How Putin and Russian commanders could avoid war crime prosecutions
In Bucha, dozens of corpses in civilian clothes were shot at close range, according to reports
A Russian withdrawal from towns around the Ukrainian capital, Kyiv, has led to the discovery of corpses.
Associated Press journalists in Bucha counted dozens of bodies in civilian clothes and apparently without weapons, many seemingly shot at close range, and some with their hands bound or their flesh burned.
All of this has prompted accusations of Russian war crimes.
CBC explains how such apparent war crimes would be prosecuted, and the challenges the prosecutions might face.
Would the apparent Russian attacks on Ukrainian civilians be considered war crimes?
During war, the Geneva Conventions of 1949, along with the 1977 Additional Protocols, have outlined certain protections for civilians and prisoners of war. Any serious breach of those protections may be considered a war crime. That includes willful killing, torture or inhumane treatment, intentionally directing attacks against civilians and killing a combatant who has laid down their weapons.
Since the beginning of the invasion of Ukraine on Feb. 24, there have been accusations that Russia has committed war crimes. Such allegations include the bombing last month of a theatre and maternity hospital in the southeastern Ukrainian city of Mariupol.
Tom Dannenbaum, an assistant professor of international law at Tufts University in Massachusetts, said those two incidents may well have been war crimes. But determining that could pose challenges, he said, as it might be difficult to prove those sites were intended targets or that the individuals responsible for bombing knew they were hitting a theatre or hospital.
The challenge, he said, is distinguishing the deliberate targeting of such objects or their destruction in indiscriminate attacks from errors attributable to the "fog of war."
"But once you see people with hands tied behind their back, clearly executed, that's just straightforward," Dannenbaum said. "It's very difficult to understand that as anything other than a deliberate killing of somebody who's a protected person under the law."
Even if they were combatants, as soon as they were captured, they would have been protected under the Geneva Conventions against being killed as a prisoner of war, Dannenbaum said.
Gregory Gordon, a law professor at the Chinese University of Hong Kong, said while it seems clear that the recent images from Ukraine of people bound and shot suggest war crimes have been committed, "the question is by whom."
'If we're talking about bringing people to justice, then that becomes a much more complicated question," said Gordon, who worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda.
Who investigates allegations of war crimes?
The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations of war crimes, and last month, ICC prosecutor Karim Khan said he was opening an investigation "into the situation in Ukraine."
But countries can open up their own war crimes investigations, regardless of where the war crimes happened or the nationality of the perpetrator. They must, however, pass domestic legislation authorizing universal jurisdiction for war crimes. (Canada has done so, with its Crimes Against Humanity and War Crimes Act, enacted in 2000.)
So far, a number of countries, including France, Germany, Norway, Poland and Ukraine, have opened up investigations into alleged war crimes committed in Ukraine.
The RCMP has said it will launch its own investigations in Canada.
How is a case built to prove a war crime was committed?
Human rights groups and investigators on the ground will gather evidence that may include documentation, photographs, video and statements from witnesses.
In the case of Ukraine, "ideally, you want to supplement that with communication intercepts, for example, that show what Russian troops were saying to one another, what commanders were saying to their troops, what troops were saying to their commanders and how that was going up the chain," Dannenbaum said.
The challenge then is to determine who to charge, said Gary Solis, a contributing writer to the International Committee of the Red Cross's Commentaries to the Geneva Conventions.
A commander, for example, bears responsibility for the acts of his or her subordinates, even if the commander wasn't there at the time of the alleged war crime, Solis said.
"If he closed his eyes to what he knew or reasonably should have known what was going on, he may be convicted."
But Solis said it's important to get to "the root" — the commander, officer or politician who was in authority, who gave the word to commit the crime in question.
"It need not be explicit. It can be as little as a wink and a nod," said Solis. "The problem is identifying that individual."
Who are the usual targets of a war crime investigation?
While anyone involved in an alleged war crime can be a target for prosecution, the International Criminal Court zeroes in on what it calls those most responsible, which means it tends to be focused on those higher up, Dannenbaum said.
"A lot rests on ... the linkage between an individual and the wrongful act," he said. "The linkage evidence can get quite complicated, because certainly the further you go up, the harder it is to show exactly who knew what at what moment."
The ICC has also prosecuted those who perpetrated the crimes themselves. For example, Dominic Ongwen, commander in the Lord's Resistance Army in Uganda, was sentenced last year to 25 years in prison for a litany of crimes that included murder, rape and forced marriage committed in northern Uganda between July 2002 and December 2005.
Gordon said when he was a prosecutor with the International Criminal Tribunal for Rwanda, which was set up by the UN Security Council, often it was just a question of who they could have in custody.
But he said the ICC might also go for prosecutions at the lower level, "just for purposes of there being some sense of justice."
What could be the challenges of prosecuting potential war crimes in Ukraine?
For Ukraine, a state party to the International Criminal Court would have a duty to take into custody any Russian commander charged with war crimes and who had been issued an arrest warrant.
But since Russia is not a state party to the ICC, those charged with war crimes can avoid prosecution by avoiding the countries where they could be arrested.
That's the gap in the law, said Solis, who is also a former adjunct professor at Georgetown University Law Center in Washington, D.C.
"You're not going to be trying somebody in absentia," he said. "You want the body before the courts, or what the law calls in personam jurisdiction."
However, there is no statute of limitations for war crime charges, meaning an arrest warrant will always hang over an individual charged with such crimes.
What about prosecuting Russian President Vladimir Putin?
Putin can certainly be held responsible for war crimes in Ukraine, legal experts say, most obviously if he gave direct orders. If not, his culpability would be based on what he knew and what could he have done to stop it.
As for prosecution, Dannenbaum said a doctrine known as the head of state immunity would mean the Russian leader would be immune from prosecution from countries that had charged him with war crimes, as long as he remains in power.
But there is some question over whether he would be protected from the International Criminal Court, if Russia is not party to it.
For example, an arrest warrant had been issued in March 2009 for Omar al-Bashir, then the president of Sudan, for war crimes, but multiple states refrained from arresting him because he was the head of state of Sudan, and not a state party to the ICC.
Al-Bashir, who has been in prison in Khartoum since he was ousted from power in 2019, also faces ICC charges of genocide and crimes against humanity related to the Darfur conflict.
"The ICC repeatedly found they had a duty to arrest him and ultimately said the reason is we're an international court and therefore his immunity doesn't attach as it pertains to us," Dannenbaum said. "And so Putin's head of state immunity would not protect him in the ICC, at least as the rule is currently understood by the International Criminal Court."
Dannenbaum said, "If he is no longer head of state, he would be fully exposed to criminal prosecution in foreign domestic courts or the International Criminal Court."
As well, if there's a regime change in Russia, "he would always be subject to prosecution in Russian courts."
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With files from The Associated Press