Genocide. It was this well-known legal figure in international law that Vladimir Putin used to evoke when talking about Ukraine’s action against the ethnic Russian population concentrated in the eastern part of the territory, the Donbass. It was also one of the justifications used by the Russian president to initiate action against his neighbor.
Typification is one that world courts are aware of. It is up to the International Criminal Court and the International Court of Justice to assess whether individuals and States have committed this and other types of crime, such as those of war, aggression and against humanity.
Genocide. This is the accusation that Volodymyr Zelensky made against Russia, when visiting this Monday (4) the city of Butcha, where hundreds of civilian bodies were found in the streets and in mass graves last weekend after the withdrawal of troops from Moscow.
On the legal front, Putin’s initial claim has been contradicted by the instances he somehow legitimized in his speech when he accused the Ukrainian action. And, in a move contrary to what the Kremlin leader claimed, the courts are now turning to analyze possible crimes committed in the conflict by the Russian state and the country’s authorities.
The International Court of Justice has already invalidated the genocide argument against Russians in Ukraine and ordered Putin to stop the war – a decision ignored. The International Criminal Court, on the other hand, has opened an investigation into what is happening in the Eastern European country, although getting it to flow into a lawsuit could take years.
Russia and Ukraine are not signatories of the Rome Statute, founder of the ICC, but Volodymyr Zelensky’s country has accepted that the court acts there. The opening of the investigation is a rare episode of international mobilization – 41 countries asked the institution to organize a mission to collect evidence of crimes committed in the conflict.
Specialists were impressed by the celerity. “This is an unprecedented case of the collection of evidence by the court even during the course of the conflict”, says Cláudia Perrone, professor of international law at USP.
And the investigation will look not just at what has happened now, but since 2014, when Russia annexed the Crimean peninsula and continued conflict in the Donbass began — giving strength to the view that war may even have broken out now, but it has been generating human costs for at least eight years.
The pressure, already great, escalated last weekend, when the presence of the professional press in Butcha allowed the registration of bodies strewn across the streets. US President Joe Biden was one of the leaders to once again accuse Putin of war crimes over the episode.
On the agenda in international courts are two possible crimes: aggression and war. The first refers to what Moscow did on February 24, when it militarily invaded the territory of a sovereign state, Ukraine. Blocking a country’s ports or sea exit is also considered a crime of aggression — something that Kiev officials say the Russians have also tried to do.
War crimes, on the other hand, cover a huge umbrella. This group includes, in particular, attacks on civilians, health workers and teams providing humanitarian support. Bombing cities or towns that are not essentially military clusters is also on the list, as is the use of biological and chemical weapons.
The basis for what constitutes a war crime or not is in the Geneva Conventions, written throughout the 20th century. The main examples listed in them may dialogue more with alleged practices committed by Russian troops in the war, but it is also true that the authorities are keeping an eye on what the Ukrainian Army has done.
Amnesty International has already urged Kiev to respect prisoners of war. After all, for the ICC, intentionally depriving a detainee of a fair trial, torturing him, publicly exposing him or forcing him to serve in the Army are also considered war crimes.
THE sheet Amnesty’s director for Eastern Europe and Central Asia, Marie Struthers, explains that the organization has been working on collecting evidence about war crimes. The process involves military analysts and video authentication. She exemplifies with an attack on a hospital in eastern Ukraine, in mid-March, which resulted in the death of a child and two adults: at least 60 videos, from different angles, were analyzed and proved the authenticity of the complaint.
“There is a Russian military pattern that we have documented over the last ten years and seen now in Ukraine,” he says. “The military conduct is very similar, with attacks on civilians, schools and hospitals, as we have also seen in the war in Syria. [onde a Rússia apoia o regime de Bashar Al Assad]in Chechnya and Georgia.” Amnesty is demanding that not only the war crime be tried, but also that of aggression.
A project by the Associated Press news agency in partnership with Frontline, linked to the American broadcaster PBS so far, has verified 34 attacks on hospitals, ambulances and health workers in the war.
The collection of evidence on possible crimes also makes it possible to observe a striking feature of the conflict: the huge volume of scenes recorded by local residents and published on social networks.
“This factor will be a real game-changer in the way cases are investigated and prosecuted,” Alex Whiting, visiting Harvard professor, member of the ICC and assistant attorney at the court that judges crimes committed in the War of Kosovo.
Of course, extreme caution is needed — after all, much of the content can be falsified in the midst of a disinformation war — but Whiting is optimistic. “There is more and more discussion about how first responders and locations can help preserve evidence, and one of the ways is to use your cell phone to take videos.”
The course of international investigations, however, tends not to be as fast as the beginning of this process, the experts explain. Russia could, for example, be ordered to pay compensation to Ukraine by the International Court of Justice. Putin and other officials in the country, both civilian and military, could face trial at the ICC and be sentenced to prison.
The court, however, only judges individuals who are present in court. So far, in the 31 cases analyzed by the ICC, only four defendants have been convicted — and given sentences ranging from 9 to 14 years in prison. Several others received arrest warrants, but many are on the run. This is where, according to Cláudia Perrone, a professor at USP, an embarrassment for Putin can be created.
If the investigation decides that the Kremlin leader has committed crimes, whether of war or aggression, and an arrest warrant is issued, Putin may have problems traveling to countries that are signatories to the Rome Statute – Brazil is one of them.
These nations, even if there are differences, would be urged to hand it over to the ICC. “Time can be an enemy in these international cases, but an arrest warrant makes a leader’s life change; it’s inevitable.”
