No war crimes case is easy, but the task of indicting Vladimir Putin at the International Criminal Court (ICC) appears to be straightforward.
There are two key elements necessary to charge a commander-in-chief with war crimes. First are the crimes themselves. Second, the chain-of-command to the top. In the case of Russia’s Ukraine invasion, both seem clear.
The horrors of Bucha and a slew of towns north of Kyiv are gruesome and widespread. They are also, crucially, being recorded in real time. A major problem for war crimes trials in the past was that evidence had to be sifted from chaotic battlefields years after the fact.
This is not the case here. Ukraine’s own investigators are already on the ground, alongside specialists from The Hague. Last month the ICC opened an online evidence portal, inviting ordinary Ukrainians to become part of the investigation process. Russia is not a member of the ICC, but Ukraine has given the court jurisdiction for crimes on its territory, no matter who commits them.
The first stage of an indictment is to match evidence of atrocities to records showing which units committed them.
For this, video of shattered Russian tanks and abandoned camps will be scrutinised to see which formations were at the scene of the crime. Tiny details can be important, such as graffiti left by a retreating unit, information from abandoned laptops or regimental flashes on discarded uniforms.
Nato can play a role here by giving access to intelligence it has collected. Last week Germany’s security service, the BND, released chilling intercepts to its parliament. They included a blunt instruction from one Russian commander: “First question the soldiers, then shoot them.”
Spy planes and satellites have kept track of Russia’s order of battle, some of it gleaned from Russians themselves. As the BND has found, many Russian headquarters give orders in the clear. The United States is not an ICC member, but Congress has passed a bipartisan resolution calling for cooperation with the court, which should release an avalanche of information.
War crimes evidence works like a mosaic. Prosecutors combine forensics with witness accounts, video and intelligence to produce a complete picture of the crimes and who committed them.
When prosecutors have established a pattern of atrocities, the next step is moving up the command chain. Normally this is difficult. The two most high-profile war crimes trials of recent years, against Serbia’s Slobodan Milošević and Liberia’s Charles Taylor, had problems linking these leaders to ragtag militias operating in distant forests and mountains.
By contrast, Russia’s chain of command needs no investigation because it is a matter of public record. Its military regulations set out the responsibilities of its generals, while Article 87 of the constitution names the president as supreme commander of the armed forces.
War law gives no immunity to presidents, as Milošević and Taylor found out. Nor is responsibility diluted the further up the command chain you go. If anything, the supreme commander is the most responsible, because he has the most power.
The ICC can charge Russia’s high command with war crimes and crimes against humanity without having to prove they ordered these crimes. It is enough to show that crimes happened and commanders did nothing to prevent them, or punish those responsible. Prosecutors are likely to argue that, with its continuing bombardment of Mariupol, Russia has shown no interest in preventing or punishing even the worst atrocities.
In the past the ICC has started investigations at the top, rather than first charging lower-level commanders. When it began investigating atrocities in Libya’s Arab spring revolution a decade ago, the country’s leader Muammar Gaddafi was on the very first indictment.
Less clear is whether anyone will be charged with genocide. Rightly called the crime of crimes, genocide requires evidence of intent, which is a procedural labyrinth prosecutors may for now avoid.
More complicated still is bringing a charge of the crime of aggression. The charge is arguably the easiest to prove, because it refers to any war, such as Russia’s Ukraine invasion, launched in violation of the UN Charter. However, the ICC is not part of the UN. And for this particular charge, ICC rules dictate it cannot indict those from non-member states like Russia.
Available evidence suggests that, as with Gaddafi, ICC prosecutors could bring charges against Russia’s top brass in a matter of months.
Yet it is possible nobody will ever be brought to trial. The ICC has no police force or ready means to get suspects to The Hague. Western powers could tie existing sanctions to Russia handing over indictees, but that is an uncertain path. For now, investigators labouring amid the mud and blood of Bucha do so despite knowing that justice may never be done.
Chris Stephen is the author of Judgement Day: The Trial of Slobodan Milošević (Atlantic Books, 2004)
