Pressing on War Crimes
Terry H. Schwadron
March 10, 2022
At the request of 89 nations, the International Criminal Court (ICC) has launched an investigation in Ukraine about Russian war crimes, basically around the charges of attacking civilian areas.
Even as the shooting war in Ukraine worsens, we have attempts to capture and preserve images, reflections and stories of attacks barred under international law. Those include targeting civilians as well as hospitals, clinics, schools, and other civilian institutions. Just yesterday, there were verified reports that a children’s and maternity hospital was bombed by Russian fighters — a distinct no-no even in war. There have been bombings at 18 hospitals in eastern Ukraine cities under most siege.
The effort to document possible war crimes is taking on campaign proportions even now.
Apart from the public relations shellacking in the West that Russians have drawn, we are all about to take an instant course in War Crimes. Effective prosecution requires answering open questions about what kind of damage by what sorts of weapons under differing circumstances, times, scope and targeting intention.
Proving allegations thus can be difficult. Prosecutors will have to show intent to hit civilians, not just miss military targets, explains The Conversation, a nonprofit journalistic group.
And Ukraine, Russia and the United States are among countries that have not recognized the ICC to sit in judgment of what exactly is a forbidden target. In Iraq and Afghanistan, our government saw it far too easy for enemies to describe their attempts to hide behind civilians.
To date, only six people have been convicted by the ICC and served sentences.
But the ICC can pursue other charges, including Russia’s unprovoked attack against Ukraine that could result in counts against Russian leader Vladimir Putin.
To indict someone, the ICC must prove that the alleged crimes are atrocities defined as genocide, crimes against humanity or war crimes. The prosecutor considers the scale, nature, manner, and impact of the alleged crimes. Some investigations have taken years, though this one has taken a week to launch.
Thus, a campaign to collect evidence right now:
— Ukraine’s government has dispatched visual teams to bombed sites, asking uniformed soldiers to photograph as well as use weapons. Of early evidence is documentation from a handful of select sites where Russian rockets or missiles hit residential buildings
— Human Rights Watch says Russia is using internationally banned cluster bombs in residential areas, dispersing hundreds of small submunitions over a large area can kill or maim indiscriminately. That “might constitute a war crime,” the watchdog group said.
— Photos and videos from cell phones are being gathered along with testimonies of victims and witnesses. The ICC will receive the extensive evidence gathered by citizens as well as that from nonprofits and journalists.
— U.S. Secretary of State Antony Blinken and European leaders all say that their governments have evidence of attacks on civilians with an eye towards supporting charges being levied against Russia.
— London’s Metropolitan police’s war crimes team is evidencing from UK sources and The UN Human Rights Council has established a commission of inquiry. The Organization for Security and Cooperation in Europe has set up an expert mission. Towards the effort.
— the Pilecki Institute, a Polish think tank studying the nature and impact of totalitarian regimes, has set up a documentation of Russian crimes unit to organize interviews in the hotels and community centers in Poland hosting refugees.
You would think or expect that American government officials under pressure to do more about Russian aggression would be detailing U.S. satellite intelligence that shows the results of these civilian targeting charges to a minute degree. We have not heard that from the Biden administration or allied governments.
Bombarding towns, villages or dwellings that are undefended and which are not military objectives, would constitute war crimes. But many horrific acts that result in the deaths of noncombatants would not meet the criteria. At stake is proving that the attacker intentionally sought to harm civilians or strike forbidden targets.
Russia, of course, says it is avoiding civilians where it can, a statement that seems ridiculous considering the footage we are seeing nightly.
Obviously, refugee reports of civilian bombing cannot account for the intentions of those setting the targets.
International humanitarian law makes tremendous allowance — more than people realize, say experts, for incidental, or what the media calls collateral damage
If there were a trial, it would involve an individual, presumably Putin in this case, who no doubt would have some random field colonels take the fall.
Of course, if Russia declares itself a victor in this war with complete control over the former Ukraine, it will be difficult for former Ukrainian officials to pursue charges altogether, though there is a wider Western alliance obviously moving on its own.
If the ICC issues an arrest warrant against Putin, he would be unable to travel to the 123 states party to the ICC for fear of arrest or other states could also decide to hand him over. Any eventual trial could be moved to where Putin has access, though Russia disdains any ICC jurisdiction.
The effort is huge, as is the resistance, the displacement, and the worldwide effects of this war. The prospects that we see Putin in jail for war crimes in Ukraine, however, seems slim to none.