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War in Ukraine: “It will take a change of political regime in Russia so that Putin can be judged by the ICC” | International

Melanie O’Brien puts her head in her hands when she explains that some of the weapons whose use has been denounced in the war in Ukraine —including cluster bombs or thermobaric bombs— do not appear in the Rome Statute, the founding text of the International Criminal Court (ICC). This will not be able to persecute, therefore, its use by Russia. O’Brien, who is a full professor of International Law at the University of Western Australia, believes that it is time for the 123 member states of the ICC to expand the range of war crimes handled by that body. She also maintains that only a regime change in Russia will allow President Vladimir Putin to be tried for the crime of aggression that has been committed. In such a case, the process could even be held in a Ukrainian court, provided that it has the appropriate legislation.

In a virtual meeting with the foreign press in the Netherlands, the academic admits that achieving this can take years. In a subsequent conversation with this newspaper, carried out before the atrocities denounced this Sunday by Human Rights Watch (HRW) on the northern front of the war – in particular, in the town of Bucha, on the outskirts of Kiev – O´ Brien says he has hope in the work of universal justice. This is the one that empowers the countries that adopt it to prosecute those suspected of wars such as the one waged in Ukraine.

Ask. What are the crimes that the International Criminal Court will be able to judge in the Ukrainian case?

Answer. Both Russia and Ukraine are party to the 1949 Geneva Conventions and their additional protocols. They are the rules that regulate how an armed conflict is waged, but we are seeing that the former violates many of these rules. It will be necessary to see which ones have been violated and if they fit into the crimes that the ICC can judge, which has included a reduced number of war crimes in the Rome Statute. The court will be able to judge attacks against civilians, including journalists, and against civilian targets. The latter are, for example, homes, places of refuge, hospitals, schools, museums, parks, or theaters. They have all been attacked. It will also be able to pursue acts such as the alleged kidnapping of the mayor of the city of Melitopol, since he was used as a hostage by the invading troops and released in a prisoner exchange.

Hunger as a weapon is another war crime on the ICC’s agenda, and to towns like Mariupol and others no food or humanitarian aid arrives because Russian troops prevent it. Crimes against humanity, meanwhile, require widespread and systematic attacks against the civilian population, and this is arguably happening. It would also be, if confirmed, the illegal transport of Ukrainian citizens to Russia. It would amount to a forced deportation.

P. What crimes are beyond the scope of this court, which is the only permanent body to try genocide and war crimes and crimes against humanity?

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R. Russia has attacked and occupied the Ukrainian nuclear power plant in Zaporizhia. It is an act specifically prohibited by the laws of war because it can cause enormous damage to civilians and the environment. However, the Rome Statute does not collect it. The crime of attacking the humanitarian corridors that are considered a demilitarized and protected zone does not appear either. There have been attacks of this kind throughout these weeks, despite the fact that it cannot attack civilians, but it does not appear on the ICC list.

P. And the weapons, because not everything goes in a war?

R. This is an amazing section because the court has been open for two decades. It has a provision that prohibits the use of weapons in indiscriminate attacks or attacks that cause unnecessary suffering, but it lacks a specific list. In twenty years an annex has not been created to target these weapons and there is no possible excuse. So the ICC cannot prosecute some whose use has been denounced in Ukraine. I am referring, in particular, to cluster bombs and thermobaric bombs, as well as imprecise ballistic missiles [con explosivos que no puedan ser guiados hasta su objetivo militar]. Chemical and nuclear weapons are also missing from the Rome Statute, and this is due in part to the political commitments of the countries that made the statute itself possible.

P. Russia is violating the laws of war. What do you think of Ukraine?

R. What we see these days is that Ukraine respects the rules. What they must not do, in any way, is to present Russian prisoners of war on television. The Third Geneva Convention prohibits it, in any case or country, because prisoners must be protected against insults or ridicule.

[En el momento de celebrarse la entrevista, HRW no había pedido aún al presidente ucranio, Volodímir Zelenski, que investigue las imágenes en las que presuntos militares de su país aparecen disparando de cerca a miembros del ejército ruso capturados. El abuso de los prisioneros de guerra es un crimen de guerra].

P. What future awaits the Russian president, Vladimir Putin, in the framework of international justice?

R. The first thing to keep in mind is that collecting evidence and data is a lengthy task, and it is necessary to demonstrate the link between the crime and its perpetrator. Authorship is essential, hence the slowness attributed to international justice. On the other hand, the responsibility does not fall only on those who order a war crime. It can also be pointed out to the one who does not prevent it, or declines to pursue it once it has been perpetrated. In Ukraine, there are so many attacks against civilians that there is a discrepancy between a supposed Russian military operation and reality. It seems that what we see was the initial plan to go in and carry out a war. It will take a change of political regime in Russia for Putin to stand trial at the ICC. Remember that this country is not a member state of the court, so it is impossible to prosecute him for the crime of aggression, which has been the jurisdiction of the court since 2018.

With another political situation, the trial against today’s Russian president could even be held in Ukraine. To do this, it should have the appropriate legislation and the will to do so. I do not lose the hope. The Sudanese government has said that it would hand over to the ICC former President Omar Al-Bashir, accused of genocide in Darfur. He hasn’t done it yet, but it can happen.

P. And a special court to try President Putin for aggression?

R. I think the ICC would be much more effective, as long as the regime in Russia changes. The court’s chief prosecutor, Karim Kahn, has had to ask for more funds to investigate the war in Ukraine. A special court would be very costly, and where would the money come from to pay for it if it is now difficult to support the ICC? On the other hand, a special court might have legitimacy problems; be seen as the justice of the victor. I believe that the International Criminal Court is essential, but the national courts of countries that contemplate universal justice could also act. It would be more effective and quicker, and it is not necessary that there be own citizens among the victims of the war to endow the judges with this extraterritorial authority. Although of course, there will be those who may not want to damage their relations with Russia. That is already a political issue.

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