As the Russia-Ukraine conflict enters its 100th day, war crimes committed by Russian soldiers are under scrutiny

While international crimes are generally tried at international tribunals, Ukraine's decision to prosecute Russian soldiers in its domestic court for these crimes is a significant shift towards addressing the culture of impunity towards such crimes. One can only hope that other countries will follow suit.

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ON May 23, a domestic court in Ukraine sentenced a 21-year-old Russian soldier to life in prison for committing war crimes. The soldier had shot dead an unarmed civilian in Ukraine. This was the first conviction related to the ongoing war between Ukraine and Russia. On May 31, two other soldiers were sentenced to 11 years' imprisonment each for shelling a civilian area. The lenient sentence was due to the fact that there were no casualties.

Since the war began, Ukrainian authorities have claimed commission of around 10,000 war crimes by the Russian soldiers. Ukraine is about to begin trial for murder and rape by a Russian soldier. It is alleged that the soldier killed a man and then raped his wife multiple times. Since the soldier concerned is not in custody, he will be tried in absentia. There are also reports of rape of a one year-old boy by two Russian soldiers. The boy died after the rape. A Ukrainian prosecutor is currently investigating that case. Under international law terminology, such acts are classified as war crimes.

Also read: Imperialism of our times: understanding the Russian war on Ukraine

What are war crimes?

War crimes are, in the words of German international criminal law academics Gerhard Werle and Florian Jeßberger, violations of rules of international humanitarian law that create direct criminal responsibility under international law. International humanitarian law regulates the actions of warring parties of a war or armed conflict. These laws are provided for under the four Geneva Conventions, which protect 'Wounded and Sick in Armed Forces in the Field', 'Wounded, Sick and Shipwrecked Members of Armed Forces at Sea', 'Prisoners of War' and, 'Civilian Persons in Time of War'. In addition to these four conventions, there are three Additional Protocols which provide further rules for protection of victims in international and non-international armed conflicts. Combined, these documents govern war, and protect combatants and civilians.

India domesticated the Geneva Conventions by enacting the Geneva Conventions Act, 1960. The preamble of the Act notes that it is "to enable effect to be given to certain international Conventions done at Geneva on the twelfth day of August, 1949, to which India is a party, and for purposes connected therewith." The Act also provides 'Punishment for Grave Breaches of conventions' in its Section 3.

Have individuals been prosecuted for War Crimes before?

Individuals were prosecuted for war crimes for the first time at the Nuremberg Tribunal in the aftermath of the Second World War. Subsequently, many prosecutions have happened at international and ad-hoc criminal tribunals.

For example, the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda prosecuted individuals for, inter alia, war crimes. Currently, the International Criminal Court ('ICC') is prosecuting 27 defendants for charges of war crimes. The court is investigating war crimes committed by Russian soldiers related to the ongoing Russia-Ukraine war. But Russia has denounced the court and denied all allegations of war crimes.

Also read: International Law violations by Russia in its invasion of Ukraine

What has been Russia's historical stance on international crimes?

Historically, Russia has played a significant role in the evolution and development of the field of international criminal law. In his book 'International Law and World Order: A Critique of Contemporary Approaches', legal scholar and academic Prof. B.S. Chimni notes that "in telling the history of international law Western scholarship entirely neglects the contribution of Soviet Union to its progressive development in the Lenin period (1917-1924)". He further highlights Russia's contribution towards, inter alia, international criminal trials. Chimni informs us that recently, American law professor John B. Quigley has written on Russia's contribution towards the development of international law. Quigley's book, 'Soviet Legal Innovation and the Law of the Western World', tells us the story of Russia's role in promoting international law as early as 1928.

One of the foremost documents to outlaw war was the Kellogg-Briand Pact of 1928. Named after Frank B. Kellogg, the Secretary of State of the United States of America and Aristide Briand, the foreign minister of France, the pact made war illegal. The signatory States declared that they "condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another." Russia was not invited to the drafting of the pact, but once the pact came into existence, Russia ratified it.

The pact didn't say anything on aggression, but, as per Quigley, the "Soviet government then initiated the conclusion of two treaties, also involving Eastern European states, to define aggression. The Pact … had made no effort to define aggression. The two Soviet- sponsored treaties moved international law into more precise regulation of the subject of use of armed force by indicating the types of acts that would be considered to violate the Pact…".

Quigley informs us that the Soviet Union was also on the forefront of arguing that hostage taking is illegal as per international law. Such an argument was made in the context of the German invasion of the Soviet Union in 1941. After the Second World War, the Soviet Union's position was recognised through Article 34 of the Fourth Geneva Convention, which states that "The taking of hostages is prohibited".

In the aftermath of the Second World War, it was the Soviet Union, through then Premier Joseph Stalin, which first mooted the idea of individual criminal responsibility for committing war crimes. In 1941, Stalin had asked for "punishment of Hitler's criminals". It was the Soviet Union which pushed for trial by an international tribunal, a suggestion opposed by the United Kingdom and the U.S.A. However, subsequently, both the countries, along with other victors of the Second World War, agreed for an international tribunal. They signed the Nuremberg Charter and tried German soldiers for crimes against peace, war crimes and crimes against humanity (as per Article 6 of the Nuremberg Charter).

Writing about this, Quigley mentions Soviet jurist and criminologist Aron Trainin. As it came to light later, it was Trainin who proposed the Crime of Aggression, which he had called as "crime against peaceful relations between nations" in his book 'Hitlerite Responsibility Under Criminal Law'.

Looking at Russia's pioneering contributions towards international recognition of the 'crime of aggression' and 'international criminal trials', one can notice the irony. As others have argued, it is Russia which is the aggressor in the ongoing dispute and hence its officials will be held accountable for the crime of aggression. Further, despite being a proponent of trials for war crimes, Russia is trying to evade responsibility for the same when its soldiers are under trial in Ukraine. This takes us to another question – can Russian soldiers be tried at an international tribunal like the ICC?

Also read: Russia claims 'self-defence' as its objective of attacking Ukraine

Can Russian soldiers be tried at the International Criminal Court?

The ICC prosecutes individuals for international crimes. It has jurisdiction over genocide, crimes against humanity, war crimes, and crime of aggression. These crimes are listed under the Rome Statute, which governs the court. Russia had signed the Statute in 2000, but did not ratify it. When the ICC started investigating the Crimean annexation, Russia officially withdrew from the process of joining the court.

On February 28 this year, the Prosecutor of the ICC announced his decision to seek authorisation to open an investigation into the Situation in Ukraine. Within two days of this announcement, the Prosecutor's office received referrals regarding the Ukraine situation from 39 States. Japan, North Macedonia, Montenegro and Chile too subsequently referred the situation to the Prosecutor's office.

Neither Ukraine nor Russia is a member of the ICC. But via Article 12.3 of the Rome Statute, which allows non-members to accept the Court's jurisdiction, Ukraine has accepted the ICC's jurisdiction. This article states that a "…State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question". Article 12.2 of the Statute also provides that:

"[T] he Court may exercise its jurisdiction if one or more…States…have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)   The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;"

This provision is for States which are not party to the Statute, but on whose territory the alleged crimes have been conducted. Under this provision, Ukraine, which is not a party to the Statute, has accepted the ICC's jurisdiction. This is not the first time Ukraine has accepted the ICC's jurisdiction. Earlier, when Russia had annexed Crimea, Ukraine had used Article 12 to bring Russia's actions before the ICC. 

Despite this, it will be difficult to bring Russian soldiers to trial before the ICC. The court doesn't try individuals in absentia and hence getting custody of the individuals will be a tough task. The court is already facing a similar situation in the Afghanistan case, in which members of the Central Intelligence Agency of the U.S.A. are to be investigated.

Another hurdle, which is not being discussed right now, is the possibility of Ukrainian soldiers being investigated and prosecuted for committing war crimes. Ukraine's acceptance of ICC's jurisdiction does not mean that only Russian soldiers can be prosecuted. The court now has jurisdiction over the entire conflict, and it means, if a Ukrainian soldier commits any crime which is within the court's jurisdiction, they too can be prosecuted.

Such a scenario might force Ukraine to withdraw its consent to the court's jurisdiction. However, it must be noted that in case of such withdrawal, the court will nonetheless have jurisdiction based on the current acceptance by Ukraine.

Can President Putin be tried for Crime of Aggression at the ICC?

Many are looking at the prospect of Russian President Vladimir Putin being tried at the ICC. Speculations aside, such a scenario is far-fetched, not least because he is a Head of State (HoS). Under international law, a HoS enjoys immunity from prosecution.

There have undoubtedly been instances of HoSs being tried for international crimes. Examples include former Yugoslavian President Slobodan Milosevic, former Liberian President Charles Ghankay Taylor, and former Iraqi President Saddam Hussein. One important distinction between these cases and that of Putin is that the latter is an incumbent HoS. ICC has in the past unsuccessfully tried to prosecute an incumbent HoS when it issued an arrest warrant against former Sudanese President Omar al-Bashir. Even after Bashir was removed from his office, the ICC has been unable to get him under its custody till date.

Even if tomorrow Putin is voted out of his office, and if the ICC issues an arrest warrant against him, it is very improbable that he will land in its custody.

Also read: As Ukraine and Russia (in absentia) battle it out at the International Court of Justice, the question of genocide is under scrutiny 

What lies ahead?

As discussed above, Quigley's work does paint a picture of active Soviet involvement in the development of international law, and particularly international criminal law. The Soviet Union's role in the development of 'war crimes' and 'crime of aggression' is noteworthy. Probably that is why it is even more puzzling to see the Russian aggression today. While one can understand the change in geo-politics from the Stalin-era to Putin-era (the most obvious change is the disintegration of the Soviet Union), one can't help but point out the stark differences in Russia's contemporary approach towards international relations and international law.

The concluded and ongoing prosecutions for war crimes in the domestic courts of Ukraine are very significant. While international crimes are generally tried at international tribunals, Ukraine's decision to prosecute Russian soldiers in its domestic courts for these crimes is a significant shift towards addressing the culture of impunity towards such crimes. One can only hope that other countries will follow suit. Even otherwise, the fact that the ICC's prosecutor has sought authorization to investigate crimes committed in Ukraine is a ray of hope for the victims of the ongoing war.