Karim Khan, the chief prosecutor at the International Criminal Court (ICC), announced his intention on February 28, 2022, to open a formal investigation to the alleged crimes being committed in the current Russo-Ukrainian

conflict. He has requested the international community for support to expedite the process.[i] On April 4, 2022 the US President Joe Biden accused Russian President Vladimir Putin of war crimes and crimes against humanity and called for a trial, claiming the commission of civilian killings in the Ukrainian town of Bucha.[ii]  The Kremlin denied the accusations of the commission of such crimes, including those in Bucha, where it claimed that the civilian graves had been staged by Ukraine to taint Russia’s image.  Most recently, on May 9, 2022 the World Health Organization (WHO) has also announced that it is gathering evidence to investigate possible war crimes, claiming attacks by Russia on healthcare facilities in Ukraine. [iii]

On the other hand, since March 27, 2022, several videos, filmed by Ukrainian soldiers, were circulating on social media, showing how they inflicted wounds on and even executing Russian prisoners of war. “Human Rights Watch (HRW) had already reported allegations of abuse on Russian POWs by Ukrainian fighters in a report published on March 31”[iv]

While the calls to hold officials and fighters in the Russo-Ukrainian War criminally accountable have intensified, many believe that it would not be easy to enforce any actions due to the legal challenges facing the prosecutors, who aim to pursue war crime cases.

The Legal Framework

To understand the process to persecute grave breaches of international law, it is important first to break down the legal definitions of such crimes as well as the normative concepts of international criminal law.  

1.    War crimes

The rules of war, or international humanitarian law (IHL), as known formally, are a set of international rules that regulate and set the legal fundamentals of wars. The main purpose of international humanitarian law is to maintain some humanity in armed conflicts, saving lives and reducing suffering. A war crime is basically violation of IHL.

The legal understanding of war crimes has been codified in several multilateral treaties, most notably the 1949 Geneva Conventions, which were formed in the aftermath of World War II to guarantee that civilians caught in war as well as combatants, who could no longer fight, were protected. The Geneva Conventions have been ratified by all Member States of the United Nations.[v]

More recently, the most comprehensive legal framework on war crimes was 1989 Rome Statute, of the International Criminal Court. According to article 8 of the 1989 Rome Statute, war crimes considered “grave breaches” of the Conventions in conflict, include: willful killing, torture, inhumane treatment, biological experiments, willfully causing great suffering, destruction and appropriation of property, compelling service in hostile forces, denying a fair trial, unlawful deportation and transfer, unlawful confinement and taking hostages, intentional attacks against civilian intentional attacks against non-military targets etc.[vi]

Let’s say a fighter pilot is flying a mission over Ukraine. If they are shot out of the sky and killed in combat, then it is an unfortunate but legal consequence of war. But if that pilot survives the crash and is killed while surrendering as they leave the disabled aircraft, that could be considered a war crime.[vii]

Prosecution for war crimes requires the existence of an armed conflict and that the perpetrator was aware of the conflict and has intentionally violated code of conduct.[viii] This means that in a situation of war, many criminal acts are committed. One of the key characteristics of war crimes is that the crime has to be connected to the armed conflict, serving to distinguish it from ordinary crimes, there must be a ‘nexus to the armed conflict’.[ix]

Moreover, another important principle that needs to be tackled is the notion of proportionality, which prohibits attacks that may cause collateral damage to civilians or civilian objects that are excessive to the overall concrete and direct military advantage anticipated. “In other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought.”[x] This notion is intertwined with the “principle of military necessity”, which permits measures that are actually essential to accomplish a legitimate military purpose, yet are not otherwise prohibited by international humanitarian law. [xi]

2.    Modes of liability

Under international law, war crimes are those type of grave breaches that incur individual criminal responsibility.  According to Article 25 (3)(a) of the Rome Statute, individual criminal responsibility arises when a person directly commits or contributes to the commission of a crime. [xii] This entails “three different types of commission: commission as an individual, joint commission and commission through another person. Person whose conduct is covered by the definition of the crime in terms of Article 25 (3)(a) is liable under international criminal law.”[xiii] The crime also includes assisting in, facilitating, aiding or abetting, the commission of a crime as well as planning or instigating the commission of a crime. 

Therefore, each member of the armed forces is directly responsible for violations s/he commits and can be held individually responsible before a criminal court for violations of the laws of war. The principle of individual criminal responsibility for war crimes can be dated back to the Lieber Code of 1863 and is a long-standing rule of customary international law. 

Most importantly, in wars armed forces are usually placed under a command who is responsible for the conduct of subordinates. Therefore, to make the repression system effective, commanders would be also held individually criminally responsible when they fail to take proper measures to prevent their subordinates from committing war crimes, the so-called superior criminal responsibility. Article 28 of the Rome Statute stipulates that superior criminally responsibility will apply if the commander was in a position to prevent crimes committed by forces under their effective control and knew or should have known that the crime would be committed.[xiv]

Therefore, technically some claim that commanders in the Ukraine- Russian crisis, with superior responsibility for ordering violations of the IHL, could individually be held criminally responsible, not just their subordinates.

3.    Universal jurisdiction

Another important legal concept that needs to be addressed in the case of the Russo-Ukrainian War is the notion of universal jurisdiction.

“Poland, Germany, Lithuania, Latvia, Estonia, France, Slovakia, Sweden, Norway and Switzerland all opened independent investigations into Russia’s activity in Ukraine within the first month of the conflict.”^[xv]

They are allowed to open up such investigation due to legal notion of universal jurisdiction, which permits a state’s domestic court system to take up cases against individuals who are accused of committing grave breaches, such as war crimes, even if the alleged crime occurred outside of the prosecuting country's territory.

The rationale behind this concept is that the duty to prosecute serious breaches of international law extends beyond borders, as the persons who commit such crimes are “deemed hostes humani generis — "enemies of all mankind."[xvi]

Examples of the utilization of this doctrine is the trial of former Chile President Augusto Pinochet in Spain and also it permitted a German court to sentence a Syrian intelligence officer to life in prison for crimes that occurred in Damascus.[xvii]

The Courts and the Challenges

There are various international judicial entities that might assert jurisdiction and could theoretically investigate war crime allegations in Russo-Ukrainian War.  However, each institution might face legal challenges and political hindrances in prosecuting war crimes.

1.    The International Criminal Court

The ICC, governed by the Rome Statute, is the first permanent international criminal court founded to help in ending impunity for the perpetrators of the most heinous crimes to the international arena. The ICC is an independent international organization, and is not part of the United Nations system and is located is at The Hague in the Netherlands. Hence, the ICC would be ‘the court’ that would investigate any war crime allegations.

However, there are several practical and political hindrances to what the ICC can do in any of the crimes it investigates and prosecutes. Among those challenges, in this case, is the fact that neither Russia nor Ukraine are parties to the ICC. While Ukraine does in fact recognize the court’s jurisdiction and the court can prosecute those responsible for atrocity crimes committed, yet some experts argue that Russians cannot be prosecuted by the court for this specific offence because Russia is not a member as mentioned above.  “The only exception is that the UN security council can refer a non-party to the ICC for the crime of aggression, but Russia, as a permanent member of the council, holds a veto, so this will not happen.”[xviii]

Additionally, the ICC has been accused of engaging in” selective justice”, since its usual indictments focused too heavily on Africa.[xix] Most importantly, the ICC does not try in absentia. Since the court is not equipped with a police force to enforce its arrest warrants, the Russian President for example could evade capture, as long as he is in Russia or other friendly states as well as being still in power.[xx]

2.    Special Tribunals

With the Nuremberg and Tokyo trials after World War II, ad hoc tribunals have been formed to deal with grave international crimes, such as war crimes, genocide and crimes against humanity.  The first international criminal tribunals were created in the 1990's, to respond to crimes committed in the former Yugoslavia and in Rwanda. Both were formed by the UN Security Council. Other examples are the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia etc.

On April 28,2022 the Parliamentary Assembly of the Council of Europe has adopted a resolution “calling on all its member and observer states to form an international criminal tribunal to investigate and prosecute Russian politicians and soldiers allegedly committing war crimes in Ukraine.”[xxi]  However, the call to form a special tribunal to investigate the crimes committed during the conflict faces several criticism such as the lengthy process as well as the lack of recourses to form such trials, yet also the lack of legitimacy. The reasons behind pushing for the formation of a special tribunal to investigate the crimes in the Russo-Ukrainian War would be contested, since there was no real call for special trials in the cases of Iraq or Syria.  Some might criticize the demand, labelling this case as ‘selective justice’, undermining the international justice system and the belief of equal accountability.

The calls for the prosecution of war crimes in the Russo-Ukrainian War has increased; not only at the International Criminal Court, but also the formation of special war crimes tribunals has been demanded.

Despite the intensified international cooperation to build criminal case files and the collection of evidence in the battle field, the likelihood of any significant war crimes trials and also convictions would not just take time but also would face legal challenges, making the road to justice not an easy one.