. ↑
- Zachary B. Wolf, Everything you need to know about war crimes and how Putin could be prosecuted, CNN (March 4, 2022), https://www.cnn.com/2022/03/03/politics/putin-war-crimes-russia-ukraine-us-what-matters/index.html. ↑
- Daniel Thürer, International Humanitarian Law: Theory, Practice, Context 33 (2011); see also David M. Crowe, War Crimes, Genocide, and Justice 1 (2014). ↑
- Luban, et al., International and Transnational Criminal Law (3d ed. 2019). ↑
- History of the United Nations, United Nations, https://www.un.org/en/about-us/history-of-the-un (last visited March 9, 2022). ↑
- UN Charter art. 24, para. 1. See also UN Charter art. 39. (giving the Security Council the power to identify potential threats to peace, the breach of that peace, and decide what measures can be taken to maintain or restore peace). ↑
- Luban, et al., supra note 12 at 39. ↑
- Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 1945, 82 U.N.T.C. 280. ↑
- Elizabeth A.P. Schultz, From the Nuremberg and Tokyo War Crimes Trials to the International Criminal Court: The Converging Paths of Great Britain and Germany (Masters diss., University of Hawai’i at Manoa, 2012), 13. ↑
- Luban, et al., supra note 12 at 719. See also The laws of war in a nutshell, International Committee of the Red Cross (Oct. 19, 2016), https://www.icrc.org/en/document/what-are-rules-of-war-Geneva-Conventions. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 723. ↑
- Id. at 724. ↑
- How the Court works, International Criminal Court, https://www.icc-cpi.int/about/how-the-court-works (last visited March 9, 2022). ↑
- United Nations Human Rights Office of the High Commissioner, Info Note 2: DRC, Mapping human rights violations 1993-2003, United Nations, https://www.ohchr.org/Documents/Countries/CD/FS-2_Crimes_Final.pdf (last visited March 12, 2022). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Campbell, supra note 1. ↑
- Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation, International Criminal Court (March 2, 2022), https://www.icc-cpi.int//Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine. ↑
- Rome Statute Art. 7(1)(k). ↑
- Rome Statute Art. 8(2)(a)(iv), see generally Rome Statute Art. 8(2). See also Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. ↑
- Antony J. Blinken, Press Release, War Crimes by Russia’s Forces in Ukraine, U.S. Department of State (March 23, 2022) https://www.state.gov/war-crimes-by-russias-forces-in-ukraine/. ↑
- Id. ↑
- Steve Holland and Pavel Polityuk, Big brands and oil ban punish Russia as Moscow makes new pledge on Ukraine refugees, Reuters (March 8, 2022), https://www.reuters.com/world/europe/top-wrap-1-russia-warns-oil-import-ban-little-progress-is-made-ukraine-talks-2022-03-08/; see also Oleg Nikolenko (@OlegNikolenko), Twitter (March 8, 2022, 5:49 AM), https://twitter.com/OlegNikolenko_/status/1501148170910322692. ↑
- Aditi Sangal, et al., Russia invades Ukraine, CNN (March 8, 2022), https://www.cnn.com/europe/live-news/ukraine-russia-putin-news-03-08-22/h_26c701f77b4c6803520d504ee4055ac7. ↑
- Id. ↑
- Supra note 2; supra note 6. ↑
- Supra note 4; see also Andrew Drake, et al., Attack on Ukrainian nuclear plant triggers worldwide alarm, AP News (March 4, 2022), https://apnews.com/article/russia-ukraine-war-nuclear-plant-attack-33b6c1709dee937750f95c6786832840. ↑
- Andrew Drake, et al., Attack on Ukrainian nuclear plant triggers worldwide alarm, AP News (March 4, 2022), https://apnews.com/article/russia-ukraine-war-nuclear-plant-attack-33b6c1709dee937750f95c6786832840. (Reporting Ukrainian firefighters were able to control the fire without the release of any radiation.) ↑
- Id. ↑
- Rob Picheta, How dangerous was Russia’s attack at the Zaporizhzhia nuclear power plant?, CNN (March 4, 2022), https://www.cnn.com/2022/03/04/europe/ukraine-zaporizhzhia-nuclear-plant-attack-explainer-intl/index.html. See also Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 75 U.N.T.S. 287. ↑
- Thomas O Falk, Is Putin likely to face the ICC over Russia’s actions in Ukraine?, Al Jazeera (March 7, 2022), https://www.aljazeera.com/news/2022/3/7/is-putin-likely-to-face-the-icc-over-russias-actions-in-ukraine. ↑
- Id. ↑
- Id. See also Wolf, supra note 10. ↑
- Falk, supra note 44, explaining that previous trials of international war crimes, such as for the former Yugoslavia and Liberia, took a regime change to bring former leaders in front of the ICC. ↑
- Derek Saul, War Crimes In Ukraine? Here’s What Russia’s Been Accused of and What Comes Next, Forbes (March 6, 2022), https://www.forbes.com/sites/dereksaul/2022/03/06/war-crimes-in-ukraine-heres-what-russias-been-accused-of-and-what-comes-next/?sh=31d3f41b23c4. ↑
- Id. ↑
- Geert-Jan Alexander Knoops, Mens Rea and War Crimes (2017) 67. ↑
- Id. ↑
- Id. ↑
- Falk, supra note 44. ↑
- Shariq Khan, Oil surges as U.S. bans Russian crude, Britain to phase out purchases, Reuters (March 8, 2022), https://www.reuters.com/business/oil-see-saws-near-14-yr-highs-us-weighs-russia-oil-embargo-2022-03-08/; Ukraine: What sanctions are being imposed on Russia?, BBC (March 7, 2022), https://www.bbc.com/news/world-europe-60125659; Rina Torchinsky and David Gura, McDonald’s Coco-Cola, PepsiCo and Starbucks join a corporate exodus from Russia, NPR (March 8, 2022), https://www.npr.org/2022/03/08/1085179372/mcdonalds-russia-companies-ukraine. ↑
- Ukraine: What sanctions are being imposed on Russia?, BBC (March 7, 2022), https://www.bbc.com/news/world-europe-60125659. ↑
- Id. ↑
- Shariq Khan, Oil surges as U.S. bans Russian crude, Britain to phase out purchases, Reuters (March 8, 2022), https://www.reuters.com/business/oil-see-saws-near-14-yr-highs-us-weighs-russia-oil-embargo-2022-03-08/. ↑
- Rina Torchinsky and David Gura, McDonald’s Coco-Cola, PepsiCo and Starbucks join a corporate exodus from Russia, NPR (March 8, 2022), https://www.npr.org/2022/03/08/1085179372/mcdonalds-russia-companies-ukraine. ↑
- Id. ↑
- Id. ↑
- Alina Selyuk, How everyday Russians are feeling the impact from sanctions, NPR (March 2, 2022), https://www.npr.org/2022/03/02/1083694848/sanctions-russia-ukraine-economy-war. ↑
- Id. ↑
- See generally Racehl Treisman, Russia arrests nearly 5,00 anti-war protesters this weekend, NPR (March 7, 2022), https://www.npr.org/2022/03/07/1084967986/russia-arrests-more-protesters. ↑
- ‘We will defend ourselves’, says Ukrainian president Volodymyr Zelenskiy, Guardian News (Feb. 23, 2022), https://www.youtube.com/watch?v=prfaWHQoxVg. ↑
- Courtney McBride, Zelenksy Asks Americans for Help, Fighter Jets, in ABC Interview, The Wall Street Journal (March 7, 2022), https://www.wsj.com/livecoverage/russia-ukraine-latest-news-2022-03-07/card/zelensky-asks-americans-for-help-fighter-jets-in-abc-interview-i5Yhmrr0nvczRj4FtxxB. ↑
- Theodoric Meyer and Jacqueline Alemany, Zelensky Accuses Russia of War Crimes After Shelling in Kharkiv, The Washington Post (March 1, 2022), https://www.washingtonpost.com/politics/2022/03/01/zelensky-accuses-russia-war-crimes-after-shelling-kharkiv/. ↑