Putin Should Be Tried for War Crimes

Over the last three weeks of Russia's illegal invasion of Ukraine, Vladimir Putin has shown himself to be among the most evil individuals in history since the end of WWI.   His military's deliberate attacks on civilians as set out in a piece at CNN clearly constitute war crimes - guilt also attaches to his commanders implementing the civilian murders and to oligarchs failing to act to stop the war crimes. Here at home in America it is telling - but not the least surprising in my view - that Donald Trump continues to refuse to fully disavow Putin and the atrocities he is directing.  The piece at CNN also lays out why it is important that war crimes prosections be undertaken to restore the rule of law and make it clear what behavior simply will never be acceptable and that being a national leader does not place one above the law.  Whether Putin will ever be captured, tried and preferably executed remains to be seen, but some of his underlings should be very concerned for their future, especially if they are captured in Ukraine.  Here are article highlights:

Almost three weeks into Russian President Vladimir Putin's war in Ukraine, harrowing images of bloodied pregnant women and children emerging from an obliterated hospital in Mariupol have shocked the world. Congress is now considering a resolution to investigate the Russian invaders for possible war crimes.

In an email interview with CNN Opinion, Michael A. Newton, an expert on war crimes, argues that such an investigation is justified due to the attacks on civilians.

He is a professor of the practice of law and professor of the practice of political science at Vanderbilt University. Newton served as the senior adviser to the Ambassador-at-Large for War Crimes Issues in the US State Department from 1999 to 2002. 

According to the Geneva Conventions of 1949, a war crime is any act by which combatants and commanders fail to ensure respect for the civilian population, or illegally subject civilian objects to hostilities. Many other duties flow from this baseline, such as warning civilian populations "unless circumstances do not permit" and obligations to take "all feasible precautions" to minimize harm to civilian lives or property. 

War crimes law relies on the foundational principle that fighters must "at all times distinguish between the civilian population and combatants -- and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives."

The laws of war apply in Ukraine because the Russian invasion is real. Despite the Russian label of the war as a "special military operation," the Geneva Conventions on armed conflicts apply "even if the state of war is not recognized" by Russian officials. 

A record 41 other states have asked the International Criminal Court (ICC) to formally investigate crimes committed inside Ukraine because there is "reasonable basis" to believe that Russian forces are committing war crimes.

The list of possible charges grows daily. Karim Khan, the ICC prosecutor, observed that "if attacks are intentionally directed against the civilian population: that is a crime. If attacks are intentionally directed against civilian objects: that is a crime. ... There is no legal justification, there is no excuse, for attacks which are indiscriminate, or which are disproportionate in their effects on the civilian population." 

Attacks aimed at demoralizing civilians are war crimes because civilian morale is never a legitimate military target. . . . Targeting of humanitarian convoys or relief operations providing food, water and medicine may constitute the crime of intentionally using starvation as a method of warfare. 

Prosecution of Russian leaders, oligarchs and commanders for crimes in Ukraine must be a "whole of the Free World" approach. Brave Ukrainian lawyers are doing their part, and we should support them. 

American leadership provides the centripetal force to consolidate documentation efforts and incorporate the rapidly coalescing array of private documentation efforts. Investigations will also provide corroborating evidence to refute Russian propaganda and legal distortions. 

Russian commanders, oligarchs and leaders may be prosecuted for ordering, committing or assisting war crimes. The law of command responsibility also criminalizes those who "knew or should have known" of crimes and failed to take necessary and reasonable measures to discipline the forces under their "effective control." 

The judges of each case assess the legal basis for every charge. Because the Geneva Conventions grant broad criminal jurisdiction to sovereign states, domestic officials may prosecute war criminals found on their territory, too. 

The ICC treaty permits charges against senior leaders because it applies "equally to all persons without any distinction based on official capacity." It adds that a person's capacity as head of state does not exempt them from criminal responsibility. 

Russian leaders should feel deep disquiet in the face of a deeply entrenched body of precedents since the Second World War. 

Prosecuting those responsible for crimes committed in Ukraine conforms with patterns of international criminal justice that include many defendants who thought that they were above the law. . . . . We should instead work with our EU allies and/or the UN to establish a "New Nuremberg" empowered to adjudicate aggression-based offenses -- minus Russian judges of course. 

The United States has a moral imperative to help Ukraine win the war that Russia brought to its citizenry. As the ICC came into existence, American diplomats promised that the US would not "retreat from its leadership role in the promotion of international justice and the rule of law." We must uphold that promise. 

Indeed, coordinated efforts to restore the rule of law are necessary to augment financial sanctions. . . . . In upholding the law of war, our efforts will reclaim the initiative from the Russian aggressors. We must stand fast in upholding professional military norms and reinforcing the laws and customs of warfare.