Right: The International Criminal Court (ICC), based in The Hague, The Netherlands, was set up to try those charged with war crimes, specifically, the crimes of Genocide, Crimes against Humanity, Crimes against the Rules of War (as set out in the Geneva Conventions) and Crimes of Aggression.
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Arguments against charging President Putin with war crimes
1. President Putin disputes that what has occurred in Ukraine constitutes war crimes
President Putin claims that Russia's invasion of Ukraine and subsequent attacks on the country are not a war crime. He has argued that they are legitimate actions under international law, taken to defend those living in Russian territories inside Ukraine from what he has described as 'genocide' and to protect Russia and the world against what he claims is the influence of Nazism in Ukraine. Putin has also argued that Russia's military actions against civilians in Ukraine have been necessitated by Ukraine using non-combatants to disguise its military operations.
Putin has argued that the invasion of Ukraine is justified by the right to (collective) self-defence. The U.N. Charter grants states the right to defend other states, i.e., collective self-defence. Putin asserts that Ukraine is committing 'genocide' against the Russian-speaking population in Eastern Ukraine's Donbass region, where the Ukrainian army has been fighting Russia-backed separatists since 2014. Russia claims its right to collective self-defence alongside the separatist groups. Russia recognised the two separatist regions in Donbass on February 22, 2022. This has been claimed to have legitimised the official presence of Russian troops in rebel-held territories. Putin argues that Russians living within these newly declared states are in constant danger of extermination, that is, are facing genocide, and that Russia is obligated to protect them. Russia further states that the whole of the Donbass region has voted to be separate from Ukraine. The Donbass status referendum was held in 2014, following Russia's annexation of Crimea. According to Roman Lyagin, head of the Donetsk election commission, 89 percent of voters favoured independence from Ukraine.
Putin has linked his defence of the Donbass separatists with a fight against Nazism, stating that Russia is seeking to 'protect people who have been bullied and subjected to genocide by the Kyiv regime for eight years...For that, we will strive to de-militarise and de-Nazify Ukraine and will bring to justice those who committed multiple bloody crimes against civilians, including Russian citizens.'
He has addressed a mass rally standing in front of banners reading 'For a world without Nazism'. Taking to the stage Putin insisted that Russian actions were necessary to prevent Nazi 'genocide'.
These accusations recall Ukraine collaboration with Germany during World War II. Russia lost an estimated 27 million people in World War II while fighting against German invasion in the later stages of the war, though it had earlier allied itself with Germany. Anti-Nazis feeling remains strong in Russia. Though Putin's accusations that current leaders of Ukraine are Nazi sympathisers appear unfounded, there is evidence to suggest there is a growing number of neo-Nazis within the Ukraine. In recent years, Ukraine has erected a large number of statues of Ukrainian nationalists from WWII who had Nazi connections. Neo-Nazis are also part of some of Ukraine's growing ranks of volunteer battalions currently fighting against the Russians. One of these is the Azov Battalion, founded by a white supremacist who claimed Ukraine's national purpose was to rid the country of Jews and other inferior races. Azov is now an official member of the Ukraine National Guard. Putin has further argued that recent Russian attacks against civilian facilities have only occurred because Ukraine has used these facilities to mask military operations. Urban warfare has been televised from Ukraine, in apparent contravention of UN prohibitions, as Russia has bombed Ukrainian cities. This has included the recent bombing of a maternity hospital. Putin has stated that 'Ukraine is taking civilians and foreigners hostage to use them as human shields.' According to this claim, civilians in the Mariupol hospital were human shields being held by the Ukrainian regime.
On March 8, 2022, Business Standard published an allegation by the head of the National Defence Control Centre of Russia, Mikhail Mizintsev, that Ukrainian battalions were holding more than 4.5 million civilians in Ukraine as human shields. Mizintsev also claimed that about 2,000 foreign citizens, who expressed a desire to evacuate to safe places, are also being held. Mizintsev also reported that there had been cases of discrimination by neo-Nazis Ukrainians against human rights on racial grounds. On March 3, 2022, First Post reported that Russia had claimed its military was doing everything possible to ensure the safe removal of Indians from the 'war zone' but alleged that the Ukrainians were holding a group of Indian students hostage to use them as human shield. The Russian Embassy in Indian claimed that the Ukrainian forces were using every possible way to prevent them from leaving for Russia. 2. It is difficult to establish that soldiers have committed war crimes
Those who argue that Putin and Russian forces more generally should not be charge with war crimes, stress how difficult it is to determine what constitutes a war crime in the current conflict.
It can be difficult to establish that soldiers killing civilians have committed a war crime. International humanitarian law tolerates some collateral damage to civilians. It can be lawful to attack civilian facilities, such as a school or a hospital, if these are also being used for military purposes in which case, they then become a military target. Since invading Ukraine, Russian armed forces have hit nearly 100 medical facilities. Mariupol's children's hospital and maternity ward were shelled by Russian forces on March 9, 2022. However, Russian officials had claimed that the hospital was a legitimate target, alleging that a Ukrainian battalion was operating there. Regarding attacks on other hospitals, the Russian armed forces have repeatedly claimed that the hospitals they have destroyed across Ukraine were being used for military purposes. Establishing the truth in such a situation where accusations and counteraccusations are traded between conflicting parties can be extremely difficult.
The need to prove that civilian facilities are not being used for military purposes makes conviction for this war crime problematic. The German investigative media outlet, DW, could not find a single international attempt to prosecute wartime attacks on hospitals in the nearly three decades since the International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the United Nations in 1993. During that time, thousands of medical facilities have come under attack in conflicts - from the Balkan wars in the 1990s to the Afghanistan and Syria conflicts of the 21st century. Legal experts have stated that, despite public outcry, attacks on hospitals are rarely prosecuted as war crimes due to the legal protections afforded suspected perpetrators.
A further complicating factor is that civilians forfeit the protection of international law as soon as they take up arms. A US ABC news report published on March 1515, 2022, noted that the distinction between armed forces and civilians can be difficult to ascertain in a war such as that occurring in the Ukraine. The report states, 'Making matters murkier is the issue of civilians taking up arms to resist the Russian advance and the fact that the front lines often disappear in the realm of urban warfare.'
Ukraine has relied heavily on citizen volunteers to defend itself against Russia. President Volodymyr Zelensky tweeted at the start of the conflict, 'We will give weapons to anyone who wants to defend the country. Be ready to support Ukraine in the squares of our cities.' Washington Post commentators warned at the time that this would lead to an extension of urban warfare and allow Russia to sanction haphazard, whole scale killing. On February 26, 2022, Isabelle Khurshudyan, Siobhán O'Grady and Loveday Morris of the Washington Post stated, 'Arming civilians, many of whom have little training, risks exacerbating the violence in cities across Ukraine and potentially giving the Russian military more pretext to fire indiscriminately.' The distinction between civilians and armed forces in the Russia-Ukraine conflict is made difficult to draw because Ukraine has encouraged all male citizens below the age of 60 to fight against the Russians. On February 25, 2022, the Ukrainian president Volodymyr Zelensky stated, 'In particular, it is forbidden for men aged 18-60, Ukraine citizens, to leave the borders of Ukraine... This regulation will remain in effect for the period of the legal regime of martial law. We ask the citizens to take this information into consideration.'
Despite exemptions being made available under some circumstances, most Ukrainian men are reported to have stayed and many, irrespective of age are taking part in the conflict. On February 26, The Washington Post interviewed a 70-year-old helping to organize others joining a citizen militia. He stated, 'I'm too old to run with a gun, but I can sit and shoot...We will shoot, we will make molotov cocktails, we will do everything...We'll fight them with pitchforks!' Ukraine has organised its entire population to support the war effort. Those who cannot fight are bringing soldiers food, constructing and delivering armour and coordinating the transfer of medicine and clothes to remote and inaccessible areas.
Gender is also not a barrier to fighting. Large numbers of Ukrainian women have joined the volunteer forces. According to media reports, women constitute as much as 15 percent to 17 percent of the Ukrainian fighting force.. What this almost total integration of the Ukrainian population into the resistance against Russia has meant is that it is difficult to charge Russian soldiers with killing civilians. Acts such as torture and rape remain war crimes, but the distinction between combatants and non-combatants has been blurred.It is also the case that where civilian facilities have been destroyed and where members of the civilian population have been killed, prosecutors seeking to establish war crimes must proof that this destruction and death were caused deliberately. Wars are inevitably brutal and chaotic and not all the mayhem they cause is planned and intended. Civilian lives can be taken, and civilian property destroyed because they have literally been 'caught in the crossfire'. An article published by ABC News on April 13, 2022, quotes Professor Ben Saul, the Challis Professor of International Law at the University of Sydney, who states, 'It's not enough to find a dead body...You've got to figure out when they were killed, how they were killed and what Russian units can be linked to that killing, what individuals and what part of that unit was involved and what their intent was.'
3. It is difficult to prove that leaders such as President Putin are responsible for any potentially criminal action their countries' soldiers commit
Those who argue against President Putin being charged with war crimes argue that it would be a futile exercise as it would be very difficult to establish that he was responsible for any war crimes committed in Ukraine.
First there is the difficulty of determining whether any of the actions performed by Russian troops are in fact war crimes. The killing of supposed civilians is hard to prove as a war crime in this conflict. Marco Sassoli, a professor of international law at the University of Geneva, has stated, 'In this war it could also be complicated by the fact that Ukraine has encouraged civilians to make home-made explosives. And if they throw them at Russian soldiers, they will be legitimate targets of attack under international humanitarian law (IHL)'
Establishing leaders' direct responsibility in the commission of war crimes is also problematic. While establishing command responsibility for military commanders can be based on proof of the commander's actual knowledge of and involvement in crimes, the ICC imposes a heightened standard for civilian commanders such as President Putin. The Court requires that civilian leaders either knew or 'consciously disregarded information that clearly indicated that the subordinates were committing or about to commit war crimes'
.In a comment and analysis published by AXIOS on April 5, 2022, Laurin-Whitney Gottbrath explained, 'High-profile leaders often aren't at the scene of alleged war crimes, making them harder to prosecute.' Alex Whiting, a Harvard Law School visiting professor and deputy specialist prosecutor at the Kosovo Specialist Prosecutor's Office in The Hague further explained, 'In Bucha, for example, where reports have emerged of a mass grave and bodies of civilians strewn in the city's streets, the main challenge for investigators is determining who is responsible and how high up the chain of command the responsibility goes.' In the case of Putin, the court would have to prove he knew of and sanctioned the crimes being investigated or had a reasonable expectation they would occur, yet took no action to prevent them. The amount of misinformation circulating around the war in Ukraine could provide a further defence for Putin. United States intelligence has claimed Russian officials are 'too afraid' to tell President Putin how the war in Ukraine is progressing.
Currently the Kremlin is denying such reports and stating that the United States knows nothing about the internal operations of the Russian government. Despite this statement, at a later date Putin may well claim that he was misled about the nature and progress of the war. This could act as a defence against charges of war crimes. Whether the leader's ignorance was deliberately engineered by those around him or not, it can still act as a defence. An editorial published in the Japan Times on April 8, 2022, states, 'Finding those up the chain of command who issued the orders... as guilty as those who pulled the trigger, will be harder still. There has to be "knowing" violation of the law of war. A policy that licenses indiscriminate violence is hard to prove; officials can claim ignorance of what happened down the chain of command... Proving [Putin's] knowledge of war crimes will be extremely difficult; heads of criminal organizations rarely communicate such orders directly. Winks and nods send messages but in a way that ensures deniability.'
4. The International Criminal Court is unlikely to be able to take effective action against President Putin
It has been argued that even if charges of war crimes are eventually brought against President Putin, the International Criminal Court is unlikely to be able to try him.
The ICC is a permanent international criminal court based in The Hague. Its legal basis is the Rome Statute of 1998, and it is responsible for four core crimes: genocide, crimes against humanity, war crimes and crimes of aggression. On May 2, 2022, the chief prosecutor of the International Criminal Court (ICC) has announced an investigation into Russian President Vladimir Putin over possible war crimes in Ukraine. The members of the court include 123 countries. Were a formal charge of war crimes ever to be brought against President Putin, the largest challenge facing the International Criminal Court would be getting Putin to appear before it.
President Putin could only be tried if he were to attend the Court. In an analysis published in Vox on April 9, 2022, Ellen Ioanes explained, 'The ICC doesn't try defendants in absentia, or if they're not present at the court. And because the court doesn't have a mechanism like a police force to enforce its arrest warrants, Putin could evade capture as long as he stays in Russia or other friendly nations - and in power.'
Kelebogile Zvobgo, assistant professor of government at the College of William & Mary, has stated, '"I don't really see the mechanism for holding Putin criminally accountable...The US and allies, I don't think it's possible that they will seize Putin.' Whatever the political and practical difficulties of the United States taking Putin into custody on behalf of the ICC, this would be difficult as the United States does not itself recognise the jurisdiction of the Court. In 2021, current United States Secretary of State, Antony Blinken, reiterated America's 'longstanding objection to the Court's efforts to assert jurisdiction over personnel of non-States Parties.' As US member of the House, Ilhan Omar, wrote in an opinion piece published in The Washington Post on April 14, 2022, 'If we oppose investigations into countries, like our own, that haven't joined the ICC, how can we support an investigation into Russia, another country that hasn't joined the court?' Like the United States, Russia also does not acknowledge the jurisdiction of the Court. Russia withdrew from the ICC in 2016 after the court published a report classifying the Russian annexation of Crimea as an occupation. However, if a state is not a party to the ICC, its individual citizens cannot be prosecuted by the court for the offence of aggression. The only exception is that the UN security council can refer a non-party to the ICC for this specific offence, but Russia, as a permanent member of the council, holds a veto, and is extremely unlikely ever to refer its president or (once Putin is no longer in office), its former president to the Court.
It has been suggested that only a complete regime change, and one highly hostile to President Putin, could result in his being handed over to what many Russian citizens would regard as their country's enemies. Gary Solis, a retired law professor at West Point has stated, 'It would be very difficult to drag Putin before a tribunal unless he'd lost the war or been ousted from power...It would also help if a Kremlin insider flipped on his erstwhile boss, testifying against him and handing the prosecutor incriminating documents.' All these scenarios currently seem unlikely. President Putin is only likely to come before the ICC if he were taken into custody in another country not allied to Russia. Olympia Bekou, professor of public international law at the University of Nottingham, has stated, 'At the moment, the likelihood of Putin appearing before the ICC is limited as he is unlikely to leave Russia in the foreseeable future. It is also hard to determine whether a complete change in government in Russia will occur soon.'
5. Some of the nations demanding Putin's prosecution are themselves accused of war crimes
Some critics of the international demands that Putin be prosecuted for war crimes do not dispute that these crimes have been committed. Instead, they are concerned about what they see as the hypocrisy of these demands.
Both the United States and Britain are leaders in calling for Putin to be prosecuted for war crimes. President Biden was among the first to suggest that Putin had committed war crimes and should be punished for them
while British Prime Minister Boris Johnson has made similar demands. It has even been claimed that without the United States joining the International Criminal Court there is no chance that Putin will ever be prosecuted. The implication is that it will take the international status and power of the United States, as a member of the Court, for it to have any likelihood of being able to try Putin.Critics say that this reliance on the leadership of the United States and Britain is a concern because both countries have been accused of taking the same sort of actions for which they are currently condemning the Russian leader. These accusations of war crimes against the United States and Britain have been made particularly regarding the war in Iraq. The Iraq war is now widely condemned as an unjustified invasion of a sovereign state and the United States and Britain have been criticized for having instigated it. The European Centre for Constitutional and Human Rights states, 'The US/UK-led invasion of Iraq in spring 2003 is a crime. Hundreds of thousands of people died in the armed conflict that spanned more than thirteen years. All parties, including the USA and the UK, committed war crimes including massacres and torture on a massive scale.'
Some critics claim that having the United States and Britain play a major role in demanding the prosecution of Vladimir Putin casts a significant shadow over the process. They state that it is open to being seen as a biased exercise of justice, where charges are only brought depending on the international standing of the states involved. Thus, the potentially criminal actions of the United States appear to go without significant challenge while those of Russia do not. On March 8, 2022, The Intercept published a comment by Jeremy Scahill in which he observes, 'While many statements from Western leaders may be accurate regarding the nature of Russia's actions, the U.S. and other NATO nations are in a dubious position to take a moralistic stance in condemning Russia. That they do so with zero recognition of their own hypocrisy...is deeply problematic.'
Scahill focuses on the United States condemnation of Russia for the use of cluster bombs against Ukrainian civilians. He criticises the hypocrisy of this position, stating, 'The U.S. has repeatedly used cluster bombs, going back to the war in Vietnam and the "secret" bombings of Cambodia. In the modern era, both Presidents Bill Clinton and George W. Bush used them. President Barack Obama used cluster bombs in a 2009 attack in Yemen that killed some 55 people, the majority of them women and children. Despite the ban, which was finalized in 2008 and went into effect in 2010, the U.S. continued to sell cluster bombs to nations like Saudi Arabia, which regularly used them in its attacks in Yemen...What goes virtually unmentioned in much of the reporting on this topic is that the U.S., like both Russia and Ukraine, refuses to sign the Convention on Cluster Munitions [which bans their use].'
Similar criticisms have been made by Rebecca Davis in an article published in the South African Daily Maverick on March 8, 2022. Davis states, 'Has the West's response to the Ukraine invasion been hypocritical? Unequivocally: yes. The West's horror at Putin's actions should be placed in the context of the shameful history of Western powers' involvement in illegal wars. In the past, NATO has engaged in exactly the same tactics - for instance, killing civilians - for which it now condemns Putin.'
It has been claimed that the United States has not joined the International Criminal Court precisely because it does not want to be held accountable for its own war crimes. In a study published by the American University, Washington, College of Law, in 2000, Teresa Young Reeves claimed that the United States had refused to join the International Criminal Court 'because of its concern that it might one day have to surrender a citizen, particularly a member of its government or armed forces, to the jurisdiction of the...Court.'
In an article published in the Jacobin Magazine on April 11, 2022, Branko Marcetic argued that the United States long-standing opposition to the International Criminal Court and its absolute refusal to allow any of its citizens to be called before it both undermines the Court and America's current calls for President Putin to appear before it. Marcetic states, referring to the manner in which the United States and other powerful nations appear to have avoided having their potential war crimes challenged, 'The "rules-based international order" is [one] wthose rules only apply to countries without a whole lot of power." Critics claim that the United States cannot legitimately call for Vladimir Putin to be judged by a court from whose authority it is protecting its own citizens and leaders.