A war crimes case against Putin over Ukraine killings would take years

WASHINGTON — For weeks President Joe Biden has denounced Russian President Vladimir Putin’s invasion of Ukraine as the act of a “war criminal,” but the images of civilian deaths in the town of Bucha prompted Biden to go a step further and assert that Putin should be prosecuted for violating international law.

“You may remember I got criticized for calling Putin a war criminal,” Biden told reporters last Monday. “Well, the truth of the matter — we saw it happen in Bucha — he is a war criminal.”

Biden, responding to reports of Russian soldiers torturing and killing civilians before retreating from Bucha, a suburb of the capital, Kyiv, said Putin should face a “war crime trial” and “be held accountable.” Russian leaders have denied the charges.

As Biden and dozens of other world leaders ramp up their calls for Russia to be held accountable for alleged war crimes targeting Ukrainian civilians, leaders are also bracing for the long road ahead to build a case against those involved.

“There has to be accountability for these war crimes,” White House National Security Adviser Jake Sullivan told reporters. “That accountability has to be felt at every level of the Russian system, and the United States will work with the international community to ensure that accountability is applied at the appropriate time.”

What constitutes a war crime?

War crimes are violations of existing international laws that are meant to “protect civilians during armed conflict,” said Jonathan Hafetz, a professor of international law at Seton Hall University in New Jersey.

Most of the protections for civilians are outlined in the Geneva Conventions that were adopted in the wake of World War II, but there are also other decades-old laws and treaties establishing limits on the use of force against civilians, including the Rome Statute of 1998, which established the International Criminal Court.

“Summary execution, or the intentional killing of civilians, is a grave breach of the Geneva Conventions and a clear-cut war crime,” Hafetz told Newsday in an interview. “The indiscriminate killing of civilians is also a war crime.”

The International Red Cross website indicates the rules of war derived from the Geneva Conventions and other treaties generally indicate: “You do not attack civilians. You limit as much as you can the impact of your warfare on women and children, as well as on other civilians. You treat detainees humanely. You do not torture people.”

How are war crimes prosecuted?

There are several mechanisms to bring war crimes charges forward, including through the International Criminal Court in The Hague, the Netherlands.

The ICC announced on Feb. 28 that it opened a war crimes investigation against Russia over its actions in Ukraine. The body’s chief prosecutor, Karim Khan, in a statement issued by the ICC at the time said “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.”

International law experts have said one key challenge before the ICC should it move forward with charges is that Russia, like the United States, is not among the 123 member states of the tribunal and is unlikely to cooperate and turn over officials for prosecution. Even so, any warrants issued by the ICC could force Russian officials to stop traveling outside of Russia for fear that they will get arrested while in other countries, experts said.

The U.S. and other European countries including Poland and Germany have launched their own separate investigations into human rights abuses. Experts note that there have been cases of sovereign nations successfully indicting top officials on war crimes and genocide charges, such as Germany prosecuting Syrian officials tied to alleged war crimes in Damascus.

“There is always the possibility of national prosecutions, or the formation of war crimes tribunals such as the ones related to Yugoslavia and Rwanda,” Rosa Celorio, a professor of international law at George Washington University in Washington D.C., told Newsday.

Some European elected leaders have called for the formation of independent war crimes tribunals, such as those established under the United Nations to prosecute war crimes committed in the former state of Yugoslavia and in Rwanda.

Celorio, who worked as a senior attorney for the Inter-American Commission on Human Rights, said “the success of national prosecutions — and special war crimes tribunals — really depends on resources, their independence, their credibility, and the possibility to be able to apprehend, investigate and sanction those indicted.”

How long does it take to prosecute war crimes?

International law experts, pointing to past war crimes prosecutions, have said it could take years for charges to be prosecuted.

Since fully launching in 2002, the ICC has won five convictions for war crimes and crimes against humanity out of 38 cases. Three defendants died before being brought to trial and 10 remain at large.

“War crime prosecutions often take a long time,” Hafetz said. “There are challenges to collecting and gathering evidence obtained amid battlefield conditions. It is also challenging to obtain information that would show the responsibility of more senior officials in the commission of war crimes, such as evidence that the officials either ordered the conduct in question or knew about it and failed to prevent it. In addition, there are practical obstacles to obtaining custody of suspects. This can take many years, even decades.”

With the U.S. and other European nations aiding in the collection and documentation of evidence, “it is possible that this investigation may have more resources to move more speedily than usual,” Celorio said.

Would it be possible to arrest Putin?

The ICC could move forward and file an arrest warrant against Putin and other Russian military officials, but experts said arresting them and bringing them before the international court poses a significant challenge.

“Russia would have to comply with the warrant or Putin would have to be arrested while abroad,” said Celorio.

The ICC “does not try crimes in absentia,” Celorio said, noting the need for indicted officials to be present for their trials to move forward.

There have been cases of other countries arresting prominent leaders over criminal charges, but legal scholars note the majority of those cases were outside of the jurisdiction of the ICC and instead led by individual countries.

Former Chilean dictator Augusto Pinochet was arrested in 1998 while visiting London for medical treatment. Pinochet, 82 at the time, was indicted by a Spanish magistrate on charges of human rights abuses. Spanish officials called on the British government to extradite Pinochet to Spain, but he was ultimately returned to Chile.

Hafetz, noting the limits of an ICC arrest warrant, said Sudan's former President Omar al-Bashir “traveled freely for years” without being arrested despite a pair of arrest warrants dating to 2009 and 2010 on charges of genocide and war crimes in Darfur.

“I think practically speaking Putin would be arrested only if and when a new Russian government desired for it to happen,” Hafetz said.

By Laura Figueroa Hernandez

laura.figueroa@newsday.com@Laura_Figueroa

Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.