How Putin and Russian commanders could avoid war crime prosecutions

A Russian withdrawal from towns around the Ukrainian capital, Kyiv, has led to the discovery of corpses. 

Associated Press journalists in Bucha counted dozens of bodies in civilian clothes and apparently without weapons, many seemingly shot at close range, and some with their hands bound or their flesh burned.

All of this has prompted accusations of Russian war crimes.

CBC explains how such apparent war crimes would be prosecuted, and the challenges the prosecutions might face.

During war, the Geneva Conventions of 1949, along with the 1977 Additional Protocols, have outlined certain protections for civilians and prisoners of war. Any serious breach of those protections may be considered a war crime. That includes willful killing, torture or inhumane treatment, intentionally directing attacks against civilians and killing a combatant who has laid down their weapons.

Since the beginning of the invasion of Ukraine on Feb. 24, there have been accusations that Russia has committed war crimes. Such allegations include the bombing last month of a theatre and maternity hospital in the southeastern Ukrainian city of Mariupol.

Tom Dannenbaum, an assistant professor of international law at Tufts University in Massachusetts, said those two incidents may well have been war crimes. But determining that could pose challenges, he said, as it might be difficult to prove those sites were intended targets or that the individuals responsible for bombing knew they were hitting a theatre or hospital.

The challenge, he said, is distinguishing the deliberate targeting of such objects or their destruction in indiscriminate attacks from errors attributable to the "fog of war."

"But once you see people with hands tied behind their back, clearly executed, that's just straightforward," Dannenbaum said. "It's very difficult to understand that as anything other than a deliberate killing of somebody who's a protected person under the law."

Even if they were combatants, as soon as they were captured, they would have been protected under the Geneva Conventions against being killed as a prisoner of war, Dannenbaum said.

Gregory Gordon, a law professor at the Chinese University of Hong Kong, said while it seems clear that the recent images from Ukraine of people bound and shot suggest war crimes have been committed, "the question is by whom."

'If we're talking about bringing people to justice, then that becomes a much more complicated question," said Gordon, who worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda.

The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations of war crimes, and last month, ICC prosecutor Karim Khan said he was opening an investigation "into the situation in Ukraine."

But countries can open up their own war crimes investigations, regardless of where the war crimes happened or the nationality of the perpetrator. They must, however, pass domestic legislation authorizing universal jurisdiction for war crimes. (Canada has done so, with its Crimes Against Humanity and War Crimes Act, enacted in 2000.)