The International Criminal Court has opened an investigation into possible war crimes committed by Russia in its invasion of Ukraine.
Ukrainian President Volodymyr Zelenskyy accused Russia of war crimes over its bombardment of civilian areas in the city of Kharkiv, and its deployment of “vacuum bombs”—thermobaric weapons that suck in oxygen from the surrounding area to create a long-lasting explosion that vaporizes or suffocates those nearby and damages the internal organs of those at the fringe of the blast.
British Prime Minister Boris Johnson backed this view on Wednesday, saying, “The use of munitions they have already been dropping on innocent civilians in my view already fully qualifies as a war crime.”
Lithuanian Prime Minister Ingrida Simonyte has also said she hopes to see Vladimir Putin end up in The Hague.
ICC prosecutor Karim Khan made clear on Monday that he is opening the investigation because “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.”
If the court moves to prosecute, it will target individuals who directed the crimes, not Russia as a whole.
But what are war crimes, and what could recognition of Russian war crimes actually achieve?
Jurisdictional issues
The modern legal concept of war crimes emerged in the late 19th century, before being codified into international criminal law in the wake of World War II.
That era spawned the Geneva Conventions—treaties that have been modified over the years. The ICC’s creation at the end of the 1990s was based on a treaty, the Rome Statute, that also freshly defined war crimes, among other international crimes.
Putin’s current campaign in Ukraine—let’s not forget its 2014 prologue—probably turned criminal right at the start.
The most serious international crime is the “crime of aggression,” in which one country invades another without a defensive justification.
“War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world,” read the Nuremberg judgment in 1946, as Europe lay in the ashes of the Nazis’ thwarted attempt to create a new German empire. “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
The Rome Statute lists the crime of aggression as one of the four core crimes it can prosecute.
However, the ICC is powerless to prosecute such a case unless the United Nations Security Council refers it, or the aggressing country has accepted its jurisdiction over the crime.
Putin withdrew Russia from the Rome Statute in 2016, after the ICC called the Crimea annexation an “ongoing occupation,” and Russia is one of the permanent Security Council members that has used its veto to block a referral to The Hague (in 2014, regarding Syria—China joined the Russian veto).
So the crime of aggression is not likely to come into play here. What will probably come into play will be Russia’s alleged grave breaches of the Geneva Conventions.
Uncertain results
One example might be the conventions’ prohibition on “willfully causing great suffering, or serious injury to body or health,” which seems highly applicable to the use of vacuum bombs and cluster bombs.
The Rome Statute also defines intentional attacks on civilians and “civilian objects” as war crimes; the assault on Kharkiv could qualify here. And if Russia’s reported airstrike on a Zhytomyr maternity hospital turns out to have been deliberate, that may also be a war crime.
Many international lawyers agree Russia has disregarded the rules of war in Ukraine. “Is Vladimir Putin committing a war crime? Yes. It’s very clear,” former senior U.S. Justice Department lawyer David Schwendiman told USA Today.
However, even if Putin were to become the first non-African leader to be indicted by the ICC, it’s not clear what direct results that might produce.
For one thing, these cases take a long time. Putin is attacking Ukraine now, and fear of war-crimes prosecution plainly isn’t going to stop him. This is after all a man who signed a law just over a year ago that grants Russian ex-presidents lifelong immunity from prosecution for crimes committed in office.
Fear of war-crimes prosecution could help to dissuade other senior Russian figures from participating in Putin’s crimes, though. And if Putin were to get arrested while traveling abroad, for example, he could find himself spending the rest of his life behind bars, as happened to former Liberian President Charles Taylor over his atrocities in neighboring Sierra Leone.
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