Plaza de Mayo in Buenos Aires, a demonstration of maternalistic determination to find what has become of a segment of an entire generation which remains oblivious to the identities of their respective biological families.[1] Those are the children of the Dirty Wars in Argentina: Videla’s Junta had been complicit in dispossessing disfavoured families and individuals of their children, and gifting those to so called more desirable households.[2] The issues unfolding in Ukraine are morbidly reminiscent of that dark episode in Latin America.
The nature of war crimes is such that assumes that war has a set of conventions and rules which must be adhered to. There are therefore actions permitted during war, whilst others are prohibited and fall within the category of conventional war crimes or crimes against humanity in severe cases. The Nuremberg Charter defines war crimes as ‘violations of the laws or customs of war’.[3] The wording is particularly vague as it does not provide an understanding of what those laws or customs of war entail, however it follows that potential war crimes include slave labour, deportation, killing of hostages or prisoners of war…[4] The Rome Statute under Article 8 renders criminal the commission of war crimes and incorporates the crime into the jurisdiction of the International Criminal Court (ICC).[5]
The charges against President Putin
On March 17th 2023, Vladimir Putin, President of the Russian Federation, has been charged by the ICC chief prosecutor for the war crime of unlawful deportation of population and the unlawful transfer of population.[6] Although there is a co-defendant, being deciphered here is the extent to which a head of state, naturally and actually distant from the battlefield, can be tried and convicted for war crimes. Arrest warrants have been issued by the pre-trial chamber II of the ICC,[7] which stated that based on the prosecution’s request, there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation’.[8]
Can political leaders be prosecuted for war crimes?
The primary obstacle comes in the form of Russia’s failure to sign the Rome Statute as well as Ukraine’s failure in that regard,[9] which supposedly sets President Putin free from the ICC’s jurisdiction. This is beyond the scope here. The further technicality lies in whom is in fact eligible to be tried for war crimes and under what circumstances ? Bryant, in defining a war crime, speaks of ‘acts committed by combatants’.[10] When those pled ‘Nicht Schuldig’, not guilty, at the Nuremberg trials, recurring were the claims that one, indeed any given defendant from the ranks of the Nazi regime, was merely following orders.[11]
Could one then make the reverse argument that in one’s personal commission of a war crime on the field of battle, those merely giving orders and remaining distant from the scene of the crime are in fact void of guilt, through absence of evidence to the effect of personal commission of said crime? Throughout history this principle has been left unclear in its application.[12]
As per the U.S Field Army Manual of 1956, largely inspired by the spirit of Nuremberg and its then nascent precedents, ‘The commander of an occupied territory is responsible if he has actual knowledge, or should have knowledge … that troops or other persons subject to his control are about to commit a war crime, and he fails to take the necessary steps to insure compliance with the law of war’.[13] This understanding of war crimes and under what circumstances they may be tried specifies a military commander and makes no reference to political leaders. This is contextual however, as the manual and the instructions contained therein are specifically addressed to military personnel.
In consistence with the instructions provided in the aforementioned manual is the fact that both commentators and tribunals on the matter have traditionally categorised responsibility for war crimes along the lines of ‘actual knowledge of the subordinate crime and … constructive knowledge’.[14] In the pursuit of justice, one must ponder whether the Russian head of state knew or ought to have known of the alleged war crimes in question. The answer to his liability would not therefore lie in his merely being a political leader, but instead his objective responsibility as related to the extent of his knowledge and duties, but equally the actual existence of a war crime.
It would appear that the attribution of responsibility is thus far largely speculative, with Stephen Rapp suggesting, in reference to the forced displacement and deportation of children in this case, that ‘it’s not something that happens spur of the moment on the battlefield’.[15] However likely and logical this argument may appear, it is speculative and cannot form the basis of a competent line of prosecution as it is incredibly generalised and does not rest on any evidence attained from the particular events unfolding in Ukraine.
In May 2023, the Russian President signed decree No.330 opening up a legal avenue for Russian authorities to deport from the Russian territory or occupied and de facto Russian administered territories any person holding Ukrainian citizenship and refusing to endorse Russian citizenship.[16] The nature of this decree is such that the direction of travel is from Russian territory proper and that which Russia claims as theirs, towards what remains as Ukrainian territory both de facto and de jure.
The indictment by the ICC on the other hand specifies the crime as that of the deportation of children from Ukraine to Russia.[17] There is therefore no question of drawing a causal relationship, indeed one of executive responsibility, between this decree and the actual displacement of children in Ukraine. The questions which the prosecution will have to answer are as follows:
1. Is there a veritable war crime? and
2. Did the Russian Head of State have actual knowledge of the commission of those War Crimes? or
3. Is it clear that the Russian Head of State ought to have known of the existence of those War Crimes?
Is there a crime?
The Rome Statute provides that ‘the court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy, or as part of a large scale provision of such crimes’.[18] Particularly with regard to the deportation and displacement of persons, the Statute criminalises what it categorises as ‘grave breaches of the Geneva Convention’[19], one of which is the ‘unlawful deportation or transfer or unlawful confinement’[20] as well as the ‘deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’.[21]
It is clear that there has been some form of deportation or transfer of parts of the population of Ukraine to lands beyond Ukraine, those being the children in question. The actions therefore clearly amount to deportation, although whether those deportations are unlawful depends on several factors. Claims have been made by certain components of the Russian authorities that the children being sent to Russia had been orphaned and/or without an adult carer and that they were sent to Russia for their protection from being embroiled and harmed by the ongoing conflict. Merit is accorded to this claim when one assesses their swift return to the Ukrainian territory in many cases where it is deemed safe.[22]
Russia’s position, as expressed by the country’s UN Ambassador Vassily Nebenzia, remains that the children were taken from Ukraine to Russia to ‘spare them of the danger that military activities may bring’.[23] The Additional Protocol II of the Geneva Convention provides that displacement of civilians is unlawful ‘unless the security of the persons involved or imperative military reasons so demand’.[24] Acquaviva explains that such acts of displacement may justifiably be carried out by the state on the ground of ensuring the safety of those persons.[25] This position was vindicated by the International Criminal Tribunal for Yugoslavia in the Prosecutor v Popović.[26] This naturally illustrates that as per international humanitarian law and those of international criminal justice, protection from displacement is a qualified right not an absolute one.
If indeed the Russian state’s claims that vulnerable children are being temporarily evacuated for their safety and protection, then there is no grounds for a conviction for the war crime of displacement in so far as the measures were used proportionally, were necessary or could reasonably be said to be necessary for the achievement of that result and there was no less drastic measure which would have achieved that very result.
An investigation by the Associated Press however concluded that the children deported to Russia were forcibly taken from their parents and are being put up for adoption in Russia.[27] The Ukrainian ambassador to the UN, Sergiy Kyslytsya, claims on behalf of his occupied nation that 19,500 children had been seized from their families by force.[28] Those claims, if indeed substantiated, will amount to aggravating factors that will hinder the defence’s claim of a strive to protect Ukrainian children.
It is highly unlikely, with the not-too-distant memory of such kidnappings by the Junta in Argentina, that the ICC would acquit the defence of war crimes on the basis of necessity and the need for protection in spite of parental consent. That defence or mitigating circumstance is therefore only likely to be successful if the children were in fact orphaned, abandoned, unsupervised and/or simply lost and in danger.
What President Putin knows or ought to know
If a court of law is to find that there is no legal justification behind the displacement of the children and thus a potential war crime, it will then rule on the state of the defendant’s knowledge or reasonably expected knowledge. The warrant and indictment are thus far secret and unavailable for public consultation. In the confines of what is available as public information, there is little to vindicate or refute President Putin’s personal knowledge of the nature or extent of those deportations. Despite our understanding of the nature of the Russian state and the manner in which decisions are made, determining actual knowledge on that basis, as several commentators have, is highly speculative and judicially detrimental.
The onus of expected knowledge was a cornerstone of the post-WWII trials as reflected in the aforementioned US Army manual. It is possible, if indeed the deportations are of a criminal nature, to assert that the Russian head of state ought to know of their occurrence. In a statement following the issuance of the arrest warrant, the ICC made reference to the Russian leader’s ‘failure to exercise control properly over civilian and military subordinates who committed the acts’.[29] What the ICC is alluding to is a duty to know or to be aware of the happenings on the battlefield, a duty imposed on a head of state by virtue of his position.
The court therefore makes a clear suggestion that the defendant ought to have known of his subordinates committing the acts. This expectation bares virtue in the allocation of responsibility in a hierarchical structure because it imposes upon military and political leaders the duty to remain aware of events in the battlefield despite their geographical distance. As Bevan explains, the duty entails the task of preventing[30] war crimes but equally to investigate such instances.[31]
Despite an absence of evidence as to his personal involvement or instigation of war crimes committed in the Philippines, General Yamashita had been tried and convicted for war crimes which had actually been ordered and committed by his subordinate; his lack of knowledge or involvement were deemed irrelevant by the court.[32] There is merit to this legal approach in that it considers a lack of knowledge by a commander to amount to a failure of his or her duties in addition to deeming that a member of such an elevated calibre of command holds sufficient powers of prevention and upholding the laws of war, thus he or she is responsible to exercise that power.
The Rome Statute, reiterating the ratio descidendi by the Appeal Chamber of the International Criminal Tribunals for Yugoslavia in Blaskic,[33] reflects that strict duty of knowledge without a burden upon the prosecution to demonstrate that the defendant had some knowledge or received any warning or indication that a war crime may indeed be committed.[34]
One must equally consider that frequently recurrent had been the term ‘military commander’ as opposed to commander, leader or political leader. Despite President Putin’s lack of practical military experience or credentials (with the notable exception of intelligence work under the Soviet Union),[35] his position as per Article 87 of the Russian Constitution is nevertheless that of the Commander In-Chief of the Russian Armed Forces.[36] This military position, albeit largely symbolic, places him at the apex of the military organism. This means that, as per the Russian constitutional order, he is able to intervene in any manner to prevent war crimes and ensure the laws of war are adhered to.
One must equally consider that despite the legal texts and relevant commentary focusing primarily on military commanders, the essence of such duty to know stems in practice from the ability to access information and one’s clout over the military organism. Indeed Bevan states that command is consecrated within military ranks but can extend to civil positions.[37] Green concurs with this position in stating that ‘political or military superior(s)’[38] may, for a transgression of the laws of war, be brought before a court of law.[39] It is therefore evident that if indeed a war crime is to be identified, the prosecution will find no difficulty in establishing that the Russian head of state ought to have known of his national military’s commission of war crimes.
Final Thoughts
There are evident legal justifications for the essence of the arrest warrant in place as well as the indictment for war crimes for which President Putin is to be tried. It is equally clear that a head of state, indeed any political leader in a position of power, upon which a duty of knowledge exists, as well as a duty of intervention, can indeed be held liable for war crimes. As per the existing which is publicly available, it would be a legal fallacy to conclude that there is an unshakable ground for a conviction for war crimes against the Russian head of state; this remains to be seen depending on the contents of the indictment. The questions surrounding the extent of righteousness of the indictment and arrest warrant must be resolved from a point of view of the nature of the ICC’s jurisdiction, with various questions being posed around the lack of accession of either state party to the conflict.
Endnotes
[1] Marjorie Agosin, ‘A visit to the Mothers of the Plaza de Mayo’ [1987] 9 (3) Human Rights Quarterly accessed 2 April 2023. [2] Kerry Bystrom and Brenda Werth, ‘Stolen Children, Identity Rights and Rhetoric’ [2013] 33 (3/4) Rhetorics Regulating Childhood and Children’s Rights accessed 2 April 2023. [3] The Nuremberg Charter – The United Nations, Treaty Series No. 251 of 1951. [4] Ibid. [5] Article 8 of the Rome Statute of the International Criminal Court, International Criminal Court. [6] Antony Deutsch and Toby Sterling, ‘ICC Judges issue arrest warrant for Putin over War Crimes in Ukraine’ (Reuters, 17 March 2023) accessed 2 April 2023. [7] ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ (International Criminal Court, 17 March 2023) accessed June 12th 2023. [8] Ibid. [9] Tara Law, ‘The ICC Has Issued a Warrant for Vladimir Putin. Will He Actually Be Arrested?’ (Time, 17 March 2023) accessed June 12th 2023. [10] Olivia B. Waxman, ‘How the Meaning of War Crimes Has Changed’ (Time, 6 April 2022) accessed July 2nd 2023. [11] Joshua Barajas, ‘How the Nazi’s defense of ‘just following orders’ plays out in the mind’ (Public Broadcasting Service, 20 February 2016) accessed July 2nd 2023. [12] ‘Command Responsibility for War Crimes’, The Yale Law Journal [1973] 82 (6) accessed June 12th 2023. [13] United States Department of the Army, ‘Field Manual 27-10: The Law of Land Warfare’ Paragraph 501 (1956). [14] ‘Command Responsibility for War Crimes’ (n12). [15] Anastasiia Shvets, Elisabeta Telna and Sarah El Deeb, ‘How Moscow grabs Ukrainian kids and makes them Russians’ (Associated Press, (17 March 2023) accessed July 2 2023. [16] ‘Russia paves way for deportations from annexed Ukrainian regions’ (Reuters, 28 April 2023) accessed June 15th 2023. [17] Marti Flacks, ‘The ICC wants Putin. Now What?’ (Center for Strategic Studies and International Studies, 20 March 2023) accessed June 15th 2023. [18] Article 8 (1) of the Rome Statute of the International Criminal Court’ International Criminal Court. [19] Article 8 (2) (a) of the Rome Statute of the International Criminal Court’ International Criminal Court. [20] Article 8 (2) (a) (vii) of the Rome Statute of the International Criminal Court’ International Criminal Court. [21] Article 8 (2) (b) (viii) of the Rome Statute of the International Criminal Court’ International Criminal Court. [22] Rémy Ourdan, ‘À Kiev, le retour d’enfants déportés par la Russie’ (Le Monde, 23 March 2023) accessed July 3rd 2023. [23] ‘Russia calls UN meet on Ukraine’s taken kids’ (AlJazeera, 21 March 2023) accessed July 3rd 2023. [24] Guido Acquavivo, ‘Forced Displacement and International Crimes’ (United Nations High Commissioner for Refugees Legal Policy Research Series, June 2011) accessed July 4th 2023. [25] Ibid. [26] Prosecutor v Krajišnik Case No. IT-00-39-A 2009. [27] Edith M. Lederer, ‘Russian charged with war crimes’ (The Associated Press, 6 April 2023) accessed July 5th 2023. [28] Ibid. [29] ‘ICC issues Putin arrest warrant on Ukraine war crime allegations’ (AlJazeera, 17 March 2023). accessed July 2nd 2023. [30] Julian Bevan, ‘Commanders’ Responsibility for War Crimes’ (Cloth Fair Chambers, Summer 2008, Issue No.6) accessed July 10th 2023. [31] Ibid. [32] Ibid. [33] Prosecutor v Tihomir Blaskic (Appeal Judgement), IT-95-14-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 29 July 2004. [34] Bevan (n30). [35] Marc Bennets, ‘Soldier,spy: more details of Vladimir Putin’s past revealed’ (The Guardian, 8 January 2019) accessed July 20th 2023. [36] Article 87 of The Constitution of the Russian Federation, (Chapter 4 – The President of the Russian Federation). [37] Bevan (n30). [38] Leslie C. Green, ‘War Crimes, Crimes against Humanity and Command Responsibility’ [1997] 50 (2) Naval War College Review accessed July 10th 2023. [39] Ibid.