(WASHINGTON, D.C.) – Russia’s invasion of Ukraine could lead to the first war crimes indictments in Europe in 17 years. But filing and prosecuting those cases won’t be easy.
The most obvious case to bring would be the crime of aggression, but that charge applies only to countries which have accepted the International Criminal Court’s jurisdiction. Russia and Ukraine haven’t — nor, for that matter, has the U.S.
Professor David Bosco with Indiana University’s Hamilton Lugar School of Global and International Studies says that doesn’t rule out charges including genocide or attacks on civilians. Bosco says TV footage of Russian bombings of hospitals and apartment buildings appears to provide clear evidence to support those charges, and the ICC’s chief prosecutor announced an investigation two weeks ago. But Bosco notes TV footage isn’t enough by itself to file charges, any more than it would be for a county prosecutor. Investigators will need supporting evidence, and gathering it will require the permission of the government in control of the territory. That will be difficult with Russian troops still on the move in Ukraine.
Even if prosecutors build a case that a war crime was committed, any charges must be filed against individual defendants, not a country. That means finding enough evidence to link crimes to specific people. Bosco says the court doesn’t have the resources to go after lower-level figures; any charges are likely to target senior leadership, and Bosco says documenting specific plans to attack civilians will be a challenge. He says prosecutors may need access to intercepted communications to build a case.
And Bosco says bringing Russian president Vladimir Putin or other potential defendants to trial in The Hague is unlikely without a regime change in Russia.
The ICC has issued 45 indictments in eight African countries since its formation 20 years ago. Last week, prosecutors requested arrest warrants against three leaders of a Russian separatist region of the republic of Georgia. That investigation took six years, and involves incidents from eight years before that.
There hasn’t been a war-crimes indictment in Europe since a special tribunal pursued charges against more than 100 defendants in the former Yugoslavia, with the final indictment coming in 2005. The tribunal shut down after concluding the final trial in 2017.
