WASHINGTON — President Joe Biden on Wednesday categorically called Russian Vladimir Putin a “war criminal” for the onslaught unfolding in Ukraine, where hospitals and maternity wards have been bombed. But declaring someone a war criminal is not as simple as saying the words. There are established definitions and processes for determining who is a war criminal and how they should be punished.
The White House had avoided applying the designation to Putin, saying it required investigation and international resolve. After Biden used the term, White House press secretary Jen Psaki said the president “speaks from his heart” and reiterated his statements that there is a process to make a formal decision.
In popular usage, however, the phrase has taken on a colloquial meaning as an umbrella term for someone who is awful.
“It’s clear that Putin is a war criminal, but the president is talking politically about it,” said David Crane, who has worked on war crimes for decades and served as chief prosecutor at the UN Special Court. for Sierra Leone, which tried former Liberian President Charles Taylor.
Investigations into Putin’s actions have already begun. The United States and 44 other countries are working together to investigate possible violations and abuses, after the adoption of a resolution by the United Nations Human Rights Council to create a commission of inquiry. There is another investigation by the International Criminal Court, an independent body based in the Netherlands.
“We’re at the beginning of the beginning,” said Crane, who now heads the Global Accountability Network, which works with the international court and the United Nations, among others. On the day of the invasion, his group set up a task force compiling criminal information on war crimes. He also drafts a sample indictment against Putin. He predicted that an indictment of Putin could take place within a year. But there is no limitation period.
Here’s an overview of how it all works:
WHO IS A WAR CRIMINAL?
The term applies to anyone who violates a set of rules adopted by world leaders known as the law of armed conflict. Rules govern the behavior of countries during times of war.
These rules have been modified and expanded over the past century, drawn from the Geneva Conventions in the aftermath of World War II and protocols added later.
The rules aim to protect those not taking part in combat and those who can no longer fight, including civilians like doctors and nurses, wounded soldiers and prisoners of war. Treaties and protocols specify who can be targeted and with what weapons. Certain weapons are prohibited, including chemical or biological agents.
WHAT SPECIFIC CRIMES MAKE SOMEONE A WAR CRIMINAL?
So-called “grave breaches” of the conventions that constitute war crimes include intentional homicide and the mass destruction and appropriation of property not justified by military necessity. Other war crimes include the deliberate targeting of civilians, the use of disproportionate force, the use of human shields and the taking of hostages.
The International Criminal Court also prosecutes crimes against humanity committed as part of “a widespread or systematic attack directed against any civilian population”. These include murder, extermination, forcible transfer, torture, rape and sexual slavery.
The most likely way for Putin to enter the picture as a war criminal is through the widely accepted legal doctrine of command responsibility. If commanders order or even know or are in a position to know of crimes and have done nothing to prevent them, they can be held legally responsible.
WHAT ARE THE PATHWAYS TO JUSTICE?
Generally, there are four avenues for investigating and determining war crimes, although each has limitations. One is through the International Criminal Court.
A second option would be for the United Nations to hand over its work on the commission of inquiry to a hybrid international war crimes tribunal to prosecute Putin.
A third would be to create a tribunal or court to try Putin by a group of interested or concerned states, such as NATO, the European Union and the United States. One example is the Nuremberg military tribunals after World War II against Nazi leaders.
Finally, some countries have their own laws for prosecuting war crimes. Germany, for example, is already investigating Putin. The United States does not have such a law, but the Department of Justice has a special section that focuses on acts such as international genocide, torture, recruitment of child soldiers, and female genital mutilation.
WHERE COULD PUTIN BE TESTED?
It’s not clear. Russia does not recognize the jurisdiction of the International Criminal Court and would not send any suspects to the seat of the Court in The Hague, Netherlands. The United States also does not recognize the authority of the court. Putin could be tried in a country chosen by the United Nations or by the consortium of nations concerned. But getting him there would be difficult.
HAVE NATIONAL LEADERS BEEN PROSECUTED IN THE PAST?
Yes. From the Nuremberg and Tokyo tribunals after World War II to more recent ad hoc tribunals, top leaders have been prosecuted for their actions in countries like Bosnia, Cambodia and Rwanda.
Former Yugoslav leader Slobodan Milosevic was tried by a UN court in The Hague for fomenting bloody conflict during the collapse of Yugoslavia in the early 1990s. He died in his cell before the court cannot render a verdict. His Bosnian Serb ally Radovan Karadzic and Bosnian Serb military leader General Ratko Mladic have been successfully prosecuted and are both serving life sentences.
Taylor, from Liberia, was sentenced to 50 years in prison after being found guilty of sponsoring atrocities in neighboring Sierra Leone. Former Chadian dictator Hissène Habré, who died last year, was the first former head of state to be convicted of crimes against humanity by an African court. He was sentenced to life.
Corder reported from the Netherlands. News researcher Rhonda Shafner in New York contributed to this report.