Putin, Ukraine, and the International Criminal Court

Violations of the laws of war have been a recurrent feature of many conflicts, but there is now a permanent International Criminal Court (ICC) that has jurisdiction over these crimes.

And in recent days, the Court's prosecutor, Karim Khan, has made clear that he is watching events in Ukraine closely.

The ICC began functioning in 2002, following in the footsteps of earlier international tribunals like the Nuremberg trials after World War II and the war crimes tribunals for the former Yugoslavia and Rwanda in the 1990s.

The ICC is a treaty-based court – it can prosecute crimes that are committed on the territory of states that have joined as members, or crimes committed by nationals of a member state.

Neither Russia nor Ukraine are members

Neither Ukraine nor Russia is a member of the ICC, but Ukraine accepted the open-ended jurisdiction of the ICC in 2015, so the court can prosecute those responsible for crimes on its soil.

The court was already gathering evidence of war crimes committed in Ukraine before the invasion and has now opened a formal investigation.

The ICC prosecutes individuals for war crimes, crimes against humanity and genocide. Under some circumstances it can also prosecute political and military leaders for aggression, but only when both countries involved are members of the court; since neither Russia nor Ukraine are members, that is not an option in this case.

War crimes involve serious violations of the laws of war, a set of rules that regulate how conflicts must be conducted.

Some of the law's central provisions require that forces do not deliberately attack civilian targets; that they do not carry out attacks that are likely to cause civilian harm that is disproportionate to the anticipated military advantage; and that captured enemy fighters are properly treated.

Controversial weapons systems like cluster munitions or thermobaric weapons are not unlawful in themselves — but their use in urban areas could be a war crime within the jurisdiction of the ICC if it is likely that they will strike civilian targets or cause disproportionate civilian harm.

Crimes against humanity can take place in war or peacetime and involve a widespread or systematic attack on a civilian population. The use of bombardment to terrorise a civilian population into submission would constitute both a war crime and a crime against humanity.

'Plan, order, fail to stop' criteria

Under international criminal law, commanders and leaders can be prosecuted for crimes if they planned or order them, or if they knew that forces under their control were committing crimes and did not try to stop them.

It is also a well-established principle that soldiers cannot escape responsibility through a claim of superior orders, though it may be a mitigating factor.

But there are a number of hurdles in such cases.

The ICC has struggled to build effective cases against high-level military and political officials when their country does not cooperate with the investigation.

The court has no police force and would rely on Russia to hand over suspects – unless they travelled abroad to a country that is an ICC member.

The court also does not conduct trials in absentia.

Nevertheless, it is worth remembering that there is no statute of limitations for war crimes or crimes against humanity. The war crimes tribunal set up by the UN Security Council for the wars in the former Yugoslavia got off to a slow start, but in the end, it was able to bring to trial all the people it indicted who remained alive, including the Bosnian Serb military leader Ratko Mladic and former Serbian president Slobodan Milosevic.

There also seemed little chance that the ICC would gain custody over the former Sudanese president Omar al-Bashir after it issued an arrest warrant for him in connection with atrocities in Darfur. But the Sudanese government is now discussing handing him over to the court.

In the case of Ukraine, monitors are already collecting evidence of possible crimes, and anyone with such evidence should make sure it is collated and preserved. At some point it could form the basis of war crimes prosecutions if Russian fighters are captured or if Putin ultimately falls from power.