Sensemaker: War crimes and punishment

Long stories short

• A pregnant woman and her baby have died after the bombing of the Mariupol hospital where she was supposed to give birth.
• A Russian missile strike on a base used to train foreign fighters killed at least 35 and brought the war to within 10 miles of Nato’s Polish border.
• The US warned Beijing of serious “spillover effects” if China supplies Russia with weapons for its war.
• Observers said more than 200,000 Ukrainians have returned home against the flow of refugees to fight or care for loved ones.

War crimes and punishment

Last week’s Russian airstrike on a maternity hospital in Mariupol was one of dozens of attacks since 24 February that may qualify as war crimes. At least 17 people were injured and three were killed, among them a small child. Footage taken afterwards showed a soldier at the bottom of a bomb crater so deep that he was dwarfed by it. 

In a just world, Putin would be promptly charged with war crimes and prosecuted before memories fade or evidence can be tampered with.

Could it happen? Yes. The Nuremberg Trials brought a measure of justice for victims of Nazism and the UN-backed special tribunal for the former Yugoslavia secured 90 convictions.

Will it happen? Only if Russia loses this war and defeat leads to regime change in Moscow. For now, both scenarios look unlikely (more below), but efforts to prosecute Putin aren’t just for show:

• Evidence collection is vital even if there is only the slimmest chance of a trial in the foreseeable future. There is no statute of limitations on war crimes or crimes against humanity. 
• The fact that Putin faces war crimes allegations could play a role in the huge task of persuading Russians who believe his propaganda they’ve been lied to.
• Justice in a courtroom costs fewer lives than wars of revenge. 

Under the Rome Statute, the founding document of the International Criminal Court, it is a war crime to 

• intentionally direct attacks against civilians; 
• intentionally direct attacks against civilian/non-military targets; 
• intentionally direct attacks against “buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected”;
• use banned weapons “which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict”.

The number of hospitals and other civilian buildings attacked has risen steadily since day one of the invasion. 

• 31 hospitals and other healthcare facilities have been attacked since 24 February according to the WHO.  
• The Ukrainian government said last week that 202 schools and 1,500 residential building have been bombed.
• The UN reports that at least 596 civilians have been killed, among them 43 children, but says that the real number of deaths is likely to be much higher. 

The Russian military has been accused of using banned weapons and deploying weapons in civilian areas. 

• Amnesty International and Human Rights Watch say banned cluster bombs have been used in attacks on schools and hospitals. 
• Ukraine’s ambassador to the US has accused Russian forces of using thermobaric weapons or “vaccuum bombs” against civilians. Thermobaric weapons are not banned, but if used to target civilians that could be a war crime. 

Who is investigating? 

• The US is conducting a “legal review process” to establish whether the Mariupol attack can be labelled a war crime. 
• Germany’s federal prosecutor has opened an investigation into possible war crimes in Ukraine and is beginning to collect and record evidence. 
• The chief prosecutor of the International Criminal Court, Karim Khan, has opened an investigation into events in Ukraine after 39 countries submitted a referral to the court. Neither Russia nor Ukraine are signatories to the ICC, but Ukraine has given the court jurisdiction in its territory. Dominic Raab, the UK’s justice secretary, visits the Hague today to offer practical support. 

What do they need to prove?

To succeed in court this sort of war crimes claim needs to show the attacks on civilians, hospitals and schools were deliberate, indiscriminate or both. 

Proving intent is the hard part and would likely require collection of Russian military documents and communications. “Pocket debris” – mobile phones, hard drives and any other communications equipment left behind by Russian forces – could contain important evidence on whether civilians were intended targets.

To secure convictions against people higher up in the chain of command, prosecutors need to prove that 

• they were the ones in charge;
• they knew or had reason to know that their subordinates were committing crimes; 
• they failed to stop the crimes or to punish the perpetrators. 

So will Putin ever appear in the dock?

Even if war crimes charges are brought, there may never be a trial. The ICC does not try people in absentia and bringing Putin into the courtroom in the Hague will almost certainly be impossible unless he is removed from power. Otherwise, even if charged, he could be arrested only if he left the country as Russia does not extradite its citizens.

Building a case against him is a different matter. Some say because of the authoritarian system he has created it will be relatively easy to prove Putin was ultimately responsible for war crimes. Stephen Rapp, a former US ambassador-at-large for war crimes tells Politico: “Very little is going to happen in this theatre on the Russian side that wouldn’t be traceable right up the chain of command to the top of the Russian state.” 

Another way? A coalition of politicians, lawyers and human rights advocates led by Gordon Brown is seeking to set up an international criminal tribunal modelled on the post-WW2 Nuremberg trials to investigate and prosecute Putin for the “crime of aggression” for the invasion of Ukraine. “The whole world needs to be made aware of the act of aggression he has instigated,” the coalition states. Awareness is certainly step one, and there is no shortage of Putin acolytes to pursue along with their leader.

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CAPITAL ECONOMY, BUSINESS AND FINANCE

War windfalls
The war’s net effect on the global economy is inflationary and disruptive. Canada, Australia and Saudi Arabia stand to benefit even so. Indonesia and the Philippines could, too. This is because they produce large amounts of commodities Russia used to export but cannot any longer. Commodities now in short supply with high demand and rising prices include wheat (Canada, Australia), oil (Saudi, Iran, Venezuela), potash (Canada), coal (Australia), nickel (Indonesia, the Philippines) and South Africa (palladium). The WSJ has a round-up. One knock-on effect is that if oil stays at over $100 a barrel Saudi Arabia might actually be able to afford to build Neom, the futuristic city planned for its northwestern Red Sea coast, powered by hydrogen and renewables.

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CULTURE soCIETY, IDENTITY AND BELONGING

Istanbul refuge
The exodus of middle-class Russians to Istanbul, which we wrote about on Friday, has left behind a broadly pro-Putin majority that either can’t afford to flee or doesn’t want to. Owen Matthews, a veteran Moscow correspondent caught up in the flight of the bourgeoisie, wrote a wild dispatch for the Telegraph at the weekend about hand-carrying wads of banknotes to Turkey for Russian friends with no other way of saving their savings, and cracking open a bottle of Lagavulin on his hotel rooftop when safe at last on the Bosphorus. But it’s the attitude of the stay-behinds that lingers in the mind: the woman on Moscow’s Old Arbat who refuses to regret the closure of McDonald’s – “Russia doesn’t need western junk” – and the Russian military pilot-turned-architect who eschews all “western propaganda” and insists “even the BBC has shown that Ukrainian news clips are fake”. Truth and reconciliation seem remote.

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TECHNOLOGY AI, SCIENCE AND NEW THINGS

Zelensky messages Microsoft
Ukraine’s president has said it’s not enough for big software companies to suspend sales in Russia. They need to cut off existing customers from updates, service and customer support or stand accused of supporting “the bloody Russian aggressor to kill Ukrainian women and children”. Zelensky’s weekend tweet was aimed specifically at Microsoft, Oracle and SAP, business software providers whose products have helped corporate Russia mesh with the global economy these past 30 years. Oracle responded that it had already done what it could by ending all operations in Russia. Microsoft and SAP have stopped new sales but have yet to respond to the tweet, which also said: “Now can be no ‘half’ decisions or ‘halftones’! There is only black and white, good or evil!” Life isn’t usually so simple, but it does feel that way now.

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The 100-year life health, education AND GOVERNMENT

Children’s cancer flight
As hospitals and healthcare facilities continue to be attacked in Ukraine (see above), 21 children and their immediate family arrived in the UK yesterday to receive lifesaving cancer treatments on the NHS. Special provision was made for the children to arrive before the government’s “Homes for Ukraine” scheme launches today. In Medyka, on the Polish border, 60 children with cancer were put on a medical train bound for beds in Poland on Saturday. Medical workers were reported to be carrying some of the children in their arms and on stretchers to get them onto the train. As the crisis continues, the need for beds for refugees in poor health will rise. The EU promised 10,000 beds across the bloc last week, but a new surge in Covid cases will only increase demand for hospital capacity. Refugees are not being asked to show proof of Covid status. 

Our planet CLIMATE AND geopolitics

Renewables race 
The UK is going all-out to get its energy anywhere but Russia, which is a) not as hard as it will be for Germany, Italy, Poland and others, since Russia only directly supplies about 4 per cent of Britain’s needs; but b) a good thing nonetheless because it’s still necessary from an energy security point of view, and the least a non-combatant in this appalling tragedy can do. The Observer reported at the weekend that the Conservatives are back in love with on- and offshore wind, but Boris Johnson is also reportedly heading to Riyadh this week to beseech Mohammed bin Salman to pump more oil. We are where we are. Experts at Kaya, an advisory firm, reckon even if Europe could quickly quintuple the speed at which it builds new renewables, it would take three years to reach the 600 terawatt-hour capacity needed to replace Russian gas.

The week ahead

UK

14/3 – Deputy prime minister Dominic Raab to visit the International Criminal Court and offer practical support for investigating Russian war crimes; annual celebration of the Commonwealth marked at Westminster Abbey; House of Lords review Nationality and Borders Bill and Economic Crime Bill, 15/3 – Joint Expeditionary Force summit in London; Cheltenham Festival starts; newly appointed refugees minister Richard Harrington introduced to House of Lords; home office security and policing exhibition begins, 16/3 – Queen’s platinum jubilee concert; immigration minister Kevin Foster questioned by home affairs committee on Ukrainian refugees, 17/3 – Bank of England vote on interest rates; inquiry begins into death of Dawn Sturgess in 2018 from Novichok exposure; Mental Health Network annual conference, 18/3 – Scottish Conservative and Unionist Party conference in Aberdeen; red nose day for Comic Relief, 19/3 – Labour women’s conference

World 

14/3 – Meeting of Lublin Triangle leaders in Poland, including Ukrainian prime minister; vaccine pass requirements largely lifted in France; alpine world ski championships begin, 15/3 – EU Economic and Financial Affairs Council (ECOFIN) meet in Brussels and will include discussion on Russia sanctions; Opec monthly oil market report, 16/3 – Jewish festival of Purim; US fed open market committee decision on interest rates, G7 parliamentary speakers meet virtually with Chairman of Ukraine’s Verkhovna Rada, Ruslan Stefanchuk; Netherlands municipal elections; Russian government bond payments due, 17/3 – St Patrick’s day; OECD report on implications of war in Ukraine, 18/3 – Holi festival of colours; Sikh festival of Hola Mahalla; quadruple witching day as stock index futures, stock index options, stock options and single-stock futures expire together; 18th World Athletics Indoor Championships begin in Serbia, 19/3 – State parliamentary elections in South Australia, 20/3 – Kurdish new year, spring equinox

If you would like to donate to charities helping Ukrainian refugees and independent media, here are three we recommend: 

Ukrainian Media Fund – supporting media in Ukraine to relocate and continue operating. 

Voices of Children – helping traumatised children in the Donbas. 

Sanctuary Foundation –  supporting Ukrainian Refugees in the UK. 

Thanks for reading. Please share this around and tell us what we’ve missed. News tips and story ideas are welcome. Email them to sensemaker@tortoisemedia.com.

Ella Hill
@_EllaHill

With additional reporting by Giles Whittell and Phoebe Davis.

Photographs Evgeniy Maloletka/AP/Shutterstock, Getty Images

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