Russia's four core crimes under international law
Contents
II. The evidence for a Tribunal for Putin: Russia’s four “core crimes” under international law
II.1 Russia’s crimes of aggression
Russia’s crime of aggression in the UN Security Council (UNSC) and the UN General Assembly (UNGA)
Russian President Putin has committed the most serious of all crimes under international law, the crime of aggression (Art 5, para. 1, letter d) of the Rome Statute of the International Court of Justice of 17 July 1998, Otto Luchterhand states, “The criminal invasion of Ukraine is […] the cause of all further crimes under international law committed since then by the Russian armed forces and their political and military leadership on all fronts.”[9]
A resolution opposing Russia’s invasion of Ukraine failed in the UNSC due to Russia’s veto. In the vote in the UNSC on 25 February 2022, 11 of the 15 members voted in favor, 3 against; China abstained. Russia prevented the adoption with its veto.
Nevertheless, Russia was unable to prevent the UNSC from convening for an Emergency Special Session (ESS) of the UNGA. The General Assembly condemned the Russian war of aggression in its resolution A/RES/ES-11/1 of 2 March 2022 and in resolution A/ES/-11/L.3 of 24 March 2022 with the majority of 141 votes, which was far above the quorum (129 votes). However, the decision was not binding, as resolutions of the UNGA of all member states are not binding under international law, unlike resolutions of the 15-member Security Council.
Ukraine’s right to “self-defense” and “collective self-defense”
According to Art. 51 of the UN Charter, Ukraine under attack has the right to self-defense.[10]
According to Christian Tomuschat, legitimate self-defense can be organized as “collective self-defense”; third states are also allowed to come to the rescue.[11] “Other states are allowed to assist Ukraine against the attack – even without a UN mandate,” confirmed the international law expert Matthias Herdegen in a (written) interview with the legal magazine Legal Tribune Online (LTO).[12] By merely supplying weapons or financial support to an attacked state, a country does not become a party to the conflict. Russia is also not allowed to react with force to aid deliveries from other states, according to Herdegen.
When asked by Dr. Franziska Kring and Hasso Suliak, LTO, what possibilities the UN Charter provides for reacting to the violation of the prohibition of the use of force according to Article 2 No. 4 of the UN Charter by Russia’s President Putin, Prof. Herdegen replied
“The invasion of Ukraine by [Russia-ed.] establishes with rare clarity Ukraine’s right of self-defense according to Article 51 of the UN Charter. In this context, other states may also provide support in the form of arms deliveries. At the same time, other states may provide military assistance to Ukraine. The UN Charter speaks here of the right to ‘collective self-defense’ – including support by armed forces.”
Military intervention by other states in the case of the Russian war of aggression against Ukraine would also be possible without a mandate from the Security Council, Herdegen confirms in response to the interviewers’ question,
“Yes, authorization by the Security Council is not required for this. However, the Western states have not made use of this possibility so far for political reasons, so as not to escalate the conflict. The risks of military intervention by the West are difficult to assess. This is also due to the fact that the current Russian regime is leaving the paths of customary rationality on which we could rely even during the Cold War with the old men in the Kremlin.”
This is shown in particular by the Russian president’s undisguised threat of nuclear weapons and, likewise, his willingness to risk Russia’s economic collapse and, thus, also, the shaking of his own regime.
However, Herdegen considers targeted strikes on Russian territory to be “completely far-fetched”; instead, he recommends confronting the Russian regime with individual responsibility for the crime of aggression and war crimes under international criminal law (ICL).
“Far-fetched” is certainly the invasion of Russia by Ukrainian ground troops, but not the Ukrainian strikes on Russian missile launch pads on Russian territory, from which homes in Ukrainian cities and civilian infrastructure are destroyed. However, the “confrontation with individual responsibility” is certainly called for, but will not compel Russia to withdraw its troops from Ukraine.
II.2 Russian War Crimes in Ukraine: possibilities of International Prosecution
Who was ultimately responsible for the “crimes of the Wehrmacht”,[13] as the title of an exhibition by the Hamburg Institute for Social Research (HIS) reads, is beyond doubt. Hitler himself evaded his responsibility by committing suicide. After nearly a year of trial, 12 of the 24 accused “chief culprits” were sentenced to death by hanging in Nuremberg in 1945.
While Hitler was beyond any doubt the “chief instigator” of all crimes committed by members of German units deployed in the Soviet Union, Putin is also, beyond any doubt, personally directly responsible for the aggression against Ukraine, and therefore, the “supreme war criminal.” However, for the misdeeds of the Russian army in the occupied localities, he is only indirectly responsible through acquiescence and encouragement. Putin not only denies his soldiers’ crimes in Ukraine but also awards them for them.
The unit of the regular Russian army involved in the atrocities in Bucha has been identified: it is the 64th Separate Guards Motor Rifle Brigade, a motorized infantry brigade, of the Eastern Military District’s 35th Army, nickname “Mlechnik” (a mushroom, Lat. Lactarius), military unit number 51460, based in the village of Knyaze-Volkonskoye in Khabarovsk Oblast.
This unit was awarded the honorary designation “Guard Unit” by the President of Russia, Vladimir Putin, for its war crimes – officially “for heroism […] in combat operations to protect the Fatherland and state interests.” Putin, by ukaz (decree, order) of 19 December 2022, grants land in Crimea to veterans and relatives of fallen Russian soldiers – “for merits in the war” (against Ukraine).
“According to international criminal law [ICL-ed.], the commanders of the Russian armed forces, headed by President Putin, are guilty of serious war crimes,” Christian Tomuschat judges.
Since an international arrest warrant against the Russian leadership cannot be executed in reality, if one was issued, it would only have symbolic value anyway. However, the actors hierarchically involved below this level are not immune from prosecution in The Hague; they can be prosecuted for “acts of participation,” that is, instigation and support, committed in a non-contracting state.
Prosecution for war crimes is also possible before national courts. Even Russian generals can be prosecuted before national courts of other states “as far as they can be apprehended.”
In Germany, the International Criminal Code regulates crimes against (public) international law by adapting German national criminal law to the regulations of the Rome Statute of the ICC. The US stated that it would document the war crimes of which it had “very credible reports.”[14] The US Attorney General Merrick Garland said on a trip to Kyiv that the US would set up a team of investigators. More than 30 prosecutors and justice ministers met in The Hague on 14 July 2022 at the invitation of the Netherlands, together with the ICC, to discuss ways to prosecute war crimes in Ukraine.
Russia’s attack on the Ukrainian civilian population
Article 8, War crimes of the ICC Statute includes violations of the rules of warfare, according to which the use of military force is restricted to combatants and military objects.
The war criminal in the Kremlin is systematically waging war against the Ukrainian civilian population.[15] The daily death toll is not “collateral damage”; the attacks on civilian targets are carried out, among other things, with precisely guided cruise missiles. Moscow’s regular claims following these attacks, that these missiles had targeted military objects, are lies.
War crimes are an essential part of Russian warfare. Russian “strategy” includes the deliberate destruction of Ukrainian cities and the burial of their inhabitants beneath the rubble. War crimes committed by Russian soldiers, systematically and individually, sanctioned or ordered by officers, are an integral part of Russian military “craft.” Murder and rape, robbery, and looting are part of the everyday military life of the Russian army in Ukraine.
Presumably, the envy of the (relative) prosperity that Russian soldiers from economically underdeveloped areas of Russia find in Ukrainian localities also plays a motivating role in their raids. The Ukrainian police found the bodies of 1314 Ukrainian civilians murdered by Russian soldiers in Kyiv Oblast alone. In the towns of Bucha, Irpin, Borodyanka, and others, the Russian soldiery raged like lansquenets in the Thirty Years’ War. There is evidence of rape and murder of parents in front of their children and violence against women and girls aged between eight and 80.
“This is ordinary genocide in the 21st century.” Ukrainian police chief on Russian war crimes
At the beginning of the war, whenever the Russian army hit civilian objects with missiles, the Russian government claimed that the civilian objects in question had been used by Ukraine for military purposes, a lie like all Russian protestations of innocence. From the Russian side, news about the bombing of the maternity clinic was initially dismissed as “fake news.” Later, the Russian foreign minister admitted the Russian bombing, but claimed that the clinic had been used by the Azov National Guard unit. On 29 March, 70 people were deported from the clinic to Russia.
However, according to Stefanie Bock, targeted attacks on civilians and civilian objects are punishable under international law even if the civilians in question have lost their status under the IHL, that is, if civilians take part in combat operations, or if civilian objects are misappropriated for military tasks.
According to Art. 1.8 of the Fourth Geneva Convention (GC IV), civilian hospitals may not be attacked under any circumstances. Civilian “collateral damage” is acceptable under the law of war, provided it is not disproportionately high. However, there is no objective standard for this.
Destruction of civilian infrastructure
“We see that President Putin is trying to use winter as a weapon of war [against civilians- aut.],” stated NATO Secretary General Jens Stoltenberg on the sidelines of consultations with the foreign ministers of the 30 member states in Bucharest on 29 November 2022.
In the joint press conference with Ukrainian President Volodymyr Zelenskyy in Washington on 21 December 2022, US President Biden echoed Stoltenberg’s assessment and also spoke of Russia’s use of “winter as a weapon of war” against civilians.
II.3 Russian genocide against the Ukrainian population
To prove genocide, international jurisprudence generally requires that the group’s “physical-biological destruction” be deliberate; the destruction of their social and cultural existence is not sufficient.
The ICC’s Srebenica decision was the first genocide conviction. Serbian General Radislav Krstić was sentenced to 46 years in prison for aiding and abetting genocide on 1 August 2001.
In order to justify the use of force in Ukraine, Putin invoked the right of self-defense under Art. 51 of the UN Charter, the only foreseen exception to the prohibition of force. The recognition of the secession territories in the Donbas, the so-called “DNR” and “LNR”, were triggered by the genocide of the Russophone population, Putin asserted. The “special military operation” was about punishing those who are responsible for this genocide. Accordingly, Putin wants his campaign against Ukraine to be understood as a punitive expedition. He infers from the alleged, or even actual, violations of the law by other states, namely the US, the right to violate the law for his part, thus demanding “equal treatment in injustice,” contrary to the principle of international law “ex iniuria ius non oritur”.
Russia complied with the formality required by Art. 8, namely officially informing the Security Council – but the justification for its use of force was “so groundless that it cannot be called ‘argumentation,'” judges Angelika Nußberger, “whatever is put forward – by way of suggestion – is without any substance in terms of content.”[16] Putin’s assertion that a genocide of the Russians living in the Donbas had to be prevented, for which he invoked the international law principle of “protection of the civilian population” and claimed the right to “humanitarian intervention” was completely baseless.
Putin’s attempts at legitimacy are only a legal sham; he does not even try to provide evidence for his claims. In reality, he is indifferent to the reaction of world public opinion. At most, he wants to provide pseudo-arguments for a pro-Russian position to “neutral” countries like India and some African states, which give priority to their current economic interests in cooperation with Russia over their genuine interest in an intact international legal order.
Genocide in Mariupol [17] – one example
In the port city of Mariupol, where some 10 000 citizens met a violent death during the period of German occupation, Russians killed over 20 000 people in two months.
“The citizens of Mariupol’ are (or were) subjected to attacks (by the Russian army) which fulfill the objective and subjective elements (intent to destroy) of genocide,” Otto Luchterhand judged “The objective elements of the crime of genocide are fulfilled by the actions of the armed forces of Russia.”
The UN Genocide Convention protects the integrity of national, ethnic, racial, and religious groups from destruction. The Convention also protects parts of a group (“in whole or in part”).
The citizens of the city of Mariupol formed a protected national group, which was specially delimited by the encirclement.
“In the case of the encircled citizenry of Mariupol, it is a significantly singled out part of the Ukrainian people by virtue of isolation. Putin’s war was specifically directed against Ukrainians. This is demonstrated by the fact that on 2 April, at the request of Turkish President Erdoğan, Putin allowed the evacuation only of foreigners from the city,” Luchterhand argues.
I was inside when the Russians bombed Mariupol drama theater: survivor’s story
The criminal forms of genocide committed by Russia in Mariupol include all deeds listed in Art. II of the UN Genocide Convention from (a) “killing” to (d) “birth prevention”.
“The handling of the Mariupol case is – with all its consequences – a matter of the president and commander-in-chief of Russia’s armed forces, Vladimir Putin,” Luchterhand states.
Putin is operationally involved in the war, which is also proven by the fact that he personally refused French President Macron’s request to evacuate the citizens of Mariupol.
Genocide, according to its strict legal definition, is difficult to prove, said British lawyer Philippe Sands;[18] but he sees evidence of war crimes and crimes against humanity no less serious than genocide.
Russian child abduction – genocide under Art. 2 of the UN Genocide Convention
The abduction of Ukrainian children by Russian occupation authorities in the areas of Ukraine, which are or were occupied by the Russian army, is reminiscent of the German child abduction during WWII in occupied Poland.[19] “Racially pure” (blond and blue-eyed) children were stolen from their Polish parents and first taken to Litzmannstadt (Łódź) Ghetto, where they were classified according to so-called “Aryan tables” of the SS, their identities falsified and their names “Germanized” before being deported to Germany for “Germanization” and given to SS families for adoption. Some of these children were placed in homes of the so-called “Lebensborn” (Fount of Life) organization.
Even 75 years after the end of WWII, this child robbery is a “blank spot in historiography,” according to journalist Artur Wróblewski, and according to historian Joanna Lubecka of the Institute of National Memory in Krakow, a largely unexplored topic. Bogusław Sonik, a member of the Polish parliament, is trying to get these children recognized as victims of WWII. [20]
The offense of international child abduction was condemned in the Nuremberg war crimes trials as a “crime against humanity.” According to the definition of genocide in Art. 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) (1948),
“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group […] imposing measures intended to prevent births within the group, [and] [forcibly transferring children of the group to another group,- aut.]” are considered genocide.
NS-Germany’s organized child abduction had demographic-political reasons – like the abduction of Ukrainian children by the Russian occupation authorities in the occupied territories of Ukraine. After the illegal annexation of Ukrainian territory, the Russian occupation authorities declared the children in these territories to be Russians. An unknown number of children were abducted from orphanages before Russian troops withdrew from the oblast capital Kherson.
According to the Institute for the Study of War (ISW), Russia began to openly promote the forced adoption of Ukrainian children from the Donbas by Russian families. Russian officials are said to have abducted some 150 000 children from the Donbas by November 2022. Russian authorities have openly admitted that they are placing children from the occupied territories for adoption to Russian families in a manner that may constitute a violation of the CPPCG, ISW wrote on 16 November 2022. ISW points out that programs to deport Ukrainian children to Russia and forcibly adopt them under the guise of recovery and rehabilitation are likely to form the basis of a massive “Russian depopulation campaign, which is a broader ethnic cleansing.” This is a violation of the CPPCG.
The head of the UN Human Rights Office in New York, Ilze Brands Kehris, said, there were “credible reports” that Ukrainian children were being separated from their parents and deported to Russia:
“We are concerned that the Russians have put in place a simplified procedure so that children there can be quickly naturalized and released for adoption to Russian families.”
These “credible reports” were confirmed by the Russian Commissioner for Children’s Rights, Maria Lvova-Belova, in a statement to The Moscow Times but presented differently. For example, in the bombed-out city of Mariupol, children “abandoned” by their parents were “rescued” from basements and brought to Russia, Lvova-Belova said,
“When we brought them to the Moscow region to nurse them back to health, at first they were very negative towards the president (Putin) and said nasty things. They sang the Ukrainian anthem and things like that […] But later this negative behavior turned into a love for Russia.”
Lvova-Belova, who publicly professes to deprive the abducted children of their Ukrainian identity and teach them “love for Russia,” set a good example herself by adopting a Ukrainian boy from Mariupol.
In a press conference on 26 October 2022, Lvova-Belova said that some 2000 “unaccompanied children” had been “evacuated” from Ukraine to Russia; “350 orphans have been placed from the (Ukrainian) Donbas in foster families in 16 regions of Russia; a thousand more children are waiting for new parents.” President Putin praised her zeal and condemned Western sanctions against her by stating that one should thank her and bow deeply to her.
Russian Deputy Prime Minister Marat Chusnullin said on 14 October 2022 that “several thousand” children from Kherson Oblast in southeastern Ukraine “have already been placed in recreation homes and children’s camps in other regions of Russia.”
In August 2022, the Department of Family and Children in Krasnodar, southern Russia, posted on its website that more than 1,000 children from Ukraine had been adopted by families in distant cities in Russia Tooltip(Tyumen’, Irkutsk, Kemerovo); more than 300 were awaiting adoption. The website was quickly deleted, but a copy could be archived.
The Russian occupation authorities have Ukrainian children abducted to Russia, where they are “reprogrammed” to become Russians and put up for adoption. Ukrainian parents trying to retrieve their abducted children face insurmountable bureaucratic barriers. Lvova-Belova called Ukrainian demands for the return of Ukrainian children “incomprehensible.” She accused parents who had been separated from their children as a result of Russian attacks of abandoning them. “And now – for whatever reason – they want the children back!”
In May 2022, President Putin issued a decree allowing Russians to quickly and easily adopt Ukrainian children. Oleksandra Romantsova of the Ukrainian Center for Civil Liberties and winner of the 2022 Nobel Peace Prize said Russia had changed its adoption law to allow Ukrainian children to be handed over to Russian families as quickly as possible.
The Ukrainian Commissioner for Children’s Rights, Darya Herasymchuk, said in November 2022 that 10 764 Ukrainian children had been deported to Russia without their parents, according to reports from relatives. In July 2022, the OSCE reported that 2,000 Ukrainian children had been taken to Russia. In its report of 12 December 2022 to the UN Committee on the Rights of the Child (CRC), Human Rights Watch (HRW) stated that the number of Ukrainians deported to Russia, including children, “remains unclear.”
Plummeting birth rate
In 2021, Ukraine’s birth rate was 1.1; in 2023, it will fall to 0.8.[21] The foreseeable drop of the birth rate in 2023 as a result of the war, in particular as a result of the separation of families can, in analogy to child stealing, be considered genocide according to Art. 2 of the UN Genocide Convention. A considerable part of the fleeing “half-families” will probably never return. In addition, there is an abnormally high mortality rate due to war-related malnutrition and lack of medical care.
According to Ella Lybanova, director of the Ptoukha Institute for Demography and Social Studies of the National Academy of Sciences of Ukraine. Ukraine’s population will fall to 35 million by 2030. It is obviously Russia’s intention to change the demographic composition of Ukraine.
II.4 Russia’s crimes against humanity
Flight and displacement
According to the refugee agency UNHCR, the Russian attack on Ukraine led to the largest movement of refugees since WWII. Almost 8 million people have fled the country, and another 6 million are internally displaced persons (IDPs), according to Katharina Lumpp, UNHCR representative in Germany. This number of almost 14 million corresponds to about one-third of the total population of Ukraine (41 million).
According to UNHCR, the number of Ukrainian refugees registered in Europe at the end of January 2023 was 7,996,573; of these, 4,952,938 had received temporary protection.[22]
In the first weeks of the war, many russophone Ukrainians fled to Russia. According to the UNHCR/ OCHA, there amounted to around 2,952,000 at the beginning of January 2023.
Abduction and deportation
After 6 November 2022, the Russian occupation authorities, under the euphemistic term of “evacuation,” deported the inhabitants of five municipalities of the Kakhovka district located along the Dnipro on the left bank, where the Russian army established a defensive line. Iryna Vereshchuuk, Ukraine’s Deputy Prime Minister, announced that 45,000 Ukrainians had been deported to Russia from the city of Berdiansk on the Sea of Azov. 75,000 citizens had fled the city to unoccupied territories.
US Ambassador Linda Thomas-Greenfield told a UNSC meeting on 8 September 2022 that it was estimated that between 900,000 and 1.6 million people had been deported from their homes, “They are interrogated, they are detained, they are forcibly deported. Some are sent to the most remote parts of eastern Russia.” The Ukrainian UN delegation even claims that up to 2,5 million people have been deported from the south and east of the country, often to far-flung regions of Siberia or Russia’s Far East.
That employees of the Russian-occupied Zaporizhzhia nuclear power plant (ZNPP)were also being deported was reported by the head of the operating company Energoatom. Petro Kotin told newspapers of the “Funke media group”: “About 200 people have already been detained.” For some of them, there is “no indication of where they are.” Ukrainian nuclear workers have also been killed or tortured. “It is very difficult for our staff to work there,” Kotin said. He said the 1000 or so staff still there knew it was important to provide nuclear safety and fire protection.
In its resolution of 15 September 2022, the European Parliament called on Russia to immediately end the deportation of Ukrainian citizens to Russia, especially children. Russia speaks of voluntary departures. Russia’s UN Ambassador Vasily Nebenzya rejected accusations and dismissed them as Western propaganda. Those who resettled fled Ukraine voluntarily. They could move freely in Russia. There would be no restrictions on exiting the country. Many people are fleeing from a “Ukrainian regime” that abuses its citizens as human shields, Nebenzya “explained.”
“Ethnic cleansing”
The US-based ISW suspects that the Russian occupation authorities are conducting ethnic cleansing by depopulating occupied Ukrainian territories through deportations and repopulating them with Russian citizens. According to ISW, the occupation authorities bring Russian citizens to the occupied territories for civilian tasks, including ZNPP. And they force Ukrainian residents to accept Russian passports. According to ISW, forced deportation of Ukrainian citizens to Russia would be deliberate ethnic cleansing and thus a violation of the UN Convention on the Prevention of Genocide.
The Russian occupation authorities may be preparing a mass deportation of Ukrainian citizens from the occupied territories to Russia, the Bloomberg news service reported. In mid-December, Russian Prime Minister Mikhail Mishustin issued a decree allocating an additional €2.5 billion ($2.8 billion) in the budget to finance what was described as a “potential resettlement” of Ukrainians from Kherson Oblast to Russia.
According to Ukrainian Deputy Prime Minister and Minister for the Reintegration of Temporarily Occupied Territories, Iryna Vereshchuk, an unspecified number of Ukrainian citizens have already been forcibly resettled in 57 regions of Russia, including the Far East and Siberia.
The Russian government also faces accusations of “internal ethnic cleansing.” The partial mobilization seems to particularly affect the ethnic minorities in Russia, as indicated by the violent protests in their settlement areas, especially the resistance of the Muslim population in Dagestan in North Caucasus. Ukrainian President Zelenskyy made an appeal to Russia’s ethnic minorities, encouraging them to resist.
“Selection” in Russian “filtration camps”
The US government accused the Russian military in the UNSC of maintaining “filtration camps” in the territory it occupies in Ukraine, from which arrested Ukrainians were deported to Russia against their will after “filtration.”[23]
The European Parliament (EP) strongly condemned the reported atrocities of the Russian armed forces and occupation authorities in the officially called filtration camps as war crimes. In many cases, “segregated” people disappeared without a trace.
“Filtration” of people means “selection.” Radio correspondent Antje Passenheim from the ARD studio in New York quoted the US ambassador Linda Thomas-Greenfield in the World Security Council: The word “filtration” alone gives one goose bumps; it is a word for atrocities reminiscent of a very dark phase of the past.
