Prosecuting war crimes

History shows that it’s difficult to hold war criminals accountable. Will Vladimir Putin and his army ever face justice? Here’s everything you need to know:

What constitutes a war crime?

War crimes are serious violations of the international laws of war against either combatants or civilians — and there’s no question Russia has committed them in Ukraine. The Russian military has launched missiles at apartment buildings, bombed a maternity hospital and children’s shelter in Mariupol, and slaughtered hundreds of civilians in Bucha and other towns and cities they’ve occupied, leading President Biden to say Putin is “a war criminal” who “should be held accountable.” Biden later escalated his condemnation, saying he believes Russia is committing “genocide” — the attempt to systematically destroy, in whole or in part, an ethnic or racial group or a national identity. But war crimes prosecutors have never pursued a target quite as big as Vladimir Putin. It’s the first time in decades a major power has flagrantly broken humanitarian laws “on a massive scale,” said Oona Hathaway, director of the Center for Global Legal Challenges at Yale Law School. “The international legal order is really under stress.”

How were war-crimes laws established?

Early international treaties such as the Hague Conventions of 1899 and 1907 established some laws of war, but “there really was no settled conception of what a war crime was,” said Michael Bryant, author of A World History of War Crimes. After World War II, the landmark Nuremberg trials set lasting precedents by prosecuting Nazi leaders for crimes against humanity. “This is really where the modern definition of war crimes comes into being,” Bryant said. The Geneva Conventions, ratified in 1949, established humanitarian war standards that hoped to relegate the mass carnage of World War II to the past. These new laws of war forbade not only the atrocities of Nazi Germany but also the deliberate targeting of civilians, such as the U.S. atomic bombings of Hiroshima and Nagasaki, and the mass bombing of cities by both Allied and Axis forces that killed millions of civilians. In ensuing decades, deadly conflicts in Cambodia, Vietnam, Chile, Yugoslavia, Rwanda, and elsewhere took millions of lives and heightened cries for enforcement. In the late 1990s, international courts began prosecuting heads of state for atrocities committed during war.

Has that system worked?

To a limited degree. Former Yugoslav President Slobodan Milosevic was tried for war crimes at a U.N. tribunal in The Hague, but he died of a heart attack less than two months before the verdict was due. The Rome Statute, which took effect in 2002, established the International Criminal Court, a tribunal tasked with prosecuting war crimes, crimes against humanity, and genocide when domestic courts will not hold political or military leaders accountable. But the ICC can only prosecute leaders when it gets its hands on them, and it has mostly gone after African despots who have been overthrown and turned over by their home countries. Russia, Ukraine, and the United States are not signatories to the Rome Statute.

What crimes is Russia guilty of?

Ukrainian courts have charged 10 captured Russian servicemen for holding civilians hostage during the occupation of Bucha. It’s investigating more than 8,000 additional crimes with the help of the U.S. and other countries. But genocide would be hard to prove without clear-cut evidence of intent, said Leila Sadat, a war crimes expert at Washington University in St. Louis. When prosecutors investigated the Srebrenica massacre in Bosnia, they pored through documents and cell-phone intercepts for evidence there was a conscious plan to exterminate Bosnian Muslim men and boys. “Circumstantial evidence” isn’t sufficient, Sadat said. “You have to go into the mind of the perpetrator.” In this case, they may have to prove that Putin wants not just a political takeover of Ukraine but the erasure of people who consider themselves Ukrainians.

So will Putin go on trial?

Not without a coup in Russia. If other countries indict Putin and his generals as war criminals, it will be largely symbolic unless they venture onto unfriendly foreign soil. And despite the near-universal condemnation of Putin in the West, the world’s major powers don’t want to set a standard that could make them accountable to international courts themselves. When the ICC tried to investigate U.S. personnel for possible war crimes in Afghanistan, which is an ICC member, the U.S. resisted and even sanctioned ICC members; the court has now effectively abandoned that investigation. “Certain large powers were worried: Is it going to turn on us?” said Philippe Sands, a leading international lawyer. The ICC is conducting a preliminary investigation of potential Russian war crimes and crimes against humanity, but it has never prosecuted a non-signatory for the crime of aggression, or the waging of an illegal war. “You’re going to end up in seven years’ time with trials of mid-level folk,” Sands said. The political and military leaders calling the shots from Moscow, he said, are “never going to go to justice.”

Using rape as a weapon

On March 13, a Russian soldier broke into a shelter in a school’s basement and ordered a 31-year-old woman to a second-floor classroom, where he forced her to give him oral sex and raped her repeatedly. “He held the gun near my temple or put it into my face,” the survivor told Human Rights Watch, twice shooting at the ceiling “to give me more motivation.” Such horrifying stories are frequent during warfare, as soldiers violate women’s bodies as a sign of conquest. Rape was classified as a war crime and a crime against humanity in 2008, partly because of the “rape camps” of the Bosnian War, where between 20,000 and 60,000 women were sexually assaulted. In Rwanda, ethnic Hutus impregnated Tutsi women in an attempt to erase the Tutsi ethnicity. Most wartime sexual violence goes unpunished. In Ukraine, investigators are rapidly gathering evidence with an eye toward bringing perpetrators to justice. “It’s like in 1942: Where do you start investigating the Holocaust?” said Patricia Viseur Sellers, the former legal adviser for gender at the Yugoslavia and Rwanda tribunals. “You start where you can.”

This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.

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