With mounting evidence of atrocities in Ukraine, they have been growing calls
for Russia's president, Vladimir Putin, to be made to answer for the conflict.
In highly publicised remarks, U.S. President Joe Biden has openly called him a war criminal.
Likewise, the European Union, having called on Russia to stop its war crimes immediately,
has said that those responsible will be held to account according to international law.
But just how likely is it that we'll ever see Putin put on trial?
Hello and welcome. If you're new to the channel, my name is James Ker-Lindsay and
here I take an informed look at international relations, conflict, security and statehood.
There was a time when countries could wage war with relative impunity.
However, over the past century or so we've seen real efforts
not only to define the limits of acceptable behaviour in conflict, but also to try to
ensure that those responsible for waging war are held accountable for their actions.
But just how effective is this?
This question has come to a head with the war in Ukraine.
Against the backdrop of a conflict that most of the
world has now openly called a war of aggression, pictures have emerged of
seemingly indiscriminate attacks against civilians and the use of banned weapons.
With senior international officials now openly saying that there's evidence of war crimes,
this has already led to the start of a formal investigation by the International Criminal Court.
At the same time, it's also seen the start of a high-profile campaign
to open the way the Russian leader - and others involved with the planning
and execution of the conflict - to be put on trial for their actions.
But could this really happen?
While there's always been a sense of what is right and wrong in conflict,
prior to the 19th century the conduct of war was, for the most part, unregulated.
However, beginning in the 1860s steps were taken to lay down the first rules of war.
This led to the emergence of what we now call International Humanitarian Law.
Formally codified in the four Geneva Conventions, adopted in 1949, these cover
the treatment of sick and wounded combatants on land and sea, prisoners of war, and civilians.
Since then, International Humanitarian Law has evolved in other ways,
for example by outlawing chemical and biological weapons as well as certain classes of weapons,
such as those that don't discriminate between civilian and military targets.
Taken all together, the International Committee of the Red Cross
has identified 161 rules that now govern the conduct of war.
Additionally, international law recognises three other broad categories of crimes
that are usually related to conflict.
First of all, there are crimes of aggression.
This prohibits the use of armed force by a state against the sovereignty,
territorial integrity, or political independence of another state.
Secondly, there are crimes against humanity.
This includes murder, enslavement, forcible transfers of populations,
torture and sexual violence.
Finally, the 1948 Genocide Convention requires UN members to prevent and punish acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
As well as defining various crimes related to war, the international
community has also developed ways to hold those responsible for such crimes to account.
The first major war crimes trials of the modern era took place after the Second World War.
In 1945, 24 leading nazis were tried at Nuremberg for conspiracy to commit crimes against peace;
planning, initiating or waging a war of aggression;
participating in war crimes; and committing crimes against humanity.
Of the 18 eventually convicted, 11 were executed and seven sentenced to jail.
Similarly, the International Military Tribunal for the Far East
tried those responsible for Japan's war in Asia, including generals and senior political leaders.
In that case, seven were executed and 16 sentenced to life imprisonment.
The next major milestones would come half a century later.
As Yugoslavia collapsed into bitter and brutal conflicts at the start of the 1990s,
the UN Security Council established the International Criminal Tribunal
for the Former Yugoslavia, the ICTY.
Operating until 2017, this led to 90 convictions for grave breaches of the Geneva Conventions,
violations of the laws or customs of war, crimes against humanity, and genocide.
This period would also see the establishment of other tribunals,
such as the one set up to try those responsible for the 1994 Genocide in Rwanda,
and a special court to deal with atrocities committed during the civil war in Sierra Leone.
But perhaps the most significant development
of this era was the creation of the International Criminal Court, in 1998.
This has created a permanent body to try those responsible for genocide,
war crimes, crimes against humanity, and the crime of aggression.
Established by the Statute of Rome,
123 states around the world have now accepted its jurisdiction.
To date, it's tried around 30 cases resulting in 10 convictions.
So, what does all this mean in the context of Russia and Ukraine?
For a start, it's important to determine whether crimes have in fact been committed.
As things stand, there would certainly seem to be a strong argument that Russia
has violated at least three of the four classes of crimes associated with conflict.
Most obviously, there would seem to be a case to answer concerning the crime of aggression.
Russia has clearly violated the sovereignty, territorial integrity and political independence
of Ukraine - not just now, but since 2014 when it invaded an annexed Crimea.
Likewise, there would also seem to be evidence of war crimes, especially related to the potential
use of banned weapons, such as cluster bombs, and the targeting of civilian areas.
Then there are also allegations that would seem to amount to crimes against humanity.
These include reports of murder, sexual violence
and claims that Russia has been forcibly transferring civilians from Ukraine to Russia.
Of course, all these allegations will need to be very carefully investigated.
But even at this stage there appears to be at least some
evidence that various crimes have indeed been committed.
But the big question is whether Putin himself will face trial for any of this.
Here things become trickier.
Bringing a case before the ICC presents several problems.
First, although Ukraine has authorised the International Criminal Court to investigate
crimes committed on its territory, it doesn't formally accept the ICC's jurisdiction.
It therefore can't refer cases to the court.
However, this has seemingly been overcome.
In March 2022, the Chief Prosecutor of the ICC announced that an investigation
had been opened following a referral by 41 parties to the Rome Statute.
The second problem is that any investigation is likely to take years to complete.
On top of this, war crimes cases are often exceedingly complex.
It can be extremely difficult to establish a formal link between political leaders
and actions carried out by armed forces on the ground.
Indeed it could be almost impossible to establish a firm link
between Putin and specific war crimes carried out in Ukraine.
It's for this reason that numerous senior figures, including former world leaders,
have called for the creation of a Special Tribunal
for the Punishment of the Crime of Aggression against Ukraine.
This would be set up to concentrate on the decision to launch the war.
This would focus on Putin directly and would seemingly be far easier
to prove given the weight of evidence, not least of all on his own statements.
That said, it wouldn't be an either or proposition.
Such a tribunal could run alongside other cases.
Thirdly, even if indictments are issued against Putin, Russia - along with China,
the United States and around 70 other UN members - doesn't accept the Court's jurisdiction.
This means that it won't hand over its citizens to the court, let alone its leader.
That said, an indictment would be hugely embarrassing.
It would also mean that Putin could be arrested if he goes
to any of the 123 countries that do accept the ICC's jurisdiction.
In other words, it would make him a pariah and
would at least theoretically limit his ability to travel.
Ultimately, this all means that for as long as Putin stays in power he seems likely to be safe.
However, should he fall then we face a very different story.
The obvious parallel is with Serbia's leader, Slobodan Milosevic,
who was indicted by the ICTY for his role in the wars in Yugoslavia in the 1990s.
Just nine months after being toppled, in October 2000,
he was sent to The Hague where he was put on trial - only to die before a verdict could be delivered.
But while all this suggests that Putin, and other Russian figures,
are highly unlikely to be held personally accountable for the war in Ukraine,
there may be ways that Russia, as a state, could be made to answer for the conflict.
Most obviously, Ukraine could potentially bring a case before the International Court of Justice.
In fact, this has already started.
Kyiv has already instituted the case against Russia,
accusing it of abusing the genocide convention to wage war.
This in turn has seen the Court call on Russia to cease its military operations in Ukraine.
However, it would be more difficult for Ukraine to bring other cases before the ICJ.
Russia, like most UN members doesn't recognise the compulsory jurisdiction of the Court.
The current case was only possible because it focuses on the Genocide Convention, which Russia
and Ukraine have signed and which states that the ICJ adjudicates on any disputes between parties.
But while it would seem to be difficult for Ukraine to bring other cases against Russia
directly, there might still be a way to secure some sort of advisory opinion from the Court.
This would require a vote from the UN General Assembly.
However, even if this was successful, Russia wouldn't be obliged to act on any ruling.
Finally, there seems to be one other avenue that potentially remains open.
Those affected by the war could bring a case against
Russia before the European Court of Human Rights.
Even though Russia has now withdrawn from the Council of Europe,
the Court will be able to consider violations that took place before then.
Of course, it's highly unlikely that Russia will comply with any rulings.
That said, if ever it wants to rejoin the now 46-member Council of Europe,
it may well have to settle any outstanding cases and associated compensation payments.
For over 160 years the international community has developed a body of rules governing the
conduct of war and the wider protection of human rights in conflict situations.
As well as war crimes, this now includes crimes against humanity,
crimes of aggression, and the crime of genocide.
At the same time, it's now accepted that those responsible for conflicts - be they
political leaders or military commanders - can be held responsible for committing those crimes.
In this context, the establishment of various tribunals, and especially the
International Criminal Court, have been a major step forward in international law.
However, despite growing evidence of crimes related to Ukraine, there seems little
likelihood that we will ever see Putin - or other Russian commanders - stand trial for any of these.
Of course, there is the option of a special tribunal.
But it would seem hard to see this happening.
And what steps could conceivably be taken to hold Russia as a state accountable seem closed for now.
Ultimately, perhaps the best hope is that Putin falls and a new administration emerges
that would be willing to submit him for trial - as Serbia did with Milosevic.
But this creates its own paradox.
As others have noted, to avoid this fate Putin needs to win the war.
This may tempt him to take ever more drastic steps to ensure victory.
The bitter irony, therefore, is that the possibility of facing a war crimes trial
may in fact make Putin more likely to commit those crimes.
I hope you found that interesting. If so, here are some more videos that you might find useful.
Thanks so much for watching and see you in the next video.