Has Russia Committed War Crimes in Ukraine? It's Complicated

As the International Criminal Court (ICC) prepares to investigate possible war crimes committed during Russia's invasion of Ukraine, a growing number of officials and world leaders are calling for President Vladimir Putin to be held accountable amid Kyiv's rising civilian death toll.

ICC Chief Prosecutor Karim Khan announced on March 2 that his office would be investigating possible war crimes committed in Ukraine, following requests to do so by nearly 40 of the court's member states.

Khan's office is now working to gather evidence for "any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person," the lead prosecutor said.

Since Putin launched a full-scale invasion of Ukraine on February 24, thousands of people are believed to have been killed or injured. The United Nations human rights office estimated on Wednesday a civilian death toll of at least 516, with 908 injuries, but the real figure is likely to be "considerably higher."

Meanwhile, Russian air strikes and shelling have struck schools, hospitals, kindergartens, residential blocks, civilian homes and vehicles, and an orphanage, prompting Ukrainian and Western officials to make accusations that Moscow has committed war crimes.

Speaking to Newsweek, legal experts shed light on what could be counted as war crimes, and whether Putin or the officials implicated in these attacks could later be held to account.

Does the ICC Have Jurisdiction Over War Crimes?

The court in The Hague has had indefinite jurisdiction to probe war crimes that may have been committed on Ukrainian territory since September 2015. That stemmed from Ukraine's declaration to accept ICC jurisdiction following the annexation of Crimea by Russia in 2014. The authorization doesn't have an end date.

Both Ukrainian and Russian personnel can be investigated, and the probe will look into alleged crimes committed on Ukrainian territory since November 21, 2013.

While it isn't a war crime to attack military targets, what could be counted as a war crime is the intentional targeting of civilians, or using methods of warfare that don't precisely target civilians, but are so indiscriminate that the collateral damage of civilian death and destruction is almost certain.

Ioannis Kalpouzos, co-founder of the Global Legal Action Network and visiting professor at Harvard Law School, told Newsweek that the law of targeting will likely be at the heart of the ICC's investigation.

The ICC will be able to probe attacks that are intentionally directed against civilians and those that are disproportionate in that they cause "incidental loss of civilian life or damage to civilian objects or the environment that is excessive in relation to the concrete and direct overall military advantage anticipated," he explained.

The crucial challenge will be in identifying either the intention of the attacker, or the nature of the decision-making process, and deciding whether the attack was intentionally directed against civilians, whether it was indiscriminate, and whether it was disproportionate in the sense that the excessive harm was anticipated, he said.

"Unfortunately, the fact that the result itself is awful is not enough for for a conclusive finding of a violation of the law of armed conflict, and especially a war crime," said Kalpouzos.

Cluster Bombs

NATO Secretary General Jens Stoltenberg on March 4 confirmed that Russia is using cluster bombs in Ukraine. He said the alliance had seen reports of the use of other types of weapons "which would be in violation of international law."

Their usage has been condemned by human rights organizations and governments due to the risk of harm to civilians. Cluster munitions open in the air and disperse up to hundreds of small submunitions over a wide area.

Cluster munitions were fired by Russian forces into at least three residential areas in Kharkiv, Ukraine's second-largest city, on February 28. The United Nations reported nine civilian deaths and 37 injuries in attacks across the city that day.

A seven-year-old girl was killed during a cluster bomb attack on a kindergarten in Okhtyrka in Ukraine's Sumy Oblast on February 25. She is one of 38 children thought to have been killed in the invasion so far, according to Ukrainian officials.

Kalpouzos explained that while the use of cluster munitions in Ukraine isn't a war crime under the jurisdiction of the ICC, it would be a war crime if prosecutors were able to show that a military commander anticipated that the effects would be disproportionate.

Nancy Combs, a professor of law and the director of the Human Security Law Center at the William & Mary Law School, told Newsweek she believes the ICC is likely to find a strong case in Russia's use of cluster munitions.

"To my mind, cluster bombs are a clear violation, particularly in the kinds of locations in which they are being used. It's a clear violation because they are in populated areas with lots of civilians," said Combs.

"In the context of Ukraine, I think there's a very strong argument that they are war crimes, because the fighting is taking place around populated areas," she added.

Agnès Callamard, Secretary-General of Amnesty International, said there is "no possible justification for dropping cluster munitions in populated areas, let alone near a school."

"This attack bears all the hallmarks of Russia's use of this inherently indiscriminate and internationally-banned weapon, and shows flagrant disregard for civilian life."

Strikes on Civilian Areas

Although Russia has been widely accused of deliberately striking civilian targets, Russia has consistently denied doing so, saying it's carrying out a "special military operation" against Ukrainian "neo-Nazis" and targeting only military infrastructure.

Ukraine and the West say this is a false pretext to justify the incursion.

Jamie Williamson, executive director at the International Code of Conduct Association, told Newsweek that a lot will depend on the information that was in the possession of the commander when he or she launched the attacks that struck civilian areas.

"When you get to a court setting...you can have major technical discussions about the accuracy of weapons and the accuracy of artillery fire," he said. "Because they may be targeting, for instance, government buildings or military installations which happened to be within, let's say, populated areas within urban areas."

Russia has claimed, for example, that the missile strike on Kharkiv's historic Freedom Square, which Ukrainian President Volodymyr Zelensky described as a war crime and as an act of state terrorism, was targeting a tent encampment that had been set up to support volunteer Ukrainian fighters.

Officials said the Freedom Square strike left 10 civilians dead.

"If you just hear that claim, you can't immediately disprove it, right?" said Kalpouzos. "Those are some of the difficulties that a prosecutor and a court would have to deal with."

Who Could Be Prosecuted?

Any individual accused of a crime in the jurisdiction of the ICC can be prosecuted. However, the court does not try people in absentia, explained Kalpouzos.

"They need to be apprehended, they need to be at The Hague, and they need to appear and participate in the process. So as long as they are not, the trial cannot go on," he said. "If Putin or whoever else is indicted, are still in power and stay in Russia, then of course, that brings down the likelihood that they will be apprehended and taken to the Hague."

Williamson said there may be potential for bringing in lower rank individuals, however.

"It doesn't necessarily have to be the person pulling the trigger. You work up the hierarchy, and look to the commanders and the individuals who effectively gave orders or individuals who failed to prevent or punish their subordinates who are committing war crimes," he explained.

Combs also said it is highly unlikely that Putin will be prosecuted while he is power.

"There would have to be a regime change before he is going to be sent off to The Hague," she said.

"I do think to some degree, the success of the sanctions are going to be key in determining Putin's fate, both in the near term and the long term, and then that fades domestically...how long is he going to retain control over Russia? And then that's going to be highly significant as to whether he's eventually brought before any sort of accountability mechanism," Combs added.

A Ukrainian woman
A Ukrainian woman cries as she holds a poster showing the destruction of homes in Ukraine and messages about her relatives living in her country during a demonstration in front of the European Parliament on March 1, 2022, in Brussels. The International Criminal Court (ICC) is investigating possible war crimes committed during Russia’s invasion of Ukraine. Omar Havana/Getty Images