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Prosecuting Russia’s crimes

Prosecuting Russia’s crimes

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Accused of committing war crimes, Russia is being investigated by the international criminal court. But prosecuting those responsible will not be easy.


Transcript
tomini babs, narrating:

Hi, I’m Tomini and this is the Sensemaker.

One story every day to make sense of the world.

Today, the struggle to bring Vladimir Putin to justice.

“Journalists tried to help the casualties.”

News clip

They were trying to escape. 

“A family – mother, father and two children – were killed by another shell.”

News clilp

Scattered around them was a blue suitcase, some backpacks and a pet carrier. It held a small dog, which yelped in a cloud of dust.

[Sound of dog barking]

The family were trying to flee Irpin, a town occupied by the Nazis during the Second World War.

A place that had found peace until the last few days, when it became a target for Russian forces trying to get a foothold on the outskirts of Kyiv. 

Schools, hospitals, residential blocks, escape routes. 

Across Ukraine, nowhere appears to be safe from Russian attacks. Accusations are piling up that the Kremlin has committed war crimes.

Antony Blinken, the US secretary of state, has suggested as much.

“We’ve seen very credible reports of deliberate attacks on civilians, which would constitute a war crime. We’ve seen very credible reports about the use of certain weapons.”

Antony Blinken interview

It’s little wonder that the international criminal court, the United Nations, and even the Metropolitan Police war crimes team are among bodies launching investigations into the invasion of Ukraine.

But how easy is it to build a case against Russia?

In May 2012, Charles Taylor, the former president of Liberia, was convicted of war crimes in the Hague.

Guilty of terror, murder, rape and sexual slavery, he was sentenced to 50 years in prison. 

The presiding judge said Charles Taylor was responsible for “planning some of the most heinous and brutal crimes in recorded human history”.

His defence counsel was a British lawyer called Karim Khan.

“The law must bind everybody. There is a saying from England if you forgive me on France 24: The king is under no man but god and the law.”

Karim Khan interview

A member of the Ahmadiyya community, a persecuted branch of Islam, Karim Khan went to school in West Yorkshire before reading law in London.

He’s been a prosecutor, victims’ counsel and defence counsel at domestic and international criminal courts. 

And in June last year he took on a new role.

“Mr Karim Khan of the UK has been elected prosecutor of the international criminal court for a period of nine years.”

Clip from ICC proceedings

Karim Khan is now bringing his vast experience to bear in Ukraine.

“We know very clearly that if civilians are directly targeted, if civilian residencies or location are targeted, that is a crime. And it’s no defence to say there may be military necessity if wide-ranging weapons are used, weapons that are not precise or have a large footprint in quite heavy civilian-populated areas.”

Karim Khan interview

The prosecutor has said there’s a reasonable basis that alleged war crimes have been committed in Ukraine, so it sounds like Russia might have a case to answer. 

But what are the practicalities of bringing a prosecution?

Where some Ukrainians have taken up weapons to fight invaders, others are mobilising with cameras and notepads. 

Dispatched to wrecked villages and houses turned to rubble, they are gathering evidence that might help them make a case against Russia in the international criminal court, or the ICC.

That’s one part of the challenge for the team Karim Khan has sent to build a case – collecting and analysing a body of testimony and footage that could be used in a future trial. 

But those seeking quick and easy justice might be disappointed. 

Russia, like the United States, is not a signatory to the ICC. 

That doesn’t stop the ICC investigating possible war crimes, but it does rule out prosecuting Russia for the crime of aggression – something that seems like it would be simple to prove, given Russia has invaded another state without any obvious provocation.

Karim Khan has indicated that the ICC’s focus will be on war crimes and crimes against humanity, which are much harder to prove.

It’s not enough simply to show that civilians have been killed. 

It typically requires proving attackers deliberately targeted civilians. 

That’s a high bar in any situation – never mind in a war where ordinary Ukrainians are making molotov cocktails and taking up arms themselves.

It’s probably why even Joe Biden, the US president, is equivocating.

“Do you believe Russia is committing war crimes?”

“We are following it very closely. It’s early to say that.”

Joe Biden exchange with reporter

It’s unlikely we’ll ever see Russian President Vladimir Putin himself in the dock. 

Even if he could be directly linked to offences committed on the ground – which is a big if – he would have to be arrested in a state that accepts the jurisdiction of the ICC or extradited by Russia. 

Given the ICC has only convicted ten people in two decades, Vladimir Putin probably fancies his chances.

But that’s not to say that what the ICC is doing is a wasted venture. 

There could one day be a reformed Russia that is open to the likes of Vladimir Putin being held accountable.

And even if that’s a longshot, the threat of being named a war criminal could deter some in the Russian military from crossing the line during this invasion.

The ICC has essentially said: we’re watching you.

Besides, it’s not just the ICC trying to take legal steps to address actions in Ukraine. It is, after all, a court of last resort.

The human rights lawyer Philippe Sands, along with the former UK prime minister Gordon Brown, is trying to bring about a dedicated international criminal tribunal. 

It would, in theory, investigate Vladimir Putin and others for the crime of aggression – the offence that evades the jurisdiction of the ICC in Ukraine.

Other actions are underway from the likes of the International Court of Justice and the European Court of Human Rights.

Karim Khan may yet play a fairly small role in an enormous fight for justice.


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