August 17, 2022

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The Legal System

What is the punishment for a war criminal?

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Russian President Vladimir Putin holds a meeting with winners of state culture prizes via a video link at the Novo-Ogaryovo state residence outside Moscow on March 25, 2022. - President Putin on March 25 slammed the West for discriminating against Russian culture, saying it was like the ceremonial burning of books by Nazi supporters in the 1930s. (Photo by Mikhail KLIMENTYEV / SPUTNIK / AFP) (Photo by MIKHAIL KLIMENTYEV/SPUTNIK/AFP via Getty Images)

Vladimir Putin, pictured holding a meeting on Friday, has been accused of war crimes. (Getty Images)

The UK government has said “all options are on the table” when it comes to seeking to prosecute Russian president Vladimir Putin’s regime for war crimes amid the Ukraine crisis.

Preliminary international probes have already begun following Putin’s brutal invasion of Ukraine, which has seen more than 1,000 civilians killed and millions of people displaced from their homes.

But what is a war crime, how are they prosecuted and what is the punishment? Here, Yahoo News UK explains.

What is a war crime?

There is not actually an agreed definition. As the United Nations points out, “there is no one single document in international law that codifies all war crimes”.

But the Rome Statute of the International Criminal Court (ICC), where war crimes can be prosecuted (see further information below), follows the definition set out by the 1949 Geneva Conventions, which were ratified by 196 states.

This definition includes acts of:

  • wilful killing

  • torture or inhuman treatment

  • wilfully causing great suffering or serious injury

  • extensive destruction and appropriation of property which is not justified by military necessity

  • compelling a prisoner of war to serve in the forces of a hostile state

  • wilfully depriving a prisoner of war of the rights of fair and regular trial

  • unlawful deportation or transfer or unlawful confinement

  • taking of hostages

However, the Rome Statute also includes an extensive list of further specific violations, such as intentionally directing attacks against civilian populations, using child soldiers, forced pregnancy and intentionally directing attacks against hospitals.

How are war crimes prosecuted?

War crimes can be prosecuted at the International Criminal Court (ICC) in The Hague in the Netherlands. This court is governed by the Rome Statute outlined above.

The ICC, which began operations in 2002, “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community”. This includes war crimes as well as genocide, crimes against humanity and the crime of aggression.

It is a “court of last resort” and a case will only be heard there when a national court is not in a position to address it.

Watch: Kyiv mayor Vitali Klitschko attacks Putin: ‘He’s sick, he’s an unhealthy man’

After gathering evidence and identifying a suspect, ICC prosecutors can request judges to issue arrest warrants. It relies on countries to carry out the arrest and a trial cannot begin until a suspect is detained and transferred to the court.

Twenty-seven defendants have been accused of war crimes by the ICC, with three – Ahmad Al Faqi Al Mahdi, Germain Katanga and Thomas Lubanga Dylio – convicted. A further eight are currently in ICC custody awaiting trial or appealing proceedings.

What is the punishment for war crimes?

At the trial, the prosecution “must prove beyond reasonable doubt the guilt of the accused” before three judges.

If found guilty, the judges can issue sentences of up to 30 years’ imprisonment, or a life sentence “under exceptional circumstances”.

An exterior view of the International Criminal Court in the Hague, Netherlands, March 31, 2021. REUTERS/Piroschka van de Wouw

The International Criminal Court (ICC) in the Hague, Netherlands. (Reuters)

Sentences are served in countries that have agreed to enforce ICC prison terms.

Verdicts are subject to appeal by the defence of the accused, as well as by the prosecution.

Has Putin committed war crimes in Ukraine?

Putin hasn’t been formally accused of war crimes by the ICC, though it launched an investigation earlier this month following referrals from 41 countries.

But Putin’s bombardment of major cities including Kyiv and Mariupol, including strikes on hospitals and civilian evacuation routes, have seen leaders around the world accuse Putin of having committed war crimes.

Boris Johnson said on Thursday: “It is right that Russia should now be called before the International Court of Justice and right that President Putin should appear before the International Criminal Court. There is no question that what they are doing is war crimes.”

Watch: Boris Johnson commits to double lethal aid to Ukraine

Joe Biden has also labelled Putin a war criminal, and the US formally accused Russia of war crimes on Wednesday.

In his most recent statement on the probe on 10 March, ICC chief prosecutor Karim Khan said: “I note, in particular, 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. I strongly urge parties to the conflict to avoid the use of heavy explosive weapons in populated areas.

“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.”

Could Putin be prosecuted for alleged war crimes in Ukraine?

David Scheffer, who was the first US ambassador-at-large for war crimes under the Clinton administration, told Foreign Policy on Thursday it is “inevitable” Putin will be indicted at the ICC. “He is at the very top of the command chain in Russia.

“He has obviously failed as top commander to stop those crimes from being committed on a daily basis. He has the power to do it.”

However, as outlined above, hearings cannot begin until a suspect is arrested and transferred to the ICC.

And while the court could well accuse Putin of war crimes, asking Russia to arrest its all-powerful dictator is another matter altogether.

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