tag:theconversation.com,2011:/fr/topics/international-criminal-court-771/articlesInternational Criminal Court – The Conversation2024-01-13T14:00:34Ztag:theconversation.com,2011:article/2205232024-01-13T14:00:34Z2024-01-13T14:00:34ZWhat enforcement power does the International Court of Justice have in South Africa’s genocide case against Israel?<figure><img src="https://images.theconversation.com/files/569112/original/file-20240112-23-eadg1e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judges take their seats prior to the hearing of Israel's defense at the International Court of Justice on Jan. 12, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/judges-take-their-seats-prior-to-the-hearing-of-israels-news-photo/1919200308?adppopup=true">Dursun Aydemir/Anadolu via Getty Images</a></span></figcaption></figure><p><em>South Africa <a href="https://apnews.com/article/world-court-israel-genocide-gaza-south-africa-774ab3c3d57fd7bcc627602eaf47fd98">says that Israel is committing genocide</a> against Palestinians in Gaza and has asked the International Court of Justice to intervene and stop Israeli military action in Gaza.</em> </p>
<p><em>Israel issued its initial defense to South Africa’s charges on Jan. 12, 2024, at the International Court of Justice – the United Nations’ highest human rights court – based in The Hague, Netherlands. <a href="https://www.bbc.com/news/world-middle-east-67944903">Israel argues that</a> its military is trying to minimize civilian harm and that South Africa is trying to both weaponize the term genocide and interfere with Israel’s right of self-defense against Hamas.</em></p>
<p><em>But can the International Court of Justice enforce any decision it makes in the case? “The question of the International Court of Justice’s actual powers of enforcement is a key issue on many people’s minds,” said <a href="https://search.asu.edu/profile/858959">Victor Peskin</a>, a scholar of international relations and human rights.</em> </p>
<p><em>We spoke with Peskin to better understand the potential impacts of South Africa’s <a href="https://www.icj-cij.org/case/192">genocide complaint against Israel</a> and the scope of the court’s power.</em> </p>
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<a href="https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men wearing dark jackets - one wearing a tie and the other wearing an old fashioned white wig - sit together at a table with the words Israel in a placard at the front of the table." src="https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571666/original/file-20240126-9772-jccs82.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Israeli lawyers Gilad Noam, left, and Malcolm Shaw sit inside the International Court of Justice in The Hague, Nethalnds, on Jan. 26, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gilad-noam-israelian-deputy-attorney-general-for-news-photo/1962733903?adppopup=true">Michael Porro/Getty Images</a></span>
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<h2>What is the significance of South Africa bringing these charges?</h2>
<p>South Africa is a former apartheid state that underwent a largely peaceful transition to democracy in the mid-1990s. Symbolically, the fact that South Africa is bringing the case may have particular resonance. </p>
<p>However, South Africa has itself been accused of thwarting the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 U.N. Genocide Convention</a>. This happened <a href="https://www.reuters.com/article/idUSKBN1791FQ/">after it hosted and failed to arrest</a> Sudan’s then-President Omar al-Bashir in 2015. Al-Bashir was <a href="https://www.coalitionfortheicc.org/cases/omar-albashir#:%7E:text=Africa-,Sudanese%20President%20Omar%20al%2DBashir%20has%20been%20wanted%20by%20the,wanted%20by%20an%20international%20court.">charged by the International Criminal Court</a> with committing war crimes and genocide in the Darfur region of western Sudan in the 2000s. </p>
<p>South Africa’s case against Israel is the fourth genocide-related case at the International Court of Justice. The others pertained to the conflicts in Bosnia, Myanmar and Ukraine.</p>
<h2>What precedent did the Gambia-Myanmar case set for the court?</h2>
<p>There is some precedence for countries to bring a case regarding a conflict it is not directly involved in to the International Court of Justice. In 2019, Gambia filed a complaint at the <a href="https://iimm.un.org/icj-the-gambia-v-myanmar/#:%7E:text=On%2011%20November%202019%2C%20The,in%20Rakhine%20State%20as%20required">court against Myanmar</a>, regarding its alleged genocide of the Rohingya people, an ethnic minority living in Myanmar. </p>
<p>The <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Genocide Convention</a> obligates all ratifying states to comply with the treaty. So, countries without a direct connection to an alleged case of genocide can legally bring a genocide complaint forward. </p>
<h2>What are provisional measures and why are they important?</h2>
<p>The International Court of Justice judges are still reviewing and adjudicating the merits of Gambia’s genocide complaint. There isn’t a final decision on that yet. The court did, within a relatively short period of time after it held a hearing in the case, issue written orders called provisional measures, <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20191111-APP-01-00-EN.pdf">directing Myanmar</a> to prevent genocide and to preserve evidence related to the case. </p>
<p>If the judges were convinced that the Israeli military’s attacks on Gaza were excessive, they could quickly call for a halt in Israel’s attacks and a cessation of hostilities.</p>
<p>In theory, this could put public pressure on Israel to curtail or halt its military campaign. But even if the International Court of Justice calls for this, it would not necessarily indicate that the court will eventually rule that genocide has occurred. </p>
<h2>The International Court of Justice lacks enforcement power. So, is this case more than political theater?</h2>
<p>The International Court of Justice does not prosecute individuals, but rather focuses on resolving legal disputes between countries. The Hague-based International Criminal Court, which has the legal authority to investigate and prosecute individuals for war crimes, crimes against humanity and genocide, has opened up a <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-khan-kc-ramallah-situation-state-palestine-and-israel">separate investigation</a> into Israeli forces’ and Hamas militants’ alleged violations of international humanitarian law. </p>
<p>It’s always an open question – will an International Court of Justice ruling even be enforced and have any tangible effect? </p>
<p>While the International Court of Justice moved at a glacial pace in reaching a final decision in the Bosnia-Serbia case, it has shown that it can move more quickly when addressing mass violence. The judges did issue provisional measures calling for the prevention of violence in the Myanmar and Russia cases. </p>
<p>However, there is <a href="https://www.justsecurity.org/80703/qa-icj-order-on-provisional-measures-ukraine-russia/">little indication</a> that the International Court of Justice’s provisional measures eased <a href="https://www.cfr.org/global-conflict-tracker/conflict/rohingya-crisis-myanmar">Myanmar’s crackdown on the Rohingya</a>. Similarly, the ICJ’s provisional measures calling on Russia to halt its invasion of Ukraine has <a href="https://www.icj-cij.org/case/182">had no apparent effect</a>.</p>
<p>This International Court of Justice could call for the Israeli military to end or curtail its conduct in Gaza, or to ease the flow of much-needed humanitarian aid for Palestinians, for example. This could put considerable international pressure on Israel. It could also push Israel’s strongest allies, such as the United States and the United Kingdom, to put more pressure on Israel. </p>
<h2>What does the ICJ’s track record on genocide tell us about this current case?</h2>
<p>In the first <a href="https://www.icj-cij.org/case/91/judgments">case of this kind</a>, in 1993, <a href="https://www.icj-cij.org/case/91#:%7E:text=On%2020%20March%201993%2C%20the,the%20United%20Nations%20on%209">Bosnia instituted proceedings</a> against Serbia, which was then part of the former republic of Yugoslavia, for alleged genocide. </p>
<p>The International Court of Justice’s eventual <a href="https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-PRE-01-00-EN.pdf">ruling in 2007</a> in the Serbia case was controversial. The court ruled that genocide was committed in the Bosnian war but that the government of Serbia was not directly responsible for it. Instead, the court ruled that the Serbian government failed to prevent genocide in Srebrenica. </p>
<p>Srebenica was the eastern, Muslim enclave in Bosnia that <a href="https://www.britannica.com/event/Srebrenica-massacre">Bosnian-Serb military forces overran</a> in 1995, murdering around <a href="https://www.hmd.org.uk/learn-about-the-holocaust-and-genocides/bosnia/srebrenica/">8,000 Muslim boys and men</a>. </p>
<p>The court also found the Serbian government violated the Genocide Convention by failing to arrest former Bosnian Serb Gen. <a href="https://www.britannica.com/biography/Ratko-Mladic">Ratko Mladic,</a> then wanted for genocide by the U.N. International Criminal Tribunal in the former Yugoslavia. </p>
<p>That judgment by the International Court of Justice was a big blow and disappointment to many Bosnian Muslims and global human rights activists. </p>
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<a href="https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of people wave Palestinian flags outside of a tall European building on a grey day." src="https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571671/original/file-20240126-25-3c6g4l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pro-Palestinian protesters gather outside the International Court of Justice on Jan. 26, 2024, the day the justices issued a preliminary order regarding Israel’s war in Gaza.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-holding-palestinian-flags-gather-outside-the-news-photo/1955396359?adppopup=true">Nikos Oikonomou/Anadolu via Getty Images</a></span>
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<h2>How long could it take the ICJ to determine whether Israel committed genocide?</h2>
<p>It could take a number of years. The Bosnia-Serbia case took 14 years. It is unclear if the South Africa-Israel case would have to wait for a final judgment to first be rendered in the Gambia-Myanmar and Ukraine-Russia cases, which have not concluded.</p><img src="https://counter.theconversation.com/content/220523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victor Peskin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While the International Court of Justice lacks enforcement powers, it can issue orders that could heighten international pressure on Israel to curtail some of its offensive in Gaza.Victor Peskin, Associate professor of politics and global studies, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2205312024-01-11T20:29:27Z2024-01-11T20:29:27ZCanada is being hypocritical by failing to support South Africa’s genocide case against Israel<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canada-is-being-hypocritical-by-failing-to-support-south-africas-genocide-case-against-israel" width="100%" height="400"></iframe>
<p>South Africa has made submissions at the International Court of Justice in its <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">genocide case against Israel</a>. It’s requesting the court order provisional measures to safeguard the rights of Palestinians in Gaza that would protect them from genocide until the case is heard.</p>
<p>South Africa alleges that Israel is engaging in genocidal acts violating the United Nations’ <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 Genocide Convention</a>. It accuses Israel of engaging in killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the physical destruction of the Palestinian people in Gaza in whole or in part, and imposing measures intended to prevent births within the group. </p>
<p>South Africa argues that statements by Israeli officials, including Prime Minister Benjamin Netanyahu’s comment that Israel is waging “<a href="https://www.timesofisrael.com/liveblog_entry/netanyahu-to-dutch-leader-this-war-is-civilization-vs-barbarism/">a battle of civilization against barbarism</a>,” constitute evidence of its intent to destroy Palestinians in Gaza. </p>
<p>Among other measures, South Africa is asking the court to order Israel to immediately suspend its military operations in Gaza. </p>
<h2>Immune to genocide accusations?</h2>
<p>In presenting its defence to the court on Friday, <a href="https://apnews.com/article/world-court-israel-genocide-gaza-south-africa-65b087102893dd06222370b10f0b4e4d">Israel said it was conducting its war in Gaza in line with international humanitarian law</a>. As such, it argued, the court could not plausibly infer that Palestinians in Gaza require protection from genocide. </p>
<p>Israeli officials have called the lawsuit “<a href="https://www.bbc.com/news/world-middle-east-67866342">blood libel</a>” and the United States has dismissed it as “<a href="https://x.com/IsraelinUSA/status/1742663386674937905?s=20">completely without any basis in fact whatsoever</a>.” </p>
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<p>Nonetheless, <a href="https://www.aljazeera.com/news/2024/1/9/which-countries-back-south-africas-genocide-case-against-israel-at-icj">an increasing number of states have voiced support</a>, including the <a href="https://www.mfa.gov.tr/OIC.en.mfa">57-member Organization of Islamic Cooperation</a>, the Arab League, Brazil, Turkey, Malaysia, Jordan, the Maldives, Bolivia and Namibia. France has indicated <a href="https://x.com/KenRoth/status/1742524291445309818?s=20">it will support</a> the court’s decision. </p>
<p>On Friday, <a href="https://www.thecanadianpressnews.ca/politics/canada-not-getting-behind-premise-of-south-africas-case-against-israel/article_c27e942d-ce4e-5e1b-87a1-73d84bd081aa.html">Prime Minister Justin Trudeau said</a> that while Canada believes in the importance of the International Court of Justice as an institution, that “does not mean that we support the premise of the case brought forward by South Africa.”</p>
<p><a href="https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-prevent-genocide-against">UN experts</a>, <a href="https://www.icj.org/gaza-occupied-palestinian-territory-states-have-a-duty-to-prevent-genocide/">international organizations</a> and <a href="https://www.alexneve.ca/blog/palestinian-rights-advocacy-international-law">numerous Canadian</a> <a href="https://twailr.com/public-statement-scholars-warn-of-potential-genocide-in-gaza/">and international</a> legal scholars have warned that Israel’s war risks becoming — or has already become — genocide.</p>
<p>Other prominent Canadian legal voices disagree. Former Supreme Court Justice Rosalie Abella argued South Africa’s case is “<a href="https://www.theglobeandmail.com/opinion/article-south-africas-genocide-case-against-israel-exploits-the-post-war-legal/">an insult to what genocide means</a>” because Hamas attacked Israel on Oct. 7, 2023, and because the crime of genocide was defined in response to the Holocaust. </p>
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<p>Such a stance suggests Israel should be shielded from accusations of genocide. Yet as South Africa argued, no atrocity can justify genocide. It also ignores how <a href="https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution">structural conditions of apartheid</a> and <a href="https://www.ohchr.org/en/press-releases/2022/10/commission-inquiry-finds-israeli-occupation-unlawful-under-international-law">unlawful occupation</a> set the stage for genocide to occur.</p>
<h2>Canadian hypocrisy</h2>
<p>No state is immune from genocide, including Canada. In fact, <a href="https://theconversation.com/ignore-debaters-and-denialists-canadas-treatment-of-indigenous-peoples-fits-the-definition-of-genocide-170242">Canada’s history of genocide against Indigenous Peoples</a> puts it in a unique legal and political position with respect to Gaza. Over the last decade, the Canadian government has exhibited both colonial self-awareness and intransigence. </p>
<p>Trudeau <a href="https://www.cbc.ca/news/politics/trudeau-mmiwg-genocide-1.5161681">has accepted findings</a> by the National Inquiry into Missing and Murdered Indigenous Women and Girls that Canada is responsible for a “<a href="https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Supplementary-Report_Genocide.pdf">race-based genocide</a>.” But the federal government has <a href="https://www.cbc.ca/news/politics/judge-approves-23-billion-first-nations-child-welfare-agreement-1.7006351">continued to defend</a> many of the discriminatory policies that constitute a pattern of genocidal conduct.</p>
<p>Canada finds itself at a crossroads when it comes to its genocide policy, both at home and abroad. </p>
<p>In November 2023, Canada joined Denmark, France, Germany, the United Kingdom and the Netherlands <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20231115-wri-01-00-en.pdf">as an intervenor</a> supporting <a href="https://iimm.un.org/icj-the-gambia-v-myanmar/#:%7E:text=The%20Gambia%20brought%20the%20case,the%20Genocide%20Convention%20in%201956.">The Gambia’s genocide case against Myanmar</a>. It did so based on the “common interest” in supporting the UN Genocide Convention, which calls for the prevention and punishment of genocide. </p>
<p>In that case, Canada advanced some important legal positions that would mean its objections to South Africa’s case would <a href="https://www.theguardian.com/law/2024/jan/07/uk-accused-of-hypocrisy-in-not-backing-claim-of-genocide-in-gaza-before-icj">go beyond hypocrisy</a>; they represent a complete departure from legal interpretive frameworks Canada has already accepted.</p>
<p>Particularly noteworthy is the expansive interpretation in the Myanmar case — adopted by Canada and the other intervenors — of the genocidal act of imposing conditions of life calculated to bring about the physical destruction of a group of people.</p>
<p>When assessing whether particular actions will cause group destruction, the joint intervenors submitted that special attention should be paid to the impact on children. </p>
<p>Citing examples of food insecurity, the deprivation of access to medical care and forced displacement, it notes that a “situation in which children are unable to survive might … lead to the inability of the group as a whole to regenerate itself.”</p>
<p>The intervenors in the Myanmar case further argued that because “genocidal intent is rarely formulated expressly,” efforts to destroy a group in whole or in part can be inferred based on a pattern of conduct — for example, the deliberate creation of a situation in which children are unable to survive. </p>
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Read more:
<a href="https://theconversation.com/gazas-graveyard-for-children-why-palestinians-must-be-included-in-the-international-refugee-protection-regime-216579">Gaza's 'graveyard' for children: Why Palestinians must be included in the international refugee protection regime</a>
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<h2>Canada’s opportunity</h2>
<p>Israel’s war in Gaza is <a href="https://www.washingtonpost.com/investigations/interactive/2023/israel-war-destruction-gaza-record-pace/">widely recognized</a> as one of the most destructive in recent memory.</p>
<p><a href="https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-89">More than 23,000 Palestinians have been killed and 59,000 have been injured</a> — mostly women and children — and 85 per cent of the population <a href="https://www.hrw.org/news/2023/12/20/most-gazas-population-remains-displaced-and-harms-way">has been displaced</a>. Gaza is facing a grave public health crisis, and the World Food Programme warns that “<a href="https://news.un.org/en/story/2024/01/1145227">everyone in Gaza is hungry</a>.”</p>
<p>Like all parties to the Genocide Convention, Canada has a legal obligation to take concrete actions to prevent genocide. Working to end Israel’s war on Gaza and address the root causes of the conflict is an important part of fulfilling that duty. </p>
<p>How can Canada exert influence on Israel and the world to advance Palestinian human rights and self-determination while maintaining its credibility at home and abroad? </p>
<p>Ironically, the answer may lie in Canada’s self-awareness, however limited, of its domestic human rights situation in terms of genocide.</p>
<p>By supporting The Gambia’s case and accepting genocide has taken place against Indigenous Peoples, Canada has opened itself up to criticism and potential legal responsibility. Its vulnerability to liability for genocide presents an opportunity for it to act as an honest broker to facilitate a long-term resolution of the conflict in Israel and Palestine. </p>
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Read more:
<a href="https://theconversation.com/why-we-should-consider-a-transitional-administration-for-gaza-219476">Why we should consider a transitional administration for Gaza</a>
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<h2>Next steps for Canada</h2>
<p>Today, international legal struggles centre the rights of individuals and peoples, as opposed to states, more than ever before. International criminal justice <a href="https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1026&context=law_faculty_scholarship">tribunals have proliferated</a>, and UN bodies <a href="https://www.icty.org/en/about/tribunal/establishment">now accept</a> genocide prosecution as a means to achieve international peace and security.</p>
<p>Canada must clarify its stand on South Africa’s case. Even if Canada does not support South Africa’s argument that Israel is currently committing genocide, it would be unreasonable and immoral were it not to accept that there is a serious and imminent risk of genocide in Gaza requiring some form of interim relief by the court. Canada’s international reputation is on the line.</p><img src="https://counter.theconversation.com/content/220531/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heidi Matthews receives funding from the Social Sciences and Humanities Research Council of Canada, York University, Women and Gender Equality Canada and the British Academy. </span></em></p>Canada doesn’t support the case before the International Court of Justice that Israel is guilty of genocide in its war against Gaza. That’s contrary to its stance on other cases of genocide.Heidi Matthews, Assistant Professor of Law, Osgoode Hall Law School, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206922024-01-09T12:59:46Z2024-01-09T12:59:46ZSouth Africa’s genocide case against Israel: expert sets out what to expect from the International Court of Justice<p><em>The International Court of Justice (ICJ) will be <a href="https://www.icj-cij.org/node/203397#:%7E:text=On%20Thursday%2011%20and%20Friday%2012%20January%202024%2C%20the%20International,Israel%20on%2029%20December%202023.">holding public hearings</a> on 11-12 January at the Peace Palace in The Hague, the seat of the court, in a case brought by South Africa against Israel. South Africa has accused Israel of violating the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 Genocide Convention</a> in its <a href="https://theconversation.com/after-3-months-of-devastation-in-the-israel-hamas-war-is-anyone-winning-220644">military bombardment and siege of Gaza</a>, which started after the deadly 7 October Hamas attack on Israel. Both Israel and South Africa have ratified the genocide convention. We asked human rights and international law expert Magnus Killander for his insights.</em></p>
<h2>What is the International Court of Justice?</h2>
<p>The International Court of Justice (<a href="https://www.icj-cij.org/home">ICJ</a>) is one of many international courts. It is the most prominent and widely regarded as the most authoritative as it is the only judicial body set out in the <a href="https://www.un.org/en/academic-impact/un-charter#:%7E:text=The%20UN%20Charter%20is%20the,procedures%20of%20the%20United%20Nations.">Charter of the United Nations</a>. It has general jurisdiction rather than being limited to specific areas of law such as the <a href="https://wcl.american.libguides.com/c.php?g=563260&p=3877828#:%7E:text=International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20(ITLOS)*&text=The%20International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20is,and%20application%20of%20the%20Convention.">International Tribunal for the Law of the Sea</a> or regional human rights courts such as the <a href="https://www.african-court.org/wpafc/">African Court on Human and Peoples’ Rights</a>. </p>
<p><a href="https://www.icj-cij.org/home">The ICJ</a> should be distinguished from the <a href="https://www.icc-cpi.int/">International Criminal Court</a> (ICC), which also has its seat in The Hague, in the Netherlands. The ICC can convict and sentence individual perpetrators for violations such as genocide, crimes against humanity and war crimes. In contrast the ICJ deals only with the responsibility of states for violations of international law, not with accountability of individuals. </p>
<p>Parallel to the process at the ICJ, the prosecutor of the <a href="https://www.icc-cpi.int/palestine">ICC has been investigating “the situation”</a> in Palestine for some time, and may prosecute those allegedly responsible for atrocities committed by all parties to the conflict.</p>
<h2>What is the International Court of Justice’s jurisdiction?</h2>
<p>It can hear cases brought by states (“contentious cases”) and requests by United Nations bodies, such as the <a href="https://www.un.org/en/ga/">General Assembly</a>, for advisory opinions. The ICJ has delivered judgments in close to <a href="https://www.icj-cij.org/index.php/contentious-cases">150 “contentious cases”</a> since its first judgment in 1949, and 27 advisory opinions since its first advisory opinion in 1948. </p>
<p>The first time a case was brought to the ICJ alleging violation of the Genocide Convention was in 1993 by <a href="https://www.icj-cij.org/case/91">Bosnia against Yugoslavia</a>. The second case was in 2019 <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">by The Gambia against Myanmar</a>. The third case was by <a href="https://www.icj-cij.org/case/182">Ukraine against Russia</a> following the Russian invasion of Ukraine in February 2022. </p>
<p>Of these cases the ICJ has so far only handed down a final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">2007 Bosnian judgment</a>, 14 years after the case was initiated. </p>
<p>However, the ICJ has issued provisional measures in all the Genocide Convention cases, within a few months after the cases were brought to the court. Provisional measures are orders of the court to prevent irreparable harm. They bind the respondent state to refrain from certain actions until the court has delivered final judgment. The <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-SUM-01-00-EN.pdf">provisional measures in the Myanmar case</a> adopted by the court in January 2020 prohibited the state from, among other things, taking action against the minority Rohingya group by</p>
<blockquote>
<p>(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.</p>
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<p>While there have been fewer killings of Rohingya since the provisional measures, their <a href="https://www.hrw.org/news/2023/08/20/future-bleak-rohingya-bangladesh-myanmar">situation remains precarious</a> both in Myanmar and in Bangladesh, where many of them have taken refuge.</p>
<p>In the provisional measures order in <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">Ukraine v Russia</a> in 2022 the ICJ ordered Russia to immediately cease its military operations in Ukraine and ensure that any military units or irregular armed units conduct military operations. However, Russia’s war on Ukraine continues.</p>
<h2>What are the conditions for having a case heard by the ICJ?</h2>
<p>1) There must be a substantive jurisdictional basis for bringing the case. This can be, for example, by agreement by the parties or, as in the case under discussion, that both states are parties to a multilateral treaty that provides for disputes between state parties to be heard by the ICJ. <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Article IX of the Genocide Convention</a> is a case in point.</p>
<p>Israel ratified the Genocide Convention <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1950</a> and South Africa <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1998</a>. Palestine has been a <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">party to the Genocide Convention since 2014</a> and <a href="https://www.icj-cij.org/states-entitled-to-appear">may bring cases before the ICJ</a>, but hasn’t done so. </p>
<p>2) The state bringing the case must normally have an interest in the case. However, this does not apply to certain types of violations where all states in the world are considered to have an interest. Examples include alleged violations of the Genocide Convention and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading">Convention against Torture</a>. In its judgment in the 2022 case <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">against Myanmar on preliminary objections</a>, the ICJ stated that any state can bring a case to it in relation to a suspected violation by another state that is party to the Genocide Convention. </p>
<h2>The process</h2>
<p>The first step in the case is the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240103-pre-01-00-en.pdf">public hearing on provisional measures</a>. South Africa and Israel are allocated two hours each to present their arguments on provisional measures. A decision on provisional measures is usually taken within one or two months after the public hearing. </p>
<p>The ICJ only makes a provisional assessment of the case to issue provisional measures. Thus even if the ICJ issues provisional measures against Israel, it does not necessarily follow that the court will – in its final judgment – find that Israel has violated the Genocide Convention. </p>
<p>After a provisional measures decision, the ICJ will proceed to determine any preliminary objections raised by Israel, such as whether the court has jurisdiction to hear the case on the merits, and whether South Africa has standing to bring the case. </p>
<p>If the preliminary objections are unsuccessful, the ICJ will make a judgment on the merits of the case in which it determines whether Israel has violated the Genocide Convention. The process until a <a href="https://www.icj-cij.org/index.php/contentious-cases">final judgment takes several years</a>. In many cases final judgment has taken a decade or more. </p>
<p>Other states may intervene in a case, as many have done, for example, in the <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20230927-pre-01-00-en.pdf">Ukraine v Russia case</a>. </p>
<h2>What action can the court take?</h2>
<p>The ICJ provides declaratory orders. In its 2007 final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">Bosnia v Serbia and Montenegro case</a>, the ICJ found that Serbia had violated the Genocide Convention by not taking action to prevent the genocide in Srebrenica, and by having failed to transfer <a href="https://www.britannica.com/biography/Ratko-Mladic">Ratko Mladic</a>, who commanded the Bosnian Serb army that massacred Bosnian civilians, to the <a href="https://www.icty.org/">International Criminal Tribunal for the Former Yugoslavia</a>. </p>
<p>Other claims of genocide were dismissed by a majority of the court. The court held that the declaration of a violation was a sufficient remedy, and that the court should not provide any other remedies in the case such as compensation.</p>
<p>The orders of the ICJ are binding on states. Nevertheless, they are often ignored. This is in line with the general difficulty of enforcing international law, in particular <a href="https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law">international human rights law</a> and <a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">international humanitarian law</a>.</p>
<p>The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">provisional measures requested by South Africa</a> include that Israel should suspend military activities in Gaza, stop killing Palestinians and prevent forced displacement and deprivation of access to adequate food, water, fuel, shelter and sanitation. </p>
<p>The ICJ can grant provisional measures <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">different from those requested</a>. While it is clear that the prevention of humanitarian assistance leading to <a href="https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza">starvation</a>, forced displacement and <a href="https://www.lawfaremedia.org/article/legal-questions-answered-and-unanswered-in-israel-s-air-war-in-gaza">indiscriminate bombings</a>, taken together with statements by Israeli officials (see paragraphs 101-107 of <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">South Africa’s submission to the ICJ</a>), could constitute violations of the Genocide Convention, it is less clear that this means no military action whatsoever may be taken by Israel against Hamas. </p>
<p>Following its own precedent in earlier cases under the Genocide Convention, it seems clear that the ICJ should issue provisional measures. What such measures the court will order remains to be seen.</p><img src="https://counter.theconversation.com/content/220692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Magnus Killander does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is precedent showing the ICJ may grant provisional measures within a month or two of the hearing, preventing Israel from causing further harm in Gaza.Magnus Killander, Professor, Centre for Human Rights in the Faculty of Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2191572023-12-13T18:24:59Z2023-12-13T18:24:59ZThe Middle East and Ukraine: The rules of war depend on the nature of the conflict<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/the-middle-east-and-ukraine-the-rules-of-war-depend-on-the-nature-of-the-conflict" width="100%" height="400"></iframe>
<p>Even in war, there are rules that are supposed to be followed by way of several multilateral legal frameworks that govern warfare and issues like the treatment of combatants and civilians. </p>
<p>Understanding what rules apply to what types of conflicts is important because it can lead to the greatest protections for civilians caught in the crossfire, and greater accountability to perpetrators of war crimes. At a time when two major wars are being waged — in the Middle East and in Ukraine — this understanding takes on a special urgency.</p>
<p>Historically, the laws of war have been <a href="https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0%EF%BB%BF">divided into two categories</a>: <em>jus in bello</em> that pertains to acceptable conduct in war; and <em>jus ad bellum</em>, which involves adaptable justifications for going to war.</p>
<p>Let’s examine <em>jus in bello</em>, <a href="https://doi.org/10.1017/S181638310900023X">more commonly known as international humanitarian law.</a></p>
<p>The two primary sources for international humanitarian law are multilateral treaties — including the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907">Hague Convention IV</a> of 1907, the four <a href="https://ihl-databases.icrc.org/en/ihl-treaties/geneva-conventions-1949additional-protocols-and-their-commentaries">Geneva Conventions</a> of 1949 and what are known as the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/geneva-conventions-1949additional-protocols-and-their-commentaries">Additional Protocols</a> of 1977 — along with <a href="https://ihl-databases.icrc.org/en/customary-ihl">customary international law</a>, the unofficial rules governing the conduct of hostilities.</p>
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Read more:
<a href="https://theconversation.com/can-israel-and-hamas-be-held-to-account-for-alleged-crimes-against-civilians-215705">Can Israel and Hamas be held to account for alleged crimes against civilians?</a>
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<h2>Three principles</h2>
<p>Contemporary international humanitarian law is based on three important principles: distinction, military necessity and proportionality.</p>
<p>The <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-48/commentary/1987">principle of distinction</a>, formalized in the Additional Protocols, refers to military obligations to differentiate between combatants and civilians when military leaders decide who to target.</p>
<p>This requires combatants to distinguish themselves from non-combatants, usually accomplished by wearing uniforms. It also requires combatants to only target military objectives. </p>
<p>Military necessity is used as a guide to determine what counts as a legitimate military objective. This principle is an attempt to balance an aggressor’s need to gain military advantage with minimizing suffering. While mentioned in several multilateral treaties, neither the Geneva Conventions nor Additional Protocols explicitly codify this important concept.</p>
<p>Lastly, the principle of proportionality is an attempt to provide guidance to military commanders about how to balance the value of a particular military objective with humanitarian concerns. <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51?activeTab=undefined">Articles 51</a> <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-57?activeTab=undefined">and 57</a> of the Additional Protocols formalize this principle.</p>
<h2>Relevance to ongoing wars</h2>
<p>Applying international humanitarian law to the Russia-Ukraine war is straightforward. Because the conflict is between two states and both Russia and Ukraine are signatories to all four Geneva Conventions, the conflict is an international armed conflict and those conventions completely apply.</p>
<p>In March 2023, the International Criminal Court issued an <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">arrest warrant for Russian President Vladimir Putin</a>, charging him with war crimes, including the unlawful deportation and transfer of children.</p>
<p>In terms of the Israel-Hamas war, the application of international humanitarian law is more complicated because it’s unclear whether it can be considered an international or non-international armed conflict. If Hamas is an independent militant organization not fighting on behalf of an existing Palestinian state, then the current conflict would be a non-international armed conflict.</p>
<p>That means only <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-3">Common Article 3</a> of the Geneva Conventions would apply. This is important because Common Article 3 offers fewer protections to combatants and civilians. </p>
<p>For example, while prisoners of war and civilians must be “treated humanely” according to Common Article 3, that’s a far cry from the full range of protections in existing multilateral treaties.</p>
<h2>Palestinian statehood in question</h2>
<p>However, if the Israel-Hamas war is considered an international armed conflict, the situation is different. <a href="https://opiniojuris.org/2023/11/09/israels-war-in-gaza-is-not-a-valid-act-of-self-defence-in-international-law/">Some argue</a> that because the situation in Gaza involves an ongoing occupation, the conflict is international in nature and the Geneva Conventions apply.</p>
<p>This stance is obviously unacceptable to the Israeli government because it would imply that Palestine is a state and therefore Hamas fighters ought to receive full prisoner-of-war protections.</p>
<p>But even if Palestine is considered a state, there is no reason that Hamas fighters should be considered prisoners of war. <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949">Geneva Convention III</a> is quite explicit about who qualifies for that status. </p>
<p>The convention states that all those taking part in hostilities must conduct “… their operations in accordance with the laws and customs of war.”</p>
<p>The Oct. 7 attacks in Israel killed some 1,200 people. Since that time, <a href="https://www.reuters.com/world/middle-east/hamas-fires-rockets-deep-into-israel-setting-off-sirens-tel-aviv-2023-11-10/">Hamas has launched hundreds of rockets into Israel</a>, indiscriminately targeting population centres. Israel has retaliated with an unprecedented use of force in the Gaza Strip, <a href="https://www.cnn.com/middleeast/live-news/israel-hamas-war-gaza-news-12-13-23/index.html#:%7E:text=Gaza%20death%20toll%3A%20The%20death,not%20independently%20verified%20these%20numbers.">killing more than 18,000 people.</a></p>
<h2>Violating international law</h2>
<p>Hamas’s deliberate targeting of civilians and taking of hostages are in direct violation of international humanitarian law. </p>
<p>The International Criminal Court has an open investigation into alleged war crimes committed in Palestine by both Hamas and Israel, which it began in 2015. <a href="https://www.icc-cpi.int/news/icc-prosecutor-karim-khan-kc-concludes-first-visit-israel-and-state-palestine-icc-prosecutor">ICC prosecutor Karim Khan recently visited Israel</a> and called on both sides to respect their obligations to adhere to international humanitarian law.</p>
<p>There are growing international calls for a ceasefire. More than 150 members of the United Nations General Assembly, <a href="https://www.cbc.ca/news/politics/canada-sustainable-ceasefire-israel-gaza-1.7056626">including Canada</a>, have voted in favour of a <a href="https://www.cnn.com/2023/12/12/middleeast/ceasefire-vote-gaza-israel-un-intl">resolution calling for a ceasefire</a>. <a href="https://www.bbc.com/news/live/world-middle-east-67687628">Ten members voted against</a> the resolution, including Israel and the United States. </p>
<p>The U.S. also <a href="https://www.reuters.com/world/middle-east/un-vote-delayed-demand-gaza-humanitarian-ceasefire-2023-12-08/">recently vetoed a UN Security Council resolution</a> for a ceasefire.</p>
<p>As developments unfold, it’s important to keep in mind that whether an armed conflict is classified as international or non-international has a significant impact on the protections afforded combatants and civilians. </p>
<p>In the absence of a ceasefire, that category of classification will also affect the level of accountability to which perpetrators of war crimes will be held.</p><img src="https://counter.theconversation.com/content/219157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bryan Peeler does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In war time, the type of conflict determines what formal rules of war apply. But how to determine the nature of the conflict?Bryan Peeler, Assistant Professor, Political Studies, University of ManitobaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2193012023-12-11T13:15:27Z2023-12-11T13:15:27ZHamas’ use of sexual violence is an all-too-common part of modern war − but not in all conflicts<figure><img src="https://images.theconversation.com/files/564356/original/file-20231207-21-k8uhp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A memorial is left inside a bomb shelter near the Supernova music festival, where eyewitnesses reported Hamas members gang-raping and killing women.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/makeshift-memorial-is-left-inside-a-bomb-shelter-near-where-news-photo/1791613498?adppopup=true">Alexi J. Rosenfeld/Getty Images</a></span></figcaption></figure><p>Two United Nations human rights experts said on Jan. 8, 2024, that there was growing evidence of Hamas’ use of sexual violence against people on Oct. 7, 2023 – and that the attacks on civilians likely amount to <a href="https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml">crimes against humanity</a>. </p>
<p>“As armed Palestinian groups rampaged through communities in Israel bordering the Gaza strip, thousands of people were subjected to targeted and brutal attacks, the vast majority of whom were civilians,” Alice Jill Edwards, an independent expert on torture, and Morris Tidball-Binz, an expert on extrajudicial, summary or arbitrary executions, <a href="https://www.ohchr.org/en/press-releases/2024/01/un-experts-demand-accountability-victims-sexual-torture-and-unlawful">said in a statement</a>. “The growing body of evidence about reported sexual violence is particularly harrowing.”</p>
<p>The <a href="https://www.cnn.com/videos/world/2023/11/28/exp-un-women-israel-hamas-sexual-violence-sarah-hendriks-112801p-cnni-world.cnn">United Nations</a>, women’s groups and human rights groups previously faced criticism for not quickly condemning Hamas fighters for raping and sexually violating Israelis <a href="https://www.timesofisrael.com/netanyahu-biden-slam-global-silence-on-hamas-sexual-violence-against-israeli-women/">during the Oct. 7, 2023, attack</a>. </p>
<p><a href="https://www.nytimes.com/2023/12/04/world/middleeast/israel-hamas-sexual-violence-un.html">Most critics cite rising antisemitism</a> <a href="https://www.nytimes.com/2023/11/15/technology/hate-speech-israel-gaza-internet.html">as the reason</a> some experts and advocates did not quickly rally behind Israel’s <a href="https://www.npr.org/2023/12/06/1217668564/israel-hamas-rape-sexual-violence-oct-7#:%7E:text=For%20two%20months%2C%20Israeli%20officials,including%20more%20than%20300%20women.">repeated claims</a> that Hamas fighters committed sexual violence. </p>
<p>There is strong evidence that <a href="https://www.nbcnews.com/news/world/hamas-rape-israeli-women-oct-7-rcna128221">Hamas committed sexual violence</a>, including <a href="https://www.bbc.com/news/world-middle-east-67629181">eyewitnesses’</a> and first responders’ testimony, <a href="https://apnews.com/article/sexual-assault-hamas-oct-7-attack-rape-bb06b950bb6794affb8d468cd283bc51">medical assessments</a> of released hostages and <a href="https://abcnews.go.com/International/wireStory/widespread-sexual-gender-based-crimes-committed-hamas-attack-105406464">independent investigations</a> from media outlets such as <a href="https://www.nytimes.com/2023/12/28/world/middleeast/oct-7-attacks-hamas-israel-sexual-violence.html">The New York Times</a>. This includes rape, gang rape, sexual torture and sexual mutilation of Israelis of <a href="https://apnews.com/article/sexual-assault-hamas-oct-7-attack-rape-bb06b950bb6794affb8d468cd283bc51">diverse genders and ages</a>. </p>
<p>Beyond antisemitism, were there other reasons for the initial hesitation to identify sexual violence as part of Hamas’ attack? </p>
<p><a href="https://fletcher.tufts.edu/people/faculty/dyan-mazurana">We are scholars</a> <a href="https://nutrition.tufts.edu/profile/faculty/anastasia-marshak">who work directly</a> with victims of war-related sexual violence and other serious crimes. </p>
<p>We believe that some experts may have hesitated because <a href="https://journals.sagepub.com/doi/abs/10.1177/0032329208329755">Hamas hasn’t been known in the past to use sexual violence</a> in its attacks against Israeli civilians. We take this factor into consideration as we suggest why Hamas may have made a decision to use sexual violence during the Oct. 7 attack.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man wearing a dark jacket with Hebrew words on it and a kippah stands at a wooden podium and speaks to people seated. He stands in between two Israel flags." src="https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564355/original/file-20231207-27-w01m0w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Simcha Greinman, an Israeli volunteer who helped collect victims’ remains on Oct. 7, speaks at a United Nations event in New York on Dec. 4, 2023, about Hamas’ use of sexual violence in its attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/simcha-greinman-speaks-during-special-event-to-address-news-photo/1827102296?adppopup=true">Lev Radin/Pacific Press/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>Sexual violence in war</h2>
<p>Research on sexual violence in armed conflicts has grown rapidly over the <a href="https://doi.org/10.1146/annurev-polisci-041719-102620">past 15 years</a>, as feminist scholars increasingly took women’s and girls’ <a href="https://doi.org/10.4324/9780203100943">experiences of war seriously</a>. </p>
<p>This research helps explain what motivates people, governments and armed groups to <a href="http://cup.columbia.edu/book/sex-and-world-peace/9780231131827">fight wars</a>. It also helps illuminate, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=692503">among other</a> <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=692503">things</a>, why some armed forces and groups commit sexual violence during wars and how to prevent and <a href="https://international-review.icrc.org/sites/default/files/irrc-894-wood.pdf">address such violence</a>. </p>
<p>Armed forces and armed groups sometimes intentionally use sexual violence to carry out attacks and achieve military goals, leading to the term “<a href="http://news.bbc.co.uk/2/hi/4078677.stm">rape as a weapon of war</a>.” </p>
<p>Rape <a href="https://www.hrw.org/news/2023/08/17/darfur-rapid-support-forces-allied-militias-rape-dozens">can be used to terrorize and brutalize civilians of the opposing side</a> and to destroy the morale and fighting spirit of enemy forces. In a number of recent conflicts, rape has been a potent weapon to <a href="https://www.rescue.org/node/7116">motivate populations to flee</a> instead of fighting back. </p>
<p>Sexual violence has been most recently used against civilians in wars in <a href="https://apnews.com/article/ethiopia-tigray-war-crimes-sexual-violence-c2f47284aa80f164cb822f716cc2a0f6">Ethiopia</a>, <a href="https://www.npr.org/2022/04/30/1093339262/ukraine-russia-rape-war-crimes">Ukraine</a> <a href="https://www.ohchr.org/en/press-releases/2023/08/un-experts-alarmed-reported-widespread-use-rape-and-sexual-violence-against">and Darfur</a>. </p>
<p>Sexual violence’s effects on victims, their families and their communities include serious short- and long-term, <a href="https://international-review.icrc.org/articles/they-came-two-guns-consequences-sexual-violence-mental-health-women-armed-conflicts">physical, psychological, social</a> and economic harm.</p>
<h2>When and where it tends to happen</h2>
<p>One of the best publicly available datasets on sexual violence in war is the <a href="http://www.sexualviolencedata.org/dataset/">Sexual Violence in Armed Conflict data project</a>.</p>
<p>Created by professor <a href="https://www.hks.harvard.edu/faculty/dara-kay-cohen">Dara Kay Cohen and housed at Harvard University’s Kennedy School of Government</a>, this <a href="http://www.sexualviolencedata.org/wp-content/uploads/2021/05/SVAC-3.0-Coding-Manual_020121.pdf">public data project</a> analyzes rape, sexual slavery, forced prostitution, sexual torture and other sexual crimes in 189 armed conflicts in 86 countries, from 1989 through 2021. </p>
<p>Our analysis of this data shows that, first, sexual violence does not occur in all conflicts. Sexual violence was reported in approximately half of the 189 armed conflicts.</p>
<p>Second, sexual violence may be <a href="https://journals.sagepub.com/doi/abs/10.1177/0032329206290426?casa_token=GnhDC5GoGOYAAAAA:rLUFDBBBDtQ830b7vkOFsTIl95yrZ0dvRzCsTsRzlJ9gVns-1ndlURHM0uBKTUWVrMg2%20**DOI**zEsBQkdK">used by some,</a> but not all, groups fighting in a conflict. It also does not happen consistently throughout a conflict.</p>
<p>Third, government forces are twice as likely as rebel and insurgent groups to use sexual violence, with government forces committing sexual violence in 28% of the years of conflict versus rebel groups doing so in 14% of years of conflict. </p>
<p>For example, the <a href="https://www.voanews.com/a/women-seen-targeted-by-myanmar-forces-with-rape-other-violence/7033057.html">armies of Myanmar</a>, <a href="https://www.npr.org/2022/04/30/1093339262/ukraine-russia-rape-war-crimes">Russia</a> and <a href="https://www.hrw.org/report/2020/07/29/they-treated-us-monstrous-ways/sexual-violence-against-men-boys-and-transgender">Syria</a> are notorious for their use of sexual violence against civilians. </p>
<p>Finally, although rebel groups are less likely to use sexual violence, when they do they are significantly more likely to use systematic and <a href="http://www.sexualviolencedata.org/dataset/">widespread sexual violence</a>, as opposed to isolated occurrences. </p>
<h2>The case of Israel and Palestinian territories</h2>
<p>Previous research overwhelmingly finds that after 1948, the conflict between Israel and Palestinian groups has very low levels of reported sexual violence committed by either the <a href="https://www.almendron.com/tribuna/wp-content/uploads/2016/12/003232920832,9755.pdf">Israeli military or Hamas</a>, which formed in 1987. <a href="https://www.berghahnjournals.com/view/journals/conflict-and-society/9/1/arcs090105.xml">Some scholars</a> question these findings. </p>
<p>There are credible reports of Israeli security forces sexually torturing Palestinians in eight of the 31 years between 1989 to 2021 and also <a href="https://www.timesofisrael.com/ending-censorship-idf-admits-officer-jailed-in-2017-raped-a-palestinian-woman/">raping Palestinians</a> during this time frame. These acts of sexual torture and rape are found in infrequent <a href="http://www.sexualviolencedata.org/dataset/">and isolated reports</a>, and most occurred when Palestinians were detained.</p>
<p>Hamas’ <a href="https://www.hrw.org/world-report/2023/country-chapters/israel-and-palestine">international law violations</a>, including using human shields, taking hostages and killing civilians, are well documented.</p>
<p>Our analysis shows that Hamas does not have a history of using sexual violence <a href="http://www.sexualviolencedata.org/dataset/">against Israelis</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three young women stand with red tape covering their mouths. Two wear white clothing that appears stained with red coloring and one has the words 'me too.. unless you're a Jew.' They stand across the street from the UN in New York City." src="https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564357/original/file-20231207-25-24ut6d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Activists supporting women who were sexually assaulted during the Hamas terrorist attack stand outside the United Nations headquarters in New York on Dec. 4, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/more-than-hundreds-activists-mostly-women-rally-at-dag-news-photo/1831794485?adppopup=true">Lev Radin/VIEWpress</a></span>
</figcaption>
</figure>
<h2>The intent of Hamas’ attack</h2>
<p>Given this history, how do we make sense of <a href="https://www.cnn.com/2023/12/06/middleeast/rape-sexual-violence-hamas-israel-what-we-know-intl/index.html">the many reports now emerging of</a><a href="https://www.nbcnews.com/news/world/hamas-rape-israeli-women-oct-7-rcna128221">Hamas’ use of sexual violence</a> in the Oct. 7 attack? </p>
<p>Researchers have determined that much of the sexual violence during armed conflict is men communicating their own masculinity to others, while demonstrating other males’ inability to protect women and girls <a href="https://sites.tufts.edu/reinventingpeace/2021/08/10/what-rape-as-a-weapon-of-war-in-tigray-really-means/">or defend themselves</a>. </p>
<p>Male perpetrators also use sexual violence to demonstrate their power over women, girls, men and boys, as well as over their victims’ families and, symbolically, over the larger community or country <a href="https://sites.tufts.edu/reinventingpeace/2021/08/10/what-rape-as-a-weapon-of-war-in-tigray-really-means/">they are fighting against</a>.</p>
<p>Female and <a href="https://academic.oup.com/ejil/article/18/2/253/361968">male victims of sexual violence</a> can experience a range of physical and psychological harms, some of which can last a lifetime. They may experience <a href="https://international-review.icrc.org/articles/they-came-two-guns-consequences-sexual-violence-mental-health-women-armed-conflicts">stigmatization, discrimination and rejection by their families and communities</a>, which can cause long-lasting social and economic harm. Female victims can become pregnant. Some in such cases will terminate their pregnancies, while others <a href="https://global.oup.com/academic/product/challenging-conceptions-9780197648315?cc=us&lang=en&">give birth to children</a> as a result of their rape. </p>
<p>Hamas sexually brutalized the women and men they raped, with reports that <a href="https://www.haaretz.com/israel-news/2023-12-05/ty-article/.premium/israeli-and-jewish-women-implore-a-reticent-un-to-confront-hamas-sexual-violence/0000018c-369b-dc03-a9ec-3efbfcb90000">murdered women’s genitalia and breasts</a> were severely mutilated. Hamas also reportedly <a href="https://www.bbc.com/news/world-middle-east-67629181">shot and killed women </a> either while or after they raped them on Oct. 7. </p>
<p>These violent acts suggest an intent to utterly destroy their victims, while also terrorizing the Israeli public and humiliating Israeli men, Israel’s military and the state of Israel. </p>
<p>We also think that Hamas’ use of sexual violence was intended to outrage and provoke Israel <a href="https://www.nytimes.com/2023/11/08/world/middleeast/hamas-israel-gaza-war.html">to engage in a permanent state of war with Hamas</a> and attack civilian spaces in Gaza. Hamas hopes in doing so to consolidate power and <a href="https://www.nytimes.com/2023/11/08/world/middleeast/hamas-israel-gaza-war.html">keep the Palestinian crisis alive</a>.</p>
<p>Was Hamas’ use of sexual violence part of a predetermined strategy or fighters acting opportunistically without orders? At least a year in advance, Hamas mapped and planned the attack with <a href="https://www.nytimes.com/2023/11/30/world/middleeast/israel-hamas-attack-intelligence.html">painstaking detail</a>. </p>
<p>They also carried out an intense daylong exercise that mimicked <a href="https://www.nytimes.com/2023/11/30/world/middleeast/israel-hamas-attack-intelligence.html">the actual Oct. 7 attack</a>. Given this level of planning and Hamas’ previous lack of using sexual violence, it is highly unlikely that Hamas’ sexual violence committed against Israelis was the result of some men who went rogue. More likely, sexual violence was part of Hamas’ war tactics and strategy. </p>
<p>The <a href="https://www.reuters.com/world/middle-east/un-commission-investigate-hamas-sexual-violence-appeal-evidence-2023-11-29/">United Nations</a> and the <a href="https://www.france24.com/en/live-news/20231203-icc-prosecutor-vows-to-further-intensify-gaza-probe">International Criminal Court</a> are now, rightly, investigating Hamas’ use of sexual violence as possible war crimes and crimes against humanity. </p>
<p>Under international law, surviving victims have <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation">a right to justice and a range of assistance to aid in their recovery</a>. Families of the victims who were killed have a right to information about what happened to their loved ones. Throughout it all, everyone directly affected by sexual violence has a right to be treated with care and dignity. </p>
<p><em>This article, originally published on Dec. 11, 2023, was updated on Jan. 11, 2024, to reflect news about the United Nations’ statement.</em></p><img src="https://counter.theconversation.com/content/219301/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dyan Mazurana receives funding from several governments, foundations, United Nations agencies and international humanitarian organizations to support her research with populations affected by armed conflict. </span></em></p><p class="fine-print"><em><span>Anastasia Marshak receives funding from USAID and Action Contra Famine.</span></em></p>Sexual violence can be used as a weapon of war. Hamas’ use of sexual violence was likely meant to show its power over Israeli women and girls and to humiliate Israeli men and Israel’s military.Dyan Mazurana, Research Professor of Global Affairs, Tufts UniversityAnastasia Marshak, Assistant Research Professor of Nutrition, Tufts UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192962023-12-08T13:36:18Z2023-12-08T13:36:18ZThe landmark Genocide Convention has had mixed results since the UN approved it 75 years ago<figure><img src="https://images.theconversation.com/files/564027/original/file-20231206-17-lncvwh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman prays in front of skulls at a memorial in Phnom Penh, Cambodia, marking the genocide that happened under the Khmer Rouge regime in the 1970s.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-prays-in-front-of-skulls-at-the-choeung-ek-memorial-news-photo/960278782?adppopup=true">Tang Chhin Sothy/AFP via Getty Images </a></span></figcaption></figure><p>Seventy-five years ago, in the wake of Nazi atrocities, the world made a vow. </p>
<p>Countries pledged to liberate humanity from the “odious scourge” of genocide when, at the United Nations, they established a new convention on <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">preventing and punishing genocide</a> on Dec. 9, 1948. </p>
<p>Has the international community lived up to this promise? </p>
<p>Amid genocide accusations and mass violence in the Middle East, Ukraine, Sudan, Yemen, Ethiopia, China and elsewhere, the answer would seem to be obvious: “No!” </p>
<p>But the reality is more complicated. It also offers a glimmer of light at a very dark moment. </p>
<p>As someone who has studied genocide for years and <a href="https://www.cornellpress.cornell.edu/book/9781501765698/anthropological-witness/">testified on the topic</a> at an international tribunal, I view the legacy of the U.N. Genocide Convention – including its effectiveness in preventing genocide and holding perpetrators accountable – as a mixed bag with some good but also some ugly. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black woman wearing a gray outfit that looks like a sari holds her hand to her chest and stands in front of shelves filled with old looking clothing." src="https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564029/original/file-20231206-29-j2p3xy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A survivor of the Rwandan genocide looks at clothes of genocide victims who were killed by Hutu militants in 1994.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/juliet-mukakabanda-a-survivor-that-will-testify-in-france-news-photo/1240477849?adppopup=true">Simon Wohlfahrt/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The story of the Genocide Convention</h2>
<p>It is a minor miracle that there is a U.N. Genocide Convention, a treaty that over 150 countries, including the United States, United Kingdom, Russia and Israel, <a href="https://www.un.org/en/genocideprevention/genocide-convention.shtml">have ratified</a>. </p>
<p>Countries are obsessed with protecting their sovereignty and power. They gave up a bit of both by passing this convention. </p>
<p>The word genocide had been coined only four years earlier by a Polish lawyer, <a href="https://encyclopedia.ushmm.org/content/en/article/coining-a-word-and-championing-a-cause-the-story-of-raphael-lemkin">Raphael Lemkin</a>. Why, he wondered, was it a crime to kill one person but not an entire group? </p>
<p>In 1946, at the newly formed U.N., Lemkin began lobbying diplomats. Two years of grinding U.N. debate ensued before the convention was finally – and barely – passed. </p>
<p>The convention <a href="https://www.un.org/en/genocideprevention/genocide.shtml">defines genocide</a> as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” These acts range from killing to the forced transfer of children from one group to another group. </p>
<p>But the convention’s shortcomings quickly became apparent. </p>
<h2>The bad − a convention rigged for the powerful</h2>
<p>The Genocide Convention was the product of political bargaining, compromise and pressure from some of the world’s great powers. As a result, the convention also has <a href="https://www.cambridge.org/core/books/problems-of-genocide/1C48C9BAE4A2CA4EA6727F19771651A6">major weaknesses</a>. </p>
<p>First, it does not protect everyone from genocide. It shields racial, ethnic, national and religious groups, but leaves others, such as <a href="https://www.rutgersuniversitypress.org/bucknell/the-politics-of-genocide/9781978821507/">political groups</a> and economic groups, unprotected. </p>
<p>As a result, the mass targeting of people from particular political groups or economic classes – which has happened in communist <a href="https://www.ushmm.org/genocide-prevention/countries/cambodia">Cambodia</a>, <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/03/giving-historys-greatest-mass-murderer-his-due/">China</a> and the <a href="https://news.stanford.edu/2010/09/23/naimark-stalin-genocide-092310/">former Soviet Union</a> – isn’t technically considered genocide. </p>
<p>This limitation was intentional. The <a href="https://uwpress.wisc.edu/books/5556.htm">Soviet Union</a>, for example, made sure such groups weren’t included in the convention, since it worried about possible future prosecution. </p>
<p><a href="https://www.taylorfrancis.com/chapters/oa-edit/10.4324/9781351214100-3/historical-perspective-jeffrey-bachman?context=ubx&refId=c6169777-cd53-4e19-bb34-c359a761e515">Cultural genocide</a> was also dropped from the convention’s final draft, since imperial powers like France and the United Kingdom worried about being culpable for acts of cultural destruction in their colonies.</p>
<p>These shortcomings created more problems, including letting culprits off the hook. Perhaps, worst of all, these omissions suggest that enslavement, the use of atomic weapons, apartheid and the targeting of political groups are somehow less serious, since they don’t fall under the convention’s genocide umbrella. </p>
<p>And then there was the problem of enforcement. While the convention was legally binding for those who ratified it, there was no international police force holding people or governments to account for violations – and countries were left to determine whether they wanted to include the convention in their own national laws. </p>
<h2>The ugly − a convention without teeth</h2>
<p>Lacking enforcement powers, the new convention proved largely ineffective during the Cold War that began intensifying in the late 1940s.</p>
<p>This predicament helped lay the ground for a lot of ugly – <a href="https://www.taylorfrancis.com/books/mono/10.4324/9781003185291/genocide-adam-jones">tens of millions dead</a> and mass suffering.</p>
<p>In <a href="https://www.ushmm.org/genocide-prevention/countries/cambodia">Cambodia</a>, for example, the Khmer Rouge enacted policies that resulted in the death of up to 2 million of its 8 million inhabitants. Some groups, including intellectuals and ethnic and religious minorities, were singled out for execution from April 1975 to January 1979.</p>
<p>The <a href="https://www.ushmm.org/genocide-prevention/blog/new-details-emerge-about-atrocities-in-guatemala">Guatemalan military targeted</a> and killed thousands in indigenous Mayan communities, with the violence peaking in the early 1980s. </p>
<p>Genocidal violence continued after the Cold War ended in the late 1980s.</p>
<p>The 1990s started with extremists from the dominant <a href="https://www.ushmm.org/genocide-prevention/countries/rwanda">Hutu ethnic group in Rwanda</a> slaughtering about 800,000 Hutu moderates and Tutsi people, an ethnic minority. Ethnic Serbs also killed an <a href="https://www.ushmm.org/genocide-prevention/countries/bosnia-herzegovina">estimated 100,000 civilians</a> in <a href="https://www.ushmm.org/genocide-prevention/countries/bosnia-herzegovina">Bosnia</a> as the former Yugoslavia imploded. </p>
<p>The 2000s <a href="https://www.ushmm.org/genocide-prevention/countries/burma">were riddled</a> with other <a href="https://www.ushmm.org/genocide-prevention/countries/china">infamous failures</a>, including government-backed militias in Sudan killing 400,000 civilians in <a href="https://encyclopedia.ushmm.org/content/en/article/darfur">Darfur</a> from 2003 through 2005 and <a href="https://apnews.com/article/sudan-darfur-fighting-war-crimes-705bdb1ac90fc7b2903f68e6f666c3ca">again today</a>. </p>
<p>More recently, Russia’s military perpetuated atrocities against Ukrainian civilians during its 2022 invasion and war with <a href="https://www.ushmm.org/genocide-prevention/countries/ukraine">Ukraine</a> – another instance of likely genocide. And supporters of <a href="https://theconversation.com/both-israel-and-palestinian-supporters-accuse-the-other-side-of-genocide-heres-what-the-term-actually-means-217150">Israel and the Palestinians</a> are now both making accusations of genocide. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three people wearing dark clothing, including one man with an army vest, stand in the snow. The woman and one man cover their mouths and look away, one man looks forward." src="https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564030/original/file-20231206-27-s9b39b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People gather close to a mass grave in Bucha, Ukraine, on April 3, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-react-as-they-gather-close-to-a-mass-grave-in-the-news-photo/1239718685?adppopup=true">Sergei Supinsky/AFP via Getty Images</a></span>
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<h2>The good − baby steps and halting successes</h2>
<p>Amid these repeated failures, it may seem difficult to find reasons to mark the convention’s 75th anniversary. </p>
<p>But there are positives. </p>
<p>First, compared with 75 years ago, there is now a <a href="https://www.icc-cpi.int">broad network</a> of international <a href="https://digitalcommons.usf.edu/cgi/viewcontent.cgi?article=1502&context=gsp#:%7E:text=National%20Mechanisms%20are%20vehicles%20through,atrocity%20crimes%20as%20parties%20to">and domestic</a> organizations and individuals working to <a href="https://www.un.org/en/genocideprevention/">prevent genocide</a>. </p>
<p>These groups <a href="https://www.ohchr.org/en/hr-bodies/hrc/myanmar-ffm/index">conduct investigations</a>, <a href="https://www.globalr2p.org">issue alerts</a> and use <a href="https://digitalcommons.usf.edu/cgi/viewcontent.cgi?article=1093&context=gsp">behind-the-scenes diplomacy</a> to keep peace.</p>
<p>Many governments also are prioritizing prevention. This includes the U.S., which passed the <a href="https://www.congress.gov/115/plaws/publ441/PLAW-115publ441.pdf">Elie Wiesel Genocide and Atrocities Prevention Act</a> in 2018, formalizing prevention as a U.S. national interest and mandating <a href="https://www.state.gov/atrocity-prevention/">annual reports</a> on U.S. government progress in mainstreaming prevention.</p>
<p>Third, there has been progress in terms of <a href="https://www.taylorfrancis.com/books/mono/10.4324/9781003185291/genocide-adam-jones">accountability</a>. Different international courts have used the Genocide Convention to convict perpetrators for genocidal acts committed in places such as <a href="https://encyclopedia.ushmm.org/content/en/article/rwanda-the-first-conviction-for-genocide">Rwanda</a> and <a href="https://www.icty.org/en/press/radislav-krstic-becomes-first-person-be-convicted-genocide-icty-and-sentenced-46-years">Bosnia</a> in the 1990s. </p>
<p>And, critically, there is an International Criminal Court that can hold political leaders accountable for genocide. This <a href="https://www.icc-cpi.int/sites/default/files/ICCAtAGlanceEng.pdf">Netherlands-based court</a>, set up in 2002, has not yet convicted anyone of genocide, though. </p>
<p>Finally, prevention efforts have had full or partial successes. They have curtailed budding genocidal crimes in places like <a href="http://peri.umass.edu/fileadmin/pdf/dpe/modern_conflicts/burundi.pdf">Burundi</a>, <a href="https://www.africanews.com/2020/10/19/cote-d-ivoire-election-tensions-erupt-in-fatal-ethnic-clashes//">Cote D’Ivoire</a>, <a href="https://newint.org/features/web-exclusive/2018/03/21/division-threatens-gambia">Gambia</a> and <a href="https://www.c-r.org/programme/horn-africa/kenya-conflict-">Kenya</a>.</p>
<p><a href="https://kroc.nd.edu/research/books/responding-to-genocide-the-politics-of-international-action-2013/">Early warnings, diplomacy and political will</a> have often been key to these successes – such as when, with U.N. backing, an Australian-led force brought a stop to escalating violence in <a href="https://press.princeton.edu/books/paperback/9780691150178/if-you-leave-us-here-we-will-die">East Timor</a> in 1999. </p>
<p>It is hard to feel hopeful at this difficult moment as violence in the Middle East and Ukraine rages on. But I think it’s important to recognize the halting progress that has been made during the 75 years since the Genocide Convention was passed – even as much work remains to fulfill the promise that genocide will never again happen.</p><img src="https://counter.theconversation.com/content/219296/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Hinton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While the Genocide Convention has helped raise awareness and prevent ethnic violence from escalating, it has not stopped many accusations of genocides, including violence in Darfur and in Ukraine.Alexander Hinton, Distinguished Professor of Anthropology; Director, Center for the Study of Genocide and Human Rights, Rutgers University - NewarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2188442023-11-30T12:42:34Z2023-11-30T12:42:34ZIsrael-Gaza: what the term genocide means under international law – podcast<p>In the weeks since the Hamas attack on Israel on October 7 and the Israeli bombardment and ground assault on Gaza, both sides have traded accusations of genocide. Hamas killed 1,200 Israelis and took more than 200 hostage, while Israel’s subsequent aerial and ground attacks on Gaza have killed <a href="https://www.reuters.com/world/middle-east/more-israeli-hostages-palestinians-expected-be-freed-with-extended-truce-2023-11-27/">more than 15,000 Palestinians</a> and displaced millions. </p>
<p>In this episode of <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a> podcast, we speak to an expert on genocide about the history of the term and what’s needed to prove it under today’s international legal definition. </p>
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<p>The term genocide was first coined by the Polish lawyer Raphael Lemkin in 1944 amid the horrors of the Nazi Holocaust. Lemkin, who was Jewish, originally <a href="https://academic.oup.com/ahr/article-abstract/51/1/117/101266?redirectedFrom=fulltext&login=false">defined genocide</a> as “the destruction of a nation or ethnic group”, encompassing both physical killings and an assault on the spirit of a group, including its social, economic and political ways of life.</p>
<p>Lemkin’s definition laid the foundation for the 1948 UN Genocide Convention, which <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">specifies that genocide</a> can occur “with with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. This can be through killing, destroying a group, preventing births, or transferring children to another group, among other means. This convention was instrumental in setting up international tribunals in the 1990s to prosecute war criminals in the former Yugoslavia and Rwanda.</p>
<h2>Proving intent</h2>
<p>However, Alexander Hinton, a professor in anthropology at Rutgers University Newark in the US, says that the need to prove intent can pose a significant hurdle to prosecutions for genocide. </p>
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<p>It’s much better to have a legal definition than not to have one … but it also means that when horrific acts take place that don’t fall within the purview of that legal definition, people say, ‘well, it’s not genocide’. </p>
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<p>Hinton is an expert on the Cambodian genocide and <a href="https://www.newark.rutgers.edu/news/professor-alex-hinton-testifies-un-backed-international-tribunal-khmer-rouge">testified</a> during the UN-backed international tribunal that convicted some of the Khmer Rouge leaders of genocide. He cautions against focusing too much attention on proving the crime of genocide, rather than on other types of crimes that may be taking place. “Atrocity crimes, genocide, crimes against humanity, war crimes and ethnic cleansing are all horrific,” he says, adding that the priority should be on “crimes against humanity”.</p>
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Read more:
<a href="https://theconversation.com/both-israel-and-palestinian-supporters-accuse-the-other-side-of-genocide-heres-what-the-term-actually-means-217150">Both Israel and Palestinian supporters accuse the other side of genocide – here's what the term actually means</a>
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<p>Cases for atrocity crimes brought under international law can be slow, such as in The Gambia’s <a href="https://www.icj-cij.org/case/178">ongoing prosecution</a> of Myanmar for the genocide of the Rohingya people. But Hinton hopes that the Genocide Convention, alongside institutions such as the International Criminal Court and the UN Office on Genocide Prevention, provide tools that can be used to bring an end to a conflict more swiftly. Countries can also take independent actions against alleged perpetrators, such as naming and shaming or imposing sanctions.</p>
<p>When it comes to the current conflict between Israel and Hamas, Hinton refuses to be drawn on whether genocide is taking place under the legal definition of the term.</p>
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<p>It has limitations and it’s also used politically, and so it’s important to understand there are other ways of understanding the term. And so ultimately each of us needs to bring our knowledge to bear, our critical thinking, and make a determination of what is taking place in Israel and Gaza.</p>
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<p>Listen to the full interview with Alexander Hinton on the <a href="https://podfollow.com/the-conversation-weekly/view">The Conversation Weekly</a> and <a href="https://theconversation.com/both-israel-and-palestinian-supporters-accuse-the-other-side-of-genocide-heres-what-the-term-actually-means-217150">read an article he wrote here too</a>. A <a href="https://cdn.theconversation.com/static_files/files/2976/Genocide_Transcript.docx.pdf?1702403301">transcript of this episode</a> is now available. </p>
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<p><em>This episode was written and produced by Mend Mariwany with assistance from Katie Flood and Gemma Ware. Gemma Ware is the executive producer of the show. Our theme music is by Neeta Sarl.</em></p>
<p><em>Newsclips in this episode from <a href="https://www.youtube.com/watch?v=b7HposRq3Ds&ab_channel=UnitedNations">United Nations</a> and <a href="https://www.youtube.com/watch?v=KT7QUzJg0aM">BBC News.</a></em></p>
<p><em>You can find us on X, formerly known as Twitter <a href="https://twitter.com/TC_Audio">@TC_Audio</a>, on Instagram at <a href="https://www.instagram.com/theconversationdotcom/">theconversationdotcom</a> or <a href="mailto:podcast@theconversation.com">via email</a>. You can also subscribe to The Conversation’s <a href="https://theconversation.com/newsletter">free daily email here</a>.</em></p>
<p><em>Listen to <em>The Conversation Weekly</em> via any of the apps listed above, download it directly via our <a href="https://feeds.acast.com/public/shows/60087127b9687759d637bade">RSS feed</a> or find out <a href="https://theconversation.com/how-to-listen-to-the-conversations-podcasts-154131">how else to listen here</a>.</em></p><img src="https://counter.theconversation.com/content/218844/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Hinton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both Israelis and Palestinians are accusing each other of genocide. In this episode of The Conversation Weekly podcast, we speak to a genocide expert on the legal definition of the term.Mend Mariwany, Producer, The Conversation Weekly Podcast, The ConversationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177852023-11-22T19:09:42Z2023-11-22T19:09:42ZThere has been much talk of war crimes in the Israel-Gaza conflict. But will anyone actually be prosecuted?<p>Since the February 2022 outbreak of the Russia-Ukraine war, there has been global debate about whether war crimes have been committed by Russian soldiers, military leaders and politicians. </p>
<p>Regular protests have been held in Canberra, outside the Russian embassy, where signs proclaim “Putin is a War Criminal”. Australia has also been focusing on war crimes, highlighted by the <a href="https://www.theguardian.com/australia-news/2023/jun/06/ben-roberts-smith-defamation-case-key-findings-from-the-complete-judgment">Ben Roberts-Smith defamation case</a> and the ongoing work of the Office of the Special Investigator. On <a href="https://www.osi.gov.au/news-resources/former-australian-soldier-charged-war-crime">March 20</a> it was announced that the first modern Australian <a href="https://www.theguardian.com/australia-news/2023/mar/28/bail-for-former-sas-soldier-oliver-shulz-accused-of-murdering-afghan-man-in-war">war crimes charges</a> had been laid against former SAS soldier Oliver Schulz.</p>
<p>The Hamas-Israel conflict has now become the next arena for possible war crimes prosecutions. Hamas atrocities against Israeli civilians on October 7 have been followed by the Israeli assault on Hamas in the Gaza Strip. </p>
<p>The 24/7 media coverage presents daily evidence of war crimes. The international community from the <a href="https://news.un.org/en/story/2023/11/1143772">United Nations Secretary-General</a> to various UN agencies and UN Special Rapporteurs have called out war crimes during the conflict against civilians, and especially children. </p>
<p>Political leaders from around the world have spoken of their horror at these unfolding events, and called for the release of the Israeli hostages, restraints on the use of force, humanitarian pauses, and a ceasefire. <a href="https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/">Civil society</a> has taken to the streets, the airwaves and the internet to debate, discuss and protest these events. There have even been <a href="https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-prevent-genocide-against">allegations of genocide</a>. </p>
<p>Against this backdrop, there has been a continued reassertion of Israel’s right to exercise self-defence, and the need to respect international humanitarian law applicable in armed conflicts.</p>
<p>Will there be any accountability for war crimes committed by Hamas, and in Gaza? </p>
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<h2>How alleged war crimes can be prosecuted</h2>
<p>One of the biggest international law projects following the second world war was the development of an international criminal justice system designed to make those responsible for war crimes, crimes against humanity, and genocide, accountable for their actions. </p>
<p>The postwar <a href="https://history.state.gov/milestones/1945-1952/nuremberg">Nuremburg and Tokyo trials</a> were effectively experiments in how an international criminal justice system would work. Efforts to establish a standing global criminal court were stymied by the Cold War, but then revived following the “success” of the international criminal tribunals for the <a href="https://www.icty.org/">former Yugoslavia</a> and <a href="https://unictr.irmct.org/">Rwanda</a>. </p>
<p>This paved the way for negotiation of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">Rome Statute</a> and the eventual establishment in 2002 of the <a href="https://www.icc-cpi.int/">International Criminal Court</a> (ICC). There are now effectively two mechanisms for the modern prosecution of war crimes: national courts all over the world, or the ICC in The Hague.</p>
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Read more:
<a href="https://theconversation.com/the-international-criminal-court-is-unlikely-to-prosecute-alleged-australian-war-crimes-heres-why-208180">The International Criminal Court is unlikely to prosecute alleged Australian war crimes – here's why</a>
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<p>Israel has clear capacity to prosecute war crimes committed by Hamas, including the taking of Israeli hostages. Prosecutions could be conducted under Israeli criminal law, especially with respect to the October 7 acts of terror that resulted in the murder of numerous civilians. </p>
<p>A draft law seeking to reintroduce the death penalty for terrorism in Israel is <a href="https://www.timesofisrael.com/liveblog_entry/ben-gvir-says-he-will-bring-death-penalty-for-terrorists-bill-to-knesset-this-week/">currently under debate</a>. </p>
<p>Members of the Israeli Defence Force are also subject to Israeli criminal law. Some have previously been prosecuted for crimes committed in the course of their duties, including acts resulting in civilian deaths, but <a href="https://en.idi.org.il/articles/12244">prosecutions have been rare</a>. </p>
<p>Prosecutions for war crimes committed during the Hamas-Israel conflict could even be commenced by other national courts on the basis of universal jurisdiction. While rare in modern times, states have obligations to prosecute those who have committed war crimes under the <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">1949 Geneva Conventions</a>.</p>
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<p>Internationally, war crimes prosecutions over the past 30 years have become more frequent. Between 1993 and 2017, there were <a href="https://ijrcenter.org/international-criminal-law/icty/">161 prosecutions</a> by the International Criminal Tribunal for the Former Yugoslavia, resulting in 89 convictions and 18 acquittals. </p>
<p>The <a href="https://unictr.irmct.org/en/tribunal">International Criminal Tribunal for Rwanda</a> operated between 1995 and 2012, during which time there were 93 prosecutions and 62 convictions. Some appeals are ongoing. </p>
<p>The ICC currently has 123 state parties, including Palestine. The court <a href="https://www.icc-cpi.int/about/the-court#:%7E:text=ICC%20judges%20have%20issued%2040,people%20due%20to%20their%20deaths.">has issued</a> 40 arrest warrants, and to date has recorded ten convictions and four acquittals. The highest-profile <a href="https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin">arrest warrant</a> was issued on March 17 2023 for Russian President Vladimir Putin. Russia is not a party to the Rome Statue and Putin remains at large, although his capacity for international travel is constrained out of fear he could be detained by one of the court’s member states.</p>
<p>Given the growing international spotlight and profile of the ICC, especially during the Russia-Ukraine war, there is growing momentum for the court to prosecute war crimes arising from the Hamas-Israel conflict. This extends to the actions of Hamas fighters and leaders, Israeli soldiers, and Israel’s military and political leadership. </p>
<h2>Prosecutions are difficult – and rare</h2>
<p>However, war crimes prosecutions in The Hague against individuals are not easy. Evidence needs to be collected and timely witness statements taken. This often requires investigations to take place on the ground, which can be dangerous and often impossible during an ongoing conflict.</p>
<p>Formal prosecutions need eventually to be commenced, and the ICC must accept it has jurisdiction to issue arrest warrants. The accused then needs to be detained and brought before the court. While all of these steps generally mirror national criminal prosecutions, war crimes have an international political element and raise particular national sensitivities and emotions.</p>
<p>Attention has turned to whether the ICC’s prosecutor, Karim Khan, will formally seek to prosecute war crimes arising from the Hamas-Israel conflict. On <a href="https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine">November 17</a>, Khan’s office received notification of a referral of the situation in Palestine from South Africa, Bangladesh, Bolivia, Comoros and Djibouti. </p>
<p>This reinforces an existing referral from <a href="https://www.icc-cpi.int/palestine">March 3 2021</a> encompassing possible war crimes committed since June 13 2014 in Gaza. While Israel does not recognise the jurisdiction of the ICC, Khan seems determined to investigate and eventually prosecute war crimes arising from the conflict. He <a href="https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine">visited</a> the Rafah Crossing between Egypt and Gaza on October 29.</p>
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Read more:
<a href="https://theconversation.com/why-is-accountability-for-alleged-war-crimes-so-hard-to-achieve-in-the-israel-palestinian-conflict-160864">Why is accountability for alleged war crimes so hard to achieve in the Israel-Palestinian conflict?</a>
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<p>The ICC is <a href="https://www.icc-cpi.int/about/the-court">well resourced</a>. Its current budget is €169 million (A$281 million) and it has more than 900 staff. Khan’s office is simultaneously investigating and prosecuting multiple war crimes from around the world, extending from Afghanistan, Kenya, Libya, Georgia to Palestine and Ukraine. </p>
<p>Each investigation requires detailed and thorough investigation before a prosecution can proceed, especially because of the high bar required to obtain a war crimes conviction due to being able to prove the various elements of the crime.</p>
<p>Decisions have to be made as to which of the most serious and grave breaches of international humanitarian law will be prosecuted. That often means decisions are taken to prosecute the most senior military and political leaders because of the clear message that sends to lower ranks that there is no impunity.</p>
<p>There is a growing inevitability that war crimes arising from the Gaza conflict will be prosecuted either nationally or internationally. The wheels of international justice do, however, turn slowly. </p>
<p>Over the past 20 years, vast improvements have been made in accountability for the perpetrators of the most egregious war crimes. Political and military leaders do not enjoy immunity from prosecution. There will eventually be international justice for the victims of war crimes and their families.</p><img src="https://counter.theconversation.com/content/217785/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Rothwell receives funding from Australian Research Council</span></em></p>War crimes investigations are long, complex and involve international sensitivities. Nonetheless, there is growing inevitability that there will be prosecutions from the Israel-Gaza war.Donald Rothwell, Professor of International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2157052023-10-19T19:03:42Z2023-10-19T19:03:42ZCan Israel and Hamas be held to account for alleged crimes against civilians?<p><a href="https://www.redcross.org.au/ihl/">International humanitarian law</a> – the law of armed conflict – aims to constrain how wars are fought. It is designed to protect noncombatants and limit the means of warfare. </p>
<p>As each hour brings news of further horror in the Israel-Hamas conflict, what role should international law be playing? And does it actually have any capacity to constrain the behaviour of the combatants?</p>
<h2>A humanitarian nightmare is unfolding</h2>
<p>On <a href="https://edition.cnn.com/2023/10/16/middleeast/israel-hamas-gaza-war-explained-week-2-mime-intl/index.html">October 7</a>, the Hamas militant group launched thousands of rockets against Israel in advance of a ground attack. Militants <a href="https://abcnews.go.com/International/live-updates/israel-gaza-hamas/?id=103804516#:%7E:text=ABC%20News%20Chief%20Global%20Affairs,war%20in%20Israel%20and%20Gaza.&text=At%20least%201%2C400%20people%20have,7%2C%20Israeli%20authorities%20said.">killed</a> more than 1,400 people and wounded 3,400 others in towns and kibbutzim across southern Israel. It was the <a href="https://theconversation.com/deadliest-day-for-jews-since-the-holocaust-spurs-a-crisis-of-confidence-in-the-idea-of-israel-and-its-possible-renewal-215507">deadliest day</a> for Jewish people since the Holocaust.</p>
<p>Most of those killed were civilians, including many <a href="https://abcnews.go.com/International/horror-israeli-authorities-show-footage-hamas-atrocities-reporters-notebook/story?id=104015431#:%7E:text=It%20was%20part%20of%20the,injured%20in%20Israel%2C%20authorities%20said.">children</a> who were shot, blown up or burned to death. Hundreds of young people were also <a href="https://www.washingtonpost.com/world/2023/10/08/israel-festival-attack-gaza-militants/">massacred</a> at a music festival, and Hamas took around 200 <a href="https://www.reuters.com/world/middle-east/former-hamas-chief-meshaal-says-israeli-captives-include-high-ranking-officers-2023-10-16/">hostages</a> back to Gaza. </p>
<p>Israel is responding to this attack with <a href="https://abcnews.go.com/International/live-updates/israel-gaza-hamas/?id=103804516#:%7E:text=ABC%20News%20Chief%20Global%20Affairs,war%20in%20Israel%20and%20Gaza.&text=At%20least%201%2C400%20people%20have,7%2C%20Israeli%20authorities%20said.">airstrikes</a>, which have to date <a href="https://www.wsj.com/livecoverage/israel-hamas-war-gaza-palestinians/card/latest-death-tolls-in-gaza-and-israel-xJRhBt04VQMocRuYUtsA">killed</a> at least 4,000 people in Gaza and injured thousands more. The vast majority of these casualties are Palestinian civilians.</p>
<p>Israel has also rapidly mobilised around <a href="https://www.washingtonpost.com/world/2023/10/10/israel-military-draft-reservists/">360,000 reservists</a> in preparation for an anticipated ground offensive on Gaza. </p>
<p>In recent days, a blast at a <a href="https://www.nytimes.com/2023/10/17/world/middleeast/gaza-hospital-explosion-israel.html">Gaza hospital</a> killed hundreds, including patients and displaced people seeking sanctuary. Hamas and several Arab states have <a href="https://www.theguardian.com/world/2023/oct/18/israel-faces-blame-from-regional-allies-over-gaza-hospital-deaths">blamed</a> Israel for the explosion, while Israel has <a href="https://www.nytimes.com/2023/10/17/world/middleeast/islamic-jihad-gaza-hospital-israel.html">blamed</a> Palestinian Islamic Jihad. </p>
<p>The situation in Gaza is dire for people with urgent needs, including <a href="https://www.abc.net.au/news/2023-10-18/israel-gaza-war-live-updates-october-18/102989182?utm_campaign=abc_news_web&utm_content=link&utm_medium=content_shared&utm_source=abc_news_web#live-blog-post-55243">5,000 women</a> due to give birth this month and <a href="https://www.nytimes.com/2023/10/16/world/middleeast/gaza-evacuation-twin-babies-hospital.html#:%7E:text=The%20babies%2C%20Nuha%20and%20Fatin,of%20an%20Israeli%20ground%20invasion.">newborn babies</a> whose families cannot find drinking water to prepare formula.</p>
<p>Meanwhile, Israel has <a href="https://www.theguardian.com/world/2023/oct/12/no-power-water-or-fuel-to-gaza-until-hostages-freed-says-israeli-minister">cut off</a> water, electricity and fuel supplies to Gaza and ordered a <a href="https://theconversation.com/gaza-is-being-strangled-why-israels-evacuation-order-violates-international-law-215787">total siege</a> of the territory. Israel has also ordered residents of northern Gaza to <a href="https://www.hrw.org/news/2023/10/16/why-israels-gaza-evacuation-order-so-alarming">evacuate</a> to the south. Aid agencies have been unable to provide desperately needed <a href="https://time.com/6324539/israel-gaza-humanitarian-aid-egypt-border/">humanitarian assistance</a> to civilians through the border crossing with Egypt. </p>
<p>Prior to this latest horrific escalation, Gaza was already entrenched in a <a href="https://theconversation.com/gaza-has-been-blockaded-for-16-years-heres-what-a-complete-siege-and-invasion-could-mean-for-vital-supplies-215359">humanitarian crisis</a>. The situation now is beyond comprehension. </p>
<p><a href="https://www.abc.net.au/listen/programs/radionational-breakfast/gaza-610/102983118">Léo Cans</a>, the head of mission for Doctors Without Borders in Palestine, said hospitals are being overwhelmed and hundreds will die without electricity being restored: </p>
<blockquote>
<p>This is something that is known and could be prevented just by letting fuel and supplies inside Gaza. What is ahead of us is beyond words […] at the end of the road it’s a big wall, and this big wall is full of dead people.</p>
</blockquote>
<h2>Principles governing the conduct of war</h2>
<p>International humanitarian law is a pragmatic body of law. Its existence acknowledges the inevitability of armed conflict and it aims to mitigate war’s impact on people. </p>
<p>International humanitarian law is not, in itself, concerned with the justifications for why combatants engage in war. It applies even in situations where a state is entitled to act in self-defence under broader international law.</p>
<p>We are witnessing gross violations of fundamental humanitarian law principles in the conflict. Here are some examples:</p>
<p><strong>Distinction between civilians and combatants</strong></p>
<p>Attacks are considered <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51">unlawful</a> if they are:</p>
<ul>
<li><p>directed specifically against civilians </p></li>
<li><p>launched indiscriminately without distinction between civilians and combatants</p></li>
<li><p>or directed at military targets but anticipated to cause harm to civilians disproportionate to the military advantage being sought.</p></li>
</ul>
<p><strong>Methods of warfare</strong></p>
<p>It is <a href="https://casebook.icrc.org/law/conduct-hostilities#iii_1">unlawful</a> to conduct war in a manner that causes unnecessary suffering. Attacks targeting civilians are fundamentally unnecessary and, therefore, illegal.</p>
<p><strong>Collective punishment</strong></p>
<p>The fourth Geneva Convention prohibits <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-33">collective punishment</a>:</p>
<blockquote>
<p>No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.</p>
</blockquote>
<p>This prohibition reflects the idea of <a href="https://guide-humanitarian-law.org/content/article/3/collective-punishment/">individual criminal responsibility</a> under international criminal law. Prosecutions for breaches of humanitarian law are directed towards individuals who can be proven responsible, rather than against states or populations. </p>
<p><strong>Humanitarian protection</strong></p>
<p>Common Article 3 of the Geneva Conventions requires <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">humane protection</a> for all people in enemy hands. It prohibits murder and hostage-taking. It also requires the provision of humanitarian assistance to all people without distinction. </p>
<p><strong>Obligations of occupying powers</strong></p>
<p>It is arguable Israel is a de facto occupying power of the Gaza Strip because it has such a <a href="https://theconversation.com/gaza-is-being-strangled-why-israels-evacuation-order-violates-international-law-215787">high level of control</a> over people’s lives. For example, it has the ability to shut off supplies of essential life services. The argument Israel is occupying Gaza will be strengthened should Israel launch a ground invasion. </p>
<p>As such, the rules of international humanitarian law on occupiers are also relevant. These include an obligation to <a href="https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907/regulations-art-43#:%7E:text=Regulations%3A%20Art.-,43,in%20force%20in%20the%20country.">protect</a> civilians from attacks and <a href="https://humanrights.gov.au/our-work/commission-general/international-covenant-civil-and-political-rights-human-rights-your#:%7E:text=opinions%20without%20interference.-,2.,other%20media%20of%20his%20choice.">respect their human rights</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">How the 'laws of war' apply to the conflict between Israel and Hamas</a>
</strong>
</em>
</p>
<hr>
<h2>Hamas and humanitarian law</h2>
<p>International humanitarian law applies to all combatants, whether they are state or non-state actors. UN independent experts say Hamas has clearly committed <a href="https://www.ohchr.org/en/press-releases/2023/10/israeloccupied-palestinian-territory-un-experts-deplore-attacks-civilians">war crimes</a>, including the murders and hostage-taking of Israeli civilians. </p>
<p>Hamas also put Palestinian civilians in harm’s way by <a href="https://www.reuters.com/world/middle-east/hamas-tells-gaza-residents-stay-home-israel-ground-offensive-looms-2023-10-13/#:%7E:text=Eyad%20Al%2DBozom%2C%20spokesman%20for,your%20homes%2C%20and%20your%20places.">telling them</a> not to evacuate to southern Gaza, as ordered by Israel. The group has a history of using civilians as <a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">human shields</a> as a <a href="https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf">strategic tool</a> in conflicts with Israel.</p>
<p>However, holding Hamas accountable for violating international humanitarian law is very challenging. As a non-state actor, Hamas is not a member of forums like the United Nations, where pressure may be brought to bear on member states. </p>
<p>If individual Hamas militants are apprehended, they could be charged with <a href="https://www.thenewhumanitarian.org/interview/2023/10/17/how-have-israel-and-hamas-broken-laws-war">war crimes</a> and tried in Israeli courts or the International Criminal Court. Even though Hamas is a non-state actor, <a href="https://www.icc-cpi.int/victims/state-palestine">Palestine</a> has accepted the court’s jurisdiction.</p>
<p>In fact, the International Criminal Court opened an <a href="https://www.lawfaremedia.org/article/where-does-the-icc-palestine-investigation-stand">investigation</a> into alleged war crimes in Palestine in 2021. The current Gaza conflict would fall within the court’s mandate and could lead it to direct greater energy to that ongoing investigation. </p>
<p>The court’s chief prosecutor, Karim Khan, said on October 13: </p>
<blockquote>
<p>We have jurisdiction for any Rome Statute crimes […] committed by Palestinians in Israel and also we have clear jurisdiction for any crimes committed by the forces of Israel in Palestine.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1712594773612380395"}"></div></p>
<h2>Israel and humanitarian law</h2>
<p>Israel and its allies also have a complex relationship with international humanitarian law. </p>
<p>One key issue is Israel’s right to self-defence in response to the October 7 attack by Hamas. International law confirms a state may use force to <a href="https://casebook.icrc.org/a_to_z/glossary/self-defence#:%7E:text=Self%2Ddefense%20in%20international%20law,Charter%20and%20customary%20international%20law.">defend</a> itself in response to an armed attack. Israel, the United States and other allies <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/10/10/remarks-by-president-biden-on-the-terrorist-attacks-in-israel-2/">contend</a> the Hamas attack triggered Israel’s <a href="https://www.foreignminister.gov.au/minister/penny-wong/speech/speech-senate-hamas-attacks-israel-senate-motion-parliament-house">right to self-defence</a>.</p>
<p>But there is a distinction to be drawn between a state’s right to self-defence and what that right permits, in the sense of how war is conducted. </p>
<p>For example, UN independent experts have <a href="https://www.ohchr.org/en/press-releases/2023/10/israeloccupied-palestinian-territory-un-experts-deplore-attacks-civilians">condemned</a> Israel’s “indiscriminate military attacks” against Palestinian civilians:</p>
<blockquote>
<p>This amounts to collective punishment. There is no justification for violence that indiscriminately targets innocent civilians, whether by Hamas or Israeli forces. This is absolutely prohibited under international law and amounts to a war crime.</p>
</blockquote>
<p>Neither <a href="https://arabcenterdc.org/resource/the-international-criminal-courts-failure-to-hold-israel-accountable/">Israel</a> nor the <a href="https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states">United States</a> is a party to the International Criminal Court. Neither state would accept the court’s jurisdiction over its nationals. Indeed, the United States has <a href="https://www.state.gov/the-united-states-opposes-the-icc-investigation-into-the-palestinian-situation/">condemned</a> the court’s decision to open its investigation into alleged war crimes in Palestine.</p>
<p>In time, the court may seek to hold Israeli nationals accountable for war crimes, but its capacity to do so seems very limited. </p>
<h2>What about the United Nations?</h2>
<p>UN Secretary-General Antonio Guterres has <a href="https://www.voanews.com/a/un-s-guterres-denounces-collective-punishment-of-palestinians/7315616.html">called</a> for an immediate ceasefire.</p>
<p>He said the grievances of the Palestinian people after more than 50 years of occupation do not “justify the acts of terror committed by Hamas”. And he said the Hamas attack on October 7 does not “justify the collective punishment of the Palestinian people”. </p>
<p>UN human rights chief Volker Türk has also <a href="https://www.ctvnews.ca/world/un-human-rights-lead-warns-of-consequences-for-breaching-humanitarian-law-amid-israel-hamas-war-1.6605453">warned</a> all parties that violations of humanitarian law will have consequences, and those who commit war crimes will be held accountable.</p>
<p>But the <a href="https://www.un.org/securitycouncil/#:%7E:text=The%20Security%20Council%20has%20primary,to%20comply%20with%20Council%20decisions.">UN Security Council</a>, which is charged with maintaining international peace and security, has yet to agree on a <a href="https://news.un.org/en/story/2023/10/1142467">statement</a> on the conflict. </p>
<p>The <a href="https://reliefweb.int/report/occupied-palestinian-territory/4-members-favour-5-against-security-council-rejects-russian-federations-resolution-calling-immediate-humanitarian-ceasefire-israel-palestine-crisis">debate</a> in the council since the latest escalation in this perpetual conflict demonstrates the deep diplomatic fault lines between the key global players and the warring parties. </p>
<p>At this point, a sad reality is that international law and global institutions can do little to constrain the actions of the combatants on both sides or provide assistance to the millions at grave risk of harm.</p><img src="https://counter.theconversation.com/content/215705/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UN secretary-general said neither side is justified in its actions against civilians. But holding them accountable for war crimes is extremely difficult.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113062023-09-18T21:13:45Z2023-09-18T21:13:45ZCanada’s war crimes investigation may not deter Russia, but it matters to Ukrainians<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canadas-war-crimes-investigation-may-not-deter-russia-but-it-matters-to-ukrainians" width="100%" height="400"></iframe>
<p>In June 2022, United States Attorney General Merrick Garland <a href="https://www.nytimes.com/2022/06/21/world/europe/merrick-garland-ukraine-war-crimes.html">travelled to Ukraine</a> to call for the prosecution of Russian war crimes. </p>
<p>“The United States is sending an unmistakable message” to those who have committed atrocities, he said. “There is no place to hide.” </p>
<p>There’s only one problem: American hands are tied when it comes to the international prosecution of war crimes. That’s because it opted out of the International Criminal Court (ICC) due to objections over the <a href="https://www.icc-cpi.int/about/how-the-court-works">court’s jurisdiction</a> that allows it, <a href="https://how-the-icc-works.aba-icc.org/">under certain conditions</a>, to pursue people outside their own state borders. </p>
<p><a href="https://www.bbc.com/news/world-europe-38005282#">Russia has also withdrawn from the ICC</a>. Ukraine isn’t a member; it signed but didn’t ratify the court’s statute.</p>
<p>That means it will fall to <a href="https://asp.icc-cpi.int/states-parties">third-country signatories to the ICC</a> like <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">Canada</a> to investigate and prosecute Russian war crimes in Ukraine.</p>
<h2>Institutionalizing war crimes</h2>
<p>Around the First World War, the great powers began codifying the laws of war in <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">several conventions</a> <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">and treaties</a>. </p>
<p>Building on centuries of law, these agreements specified when countries could go to war and under what conditions, spelled out the treatment of both combatants and non-combatants and limited the use of weapons and other practices during warfare. </p>
<p>These fledgling agreements did little to prevent the outbreak of another global conflict, but they did provide the foundation for the world’s first international tribunals in Tokyo and Nuremberg following the Second World War.</p>
<p>That marked a decisive moment for international law, representing the first time national leaders were held accountable for war crimes on the world stage.</p>
<p>Under American stewardship, the immediate post-Second World War period witnessed a massive expansion of international law. </p>
<p>New treaties were drafted <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">criminalizing genocide</a> and <a href="https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml">crimes against humanity</a>. New organizations like the <a href="https://www.un.org/en/">United Nations</a> were born. </p>
<p>A liberal rules-based international order began to emerge, setting fundamental limits on state sovereignty — particularly in the conduct of war, and even within national boundaries. </p>
<p>But this progress halted with the start of <a href="https://www.nationalww2museum.org/war/articles/cold-conflict">the Cold War; the standoff between the Soviet Union and the U.S. put the prosecution of war crimes on ice</a>. </p>
<p>Few leaders were held accountable for their crimes as superpowers shielded them from prosecution. </p>
<h2>UN creates the ICC</h2>
<p>Following the Soviet collapse, and the emergence of the U.S. as the sole remaining global superpower, the UN Security Council organized <a href="https://www.un.org/securitycouncil/content/repertoire/international-tribunals">international tribunals</a> to address genocide, war crimes and other atrocities committed during conflict. </p>
<p>These tribunals were situational, focused on conflicts in Rwanda and the former Yugoslavia. The UN then used its renewed power to formalize them in the Rome Statute, <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">the founding document of the ICC</a>.</p>
<p>This was made possible by a legal innovation: the creation of a permanent international tribunal that would enable signatories to bring war criminals to justice.</p>
<p>Even third parties, with no apparent interest, could investigate and refer war criminals to the international body under certain circumstances. </p>
<p>But in a dramatic about-face, the George W. Bush administration <a href="https://www.hrw.org/news/2002/05/06/united-states-unsigning-treaty-war-crimes-court">withdrew the U.S.</a> from the ICC, fearing the court <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2450&context=faculty_scholarship">might complicate</a> its so-called war on terror. </p>
<p>Nevertheless, the ICC came into existence in 2002, and the court began issuing arrest warrants and prosecuting war criminals. </p>
<p>Without the U.S., however, its activities remained restricted. For the next decade, prosecutions were limited to the African continent, leading to allegations of <a href="https://iccforum.com/africa">systemic bias</a>. </p>
<p>There are still questions about whether the ICC can hold war criminals to account more broadly — and they’ve only intensified during the war in Ukraine. </p>
<h2>Canada’s role</h2>
<p>In March 2022, 39 countries, including Canada, <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states">referred the war in Ukraine to the ICC</a>. At the same time, the RCMP <a href="https://www.rcmp-grc.gc.ca/en/news/2022/a-statement-the-partners-canadas-war-crimes-program-the-conflict-ukraine">launched an investigation</a> into alleged war crimes committed by Russia in Ukraine.</p>
<p>This is the first <a href="https://www.ourcommons.ca/DocumentViewer/en/44-1/SDIR/meeting-9/evidence">real-time war crimes investigation</a> in Canada’s history, and one of the first globally. </p>
<p>The ICC has laid charges against Russian President <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">Vladimir Putin</a>, accusing him of human rights abuses in Ukraine.</p>
<p>These developments mark a major change in Canada’s appetite for investigating war crimes. Before joining the ICC, Canada had a checkered history of holding war criminals accountable, even when they arrived on its shores. Canada was accused, for example, of providing <a href="https://www.cbc.ca/news/canada/nazi-war-criminals-in-canada-1.1026670">shelter to Nazi war criminals</a> and collaborators. </p>
<p>Canada’s probe into alleged ongoing war crimes in Ukraine suggests it now has the <a href="https://www.international.gc.ca/world-monde/stories-histoires/2022/war-crimes-investigated_crimes-guerre-enquetes.aspx?lang=eng">political will</a> to investigate these atrocities even when they happen outside of its borders.</p>
<p>Given Canada’s <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">role in the creation of the ICC</a>, the country’s leadership on this front is appropriate. </p>
<p>Efforts to hold Russia accountable have also engaged a keen and highly activist group: Ukrainian Canadians. </p>
<p>As they <a href="https://data.unhcr.org/en/situations/ukraine">welcome refugees</a> and lobby the government, Ukrainian Canadians have helped collect war crimes testimonials that could one day be used to prosecute Russia.</p>
<p>Newly arriving Ukrainians to Canada <a href="https://ukraine.rcmp.ca/responseForm?lang=en">are greeted by posters and pamphlets printed in English, French, Russian and Ukrainian</a> asking them to report their recollections to the RCMP while their memories are still fresh.</p>
<p>Nonetheless, despite the unprecedented steps Canada and other states are taking to put Russia on notice, it’s doubtful they’ll ultimately result in any concrete forms of Russian accountability. </p>
<h2>Creating a historical record</h2>
<p>Although some of these measures have apparently made top <a href="https://www.theguardian.com/world/2023/sep/11/lula-putin-g20-brazil-arrest">Russian officials more circumspect</a> when travelling internationally, it’s highly unlikely alleged Russian war criminals will end up before Canadian courts.</p>
<p>Globally, the <a href="https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/">impact also seems limited</a>. Russia remains a nuclear power and UN Security Council member, further underscoring the improbability of future prosecutions. </p>
<p>However, the RCMP investigation is important. It signals a new path for Canada that prioritizes international law and corrects for past policy failures that saw the country provide safe harbour to war criminals. </p>
<p>For Ukrainian-Canadians, the investigation validates their experiences. Canada is helping create a historical record. The investigation will form one of the pre-eminent repositories of testimonials from recently arrived refugees. </p>
<p>Canada has taken on the sacred duty of creating and safeguarding a dark moment in Ukrainian history — and this matters to the victims of Russia’s war. </p>
<p>As Alexandra Chyczij, president of the Ukrainian Canadian Congress, told us in an interview: </p>
<blockquote>
<p>“What is important today is that the massive evidence of the myriad, systemic Russian crimes against humanity, war crimes and terrorism – committed under the direction of the Russian political leadership – be documented, collected and preserved.”</p>
</blockquote><img src="https://counter.theconversation.com/content/211306/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The war crimes probe signals a new path for Canada that prioritizes international law and corrects past policy failures, while validating the experiences of Ukrainians.Jamie Levin, Assistant Professor of Political Science, St. Francis Xavier UniversityKiran Banerjee, Assistant Professor of Political Science & Canada Research Chair, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2082732023-08-02T18:07:16Z2023-08-02T18:07:16ZCould Trump turn his politics of grievance into a get-out-of-jail card? Neither prosecution nor even jail time has prevented former leaders in Israel, Brazil and Kenya from mounting comebacks<figure><img src="https://images.theconversation.com/files/540488/original/file-20230801-15-hfb8gb.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C3876%2C2831&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump enters a political rally while campaigning for the GOP 2024 nomination on July 29, 2023, in Erie, Pa.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-enters-erie-insurance-news-photo/1563680624?adppopup=true">Jeff Swensen/Getty Images</a></span></figcaption></figure><p>Donald Trump has declared, “<a href="https://www.c-span.org/video/?c5060238/pres-trump-i-justicei-retribution">I am your retribution</a>,” and it appears to be a guiding theme of his 2024 campaign. </p>
<p>He now <a href="https://www.nytimes.com/live/2023/08/01/us/trump-indictment-jan-6">faces a total of three indictments</a>, following Special Counsel Jack Smith’s announcement on Aug. 1, 2023 that Trump had been charged with four counts in his effort to overturn the 2020 presidential election – the most serious charges so far. There’s likely to be an additional indictment from Fulton County, Georgia, <a href="https://www.washingtonpost.com/national-security/2023/07/31/georgia-2020-election-investigation-trump/">prosecutor Fani Willis</a>. </p>
<p>If elected, he promises to <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">punish his perceived enemies</a> – everyone from prosecutors at the Justice Department and in New York and Georgia to the Biden family and Republicans in Congress who don’t <a href="https://www.nytimes.com/2023/07/29/us/politics/trump-pennsylvania-rally.html">help him</a>. </p>
<p>Trump and his allies are ramping up their <a href="https://www.pbs.org/newshour/politics/trump-allies-in-congress-leap-to-defend-former-president-after-federal-indictment">rhetoric</a>, playing the victim card with cries of “<a href="https://www.youtube.com/watch?v=C-vpdWQFcyo">witch hunt</a>” and making promises to <a href="https://news.yahoo.com/trump-vows-appoint-prosecutor-target-171530172.html">use the machinery of government</a> to punish anyone who has attempted to hold Trump accountable. </p>
<p>While appeals to grievance have been used in presidential campaigns, <a href="https://www.axios.com/2023/06/09/trump-president-run-criminal-charges-indictment">never before in American history</a> has a leading contender for a major party’s nomination made their personal grievances related to criminal liability and payback the centerpiece of their presidential run. </p>
<p>Is a campaign based on grievance and retribution likely to sway voters? And what are the implications if Trump wins back the White House? </p>
<p>As scholars who study <a href="https://www.cambridge.org/us/universitypress/subjects/politics-international-relations/political-economy/authoritarianism-and-elite-origins-democracy">democracy</a>, <a href="https://www.cambridge.org/us/universitypress/subjects/politics-international-relations/american-government-politics-and-policy/social-origins-electoral-participation-emerging-democracies">voting behavior</a> and political corruption globally, we note that while the politicization of prosecutions is becoming <a href="https://theconversation.com/prosecuting-a-president-is-divisive-and-sometimes-destabilizing-heres-why-many-countries-do-it-anyway-188565?utm_source=twitter&utm_medium=twitterbutton">increasingly common</a> in other democracies, it can be hard to figure out how these dynamics affect elections. </p>
<h2>Political muscle can trounce a prosecution</h2>
<p>Candidates under investigation can leverage their political muscle to run for office – and as a means to avoid prosecution. </p>
<p>In <a href="https://academic.oup.com/edited-volume/28167/chapter-abstract/213005469?redirectedFrom=fulltext">Kenya’s 2007 presidential election</a>, Uhuru Kenyatta and William Ruto were two prominent politicians backing opposing coalitions that engaged in post-election clashes after allegations of vote rigging. </p>
<p>Members of both factions were investigated, and Kenyatta and Ruto were personally charged with organizing the violence among their supporters. Their cases were <a href="https://www.bbc.com/news/world-africa-16675268">referred to the International Criminal Court</a>, or ICC, after the Kenyan government slow-rolled local prosecutions. </p>
<p>But as the cases dragged on, these erstwhile enemies forged an electoral alliance to win the 2013 contest. Kenyatta ran as president and Ruto his deputy, by – ironically – pushing a “<a href="https://academic.oup.com/edited-volume/28167/chapter-abstract/213006037?redirectedFrom=fulltext">peace narrative</a>” during the campaign. </p>
<p>This flexing of political muscle, a crusade questioning the ICC’s legitimacy and grassroots mobilization led to their eventual victory. That essentially ended their legal woes internationally and domestically. The <a href="https://www.bbc.com/news/world-africa-30347019">ICC dropped</a> <a href="https://www.bbc.com/news/world-africa-35965760">charges</a>, and they were reelected in 2017. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd holding a sign in Hebrew and English that shows a fist and says 'We've just started.'" src="https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540492/original/file-20230801-27-oxqrx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Israelis protest moves by Prime Minister Benjamin Netanyahu and his government to limit the power of the country’s Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-aerial-view-of-kaplan-street-as-israelis-gather-to-news-photo/1563351079?adppopup=true">Yair Palti/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>Undermining accountability</h2>
<p>Should Trump win, he can appoint an attorney general who will follow his bidding and suspend prosecutions brought by the special counsel, or he can simply pardon himself of federal charges. </p>
<p>He can further seek to avoid trial or imprisonment by invoking a <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">Department of Justice rule</a> that presidents cannot be under federal criminal indictment or in jail while they serve in office, although a candidate can <a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">run for president and be elected under indictment or from jail</a>. A novel legal strategy for Trump would be to try to apply this also to state jurisdictions like New York and Georgia.</p>
<p>Any attempt to challenge the constitutionality of such actions – pardoning himself, dismissing the special counsel, ending state and local indictments – would no doubt end up at the Supreme Court. The court majority is conservative, suggesting it might rule in Trump’s favor. Additionally, <a href="https://podcasts.apple.com/us/podcast/episode-5-john-mulaney/id1548294013?i=1000621655751">precedent and legal scholarship</a> also suggest that the court would deem at least some of these actions constitutional. </p>
<p>Beyond ending immediate prosecutions, victorious candidates can use winning office to further erode democratic institutions and the rule of law. </p>
<p>Benjamin Netanyahu in Israel has served as prime minister <a href="https://www.nytimes.com/2022/11/03/world/middleeast/netanyahu-corruption-charges-israel.html">during his own corruption trials</a>. After losing office in 2021, he came to power again in 2022 while under indictment. </p>
<p>Netanyahu and his allies in parliament have pursued legislation to <a href="https://www.npr.org/2023/07/24/1189720508/israel-politics-netanyahu-judiciary">weaken the independence</a> of the Supreme Court, a portion of which was <a href="https://theconversation.com/as-contentious-judicial-reform-becomes-law-in-israel-netanyahu-cements-his-political-legacy-210043">recently passed by the legislature</a>. He and his allies have promised to go after the former attorneys general and other prosecutors overseeing Netanyahu’s <a href="https://apnews.com/article/israel-netanyahu-corruption-trial-courts-4e18ed8f34e65707bd47e37696da4705">criminal cases</a>. The attempts to diminish the Supreme Court’s power have resulted in months of anti-government protests. </p>
<p>Trump and his campaign view a 2024 win as an opportunity to significantly <a href="https://www.axios.com/2022/07/22/trump-2025-radical-plan-second-term">increase the power of the executive branch</a> to go after a “deep state” that has investigated Trump and his allies. That potentially undermines the independence and functioning of everything from the State and Justice departments to local law enforcement.</p>
<h2>Comebacks follow prosecutions</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man standing, gripping a metal rail with one hand, the other hand raised with a fist, in the nighttime." src="https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540498/original/file-20230801-25-6joorn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Brazilian president Lula Inácio da Silva was elected once again in 2022 after his conviction and imprisonment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/brazilian-president-elect-for-the-leftist-workers-party-news-photo/1244370111?adppopup=true">Caio Guatelli / AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Examples from other countries show that prosecution or even jail time does not prevent former leaders from mounting comebacks.</p>
<p>Former Brazilian President Luiz Inácio Lula da Silva was elected once again in 2022 <a href="https://www.washingtonpost.com/politics/2019/05/23/how-one-companys-deep-web-corruption-took-down-governments-across-latin-america/?itid=lk_inline_manual_54">after his conviction and imprisonment</a>. He argued that a <a href="https://theintercept.com/2019/06/09/brazil-lula-operation-car-wash-sergio-moro/">judge who was in cahoots with prosecutors</a>, and who became Lula’s predecessor’s <a href="https://www.washingtonpost.com/world/the_americas/brazils-chief-justice-authorizes-investigation-into-bolsonaro/2020/04/27/54d95f52-88f6-11ea-80df-d24b35a568ae_story.html?itid=lk_inline_manual_54">justice minister</a>, revealed the politicized nature of Brazil’s justice system. That allowed him to play the victim card successfully at the ballot box.</p>
<p>Trump is innocent until proved guilty. His hard-core “Make America Great Again” supporters <a href="https://www.nytimes.com/2023/07/31/upshot/poll-trump-republican-primary.html">tell pollsters</a> they believe in his complete innocence. We expect this is not likely to change, regardless of evidence prosecutors show to a jury and what those juries decide. </p>
<p>But if the facts of the cases and evidence presented at trial appear to moderates and independents as nothing burgers, or if swing voters otherwise feel the judicial process has unfairly targeted Trump with prosecutorial overreach, that could conceivably turn Trump’s <a href="https://projects.fivethirtyeight.com/polls/favorability/donald-trump/">persistent unfavorable ratings</a> into electoral victory.</p>
<p>Recent polling makes clear that while Trump has consolidated support for the Republican nomination among the MAGA crowd, <a href="https://projects.fivethirtyeight.com/polls/favorability/donald-trump/">nearly half of Republicans surveyed</a> are still considering other options. </p>
<p>In any event, his platform of victimization and retribution shows no signs of abating. Whether enough Republicans will turn out to vote and moderates swing toward Trump, and whether enough Democrats decide to stay home, suggest that this is still a very high-risk strategy for Trump, but if successful, likely to reward him with time away from jail.</p><img src="https://counter.theconversation.com/content/208273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump has made personal grievances and payback the centerpiece of his presidential run. Will this strategy work? Two experts who study democracy look at others who have used these tactics.James D. Long, Professor of Political Science, Co-founder of the Political Economy Forum, University of WashingtonVictor Menaldo, Professor of Political Science, Co-founder of the Political Economy Forum, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2096062023-07-20T14:21:28Z2023-07-20T14:21:28ZMigrant deaths at sea: the real blame lies with policies created by European states<figure><img src="https://images.theconversation.com/files/538292/original/file-20230719-15-p8gmk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Photo by Oliver Weiken/picture alliance via Getty Images</span></span></figcaption></figure><p>On 15 June, the overcrowded fishing trawler Adriana sank on its illicit journey from <a href="https://www.reuters.com/world/europe/how-migrant-tragedy-unfolded-high-seas-off-greece-2023-06-15/">Libya to Italy</a>, drowning hundreds of men, women and children. In response, states have expressed <a href="https://edition.cnn.com/2023/06/14/europe/migrant-ship-sinks-greek-coast-intl/index.html">shock</a> and <a href="https://www.bbc.co.uk/newsround/65915500">sadness</a>, and have moved to prosecute smugglers associated with the journey. </p>
<p>Greece, under whose watch the tragedy occurred, declared three days of mourning and <a href="https://www.euronews.com/2023/06/15/nine-survivors-arrested-as-hope-fades-for-migrants-aboard-boat-that-sank-near-greece">arrested nine</a> of the survivors, charging them with human trafficking. In Pakistan, where <a href="https://www.nation.com.pk/17-Jun-2023/298-pakistanis-feared-dead-12-others-rescued-as-greece-hunts-for-migrant-shipwreck-s-survivors">hundreds</a> of the victims originated, <a href="https://www.aljazeera.com/news/2023/6/18/pakistan-arrests-suspected-traffickers-after-refugee-boat-tragedy">10 suspected traffickers were arrested</a>. </p>
<p>Some survivor <a href="https://www.nytimes.com/2023/07/01/world/europe/greece-migrant-ship.html?unlocked_article_code=oDtotndtZ9K3TCDE179QR2OzggQbtBT5z4zm6NVDgGkDtoZWkZLGmDIiLkDqQZH8vlQxHPOIYIqoj6N3UmMsE-rJ-HVRgdzIZW0LncXx3VFzmMwcg6EU-NVDrdsuMntKfxGjrPwemgR1bnxojqDpbqJvkfbMjPjyvJMGyDNCubMY3bb0ZgCsOalmWlWIlpl9_LmGMa_Zp2GuUTdpTFQPbtl60opMTNpmIyLr-AX1TwT7cxZFaVCpvwIoG3fek4ncOv89Ni1fQhoB6z9urfPPcTWCjE_hpPAzlqWlClp8L3eO7GVm9j4KMXJcnk_fbVUZYEF9e8hsJeTR3XXD9UcuFWPa&smid=url-share">accounts</a> have turned the spotlight on the actions of the Greek coast guard. At one point, its officers attached a rope to the Adriana, possibly with the intention of towing it, and possibly contributing to <a href="https://www.theguardian.com/global-development/2023/jul/10/greek-shipwreck-hi-tech-investigation-suggests-coastguard-responsible-for-sinking">capsizing it</a>.</p>
<p>I am a scholar with a focus on the development of international law and legal institutions in the practice of transitional justice. My view is that the focus on smugglers, or even the action and inaction of the Greek coast guard, distracts from the real cause of migrant deaths in the Mediterranean: the deliberate policies set in place by European states and supported by the European Union. </p>
<h2>Diminishing legal protections for migrants</h2>
<p>In the wake of the massive population flows accompanying the second world war, European states enacted the <a href="https://www.unhcr.org/about-unhcr/who-we-are/1951-refugee-convention">1951 Refugee Convention</a>. This document obliges state signatories to recognise and protect “refugees” and to grant them social welfare rights on par with citizens. As enacted, this law is quite protective, serving as a legal shield for vulnerable people.</p>
<p>The shield always had holes. For example, not all migrants qualify as refugees, who must face a “well-founded fear of persecution”. This category focuses on political, rather than social, harms; starvation and economic tragedy generally do not qualify. </p>
<p>New holes are appearing. A foundation of the 1951 convention is the state obligations against “refoulement” or pushing refugees back into harm’s way. Long considered as fundamental, this obligation is no longer unassailable. Over the past several years, a pattern of pushbacks has emerged. The Greek coast guard and the EU border agency Frontex have been caught <a href="https://www.pbs.org/newshour/show/migrants-left-adrift-at-sea-after-boat-pushback-from-greek-coast-guard">putting migrants out to sea</a>. In May 2022, the director of Frontex <a href="https://www.schengenvisainfo.com/news/head-of-frontex-resigns-following-reports-of-migrant-pushbacks/">resigned</a> after a <a href="https://www.spiegel.de/international/europe/frontex-involved-in-illegal-pushbacks-of-hundreds-of-refugees-a-9fe90845-efb1-4d91-a231-48efcafa53a0">report</a> showed Frontex was involved in hundreds of illegal pushbacks.</p>
<p>These actions should be understood as symptomatic of state illegality. States have deliberately adopted policies that make refugee movement deadly. For example, states have closed legal land and air routes via visa schemes and <a href="https://www.liberties.eu/en/stories/why-refugees-do-not-take-the-plane/16316">stiff penalties for airlines</a> carrying incorrectly documented passengers. This drives migrants towards dangerous crossings. </p>
<p>Individual court cases often recognise state illegality, years after the fact. In December 2022, a court in Rome found the Italian coast guard and navy <a href="https://www.proasyl.de/en/pressrelease/landmark-court-ruling-on-2013-shipwreck-italian-coast-guard-and-navy-responsible-for-deaths-of-268-refugees/">guilty of manslaughter and negligence</a> in the 2013 death of 268 people in a shipwreck off Lampedusa. The two individual defendants were <a href="https://www.infomigrants.net/fr/post/45203/italy-statute-of-limitations-ends-childrens-shipwreck-case">acquitted</a>, however, because the claims against them were time-barred. </p>
<p>Likewise, a <a href="https://www.amnesty.org/en/latest/news/2012/02/italy-historic-european-court-judgment-upholds-migrants-rights/">2012 judgment by the European Court of Human Rights</a> found Italy responsible for human rights violations against migrants committed by the Libyan coast guard. <a href="https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2020/4/23/ss-and-others-v-italy-sharing-responsibility-for-migrants-abuses-in-libya">A 2018 filing before that same court</a> alleges ongoing deadly treatment by Italy and Libya. The judgment is still awaited. </p>
<p>Activists have asked the <a href="https://theconversation.com/migration-in-the-mediterranean-why-its-time-to-put-european-leaders-on-trial-120851">International Criminal Court</a> and the <a href="https://www.front-lex.eu/">Court of Justice of the European Union</a> to review European treatment of migrants. Yet even if these powerful courts take on these cases, they can only do so much. As long as each case is treated as a potentially prosecutable individual incident rather than as part of an illegal aggregate horror, preventable loss of life will continue.</p>
<p>The Mediterranean is now <a href="https://www.statista.com/chart/19035/estimated-migrant-deaths-by-world-region/">regarded as the world’s deadliest place for migrants</a>. Since 2014, states have <a href="https://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk">ceased rescue operations in the Mediterranean</a>. States now perform <a href="https://reliefweb.int/report/world/criminalization-search-and-rescue-operations-mediterranean-has-been-accompanied-rising">border protection instead</a>. States have also shut down private rescue operations, by <a href="https://www.theguardian.com/world/2018/nov/20/italy-orders-seizure-aquarius-migrant-rescue-ship-hiv-clothes">impounding boats on trumped up charges</a> and <a href="https://www.theguardian.com/global-development/2021/mar/04/refugee-rescuers-charged-in-italy-with-complicity-in-people-smuggling">criminally prosecuting NGO workers</a> as human traffickers. As the NGO Médecins Sans Frontières <a href="https://www.commondreams.org/news/2018/12/07/europe-condemns-people-drown-forcing-msf-ship-cease-migrant-rescue-missions">states</a>, </p>
<blockquote>
<p>Not only has Europe failed to provide search-and-rescue capacity, it has also actively sabotaged others’ attempts to save lives. </p>
</blockquote>
<h2>Weakening rule of law</h2>
<p>The 1951 Refugee Convention was only one of a series of European rule of law projects designed to recognise and protect human rights following the devastation of the second world war. As I describe in my recent book on <a href="https://www.chathamhouse.org/2022/04/justice-laboratory-international-law-africa">international law in Africa</a>, these legal projects took seriously the threat that states pose to individuals, both within and outside their borders, and sought to address this danger by binding states to supranational laws. </p>
<p>This structure – rule of law above the state via an international rule of law system – is the model advocated for African states emerging from colonialism, and for any and all developing states engaging in global politics and commerce.</p>
<p>But European states are renouncing key elements of this rule of law structure via the illegality of their policies towards migrants. European states’ repudiation of legal responsibilities challenges rule of law norms in the international system. This in turn weakens that system as a model for states seeking to normalise rule of law internally.</p><img src="https://counter.theconversation.com/content/209606/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerstin Bree Carlson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Deliberate policies set in place by European states and supported by the European Union lead directly to migrant deaths.Kerstin Bree Carlson, Associate Professor International Law, Roskilde UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2083302023-07-06T12:26:31Z2023-07-06T12:26:31ZRussia’s kidnapping of Ukrainian children is not unique – Putin and others have long used children as political pawns<figure><img src="https://images.theconversation.com/files/534668/original/file-20230628-17-r6tpca.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People in Brussels attend a memorial for the Ukrainian children who have been forcibly taken to Russia. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1247413833/photo/avaaz-demonstration-for-ukrainian-children-kidnapped-by-russia.jpg?s=1024x1024&w=gi&k=20&c=9h-qz3QRujrOfaZteTqg0aimHxEuSz-EMiTSo_b-6FY=">hierry Monasse/Getty Images</a></span></figcaption></figure><p>Since Russia launched a full-scale invasion of Ukraine in February 2022, Russian soldiers have forcibly taken an estimated <a href="https://www.theguardian.com/world/2023/may/29/i-was-so-scared-the-ukrainian-children-taken-to-russia-for-financial-gain">16,000 Ukrainian children</a> to Russia. <a href="https://news.yahoo.com/more-300-deported-ukrainian-children-104447714.html">Over 300 children</a> have since returned home, but it is not clear what happened to most of the rest.</p>
<p>The mass abductions led prosecutors at the International Criminal Court to issue <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">arrest warrants in March 2023</a> for Russian President Vladimir Putin and Russia’s children’s rights commissioner, Maria Lvova-Belova. Moscow counters that the children it has brought to Russia – its estimates are as many as 744,000 Ukrainian children – <a href="https://www.euronews.com/2023/06/07/life-on-the-margins-the-fate-of-ukraines-forcibly-deported-children">have been evacuated </a>from conflict zones.</p>
<p>I am <a href="https://theconversation.com/profiles/clementine-fujimura-1339930">an anthropologist</a> who <a href="https://www.researchgate.net/profile/Clementine-Fujimura">studies marginalized communities</a>, including youth subcultures in Russia and other places, including the United States and parts of Europe. </p>
<p>The kidnapping of Ukrainian children offers a reminder of how Putin and other Russian leaders have historically used children as pawns in international politics. </p>
<h2>A Soviet promise to children</h2>
<p>I explore the lives of homeless and abandoned Russian children, including kids in orphanages and other similar institutions in Moscow, in my 2005 co-authored book, “<a href="https://www.bloomsbury.com/us/russias-abandoned-children-9780275979096/">Russia’s Abandoned Children: An Intimate Understanding</a>.” </p>
<p>My research included numerous trips to Russian orphanages between 1990 and 2000, as well as time spent living and volunteering in an orphanage and shelter for babies. </p>
<p>It’s helpful to understand that before the Soviet Union collapsed in 1991, the Soviet government presented a myth that all children – including those in institutions – would receive excellent care. The Soviet government <a href="https://thevieweast.wordpress.com/2012/06/21/the-littlest-enemies-children-of-the-stalinist-era/">promised these children</a> that their <a href="https://blogs.bu.edu/guidedhistory/russia-and-its-empires/elise-alexander/">futures were promising</a> and that they would receive an education and have help getting a job.</p>
<p>Other than adults who worked in these Soviet orphanages or psychiatric hospitals, no one was allowed to see what went on inside. </p>
<p>The myth of these orphaned children’s perfect childhood calmed citizens’ potential concerns, my research shows. </p>
<p>However, the public began to realize Russian orphans’ plight once the Soviet Union broke apart. Orphans and otherwise abandoned children in orphanages began to escape the institutions when possible. They formed their own version of kinship groups, gathering on city streets and in underground train stations. </p>
<p>I discovered in my research that many abandoned children preferred being homeless to living in orphanages. </p>
<p>This <a href="https://www.youtube.com/watch?v=K5T_O-L5Mis">trend of youth vagrancy</a> became a sore spot for the Russian government, as it tried to grow its economy and rebrand itself in the West.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Six infants lie together in a crib, with a flower printed mattress." src="https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534669/original/file-20230628-19397-ksv329.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Soviet orphans play in a crib in 1991, the year the Soviet Union fell.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/635964925/photo/infants-playing-in-a-crib.jpg?s=1024x1024&w=gi&k=20&c=-6y1U5oVu3CUu9wsPz9K01pXzT6a2sJC7y4D64926mI=">Peter Turnley/Corbis/VCG via Getty Images</a></span>
</figcaption>
</figure>
<h2>Russia’s struggle to care for kids</h2>
<p>Russia’s decision to end adoptions to American families in 2012 offers another example of how the Russian government has used children for nefarious purposes in the past few decades. </p>
<p>The Russian government first opened the doors for international adoption in 1991. Citizens from the U.S. and other Western countries eagerly responded, welcoming the new openness of Russia. </p>
<p>This helped boost Russia’s image in the West as a kinder country than it was during the Cold War. At the time, around 371,700 Russian children were <a href="https://www.themoscowtimes.com/2012/03/28/russia-struggles-to-reform-soviet-era-orphanages-a13621">growing up in state institutions</a>. <a href="https://www.washingtonpost.com/world/russias-orphans-government-takes-custody-of-children-when-parents-cant-cope/2013/05/02/4d17ff4a-a757-11e2-a8e2-5b98cb59187f_story.html">Most of these kids</a> had at least one living parent. </p>
<p>In some cases, government <a href="https://www.washingtonpost.com/world/russias-orphans-government-takes-custody-of-children-when-parents-cant-cope/2013/05/02/4d17ff4a-a757-11e2-a8e2-5b98cb59187f_story.html">deemed some parents unfit</a> for the job and moved the kids to an institution. </p>
<p>U.S. citizens adopted more than 60,000 Russian orphans <a href="https://www.adoptivefamilies.com/resources/adoption-news/russian-adoption-a-brief-history-whats-behind-the-current-media-attention/">from the early 1990s</a> until 2013.</p>
<p>During my time spent with teachers, doctors and children in Russian orphanages and shelters, it was clear that Russia struggled to care for abandoned and otherwise institutionalized children, including those taken from parents. </p>
<p>There <a href="https://www.latimes.com/archives/la-xpm-1998-dec-17-mn-54995-story.html">were also widespread reports</a> of the <a href="https://www.hrw.org/legacy/reports98/russia2/Russ98d-02.htm">children being neglected</a> and mistreated. </p>
<p>In the orphanage I studied, children did not eat fresh fruits and vegetables, and the caretakers often lamented the food’s lack of nutritional value. I was asked to bring vitamins, diaper rash cream and other basic necessities. </p>
<p>The fact that the Russian government could not handle its orphans was a source of embarrassment. Putin, who served as president from 2000 through 2008 and again starting in 2012, saw the need to change the narrative of the poor Russian orphan, if only for the sake of the country’s public image. </p>
<h2>‘It’s hard to believe’</h2>
<p>In 2008, a Russian toddler born with the name Dima Yakovlev <a href="https://www.washingtonpost.com/world/europe/adopted-russian-toddler-dies-in-texas/2013/02/19/493b3862-7aa0-11e2-9a75-dab0201670da_story.html">died of heatstroke</a> while left unattended in his adoptive father’s parked car in the Washington, D.C., area. </p>
<p>This news made international headlines. Some Russian officials pointed out the lack of oversight and abuse that adopted Russian children experienced in the U.S. This narrative helped weaken the U.S. in the eyes of Russian citizens, thereby strengthening the image of the Russian government. </p>
<p>“When we <a href="https://www.nytimes.com/2009/01/04/world/europe/04adopt.html">give our children to the West</a> and they die, for some reason the West always tells us it was just an accident,” Russian politician Tatyana Yakovleva reportedly said in 2009. “It’s hard to believe.”</p>
<p>This case and other news stories about a few U.S. adoptive families <a href="https://www.cnn.com/2012/07/13/us/adopted-child-returned/index.html">treating Russian children poorly</a> coincided with another political controversy. </p>
<p>Russian police arrested <a href="https://www.nytimes.com/2017/07/10/world/americas/kremlin-adoptions-sanctions-russia.html">attorney Sergei Magnitsky</a> on questionable grounds. Magnitsky had <a href="https://www.nytimes.com/2017/07/10/world/americas/kremlin-adoptions-sanctions-russia.html">uncovered a tax fraud</a> worth US$230 million. Magnitsky <a href="https://www.theguardian.com/politics/2020/jul/06/who-was-sergei-magnitsky-and-how-did-uk-sanctions-come-about">died while in custody</a> in 2009, before he could stand trial. </p>
<p>In 2012, the U.S. Congress approved new legislation, called the Magnitsky Act, which identifies and imposes sanctions on Russian officials who are <a href="https://www.bbc.com/news/world-europe-20857068">accused of human rights violations</a>. </p>
<h2>A halt to adoptions</h2>
<p>In 2012, Putin signed the law banning international adoptions to the U.S.</p>
<p>Putin’s <a href="https://travel.state.gov/content/dam/NEWadoptionassets/pdfs/AdoptionsNoticesPDFs2019/2013AdoptionArchive/Russia%20_Alert_Legislation%20to%20Ban%20Intercountry%20Adoption%20by%20U.S.%20Families_January%202%2C%202013.pdf">law, which went into effect</a> in early 2013, halted <a href="https://world.time.com/2012/12/20/why-has-moscow-passed-a-law-to-ban-u-s-adoption-of-russian-orphans/">thousands of adoptions</a> already in progress with American families. </p>
<p>U.S. scholars and journalists have argued that Putin’s adoption ban was a direct <a href="https://www.theatlantic.com/international/archive/2017/07/magnitsky-act-kremlin/535044/">retaliation to the Magnitsky Act</a> and was not about Putin’s concern for Russian orphans. Putin <a href="https://www.fpri.org/2015/10/putins-hidden-victims/">promised to improve</a> the Russian child welfare system in 2013. Some outside analysis by groups like the World Bank have <a href="https://www.worldbank.org/en/news/press-release/2021/06/11/services-to-protect-children-in-russia-have-improved-significantly-but-further-progress-needed-says-world-bank#:%7E:text=The%20country%20has%20seen%20significant,percent%20from%202009%20to%202020.">documented positive changes</a> at Russian institutions for children, such as more funding. But there remain challenges – including the fact that Russia has a much higher rate of institutionalized children than other middle- to high-income countries.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A child swings in front of a destroyed, burned looking building." src="https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534671/original/file-20230628-19670-zqtm6v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">While some abducted Ukrainian children have come home to their families, most remain unaccounted for.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1238745447/photo/russia-starts-large-scale-attack-on-ukraine.jpg?s=1024x1024&w=gi&k=20&c=509Cik2_BZn4WySDVaBWKW7LkJjG2ZHviqGmLu0RdwU=">Pierre Crom/Getty Images</a></span>
</figcaption>
</figure>
<h2>A similar playbook</h2>
<p>In the face of evolving battlefield failures in Ukraine, Putin has pivoted to a familiar playbook of using and abusing children, continuing to call for the “<a href="https://www.theguardian.com/world/2023/mar/18/how-ukraine-kidnapped-children-led-to-vladimir-putins-arrest-warrant-russia">evacuation” of Ukrainian children,</a> both from Ukrainian orphanages and from their families. These children are being moved to Russian orphanages and camps, where they learn <a href="https://www.cnbc.com/2023/02/14/ukraine-war-news-russia-has-relocated-more-than-6000-children.html">how to be Russian.</a> </p>
<p>In order to become <a href="https://nypost.com/2023/03/06/ukrainian-kids-kidnapped-by-russia-sent-to-re-education-camps/">citizens of Russia</a>, these children <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/747093/EPRS_BRI(2023)747093_EN.pdf">have been forced</a> to abandon their Ukrainian heritage, both physically and mentally, and to get a new education in Russian <a href="https://ge.usembassy.gov/russias-re-education-camps-hold-thousands-of-ukraines-children-report-says/">propaganda and history</a>. </p>
<p>Russian citizens, in turn, are once again presented with the myth that children in Ukraine are being saved from the war and <a href="https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/ukraine-fact-fait.aspx?lang=eng">offered a better life</a>.</p>
<p>But for Ukrainian families and orphanage staff involved, these abductions amount to a form of torture, with parents and caretakers clamoring to find their children and <a href="https://www.politico.eu/article/save-ukraine-children-abduction-russia-war-rescue-operation/">bring them home</a>.</p><img src="https://counter.theconversation.com/content/208330/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The USNA is not responsible for the content found in this article. In addition,
the content of this article does not reflect the opinions, standards, policy,
or endorsement of the Naval Academy or the United States Government.</span></em></p>Russia’s systematic manipulation of children dates back long before the war in Ukraine, to when the Soviet Union first made false promises to its large population of orphans.Clementine Fujimura, Professor of Anthropology, Area Studies and Russian, United States Naval AcademyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2043382023-05-16T12:40:00Z2023-05-16T12:40:00ZInternational Criminal Court is using digital evidence to investigate Putin – but how can it tell if a video or photo is real or fake?<figure><img src="https://images.theconversation.com/files/526317/original/file-20230515-31204-uevzio.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A satellite image shows burning homes in Chernihiv, Ukraine, in March 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239246974/photo/10-maxar-satellite-multispectral-image-view-of-burning-homes-in-residential-area-of-chernihiv.jpg?s=1024x1024&w=gi&k=20&c=_9zuz2w6eePXNPf2UVL4bt7RvCV23e_zm7gUI5WdmI4=">Satellite image (c) 2022 Maxar Technologies.</a></span></figcaption></figure><p>Russia’s invasion of Ukraine in February 2022 was reminiscent of wars long past, where a country invades another with little provocation.</p>
<p>But there are many parts of this conflict that are uniquely modern – including how ordinary Ukrainians are capturing and sharing videos and photos <a href="https://www.politico.eu/article/ukraines-sprawling-unprecedented-campaign-to-document-russian-war-crimes/">documenting the mass murder</a> of civilians, which is <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">considered a war crime</a> under international law.</p>
<p>The International Criminal Court – an international tribunal in the Hague, Netherlands, designed to investigate and <a href="https://www.icc-cpi.int/about/the-court">prosecute war crimes</a> – is trying to keep pace with this trend. </p>
<p>The ICC, a common acronym for the court, <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">issued arrest warrants</a> for Russian President Vladimir Putin and Russia’s children’s rights commissioner, Maria Lvova-Belova in March 2023. They are charged with allegedly abducting and deporting <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">Ukrainian children to Russia</a>. </p>
<p>It isn’t clear what specific evidence ICC prosecutors have gathered to support these charges, but ICC prosecutor Karim Khan has spoken about the “advanced technological tools” the court is using <a href="https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin">in its ongoing investigation</a>. This could include, for example, satellite imagery or cellphone video filmed by witnesses. </p>
<p>I am a <a href="https://ronaldniezen.ca/">scholar of international human rights</a> who has studied the ICC’s investigations into war crimes in Mali, West Africa, and how the court’s use of such digital evidence has advanced over the last decade. </p>
<p>The ICC’s current investigation in Ukraine could further cement this shift toward using digital evidence to investigate war crimes – and raises new challenges about verifying the authenticity of these photos and videos. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rows of teddy bears are spread out across the ground, with small fake candles nearby." src="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A memorial event in Brussels in February 2023 marked the abduction of Ukrainian children.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1247413127/photo/topshot-belgium-ukraine-russia-conflict.jpg?s=1024x1024&w=gi&k=20&c=2C_Bh-MvAFwOiLDugnG7qhvhf6qsmKsee0zSjw7q0P0=">Nicolas Masterlinck/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>A rise in digital forensics</h2>
<p>War crimes investigations have traditionally relied almost exclusively on witness <a href="https://www.reuters.com/article/uk-bosnia-grave/bosnia-digging-up-mass-grave-hidden-for-20-years-by-serb-silence-idUKBRE99L0XI20131022">testimony and mud and bones forensics</a> from crime scenes. </p>
<p>This began to change in 2013, when the ICC investigated Malian jihadist Ahmad Al Faqi Al Mahdi, who <a href="https://www.icc-cpi.int/mali/al-mahdi">ordered the destruction</a> of shrines and mosques in Timbuktu during an occupation of this city in Mali. </p>
<p>Video evidence documented the destruction of these holy sites, which are <a href="https://whc.unesco.org/en/canopy/timbuktu/">UNESCO heritage sites</a>. Al Mahdi’s group took some of these videos, and international media filmed others. </p>
<p>Prosecutors ultimately had such a large trove of video evidence that they organized them into a <a href="https://situ.nyc/research/projects/icc-digital-platform-timbuktu-mali">digital visual platform</a>. </p>
<p>For the first time, the <a href="https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_07244.PDF">ICC relied heavily</a> on visual digital <a href="https://library.witness.org/product/multiple-elements-crime/">evidence in a prosecution</a>.</p>
<p>The court sentenced Al Mahdi to <a href="https://www.icc-cpi.int/mali/al-mahdi">nine years in prison</a> in 2016 for destroying <a href="https://qz.com/africa/763207/destroying-history-is-now-being-charged-as-a-war-crime">Timbuktu’s history.</a> </p>
<p>Since then, other <a href="https://leiden-guidelines.com/assets/DDE%20in%20ICL.pdf">international tribunals</a> have accepted digital videos and images as legitimate evidence. <a href="https://www.politico.eu/article/ukraine-war-satellite-images-reveal-devastation-russia-invasion/">Satellite imagery</a>, mobile phone videos and other sources of <a href="https://cyberscoop.com/fbi-ukraine-cyber-war-crime/">digital data</a> can offer powerful supplements to eyewitness <a href="https://ir.lawnet.fordham.edu/ilj/vol41/iss2/1/">accounts of war crimes</a>. </p>
<h2>Is it real or fake?</h2>
<p>With the rise of advanced video editing and artificial intelligence tools, it can be challenging to tell real videos or images from fake ones. If investigators are unable to guarantee that the evidence they download is real, they are unable to proceed with their work.</p>
<p>The University of California Berkeley School of Law’s Human Rights Center raised this point in 2022, when it released a guide on digital evidence intended for international <a href="https://www.ohchr.org/sites/default/files/2022-04/OHCHR_BerkeleyProtocol.pdf">court investigators, lawyers, and judges</a>. </p>
<p>This guide, known as the Berkeley Protocol, sets standards for legal relevance, security and the handling of digital evidence. This includes guidance for investigators, such as protecting the identity of witnesses who provide digital evidence and awareness of the psychological effects of viewing disturbing content. </p>
<p>There are several stages to a digital investigation, as the guide explains.</p>
<p>The first involves getting the evidence. Investigators sometimes find themselves in a race to download and preserve digital content before a content moderator – a person or an AI-enabled tool – <a href="https://www.reuters.com/article/us-global-socialmedia-rights-trfn/lost-memories-war-crimes-evidence-threatened-by-ai-moderation-idUSKBN23Q2TO">deletes it and it disappears</a>. </p>
<p>Once a video is safely in their possession, analysts have to authenticate it. This complicated process involves establishing where the evidence came from and where else it has been, from the time and place the video was shot to the point when investigators acquired it. </p>
<p>In their analysis, investigators look for things like distinctive buildings or trees that can be easy to spot in other images. Satellite imagery can also help determine exactly where a video was filmed and what direction the camera was pointed. Investigators may also use tools like facial recognition software. </p>
<p>Video images often contain other clues about the time and location of an incident. Things like street signs or sticker graffiti on lampposts can help narrow down where and when an image was filmed and what it shows. </p>
<p>The ICC is now using the Berkeley Protocol in its investigation of Ukraine. If and when the time comes for prosecutors to present digital evidence of Russian war crimes in court, there will be little need for lawyers to argue over its validity. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands on rubble and holds up a phone, facing toward an opening in the wall and a street." src="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=361&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=361&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=361&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=454&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=454&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=454&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Russian soldier patrols a Mariupol theater in Ukraine, bombed by Russian troops in March 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239934838/photo/topshot-ukraine-russia-conflict.jpg?s=1024x1024&w=gi&k=20&c=yatY8oL5OJwFUDdYl4UZMys0tsKFCkXkZJS-jHYJFUk=">Alexander Nemenov/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The digital evidence so far for Ukraine</h2>
<p>It isn’t likely that Putin or Lvova-Belova will be arrested – at least, not any time soon. For now, they are safe by staying within Russia’s borders, since Russia does not abide by the ICC’s arrest warrants or prosecutions. </p>
<p>But the court’s investigation of Russian war crimes is ongoing, and it will rely on the thick trail of digital evidence that journalists, regular citizens and even perpetrators themselves have documented over the course of the Ukraine war.</p>
<p>The Associated Press published images and video in March 2023 of Ukrainian children – who <a href="https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6">may or may not be orphans</a> – being loaded onto buses in the Donetsk region of Ukraine, and others of Ukrainian children eating together in Russia. </p>
<p>Two research agencies that previously consulted for the ICC have also released their own visual investigations of <a href="https://situ.nyc/research/projects/crime-scene-bucha">war crimes in Ukraine</a>, showing digital evidence that <a href="https://theater.spatialtech.info/">Russian artillery attacked</a> a theater in Mariupol where civilians took shelter in March 2022, for example. </p>
<p>Perpetrators, too, are posting evidence of their alleged crimes. Russian <a href="https://www.nytimes.com/2023/03/18/world/europe/putin-arrest-warrant-children.html">state media</a> has reportedly shown Russian soldiers taking Ukrainian children from a group home into Russian-held territory.</p>
<p>International tribunals are adapting to the new landscape of digital documentation. There are scenes in Ukraine that look eerily like the conflicts of the 20th century, but the current war crimes investigation is unlike anything we have seen before.</p><img src="https://counter.theconversation.com/content/204338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronald Niezen received funding from the Social Sciences and Humanities Research Council of Canada. </span></em></p>Digital evidence is becoming a routine fixture for war crimes investigations, including the one focused on Ukraine, changing the landscape for international tribunal investigations.Ronald Niezen, Professor of Practice, Departments of Sociology and of Political Science / International Relations, University of San DiegoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2055202023-05-11T15:44:58Z2023-05-11T15:44:58ZUkraine recap: not a great deal to celebrate for Putin this Victory Day as Ukraine digs in for the long haul<p>One tank. According to press reports and news broadcasts from Moscow, a solitary T-34 dating back to the second world war was the only tank that trundled past the Russian president as he marked a scaled-down Victory Day on May 9 this year.</p>
<p>As we have <a href="https://theconversation.com/ukraine-war-russia-scales-back-may-9-victory-day-celebrations-amid-fear-of-popular-protests-204638">previously noted here</a>, Victory Day parades are a big deal for Vladimir Putin. During his time in power he has transformed them from a solemn (if obviously martial) commemoration of the part the Red Army played in the defeat of Nazism in the second world war to a macho demonstration of imperial might. It’s now one of Russia’s most important national celebrations.</p>
<p>A clearly piqued Putin told the (rather smaller than usual) crowds in Red Square that “a real war has again been unleashed” on Russia, a reprise of his oft-articulated theme that the whole thing is actually a conflict forced upon the motherland by evil forces in the west.</p>
<p>Presumably Russia needs all its military hardware at the front as it prepares for a spring offensive that is expected to begin any day now. Indeed, the respected US-based thinktank the Institute for the Study of War has flagged what it is calling “<a href="https://www.understandingwar.org/backgrounder/russian-offensive-campaign-assessment-may-10-2023">successful limited counterattacks</a>” around Bakhmut. Russian troops have been bogged down there for months in a murderous and attritional slugfest at a huge cost in terms of both lives and ammunition. </p>
<hr>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/510322/original/file-20230215-22-dna0kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em>Since Vladimir Putin sent his war machine into Ukraine on February 24 2022, The Conversation has called upon some of the leading experts in international security, geopolitics and military tactics to help our readers <a href="https://theconversation.com/uk/topics/ukraine-12-months-at-war-134215?utm_source=TCUK&utm_medium=linkback&utm_campaign=Ukraine12Months">understand the big issues</a>. You can also <a href="https://theconversation.com/uk/newsletters/ukraine-recap-114?utm_source=TCUK&utm_medium=linkback&utm_campaign=Ukraine12Months">subscribe to our fortnightly recap</a> of expert analysis of the conflict in Ukraine.</em></p>
<hr>
<p>But anyone thinking that the much-heralded offensive will be the prelude to a swift Ukrainian victory on the battlefield is mistaken, writes Frank Ledwidge, a former military intelligence officer now researching and teaching military strategy at the University of Portsmouth. Ledwidge has recently returned from Kyiv where he attended a conference organised by the thinktank <a href="https://www.globsec.org/">Globsec</a>. </p>
<p>“One abiding impression remains,” <a href="https://theconversation.com/ive-just-returned-from-kyiv-where-they-are-expecting-a-long-war-and-want-more-help-from-the-west-205361">he writes</a>, “the profound determination of Ukrainian people to fight what almost everyone now accepts is going to be a long war. At no level is there any appetite for settlement or ceasefire.” But there are also no illusions that the spring offensive will be decisive and Ukraine is going to need western help – and lots of it – for some years yet. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ive-just-returned-from-kyiv-where-they-are-expecting-a-long-war-and-want-more-help-from-the-west-205361">I've just returned from Kyiv where they are expecting a long war and want more help from the west</a>
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<hr>
<h2>Russian masculinity</h2>
<p>One thing is certain though. The heavy toll this is taking on Russia’s troops – whether regular army or the various private militias, of which the now-notorious Wagner Group is but one – means that there will have to be another major round of conscription. </p>
<p>The Russian Duma recently rubberstamped legislation that will make it significantly harder for young Russian men to avoid the call-up. Last September when Putin announced Russia’s first mobilisation since the second world war, there was a general rush for the exits. Hundreds of thousands of draft-eligible young men headed for the safety of neighbouring countries rather than join up. </p>
<p>Russians have been treated to a blitz of advertising appealing to the Russian male’s sense of their “warrior masculinity”. Marina Yusupova of Edinburgh Napier University is an expert in expressions of masculinity – particularly in Russia – and has researched Russian <a href="https://theconversation.com/russias-appeal-to-warrior-masculinity-is-unlikely-to-encourage-men-to-enlist-in-the-army-205307">men’s views on the army and military service</a>. </p>
<p>She says while there is a huge amount of respect for the Soviet-era military, today’s army holds little appeal for most men – who tend to see it as “corrupt”, “deeply damaged” and “discredited”. Appeals along the lines of “You’re a real man, be one” – as one advert implores – are unlikely to be as effective as Putin might hope.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/russias-appeal-to-warrior-masculinity-is-unlikely-to-encourage-men-to-enlist-in-the-army-205307">Russia’s appeal to 'warrior masculinity' is unlikely to encourage men to enlist in the army</a>
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</em>
</p>
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<p>Muscovites got a nasty shock one night last week when two drones exploded close to the Kremlin itself. This sparked intense speculation, not least from Putin himself who immediately announced that this was a dastardly attempt at assassination. </p>
<p>“A planned terrorist act and an attempt on the president’s life, carried out on the eve of Victory Day”, his office declared. This blithely ignores the fact that it’s not exactly a state secret that Putin rarely if ever sleeps over at the Kremlin, so this would be a particularly futile attempt to bump him off.</p>
<p>Kyiv has flatly denied having any part in the attack. But, as David Dunn and Stefan Wolff of the University of Birmingham note, <a href="https://theconversation.com/ukraine-war-drone-attack-on-kremlin-logic-suggests-a-false-flag-to-distract-russians-ahead-of-victory-day-on-may-9-204960">Putin has form</a> when it comes to false flag operations. They argue there could be myriad reasons for Russia to have staged what they see as a piece of badly managed theatre.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-war-drone-attack-on-kremlin-logic-suggests-a-false-flag-to-distract-russians-ahead-of-victory-day-on-may-9-204960">Ukraine war: drone 'attack' on Kremlin – logic suggests a false flag to distract Russians ahead of Victory Day on May 9</a>
</strong>
</em>
</p>
<hr>
<h2>China syndrome</h2>
<p>Putin’s war in Ukraine has given Xi Jinping the opportunity to walk the world stage as ostensible peacemaker. Despite declaring “friendship without limits” with Putin when the pair met a couple of days before the invasion last February, China has since sat on the fence diplomatically, It has abstained from voting on United Nations resolutions condemning the war but also, thus far, refrained from supplying Russia with military equipment. </p>
<p>As Natasha Kuhrt from Kings College London and Marcin Kaczmarski from the University of Glasgow note, Xi and his advisers will be thinking through the various possible outcomes of the war. Here they give us <a href="https://theconversation.com/three-scenarios-for-the-next-phase-of-the-ukraine-war-and-what-each-means-for-china-204930">three possible scenarios</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/three-scenarios-for-the-next-phase-of-the-ukraine-war-and-what-each-means-for-china-204930">Three scenarios for the next phase of the Ukraine war and what each means for China</a>
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</em>
</p>
<hr>
<p>Xi also called the Ukrainian president last week for the first time since the conflict began. As <a href="https://theconversation.com/ukraine-war-what-china-gains-from-acting-as-peacemaker-204629">Stefan Wolff notes</a>, there’s a lot at stake for China – whatever the outcomes. One the one hand it needs Russia for balance in its great power competition with the west. On the other, various senior EU representatives have made it clear that Beijing’s stance on the war will significantly influence the future of Europe’s relationship with China.</p>
<p>But if Xi pulls off a diplomatic solution, writes Wolff, it will further cement China’s status as an important power broker in a bipolar order.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-war-what-china-gains-from-acting-as-peacemaker-204629">Ukraine war: what China gains from acting as peacemaker</a>
</strong>
</em>
</p>
<hr>
<h2>Nowhere to hide for Putin?</h2>
<p>The International Criminal Court’s recent decision to issue an arrest warrant for Putin for war crimes associated with the alleged kidnapping of Ukrainian children was greeted with a degree of weary cynicism all round. As US president Joe Biden noted at the time, the International Criminal Court “is not recognised by us either”.</p>
<p>But, as Aaron Fichtelberg, an expert in criminal justice at the University of Delaware notes, it would be <a href="https://theconversation.com/putin-may-not-outrun-the-warrant-for-his-arrest-history-shows-that-several-leaders-on-the-run-eventually-face-charges-in-court-204890">rash to assume that Putin is safe from the court’s grasp</a>. Fichtelberg runs through a number of former strongman leaders who have faced justice, not just at the hands of the ICC but a variety of other ad hoc legal jurisdictions set up to try war crimes. And, he adds, life as a fugitive – even as a former head of state – can be pretty miserable, as the late former Chilean dictator Augusto Pinochet found out in the 1990s. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/putin-may-not-outrun-the-warrant-for-his-arrest-history-shows-that-several-leaders-on-the-run-eventually-face-charges-in-court-204890">Putin may not outrun the warrant for his arrest – history shows that several leaders on the run eventually face charges in court</a>
</strong>
</em>
</p>
<hr>
<p><em>Ukraine Recap is available as a fortnightly email newsletter. <a href="https://theconversation.com/uk/newsletters/ukraine-recap-114?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+Newsletter+Ukraine+Recap+2022+Mar&utm_content=WeeklyRecapBottom">Click here to get our recaps directly in your inbox.</a></em></p><img src="https://counter.theconversation.com/content/205520/count.gif" alt="The Conversation" width="1" height="1" />
A selection of the best of our coverage of the conflict from the past fortnight.Jonathan Este, Senior International Affairs Editor, Associate EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2048902023-05-09T12:23:43Z2023-05-09T12:23:43ZPutin may not outrun the warrant for his arrest – history shows that several leaders on the run eventually face charges in court<figure><img src="https://images.theconversation.com/files/524945/original/file-20230508-221323-au50ge.jpg?ixlib=rb-1.1.0&rect=587%2C284%2C3797%2C2371&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Russian President Vladimir Putin is shown in Moscow in March 2022, shortly after Russia invaded Ukraine. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239099202/photo/topshot-russia-belarus-diplomacy.jpg?s=1024x1024&w=gi&k=20&c=3n424YJ42P5f8iJ9ypEUwoPh9b0mtpT2aAr4o6ItF7o=">Mikhaul Klimentyev/Sputnik/AFP via Getty Images</a></span></figcaption></figure><p><a href="https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/">The Russian government</a>, U.S. President Joe Biden and <a href="https://www.latimes.com/world-nation/story/2023-03-17/icc-hague-arrest-warrant-putin-ukraine-war-crimes">mainstream Western media</a> are <a href="https://www.nytimes.com/2023/03/13/world/europe/icc-war-crimes-russia-ukraine.html">among the observers</a> who all responded to Russian President Vladimir Putin’s arrest warrant for war crimes with a shrug. </p>
<p>In March 2023, the International Criminal Court <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">announced the warrant </a> for Putin and his commissioner for children’s rights, Maria Lvova-Belova, because they allegedly directed the abduction of Ukrainian children. The court says that these charges amount to <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">war crimes</a>.</p>
<p>While Biden said the <a href="https://www.theguardian.com/us-news/2023/mar/18/joe-biden-welcomes-icc-arrest-warrant-vladimir-putin">arrest warrant was “justified</a>,” he also noted that the International Criminal Court “is not recognized by us either.”</p>
<p>The skeptics have a point – the ICC, based in the Hague, Netherlands, does not have its own police force to execute its orders and must rely on other countries’ police to arrest the people it indicts. </p>
<p>Indeed, there are a number of barriers potentially preventing Putin’s arrest. </p>
<p>One is that Russia, like the United States, is not a member of the court – so as long as Putin does not set foot in a country that is a member of the court, he is safe from arrest. Putin also <a href="https://www.statista.com/statistics/896181/putin-approval-rating-russia/#:%7E:text=Vladimir%20Putin%27s%20approval%20rating%20in%20Russia%20monthly%201999%2D2023&text=In%20April%202023%2C%20over%2080,it%20stood%20at%2077%20percent">remains popular within Russia</a> and is unlikely to soon be overthrown and turned over by his successor.</p>
<p>But it still would be rash to assume that Putin is safe from the court’s grasp. </p>
<p>I <a href="https://scholar.google.com/citations?user=UharJuoAAAAJ&hl=en">am a scholar of criminal justice</a> who specializes in international courts and the creativity that prosecutors show in catching their targets, often under very difficult political circumstances. </p>
<p>History shows that it would require a little bit of good luck for prosecutors – and a few bad decisions by Putin – for the Russian autocrat to end up in handcuffs. But it’s far from impossible.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The silhouette of a phone shows the words, 'Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova/Belova' against a white, blue and red stripped backdrop, with a man's face on the right side of it." src="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=366&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=366&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=366&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=460&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=460&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=460&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The ICC’s arrest warrant for Vladimir Putin is seen in a news release in March 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1248458202/photo/vladimir-putin-international-criminal-court-illustration.jpg?s=1024x1024&w=gi&k=20&c=r-_uveFMIst8mPLuEHZ2rJJZCcFP5sBXeDE-JS8WwJk=">Jonathan Raa/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<h2>How international courts work</h2>
<p>A group of 60 countries established the <a href="https://www.icc-cpi.int/">International Criminal Court</a> in 2002 to prosecute people who commit the worst crimes, including genocide and wartime sexual violence, that violate international law. The court is part of a long line of international criminal tribunals going back to the military tribunal the U.S. and allies set up to prosecute Nazis at the end of World War II, as part of the <a href="https://www.britannica.com/event/Nurnberg-trials">Nuremberg Trials</a>. </p>
<p>There are other international criminal courts that prosecute war crimes, but the ICC is the largest and arguably most influential, since <a href="https://asp.icc-cpi.int/states-parties">123 member countries</a> fund the court and abide by its rulings. </p>
<p>Since its inception, the ICC <a href="https://www.reuters.com/world/europe/what-is-international-criminal-court-2023-03-17/#:%7E:text=The%20judges%20have%20issued%2010,of%20Congo%2C%20Mali%20and%20Uganda.">has issued 38 arrest warrants</a>, arrested 21 people, convicted 10 and acquitted four. Other suspects, like Putin, remain at large or have had their charges dropped. </p>
<p>Yet there are a number of options for prosecuting war crimes outside of the ICC that have been used in the past.</p>
<p>There are also other, smaller tribunals similar to the ICC that countries have helped set up to focus on specific conflicts. In other cases, individual countries can use their own courts to prosecute international criminals who have evaded arrest abroad.</p>
<p>In the case of the Ukraine war, Ukrainian President Volodymyr Zelenskyy has called for a new international tribunal to prosecute <a href="https://foreignpolicy.com/2023/05/04/zelensky-hague-speech-putin-ukraine-russia-icc-special-tribunal-nuremberg/">war crimes committed by Russia during the conflict</a>. Others have argued that Putin could be prosecuted in <a href="https://www.thenation.com/article/world/prosecuting-putin/">a Ukrainian court specifically designed for this purpose</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Black man in a grey suit looks at the camera, surrounded by someone in a judge's black robe and what appear to be security guards in navy outfits." src="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Liberian President Charles Taylor appears in court in July 2006 in the Netherlands.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/71493600/photo/former-liberian-president-charles-taylor.jpg?s=1024x1024&w=gi&k=20&c=fcL1dLZaJCAdx7DJFteUmx3wkfxIYpVDa1SxUYqSCfE=">Rob Keeris/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Lessons for Putin</h2>
<p>There have been several long but ultimately successful efforts to arrest fallen political leaders and mass murderers. </p>
<p>For example, Charles Taylor, the former president of Liberia who helped instigate a civil war in neighboring Sierra Leone in the 1990s, is now serving a 50-year prison sentence in the United Kingdom. </p>
<p>Prosecutors from an international tribunal set up in Sierra Leone announced Taylor’s indictment when he was in Ghana in 2002, forcing him to quickly flee a political conference and <a href="https://www.nytimes.com/2003/06/05/world/war-crimes-indictment-of-liberian-president-is-disclosed.html?searchResultPosition=4">head home for safety</a>. But Taylor then <a href="https://www.history.com/this-day-in-history/former-liberian-president-charles-taylor-found-guilty-of-war-crimes#:%7E:text=After%20a%20peace%20deal%20was,was%20forced%20out%20in%202003.">fell from power</a> in 2003, in the midst of a rebel insurgency. He then fled to Nigeria. </p>
<p>Eventually, Nigerian authorities <a href="https://www.theafricareport.com/73802/liberia-15-years-later-we-remember-the-long-hunt-for-charles-taylor/">arrested Taylor and handed him back to Liberia, which quickly passed him off to Sierra Leone for trial</a> in 2006. He was then <a href="https://www.cnn.com/2012/04/26/world/africa/netherlands-taylor-sentencing/index.html">convicted in 2012</a>. </p>
<p>Slobodan Milošević, the late president of Yugoslavia, was <a href="https://www.icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevic_slobodan_en.pdf">indicted by an international tribunal</a> that addressed the Balkans wars – along with two of his cronies, <a href="https://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf">Ratko Mladić</a> and <a href="https://www.icty.org/x/cases/karadzic/cis/en/cis_karadzic_en.pdf">Radovan Karadžić</a> –- for crimes committed against civilians during the wars in the 1990s. </p>
<p>They, too, initially evaded jurisdiction - Milošević initially remained in power, while Mladić and Karadžić went into hiding. Serbian authorities ultimately <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/#:%7E:text=The%20decision%20to%20relinquish%20Milosevic,a%20historic%20battlefield%20in%20Kosovo.">handed Milošević over</a> to the International Criminal Court in 2001, months after he stepped down from his post in 2000. Serbian police arrested Mladić and Karadžić about a decade later. </p>
<p>All three faced trial in the Hague. Milošević died while on trial in 2006. <a href="https://news.un.org/en/story/2021/06/1093582">Mladić and Karadžić </a> are now serving <a href="https://www.bbc.com/news/world-europe-47642327#:%7E:text=After%20the%20war%2C%20Karadzic%20hid,and%20genocide%20in%20November%202017">life sentences</a>. </p>
<p>And in Finland, former Sierra Leone rebel group leader <a href="https://trialinternational.org/latest-post/gibril-massaquoi/">Gibril Massaquoi</a> is facing trial for <a href="https://civitas-maxima.org/2021/01/25/trial-of-former-ruf-commander-set-to-begin-before-finnish-court/">war crimes</a> he committed during Sierra Leone’s civil war from 1991 to 2002. </p>
<p>Prosecutors at a Sierra Leone tribunal granted Massaquoi immunity in 2009 in exchange for his testimony against other rebels. He then relocated to Finland under a witness protection program. </p>
<p>But that did not stop Finnish prosecutors, who <a href="https://civitas-maxima.org/legal-work/our-cases/gibril-massaquoi/">arrested Massaquoi in March 2020</a>. His trial is <a href="https://www.reuters.com/world/europe/finnish-appeals-court-begins-liberia-war-crime-hearing-2023-01-10/">currently under appeal</a> in Finnish court system following Massaquoi’s acquittal by a lower Finish court in 2022.</p>
<h2>Even without prosecution, life won’t be good</h2>
<p>There are people such as Omar Al-Bashir, the former president of Sudan, who have so far avoided extradition to an international court. The ICC issued an arrest warrant for Al-Bashir in 2009 for allegedly committing <a href="https://www.icc-cpi.int/darfur/albashir">genocide in the Darfur region of Sudan</a>. Al-Bashir <a href="https://www.theguardian.com/world/2023/apr/26/sudan-former-president-accused-of-genocide-may-be-free-after-prison-attack">remains in Sudan</a> and has continued to avoid the ICC’s arrest warrant. But with the current <a href="https://www.bbc.com/news/world-africa-65495539">civil war in Sudan</a>, the warring powers may yet conclude that they’re better off with Al-Bashir in the Hague and away from Sudan.</p>
<p>But even if Putin isn’t prosecuted, his life will probably get much more difficult as a result of the arrest warrant. </p>
<p>When the late Chilean dictator <a href="https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1285&context=ilsajournal">Augusto Pinochet</a> left office in 1998, he declared himself “Senator for Life,” ensuring under Chilean law that he would never be prosecuted for the tortures, killings and disappearances of leftist political opponents that <a href="https://www.cbsnews.com/news/chile-dictator-augusto-pinochet-atrocities-secrects/">took place on his watch</a>. </p>
<p>But while Pinochet was receiving care for a back injury in London, a Spanish judge requested his extradition to Spain, and <a href="https://www.theguardian.com/world/1998/oct/18/pinochet.chile">he was arrested by British police</a> in 1998.</p>
<p>After over a year of legal limbo, the British government declared that Pinochet was mentally unfit for extradition and returned him to Chile. By then, he was a very diminished man and the <a href="https://www.nbcnews.com/id/wbna16139367">target of many lawsuits</a> before his death in 2006. </p>
<p>Putin may ultimately elude prosecution, but not the effects of the charges against him. </p>
<p>History shows that prosecutors are willing to wait for years for their targets to either fall from power or make that crucial mistake that exposes them to arrest, such as a medical emergency abroad or a visit to a country that is willing to cooperate with international prosecutors.</p><img src="https://counter.theconversation.com/content/204890/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aaron Fichtelberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court announced an arrest warrant for Putin and his children’s rights commissioner in March 2023, alleging the illegal abduction and deportation of Ukrainian children.Aaron Fichtelberg, Associate Professor of Sociology and Criminal Justice, University of DelawareLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2030402023-04-03T20:09:57Z2023-04-03T20:09:57ZInternational Criminal Court has cited Russia’s deportation of Ukrainian children a war crime: on Russia’s long history of weaponising deportation<figure><img src="https://images.theconversation.com/files/518954/original/file-20230403-26-bhn2vb.jpg?ixlib=rb-1.1.0&rect=14%2C5%2C1933%2C1086&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deportation of students, painting by Jacek Malczewski, 1884.
</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>On March 17, the International Criminal Court cited Russia’s deportation of Ukrainian children <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">as a war crime</a> for which President Vladimir Putin is being held responsible. </p>
<p>By some reports, since the invasion of Ukraine in February 2022, <a href="https://www.cbsnews.com/news/russia-ukraine-war-news-children-taken-to-reeducation-camps-report/">more than 6,000</a> children have been removed from Ukraine into Russia. The UN Commission of Inquiry on Ukraine <a href="https://www.bbc.com/news/world-europe-64985009">published evidence</a> of the “illegal transfer of hundreds of Ukrainian children to Russia”. </p>
<p>A recent <a href="https://yaledailynews.com/blog/2023/02/22/ysph-research-reveals-relocation-and-re-education-of-ukrainian-children/">Yale School of Public Health report</a> provides evidence of a organised attempt to reeducate abducted Ukrainian children now held in locations stretching from Russian-occupied Crimea to Siberia. </p>
<p>Putin is the first Russian leader to have an arrest warrant issued against him for the deportation of citizens of another country, but the origins of using deportation as a weapon are deeply rooted in Russia’s history.</p>
<p>Centuries before the Russian invasion of Ukraine in February 2022, the expulsion of individuals or even entire nations was used as a targeted instrument of war. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-russias-war-against-ukraine-one-of-the-battlegrounds-is-language-itself-201170">In Russia's war against Ukraine, one of the battlegrounds is language itself</a>
</strong>
</em>
</p>
<hr>
<h2>A tool of policy</h2>
<p>Deportation as a tool of policy was first seen in Russia’s rapid expansion in the second half of the 16th century.</p>
<p>In 1547, the Grand Duke of Muscovy, <a href="https://www.historytoday.com/archive/kazan-falls-ivan-terrible">Ivan the Terrible</a>, declared himself tsar of all the Russias. He claimed the leadership not only of Moscow and its territories but of all lands of the ancient Kyivan Rus. The name “Russia” replaced “Muscovy” as the name of the new tsardom.</p>
<p>Muscovy’s expansion strategy was directed towards the Grand Duchy of Lithuania in the west, coupled with the <a href="https://www.jstor.org/stable/4202706">conquest of Siberia</a>, then a vast separate region to the east. Between 1550 and 1700, the tsardom expanded by 35,000 square kilometres per year. </p>
<p>In 1569, Lithuania had joined Poland to form the <a href="https://www.britannica.com/place/Poland/The-Commonwealth">Polish–Lithuanian Commonwealth</a>. The Commonwealth, in which power was shared between the king and the parliament, became one of the largest countries in Europe, covering <a href="https://youtu.be/TJTdvtKJIZI">almost a million square kilometres</a> in the early 1600s.</p>
<p>Muscovy’s expansion to the west at the expense of Lithuania from the early 1500s encountered opposition. Earlier, Lithuania’s rulers united “all the Russias” (including the territory of modern Ukraine) within its multi-ethnic and multi-confessional monarchy. </p>
<p>Influenced by the <a href="https://huri.harvard.edu/news/timothy-snyder-kyivs-ancient-normality-redux">Orthodox religion and language</a> of the <a href="https://en.wikipedia.org/wiki/Kievan_Rus%27">Kyivan Rus</a> – an amalgam of principalities in eastern and northern Europe – the <a href="https://www.britannica.com/biography/Gediminas">Lithuanian dynasty</a> did not want to relinquish its control of the sprawling territories bordering Muscovy. The union with Poland was perhaps one of the strategies to defend itself against Russia’s encroachment. </p>
<p>In the early 17th century, the wars between Russia and Poland-Lithuania resulted in the deportations of soldiers, including Adam Kamieński (c.1635-c.1676). Kamieński was detained in 1666 and deported to <a href="https://en.wikipedia.org/wiki/Yakutsk">Yakutsk</a>, a settlement built on continuous permafrost about 450km south of the Arctic Circle.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black and white plate image." src="https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=425&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=425&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518952/original/file-20230403-22-ryky79.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=425&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Russian soldiers capturing Polish children in Warsaw, 1831.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>Between the 1760s and 1795, the <a href="https://www.jstor.org/stable/40105447">conflict between Russia and Poland-Lithuania</a> entered its acute phase. Its ultimate outcome was the end of independence for Poland-Lithuania. </p>
<p>In 1767, Russian Ambassador Nicholas Repin ordered kidnapping and deportation to Kaluga of a group of Polish-Lithuanian parliamentarians who opposed Russian-sponsored legislation.</p>
<p>Between 1771 and 1795, more than 50,000 citizens of Poland-Lithuania were deported to various locations in the Russian Empire. Among that number were about 20,000 who supported or served in the Polish-Lithuanian army under <a href="https://www.smithsonianmag.com/history/polish-patriot-who-helped-americans-beat-british-180962430/">Tadeusz Kościuszko</a>. </p>
<p>Kościuszko’s revolt from March to November 1794 aimed to prevent division of Poland-Lithuania’s territory between Russia, Prussia and Austria. The Russians <a href="https://theconversation.com/mount-kosciuszko-how-australias-highest-peak-came-to-be-named-for-a-freedom-fighter-against-russian-aggression-180578">deported</a> Kościuszko to Saint Petersburg in October 1794. </p>
<p>In January 1795, the Russian military removed <a href="https://www.independent.co.uk/arts-entertainment/book-review-elected-king-provides-bones-of-contention-the-last-king-of-poland-adam-zamoyski-cape-25-pounds-1498996.html">King Stanisław August</a>, the last monarch of Poland-Lithuania, from Warsaw. He died in Saint Petersburg <a href="https://culture.pl/en/article/in-defence-of-stanislaw-the-last-king-of-poland">in 1798</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mount-kosciuszko-how-australias-highest-peak-came-to-be-named-for-a-freedom-fighter-against-russian-aggression-180578">Mount Kosciuszko: how Australia’s highest peak came to be named for a freedom fighter against Russian aggression</a>
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</p>
<hr>
<h2>The 20th century</h2>
<p>The former citizens of Poland-Lithuania <a href="https://www.bsb-muenchen.de/mikro/lit497.pdf">rebelled against Russia</a> again in <a href="https://www.britannica.com/event/November-Insurrection">1830</a> and 1863. After the <a href="https://www.jstor.org/stable/4202527">suppression of the uprising of 1830</a>, about 30,000 of its participants were deported to Russia. Another 27,000 soldiers were forced into compulsory military service in the Russian army. </p>
<p>On March 23 1831, Emperor Nicholas ordered children of Polish-Lithuanian military personnel to be deported to Russia to join special imperial army units.</p>
<p>After 1863, Russia deported <a href="https://www.jstor.org/stable/650026">at least 25,000</a> of those who fought for the independence of Poland-Lithuania. The majority were deported to Tobolsk, Irkutsk, Akatuy and Tunka, deep in the Siberian hinterland. Most never returned home.</p>
<p>In the 20th century, Soviet Russia <a href="https://commons.princeton.edu/mg/deportations-from-the-soviet-union/">perpetrated deportation</a> against its own people. Affluent farmers known as <em>kulaks</em> were branded as “class enemies”, and ethnic <a href="https://www.jstor.org/stable/24455386">Koreans</a>, Germans and Tatars were also targeted. These deportations were described by the state as “population transfers”, with the authorities deporting “anti-Soviet” “enemies of the people” to <a href="https://www.jstor.org/stable/3804532">cleanse specific territories</a>. </p>
<p>During the second world war, <a href="https://www.unhcr.org/en-au/publications/refugeemag/3b5555124/unhcr-publication-cis-conference-displacement-cis-punished-peoples-mass.html">366,000 Volga Germans</a>, who were settled in Russia at the time, were deported to Siberia. </p>
<p>Soviet Russia’s invasion of Poland in 1939 resulted in deportation of <a href="https://doi.org/10.5406/polishreview.59.2.0019">more than a million people</a>. About <a href="https://www.jstor.org/stable/23488338">350,000 died</a>. </p>
<p>The <a href="https://www.sciencespo.fr/mass-violence-war-massacre-resistance/fr/document/soviet-massive-deportations-chronology.html">entire Tatar population</a> of Crimea, numbering around 200,000, were deported and resettled mainly in Uzbekistan, where a significant percentage died. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black and white drawing." src="https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=479&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=479&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=479&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=601&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=601&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518953/original/file-20230403-14-1dhaqe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=601&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Corpses of victims of the winter 1918 Red Terror.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>In 2015, Ukraine recognised this deportation of <a href="https://crimea.suspilne.media/en/articles/71">Crimean Tatars as genocide</a>, and marked May 18 as a day of remembrance. </p>
<p>Between 1940 and 1953, more than 200,000 people are estimated to have been deported from <a href="https://www.jstor.org/stable/43212604">Latvia, Lithuania and Estonia</a> – 10% of the entire adult population.</p>
<p>It is estimated that between 1936 and 1952, at least <a href="https://www.unhcr.org/en-au/publications/refugeemag/3b5555124/unhcr-publication-cis-conference-displacement-cis-punished-peoples-mass.html">three million people</a> were deported across the western territories of Soviet Russia and <a href="https://ehne.fr/en/encyclopedia/themes/wars-and-memories/movement-in-times-war/repressed-peoples-in-soviet-union">transported thousands of kilometres away</a> to Siberia and Central Asia. </p>
<p>In 2023, the world is witnessing deportation again being used as a weapon by Russia. Will the children taken away from Ukraine ever find their way home?</p><img src="https://counter.theconversation.com/content/203040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darius von Guttner Sporzynski does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Centuries before the Russian invasion of Ukraine in February 2022, the expulsion of individuals or even entire nations was used as a targeted instrument of war.Darius von Guttner Sporzynski, Historian, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2025282023-03-28T09:52:54Z2023-03-28T09:52:54ZICC arrest warrant for Vladimir Putin: a king-size dilemma for South Africa<figure><img src="https://images.theconversation.com/files/517651/original/file-20230327-27-lar6a3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Presidents Cyril Ramaphosa and Vladimir Putin at the first Russia-Africa Summit in Sochi, Russia, in 2019.
</span> <span class="attribution"><span class="source">Photos: GCIS</span></span></figcaption></figure><p>The International Criminal Court (ICC) <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">has issued an international arrest warrant</a> for Russian president Vladimir Putin for alleged war crimes regarding the unlawful deportation of children from Ukraine to Russia. Such acts are war crimes under two articles of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">Rome Statute</a>, which established the court.</p>
<p>ICC arrest warrants against <a href="https://theconversation.com/putin-and-the-icc-history-shows-just-how-hard-it-is-to-bring-a-head-of-state-to-justice-202247">sitting heads of state are rare</a>. </p>
<p>Putin faces arrest if he sets foot in any of the <a href="https://asp.icc-cpi.int/states-parties">123 signatory states</a> to the statute. Of these, 33 are African states. The issue could come to a head in August when South Africa is set to host the 15th summit of the Brazil, Russia, India, China and South Africa (BRICS) bloc in <a href="https://www.gov.za/speeches/president-cyril-9-mar-2023-0000#:%7E:text=South%20Africa%20is%20chairing%20the,22%20to%2024%20August%202023">Durban</a>.</p>
<p>As the head of a member state Putin has been invited to attend. But as a member of the court, South Africa is obliged under Article 86 of the ICC statute and <a href="https://www.justice.gov.za/legislation/acts/2002-027.pdf">domestic law</a> to cooperate fully by arresting the Russian president. </p>
<p>This is not the first time the country has faced such a dilemma. </p>
<p>In 2015 Sudanese president <a href="https://www.bbc.com/news/world-africa-33125108">Omar Al Bashir visited the country</a> to attend a summit of <a href="https://www.gov.za/speeches/25th-african-union-summit-7-15-jun#:%7E:text=South%20Africa%20is%20hosting%20the,5%20June">African Union heads of state</a>. In terms of South Africa’s ICC obligations, it was obliged to arrest Al Bashir, who had been <a href="https://www.icc-cpi.int/darfur/albashir">indicted</a> for violations of international humanitarian law and human rights law in Sudan’s Darfur region. The government, then under the presidency of Jacob Zuma, refused to arrest him, <a href="https://issafrica.org/iss-today/clutching-at-straws-sas-reasons-for-not-arresting-al-bashir">citing immunity from prosecution for sitting heads of state under international law</a>.</p>
<p>The arrest warrant for Putin has put President Cyril Ramaphosa’s government between a rock and a hard place. Complying with its domestic and international obligations by executing the arrest warrant would alienate Russia. This would have bilateral consequences – the country is still considered a friend by the ruling African National Congress based on the Soviet Union’s support during the struggle against apartheid – as well as ramifications within the BRICS, given <a href="https://edition.cnn.com/2023/03/20/europe/xi-putin-china-russia-visit-monday-intl-hnk/index.html">Moscow’s strong ties with Beijing</a>. </p>
<p>It is not unreasonable to argue that Ramaphosa’s government would want to tread carefully to avoid any such tensions. </p>
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Read more:
<a href="https://theconversation.com/five-essential-reads-on-russia-africa-relations-187568">Five essential reads on Russia-Africa relations</a>
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<p>On the other hand, welcoming Putin, thus <a href="https://www.washingtonpost.com/business/south-africas-indulgence-of-putin-is-unsustainable/2023/02/03/e0b461b8-a381-11ed-8b47-9863fda8e494_story.html">underscoring South Africa’s independent foreign policy</a>, would see the country lose international credibility. </p>
<p>One likely effect is that South Africa might lose preferential trade terms. For example, it could jeopardise its treatment of exports to the US under the <a href="https://ustr.gov/issue-areas/trade-development/preference-programs/african-growth-and-opportunity-act-agoa">African Growth and Opportunity Act (AGOA)</a>. AGOA has been used recently as a punishing tool against Ethiopia, The Gambia and Mali for “unconstitutional change in governments” and <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2022/january/us-terminates-agoa-trade-preference-program-ethiopia-mali-and-guinea">“gross violations of internationally recognised human rights</a>”.</p>
<p>Importantly, <a href="https://www.businesslive.co.za/fm/opinion/2023-03-16-francois-fouche-trading-down-south-africas-game-of-russian-roulette/">South Africa’s trade with the US far exceeds that with Russia</a>.</p>
<h2>The dilemma</h2>
<p>When the Zuma administration refused to arrest Al Bashir, it landed the government in judicial hot water. South Africa’s Supreme Court of Appeal <a href="http://www.saflii.org/za/cases/ZASCA/2016/17.html">found</a> that it had violated both international and domestic law.</p>
<p>Following the ruling of the Supreme Court of Appeal, Zuma’s government notified the United Nations secretary general of its intention <a href="https://www.pgaction.org/news/stand-against-impunity-south-africa.html">to withdraw from the Rome Statute</a>. This ill advised move was challenged in the High Court in Pretoria. It <a href="https://hsf.org.za/publications/hsf-briefs/withdrawal-from-icc-high-court-judgment">ruled</a> that the notice of withdrawal was unconstitutional due to the absence of prior parliamentary approval. Consequently, the government <a href="https://www.pgaction.org/ilhr/rome-statute/south-africa.html">“withdrew from the withdrawal”</a>.</p>
<p>In 2017, the <a href="https://www.icc-cpi.int/court-record/icc-02/05-01/09-302">ICC found</a> that South Africa had failed in its obligations under the Rome Statute towards the court by not arresting and surrendering Al Bashir. The court, however, decided not to pursue the matter further for <a href="https://theconversation.com/icc-ruling-on-south-africa-and-al-bashir-pragmatism-wins-the-day-81500">pragmatic reasons</a>. It also reasoned that to refer South Africa to the United Nations Security Council for noncompliance <a href="https://www.southernafricalitigationcentre.org/2017/07/07/news-release-icc-finding-on-south-africas-non-compliance-falls-short/">“would not be an effective way to foster future cooperation”</a>.</p>
<p>In the event that Putin attended the upcoming BRICS summit and Ramaphosa’s government did not arrest him, it would mean that South Africa was flouting domestic legislation as well as its own constitution. Article 165 (5) of the country’s <a href="https://www.concourt.org.za/images/phocadownload/the_text/Slimline-Constitution-Web-Version.pdf">constitution</a> makes it clear that the government is bound by court orders and decisions. </p>
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Read more:
<a href="https://theconversation.com/al-bashir-what-the-law-says-about-south-africas-duties-43498">Al-Bashir: what the law says about South Africa's duties</a>
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<p>How should South Africa respond to the dilemma?</p>
<p>At present the government’s response is not clear. On the one hand, Ramaphosa’s spokesperson <a href="https://www.reuters.com/world/africa/south-africa-aware-legal-obligations-regarding-putin-visit-2023-03-19/">said</a> that the country was aware of its obligations to arrest Putin and surrender him to the ICC. </p>
<p>On the other hand, Naledi Pandor, the foreign relations minister, confirmed the <a href="https://www.sowetanlive.co.za/news/south-africa/2023-03-23-russias-vladimir-putin-invited-to-attend-brics-summit-in-sa-pandor-confirms/">invitation to Putin to attend the BRICS meeting</a>. She noted that cabinet would have to decide on how to respond in view of the ICC warrant.</p>
<p>The government would want to balance its ICC obligations, domestic responsibilities and its historically friendly relations with Russia carefully. Unless it is hellbent on defying its own court decisions and laws, there are options available to avoid another round of international condemnation, and that would help it avoid potential court battles by civil society for noncompliance with the country’s own laws and court decisions. </p>
<h2>Options</h2>
<p>Firstly, South Africa should continue to extend an invitation for Russia to attend the summit. But, through diplomatic channels, request that the Russian delegation be led by its foreign minister, Sergei Lavrov. Lavrov has in essence become the face of Russia on the <a href="https://www.politico.eu/article/russia-foreign-minister-sergei-lavrov-western-leaders-militarize-southeast-asia-asean-g20-bali-indonesia/">international stage</a> since the start of the war in Ukraine. </p>
<p>Secondly, during the COVID pandemic, it became clear that physical presence at international gatherings for heads of states could be substituted with virtual attendance. The UN General Assembly set a good benchmark for this when heads of state <a href="https://www.aljazeera.com/news/2022/9/20/what-you-need-to-know-about-the-unga-summit">submitted video statements due to pandemic restrictions</a>. Putin could attend the BRICS summit virtually. </p>
<p>The need to sign summit documentation by the heads of state is not an impediment to virtual attendance. Putin can sign the documents electronically or after the summit, if a non-electronic signature is required.</p>
<p>The ball is now in the South African government’s court. The hope is that it makes the right decision, one which is in the best interests of the country and its people – not Russia or the likes of the US, especially as neither major power is a signatory to the ICC’s statute. Neither should prescribe to South Africa what it should decide. </p>
<p>Most importantly, the government must not trample on its own laws and court decisions. Compliance with the constitution must be the priority. Making a decision that is in the interests of South Africa and its people would also provide guidance to the other 32 African ICC signatory states, should they ever be faced with a similar dilemma in the future.</p>
<p><em>This article was co-authored with Sasha-Lee Stephanie Afrika (LLD), Attorney of the High Court of South Africa and former lecturer at Stellenbosch University and University of Johannesburg.</em></p><img src="https://counter.theconversation.com/content/202528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sascha-Dominik (Dov) Bachmann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government must not trample on its own laws and court decisions. Compliance with the constitution must be the priority.Sascha-Dominik (Dov) Bachmann, Professor in Law and Co-Convener National Security Hub (University of Canberra) and Research Fellow (adjunct) - The Security Institute for Governance and Leadership in Africa, Faculty of Military Science, Stellenbosch University- NATO Fellow Asia-Pacific, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2021862023-03-21T16:27:23Z2023-03-21T16:27:23ZWomen and war crimes: why so few are prosecuted, and what happens when they are<p>Within days of the start of the Russian invasion of Ukraine, the International Criminal Court (ICC) <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states">opened an investigation</a> into war crimes and crimes against humanity committed during the resulting war. On March 17 2023, the ICC <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">issued its first arrest warrants</a> against two Russian government officials. While significant attention has rightfully been paid to the <a href="https://theconversation.com/ukraine-war-iccs-putin-arrest-warrant-may-be-symbolic-but-must-be-the-beginning-of-holding-the-russian-leader-accountable-201907">arrest warrant for the Russian president, Vladimir Putin</a>, much less has been said about the charges brought against Maria Lvova-Belova, the commissioner for children’s rights. </p>
<p>The ICC alleges that Lvova-Belova engaged in two different war crimes described in Article 8 of the <a href="https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf">court’s statute</a>. Both relate to the unlawful deportation or transfer of the civilian population of an occupied country.</p>
<p>The warrants are based on the theory that Lvova-Belova, either acting individually or as part of a plan, removed orphans from Ukraine and deported them to Russia, where they have been adopted by Russian families. It has also <a href="https://hub.conflictobservatory.org/portal/apps/sites/#/home/pages/children-camps-1">been reported</a> (although not specifically stated in the warrants) that Ukrainian children have been sent to reeducation camps in Russia for the purpose of promoting cultural, historical, societal and patriotic messages or ideas that serve Russian political interests. </p>
<p>Lvova-Belova’s situation is rare in international criminal law. She is only the second woman against whom charges have been brought by the ICC, and the sixth female suspect at any international criminal justice institution. In contrast, women are often the victims of international crimes – rape and other forms of violence against women occur frequently during armed conflicts. Despite this, prosecutions for these crimes have proved difficult. The ICC often prosecutes for rape and other crimes of sexual violence, but it has only secured <a href="https://www.icc-cpi.int/news/dominic-ongwen-declared-guilty-war-crimes-and-crimes-against-humanity-committed-uganda">two</a> <a href="https://www.icc-cpi.int/news/icc-trial-chamber-vi-declares-bosco-ntaganda-guilty-war-crimes-and-crimes-against-humanity">convictions</a> for those crimes.</p>
<p>There is no clear explanation about why women have so rarely been the subject of international criminal prosecutions. It is not that women do not commit international crimes – many have been convicted in national courts for war crimes and crimes against humanity committed during the <a href="https://www.bbc.co.uk/news/world-europe-55661782">second world war</a>, the <a href="https://www.bbc.co.uk/news/world-africa-13907693">Rwandan genocide</a> and the war in the <a href="https://www.theguardian.com/world/2001/sep/10/gender.uk1">former Yugoslavia</a>. </p>
<p>One reason women are not often prosecuted by international criminal courts and tribunals could relate to the small number serving in senior leadership positions in many countries. While it is not unheard of for the ICC to prosecute more junior officials, their approach has largely been to pursue more senior government and military officials. </p>
<p>In Russia, women occupy fewer than 10% of senior leadership positions in the government and the military. Of the 31 senior leadership positions in the Russian government, <a href="http://government.ru/en/gov/persons/#vice-premiers">only three are women</a>. There are also only three women among the 35 people identified as <a href="https://eng.mil.ru/en/management.htm">major staff and key officials</a> in Putin’s executive office. </p>
<p>Women are even more underrepresented in Russian military leadership. One of <a href="https://eng.mil.ru/en/management.htm">13 senior</a> Russian military leaders is a woman. Simply put, women in Russia may be committing crimes that are of interest to the ICC, but lack the seniority to be considered among those who bear the greatest criminal responsibility.</p>
<h2>When women commit war crimes</h2>
<p>On the rare occasions that women are pursued by international criminal courts and tribunals, gendered stereotypes are often employed in an effort to justify or excuse their criminal behaviour. Pauline Nyiramasuhuko, Rwanda’s minister for family welfare and the advancement of women, was charged in 1999 by the International Criminal Tribunal for Rwanda for her involvement in the 1994 genocide. </p>
<p>In an <a href="https://www.bbc.co.uk/news/world-africa-13907693">interview with the BBC</a>, she denied playing a role in the crimes, asserting that as a mother she could not have been responsible for killing another person. One of her lawyers later emphasised her protective maternal instincts <a href="https://international-review.icrc.org/sites/default/files/irrc-877-hogg.pdf">by describing her as</a> “a mother hen”. Despite this, Nyiramasuhuko was ultimately convicted in 2011 of seven charges, including genocide and incitement to commit rape.</p>
<p>Similarly, Biljana Plavšić, the former president of Srpska (a territorial entity within Bosnia and Herzegovina) was the only woman prosecuted by the International Criminal Tribunal for the former Yugoslavia. She has been <a href="https://www.theguardian.com/world/2001/sep/10/gender.uk1">characterised in the media</a> along gendered lines, alternatively being described as “the Iron Lady of the Balkans” and “the Ice Queen”. </p>
<p>Plavšić’s defence to the charges against her were constructed around the idea that she was acting as “the mother” of her country, and that her behaviour was justified because she was protecting “her family”, the Serbian people. Plavšić ultimately pleaded guilty to the crime against humanity of persecution and served two-thirds of an 11-year sentence. But she later repudiated her plea, insisting that she had done nothing wrong.</p>
<p>These sorts of gendered narratives have also sprung up around Lvova-Belova. It <a href="https://www.newsweek.com/maria-alekseyevna-lvova-belova-accused-war-crime-1788581">has been reported</a> that at times the Russian media has referred to her as “Mother Russia”. She <a href="https://www.france24.com/en/europe/20230113-mother-russia-maria-lvova-belova-the-putin-ally-deporting-ukrainian-children">has described herself</a> as the saviour of Russian children, helping to shield them from the violence of war. </p>
<p>She also adopted one of the children transported from the occupied portion of the Donbas region in Ukraine. She uses that adoption <a href="https://www.theguardian.com/world/2023/mar/17/vladimir-putin-arrest-warrant-ukraine-war-crimes">to suggest</a> that she understands what it means to be the mother of a deported child.</p>
<p>Taken together, this paints a picture of someone justifying their actions on the basis of their role as a mother, while simultaneously downplaying the political dimensions of their behaviour. Should this case ever come to trial, it is reasonable to surmise that a similar strategy will be deployed in her defence. As a result, it is crucial for the ICC to ensure that the case against her is evaluated on its merits, and not a constructed gender identity.</p><img src="https://counter.theconversation.com/content/202186/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caleb Wheeler does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Maria Lvova-Belova, wanted by the ICC along with Vladimir Putin, is one of a handful of women to be prosecuted in international criminal law.Caleb Wheeler, Lecturer in Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2019072023-03-20T16:29:33Z2023-03-20T16:29:33ZUkraine war: ICC’s Putin arrest warrant may be symbolic but must be the beginning of holding the Russian leader accountable<p>Marking the ninth anniversary of his illegal annexation of Crimea, Russian president Vladimir Putin visited the occupied Ukrainian peninsula on March 18. His visit came a day after the International Criminal Court (ICC) in The Hague <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">issued</a> an arrest warrant against him. </p>
<p>Putin and his children’s commissioner, Maria Alekseyevna Lvova-Belova, face charges concerning the alleged illegal deportation of Ukrainian children to Russia. Symbolic as it might be for now, the warrant signals a determination against impunity. It points to the enormous scale of the abuses committed by Russian forces and their proxies for which Putin bears ultimate responsibility. </p>
<p>The deportation of Ukrainian children from Russian-occupied territories of Ukraine to Russia is in clear contravention of the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949">fourth Geneva convention</a>. This deals with the protection of civilians during war – to which Russia is a party. </p>
<p>The violations of children’s rights have been <a href="https://almenda.org/wp-content/uploads/2023/01/Report-of-Almenda_Six-Plus-Grave-Violations-Against-Children-in-2022.pdf">documented</a> in harrowing detail by the <a href="https://almenda.org/en/about-our-organisation/">Almenda</a> human rights organisation, which until 2014 was based in Crimea and has <a href="https://almenda.org/en/category/pub/monitoringi/">monitored</a> Russian abuses against children and other vulnerable groups since then.</p>
<h2>Russian violations of international law</h2>
<p>Russian abuses in Ukraine extend far beyond the deportation of children and far beyond Crimea. This has been <a href="https://www.osce.org/odihr/537287">documented in two reports</a> by the Organization for Security and Co-operation in Europe (OSCE) on violations of international humanitarian law and international human rights law in Ukraine. The United Nations Independent International Commission of Inquiry on Ukraine, has also compiled its own investigations. The reports, in <a href="https://www.ohchr.org/en/press-releases/2022/10/un-commission-has-found-array-war-crimes-violations-human-rights-and">October 2022</a> and <a href="https://news.un.org/en/story/2023/03/1134652">March 2023</a>, give an indication of the scale of the abuses suffered by civilians since Russia annexed Crimea and occupied parts of Donbas in 2014. </p>
<p>There are clear <a href="https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm">obligations</a> on occupying powers under the <a href="https://ihl-databases.icrc.org/assets/treaties/195-IHL-19-EN.pdf">Hague Regulations on land warfare</a> (1907) and the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949">fourth Geneva convention</a> (1949), as well as the <a href="https://ihl-databases.icrc.org/assets/treaties/470-AP-I-EN.pdf">first additional protocol</a> to the Geneva conventions (1977).</p>
<p>Russian violations over nine years include making the occupation arrangements permanent, rather than temporary. They introduced the Russian rouble as currency, and changed the curricula and language in schools to Russian. Russian passports have been forced on the population and men have been forcibly conscripted into the Russian military.</p>
<p>The annexations by Russia of Crimea in <a href="https://theconversation.com/now-crimeas-in-the-bag-where-next-for-putin-and-russia-24521">March 2014</a> and of the regions of Donetsk, Kherson, Luhansk and Zaporizhzhya in <a href="https://theconversation.com/ukraine-war-west-condemns-sham-referendums-in-russian-occupied-areas-191432">September 2022</a> are also illegal under international law.</p>
<p>There is also evidence that Russia failed in providing even basic necessities – food, water, electricity, sanitation and healthcare – to remaining residents, another requirement under international law. </p>
<p>Meanwhile, there have been reports of <a href="https://www.theguardian.com/world/2022/jun/20/crimes-against-civilians-documenting-scale-abuse-ukraine">more direct abuses of civilians</a>. These range from unlawful killings and abductions, to torture, sexual violence and forcible deportations. Public and private property have been destroyed and the population denied basic civil rights and political freedoms.</p>
<p>The full-scale invasion in February 2022 further intensified civilian suffering. Russia <a href="https://www.osce.org/files/f/documents/0/5/534933.pdf">disregarded</a> the principles of distinction, proportionality and caution when attacking populated areas. They destroyed critical civilian infrastructure, and so-called “installations containing dangerous forces” – such as nuclear power plants. </p>
<p>Since February last year, the treatment of prisoners of war (PoWs), who are protected under the <a href="https://ihl-databases.icrc.org/assets/treaties/375-GC-III-EN.002.pdf">third Geneva convention</a> (1949) has been added to the list of Russian violations of international law. This has included systematic ill-treatment of PoWs, including torture and sexual violence. </p>
<h2>Can Russia be held accountable?</h2>
<p>Ukraine has begun its own efforts to hold individuals accountable through <a href="https://www.washingtonpost.com/world/2022/05/23/ukraine-russia-soldier-war-crimes-verdict/">domestic war crimes trials</a>. But the ICC arrest warrant for Putin indicates a broader front in the fight against impunity. The fact that <a href="https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute">Russia withdrew</a>, in 2016, from the Rome statute that created the court does not mean that the Russian president could not be tried before it. </p>
<p>Former Serbian president <a href="https://www.icty.org/en/content/slobodan-milo%C5%A1evi%C4%87-trial-prosecutions-case">Slobodan Milošević</a> was indicted while still in office in 1999. He had to stand trial before the International Criminal Tribunal for the former Yugoslavia between 2002 and his death in 2006. </p>
<p>Similarly, the fact that Ukraine is not a signatory of the Rome statute is irrelevant here, as the country has <a href="https://www.icc-cpi.int/ukraine">twice exercised its prerogative</a> to accept ICC jurisdiction. In 2015 it gave the court an <a href="https://www.icc-cpi.int/sites/default/files/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf">open-ended right</a> to investigate potential crimes committed on Ukrainian territory after February 20 2014.</p>
<p>Another option is to <a href="https://iwpr.net/global-voices/aggression-tribunal-given-fresh-impetus">prosecute Russia’s leadership</a> specifically for the crime of aggression against Ukraine before a <a href="https://www.atlanticcouncil.org/blogs/new-atlanticist/how-ukraines-proposed-special-tribunal-for-russian-aggression-would-work/">special tribunal</a>, set up as a hybrid international mechanism to complement the ICC and domestic Ukrainian legal proceedings.</p>
<p>Other specialised bodies can also hear cases against Russia. The UN aviation council agreed to do so on March 17 in the context of the <a href="https://theconversation.com/as-russia-votes-with-security-council-could-mh17-be-providing-a-wake-up-call-29522">2014 downing</a> of flight MH17 over Donbas.</p>
<p>There is also the principal of <a href="https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/">universal jurisdiction</a>. This allows states to prosecute individuals who are not nationals of their countries for war crimes. <a href="https://www.hrw.org/news/2022/01/13/germany-conviction-state-torture-syria">Germany</a>, <a href="https://www.swissinfo.ch/eng/society/human-rights-violation_swiss-authorities-open-syrian-war-crimes-investigation/42490180">Switzerland</a> and <a href="https://www.aljazeera.com/news/2021/3/15/national-courts-lead-the-way-in-prosecuting-syrian-war-crimes">other European countries</a> have made use of this mechanism to prosecute war crimes from the Syrian civil war since 2011.</p>
<h2>Beyond accountability</h2>
<p>But accountability alone will not even begin to address the suffering of Ukrainians. Helping citizens deal with the trauma they have experienced means building culturally relevant, local capacity for victims and survivors to organise, identify and advocate for their specific needs. There will need to be support for women and women-led households. Eventually, locally driven truth-seeking efforts will be necessary for people to live together safely again. </p>
<p>This kind of restorative justice will be an essential complement to retributive justice. There are already a large number of victims and survivors of Russian abuses in Ukrainian-controlled and recently liberated territories. Working with these people is essential for their own sake, but also to constantly improve restorative justice efforts as Ukraine liberates more territories. </p>
<p>Raising awareness of international support for restorative measures is as important a signal to the people of Ukraine as the fight against impunity for Putin and other Russian war criminals. It signals a commitment not only to a Ukrainian victory, but also to justice afterwards.</p><img src="https://counter.theconversation.com/content/201907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefan Wolff receives funding from the Natural Environment Research Council of the UK. He is also a past recipient of grants from the United States Institute of Peace, the Economic and Social Research Council of the UK, the British Academy, the NATO Science for Peace Programme, the EU Framework Programmes 6 and 7 and Horizon 2020, as well as the EU's Jean Monnet Programme. He is a Senior Research Fellow at the Foreign Policy Centre in London and Co-Coordinator of the OSCE Network of Think Tanks and Academic Institutions.</span></em></p>The list of crimes for which Putin is considered complicit is long. The question is whether he can be held accountable.Stefan Wolff, Professor of International Security, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2021112023-03-20T14:58:44Z2023-03-20T14:58:44ZWhy the International Criminal Court’s indictment of Putin has symbolic importance<figure><img src="https://images.theconversation.com/files/516211/original/file-20230319-28-djw31z.jpg?ixlib=rb-1.1.0&rect=0%2C111%2C5745%2C3686&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman wrapped in the Ukrainian flag shouts through a megaphone during a demonstration in front of the International Criminal Court in The Hague, Netherlands, in March 2022. </span> <span class="attribution"><span class="source">(AP Photo/Phil Nijhuis)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/why-the-international-criminal-court-s-indictment-of-putin-has-symbolic-importance" width="100%" height="400"></iframe>
<p>The International Criminal Court (ICC) has issued an <a href="https://www.cnn.com/2023/03/17/europe/icc-russia-war-crimes-charges-intl/index.html">arrest warrant</a> for Russian President Vladimir Putin. Ukraine and its supporters had <a href="https://www.bbc.com/news/world-europe-62990141">been calling for charges</a> against Putin since the outset of Russia’s February 2022 invasion of Ukraine. </p>
<p>Even so, the fact that the ICC — <a href="https://www.britannica.com/topic/International-Criminal-Court">a permanent judicial body that investigates, prosecutes and tries people accused of genocide, war crimes and crimes against humanity</a> — issued the charges at all comes as a surprise.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1636845070866423809"}"></div></p>
<p>It should be noted, however, that the charges are significantly less than what <a href="https://www.rferl.org/a/ukrainians-react-icc-arrest-warrant-putin/32324276.html">Ukraine and its supporters demanded</a>. Putin is not being charged for the crime of aggression, among others. Instead, he’s facing charges for the <a href="https://www.theguardian.com/world/2023/mar/17/vladimir-putin-war-crimes-icc-arrest-warrant-ukraine-children">unlawful deportation of children and other civilians</a> from occupied Ukraine.</p>
<p>Almost immediately, two camps emerged in the aftermath of the ICC’s decision. The first emphasizes the <a href="https://www.cnn.com/videos/world/2023/03/17/icc-arrest-warrant-putin-russia-scheme-deport-ukrainian-children-vpx.cnn">importance of the decision</a>, and its potential significance in holding Putin accountable. </p>
<p>The second emphasizes that Putin will likely <a href="https://www.outlookindia.com/international/for-russia-icc-arrest-warrant-against-president-putin-is-as-good-as-toilet-paper--news-271182">never face his day in court</a>.</p>
<p>Both are simultaneously correct yet wrong. Those who question the decision are correct in that it is highly unlikely that Putin will ever be tried in court. They are, however, wrong in arguing there’s no value in this symbolic act.</p>
<p>Symbolic actions can have a <a href="https://doi.org/10.1177/030437548901400306">profound effect on states</a>. This is true not only for the immediate state or individual affected — in this case Russia and Putin — but also far beyond their borders.</p>
<h2>A week of symbolic actions</h2>
<p>There are two levels of symbolism in the ICC’s decision. The first is its immediate impact on Ukraine itself.</p>
<p>As both sides prepare for what most analysts believe will be <a href="https://www.sundaypost.com/fp/ukraine-spring-offensive/">intensive fighting in the spring</a>, symbolic acts can influence morale, both positively and negatively. The ICC’s decision will almost assuredly have a positive impact on the morale of Ukraine and its supporters.</p>
<p>Coincidentally, the ICC’s decision came days after China announced that <a href="https://www.cnn.com/2023/03/17/china/china-xi-jinping-visits-russia-intl-hnk/index.html">Xi Jinping would visit Russia</a> for the first time since the Russia-Ukraine war began. </p>
<p>Xi’s three-day visit is a <a href="https://www.theguardian.com/world/2023/mar/17/xi-jinping-visit-russia-vladimir-putin">major victory</a> for Russia, as it’s helping dispel claims by the United States and its allies that Russia is isolated. The ICC’s decision, in short, balances the ledger in terms of symbolic acts. While the decision was reached independently of Xi’s visit, its timing is critical.</p>
<figure class="align-center ">
<img alt="Two men sit in front of a row of mostly red flags and appear on a screen." src="https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/516213/original/file-20230319-20-cr0ayg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this photo released by Xinhua News Agency, Chinese President Xi Jinping (right) and Russian President Vladimir Putin appear on screen during a meeting via video link in Beijing in December 2022.</span>
<span class="attribution"><span class="source">(Yue Yuewei/Xinhua via AP)</span></span>
</figcaption>
</figure>
<p>But ICC’s decision is symbolic, however, beyond the Russia-Ukraine war. </p>
<p><a href="https://ir.lawnet.fordham.edu/ilj/vol34/iss6/4/">Both academics</a> <a href="https://www.theguardian.com/us-news/2018/sep/10/john-bolton-castigate-icc-washington-speech">and politicians</a> have questioned the ICC’s resolve and ability in recent years. </p>
<p>While it’s prosecuted several war criminals in the past decade, the charges typically occur <a href="https://www.hrw.org/news/2022/12/04/libya-icc-reignites-hope-long-delayed-justice">a considerable time after</a> the events in question. The fact that the ICC succeeded in pressing charges during an ongoing conflict speaks to the organization’s desire to act.</p>
<h2>The ICC and the United States</h2>
<p>The ICC, like most international organizations, is only effective if nations take it seriously. Shortly after the war began, <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states">39 states pushed</a> for the ICC to investigate war crimes in Ukraine. </p>
<p>Almost all these states were allies of Ukraine and the United States.</p>
<p>The American relationship with the ICC has, at best, been spotty. The U.S. is not a party to <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">the Rome Statute, the founding document of the ICC.</a> The U.S. relationship with the ICC, furthermore, got off to a rocky start due to the desire of some groups to see <a href="https://www.theguardian.com/politics/2005/may/06/uk.iraq2">the Americans and the British</a> for their actions during the invasion of Iraq.</p>
<p>Even during these periods, however, the American government <a href="https://web.archive.org/web/20120305234805/http:/www.amicc.org/docs/HRes726FinalOctober292007.pdf">supported war crime indictments</a> that did not threaten, or indeed advanced, its interests.</p>
<p>Relations have improved in recent years. First under former president <a href="https://obamawhitehouse.archives.gov/sites/default/files/rss_viewer/national_security_strategy.pdf">Barack Obama</a>, and then — after a four-year interlude — once again with President Joe Biden, the U.S. has been actively collaborating with the ICC. </p>
<p>While the U.S. has some reservations about the ICC, <a href="https://www.politico.com/news/2021/04/02/icc-sanctions-reversed-biden-478731">specifically its stance on Israel</a>, it does <a href="https://www.npr.org/2022/04/16/1093212495/the-u-s-does-not-recognize-the-jurisdiction-of-the-international-criminal-court">work with it</a> when their interests align. </p>
<p>Russia’s invasion of Ukraine is certainly one instance, even though the <a href="https://www.theguardian.com/world/2023/mar/08/pentagon-international-criminal-court-russia-war-crimes">Pentagon has been accused of failing to share intelligence with the ICC</a>.</p>
<p>The ICC, the United States and its supporters are unlikely to bring Putin to justice. The strategic military capabilities of Russia’s armed forces make such a task a virtual impossibility. They can, however, signal that such actions have consequences — and that the world is watching.</p>
<figure class="align-center ">
<img alt="Candles that say 'Putin come out' on a large lawn in front of a stone courthouse." src="https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/516197/original/file-20230319-8082-vqytnx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Candles are set in the grass that spell out ‘Putin Come Out’ in front of the International Criminal Court in The Hague, Netherlands in March 2022.</span>
<span class="attribution"><span class="source">(AP Photo/Phil Nijhuis)</span></span>
</figcaption>
</figure>
<h2>Hypocrisy or reality?</h2>
<p>There are other ongoing conflicts in the world, including <a href="https://reliefweb.int/report/yemen/displacement-yemen-overview-enar">in Yemen</a> <a href="https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-nigeria">and Nigeria</a>, where crimes similar to Putin’s alleged crimes have taken place.</p>
<p>Leaders in these countries are significantly more vulnerable to outside pressure than Putin. Unlike Russia, most other states lack the nuclear and other strategic weapons needed to ignore outside pressure. Given the ability of the international community to apply pressure in these instances, the ICC’s tough stance against Putin reeks of hypocrisy.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1637173679090987008"}"></div></p>
<p>Critics point to that hypocrisy <a href="https://justiceinconflict.org/2021/03/05/polite-hypocrisy-the-rocky-road-ahead-for-biden-and-the-icc/">as illustrating the weakness of the organization</a>. Given the need for the ICC to maintain the support of powerful countries like the United States, however, selectivity is and will remain a key feature of the organization.</p>
<p>Putin’s indictment will therefore have minimal direct impact on him, but it will offer some comfort to Ukrainians as they continue to fight against the Russians. </p>
<p>It also signals that despite Xi’s visit to Russia, the <a href="https://www.forbes.com/sites/worldeconomicforum/2018/06/01/the-west-has-lost-its-dominant-global-position-it-should-handle-its-decline-gracefully/">influence of the U.S. and its allies</a> in international relations remains strong — even if it’s applied in a selective manner.</p><img src="https://counter.theconversation.com/content/202111/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Horncastle does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court’s charges against Vladimir Putin are likely to have a minimal impact on him, but it does signal that wartime atrocities have consequences — and the world is watching.James Horncastle, Assistant Professor and Edward and Emily McWhinney Professor in International Relations, Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2018332023-03-16T13:08:44Z2023-03-16T13:08:44ZProsecuting Putin for abducting Ukrainian children will require a high bar of evidence – and won’t guarantee the children can come back home<figure><img src="https://images.theconversation.com/files/515522/original/file-20230315-22-mlhlw4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thousands of teddy bears with candles on display at a protest in Brussels in February 2023 represented abducted Ukrainian children.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1247412476/photo/brussels-avaaz-symbolic-action.jpg?s=1024x1024&w=gi&k=20&c=nYS6DL3A3cpyKMVvXwRjOh0yjhMbTCaKx_5ceu_in_s=">Nicolas Maeterlinck/Belga MAG/AFP via Getty Images</a></span></figcaption></figure><p>The International Criminal Court issued an arrest warrant for Russian President Vladimir Putin on March 17, 2023, over war crimes in Ukraine, alleging he bears “individual criminal responsibility” <a href="https://apnews.com/article/icc-putin-war-crimes-ukraine-9857eb68d827340394960eccf0589253">for abducting thousands</a> of children from occupied parts of the country.</p>
<p>Russia’s Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, was also cited by the court on similar charges. </p>
<p>They mark the first arrest warrants the independent tribunal, based in The Hague, has issued since Russia launched a full-scale invasion of Ukraine in February 2022. </p>
<p>But the development will not guarantee the imminent arrest of Putin. The ICC, as it is often called, does not have its own police force and requires other supporting countries to enforce its warrants. </p>
<p>“The ICC is doing its part of work as a court of law. The judges issued arrest warrants. The execution depends on international cooperation,” the court’s president, Piotr Hofmanski, said in a statement on March 17. </p>
<p>As Russian police aren’t likely to arrest their country’s leader, as long as Putin remains inside Russia, he is probably safe.</p>
<p>Since Russia launched an invasion of Ukraine in February 2022, the Ukrainian government, Western powers and the <a href="https://www.ohchr.org/en/press-releases/2022/10/un-commission-has-found-array-war-crimes-violations-human-rights-and">United Nations have collected</a> evidence of Russian violations of international humanitarian law, such as war crimes. This includes widespread sexual violence and the forced abduction and <a href="https://www.npr.org/2023/02/14/1156500561/russia-ukraine-children-deportation-possible-war-crime-report">transfer of thousands of Ukrainian children</a> to Russia.</p>
<p>Since 1998, <a href="https://scholar.google.com/citations?user=fvZljS8AAAAJ&hl=en&oi=ao">I have worked</a> in securing forensic evidence of these types of crimes in Afghanistan, Guatemala and other places. To me, it is apparent that identifying and collecting evidence of international crimes like killing civilians during conflict is beyond the capabilities and resources of local police crime scene teams, criminal investigators and prosecutors. </p>
<p>It’s also likely that the full extent of war crimes committed by <a href="https://www.lemonde.fr/en/international/article/2022/04/09/ukraine-s-military-accused-of-war-crimes-against-russian-troop_5980121_4.html">both Ukraine</a> <a href="https://www.bbc.com/news/world-60690688">and Russia</a> won’t be credibly <a href="https://www.cfr.org/timeline/leaders-facing-justice">investigated and possibly prosecuted</a> until after the war finally ends. </p>
<p>It surprises me that arrest warrants would be issued for the abduction of Ukrainian children. In order to successfully prosecute this crime, investigators will need to show that not only did the alleged abductors take the children against their will, but that they also did not intend to return the children to their legal guardians. This can be more challenging to prove than other kinds of war crimes. </p>
<p>To put these upcoming indictments into perspective, it is also useful to remember that the International Criminal Court, an independent tribunal based in The Hague often known as the ICC, tends to focus on high-level cases that <a href="https://www.icc-cpi.int/cases">go after political leaders</a> and is not tasked to provide answers to families of all victims. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blue sign says 'the International Criminal Court' outside of a large modern building structure." src="https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/515520/original/file-20230315-258-gzukhu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An exterior view of the International Criminal Court building in The Hague, Netherlands.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/597691672/photo/exterior-views-of-new-international-criminal-court-building-in-the-hague.jpg?s=1024x1024&w=gi&k=20&c=UhPh9ts7XRJYuezljZqjlaWZu200-JAphDdUszSvNtY=">Michel Porro/Getty Images</a></span>
</figcaption>
</figure>
<h2>Proving war crimes</h2>
<p><a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">War crimes</a>, under international law, happen when civilians, prisoners of war, hospitals or schools – essentially anyone and anything that isn’t involved in military activities – are targeted during a conflict.</p>
<p><a href="https://www.npr.org/2022/05/14/1098941080/ukraine-begins-prosecuting-russians-for-war-crimes">The Ukrainian government</a> and <a href="https://theconversation.com/show-trial-of-foreign-fighters-in-donetsk-breaks-with-international-law-and-could-itself-be-a-war-crime-184899">Donetsk People’s Republic</a>, a Ukrainian breakaway region occupied by Russians, have prosecuted and convicted both Russian and Ukrainian soldiers for war crimes since February 2022. </p>
<p>Ukraine has <a href="https://www.washingtonpost.com/world/2023/01/29/war-crimes-ukraine-prosecution/">so far convicted 25 Russian soldiers</a> of war crimes in Ukraine. These prosecutions raise questions about how evidence is collected and handled to support these cases – and about credibility. </p>
<p>Ukraine has a history of <a href="https://foreignpolicy.com/2021/12/17/ukraine-russia-corruption-putin-democracy-oligarchs/">government corruption</a>, and Donetsk is both <a href="https://press.un.org/en/2022/sgsm21153.doc.htm">not recognized internationally</a> and is backed by Russia, which has a judicial system known to <a href="https://phr.org/issues/investigating-deaths-and-mass-atrocities/death-investigations/investigations-in-russia/">tolerate torture</a>. </p>
<p>I investigate cases in which law enforcement, military and police are alleged to have committed crimes against civilians without accountability. In many cases, these alleged crimes happen during a civil war, like the <a href="https://www.pbs.org/newshour/health/latin_america-jan-june11-timeline_03-07">Guatemalan civil war</a> in the late 1970s and early 1980s, or the <a href="https://www.history.com/topics/africa/rwandan-genocide">Rwandan conflict and genocide</a> in the mid-1990s. </p>
<p>This means that I often work with international organizations like the United Nations to travel to these places and document physical evidence of war crimes – take photographs, take notes, do measurements and draw sketches to illustrate a potential crime scene. The idea is that any other experts can pick up this evidence and reach their own conclusions about what happened there. </p>
<p>Crime scene investigators like me generally do not determine whether <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158">a war crime was committed</a>. That is a decision reserved for the prosecutor or a judge who is given the evidence. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in white appear to be digging in a large trench, outside of a white church." src="https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/515525/original/file-20230315-20-boez1g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ukrainian investigators exhume bodies from a mass grave in Bucha, Ukraine, in April 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239836657/photo/topshot-ukraine-russia-conflict.jpg?s=1024x1024&w=gi&k=20&c=c4Da9Wl_2bWRs0_4eyieSucGBaSoBm6Ro27U82ZKtw8=">Genya Savilov/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Beyond political interests</h2>
<p>Considering that this war is fought between Ukrainians and Russians – but involves other countries like the United States – any independent effort to investigate war crimes will raise questions of credibility.</p>
<p>In this context, one has to consider if an independent investigation and prosecution is even possible. The ICC is perhaps the best candidate, even though it is far from <a href="https://www.jstor.org/stable/26210471">immune to political pressure</a>, particularly from powerful countries. </p>
<p>The ICC has a specific mandate to go after people allegedly responsible “for the <a href="https://www.icc-cpi.int/about/the-court">gravest crimes of concern</a> to the international community.” This includes genocide, crimes against humanity and war crimes. The forced transfer and deportation of a group of people is a war crime.</p>
<p>But the ICC isn’t tasked with investigating the fate of victims on all sides of the war. This will take a separate effort, decades of work and <a href="https://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-is-a-bad-idea/">cost a large amount</a> of money, requiring the support of rich countries.</p>
<p>Since its inception in 2002, the <a href="https://www.cfr.org/backgrounder/role-international-criminal-court">ICC has indicted more than 40 people</a>, all from Africa, and convicted 10 of them. While 123 countries are party to the ICC, meaning they have signed on to support its work, neither Russia nor Ukraine <a href="https://www.cfr.org/backgrounder/role-international-criminal-court">has ratified the treaty</a> that allows the ICC to investigate crimes on their territories or by their forces. </p>
<p>Russia’s foreign ministry responded to the March 17 announcement by the ICC by saying that <a href="https://www.reuters.com/world/europe/icc-judges-issue-arrest-warrant-against-putin-over-alleged-war-crimes-2023-03-17/">the arrest warrant does not</a> “have meaning” for Russia, since it is not a party to the ICC. </p>
<p>The U.S. also never ratified the ICC’s founding treaty, with the justification that it would not accept prosecution of U.S. soldiers by a foreign court. </p>
<p>Ukraine, though, has <a href="https://www.icc-cpi.int/ukraine">given the ICC narrow jurisdiction</a> to investigate crimes there since 2014.</p>
<p>In some cases, the ICC has not been able to successfully prosecute people even when it issues indictments. The court in 2009 and 2010, for example, issued indictments against Omar al-Bashir, former head of state in Sudan, for his role in carrying out genocide, and directing war crimes in Darfur. Yet, even <a href="https://nubareports.org/bashir-travels/">though al-Bashir traveled internationally</a>, no authority in any country he visited ever arrested him, despite the ICC’s arrest warrant.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A stuffed panda bear is covered in snow and sits in front of a sign that says 'children of war. 460 killed by Russia, 919 wounded by Russia, 16222 deported to Russia, 349 missing.'" src="https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/515528/original/file-20230315-16-aevkxw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A makeshift memorial dedicated to children killed, wounded, deported or missing in Ukraine is seen outside the Russian Embassy in Berlin in February 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246840542/photo/germany-russia-ukraine-children.jpg?s=1024x1024&w=gi&k=20&c=eBfWpINrZ1teJKRXmJyVycWSAE5ac0iYwTTlNzH0Cqs=">Odd Andersen/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Proving abductions took place</h2>
<p>Russian forces have moved <a href="https://www.cnbc.com/2023/02/14/ukraine-war-news-russia-has-relocated-more-than-6000-children.html">at least 6,000 Ukrainian children </a> to camps and facilities across Russia for forced adoptions and military training, according to a March 2023 report by the Conflict Observatory, a program supported by the U.S. State Department.</p>
<p>Showing sufficient evidence that Russia forcibly abducted the children and did not intend to return them to their legal guardians would likely involve the children’s family members giving witness statements. That is, unless the ICC’s prosecutor has obtained Russian military documents or communications that clearly indicate that these are involuntary abductions.</p>
<p>Contrast this with trying to prosecute Russian military commanders and leaders for conducting multiple bombings of nonmilitary sites in Ukraine, such as hospitals or schools. It would be relatively simple to provide evidence that the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war">attacks on these places constituted war crimes</a>, as long as there is no evidence that these sites lost their protected status under international law, such as evidence that a bombed hospital or school had been used for military purposes.</p>
<h2>The victims</h2>
<p>War crimes involving massive numbers of casualties leave behind a multitude of <a href="https://www.icrc.org/en/document/protected-persons/missing-persons">surviving family members, all of whom have the right to know</a> the fate of their loved ones. </p>
<p>But it is important to remember that the ICC’s prosecution of any war crime will not extend beyond the individual arrest and prosecution of soldiers and political leaders. The court is not responsible for repatriating children to their respective families. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/proving-war-crimes-isnt-simple-a-forensics-expert-explains-whats-involved-with-documenting-human-rights-violations-during-conflicts-from-afghanistan-to-ukraine-182579">article originally published on Aug. 5, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/201833/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefan Schmitt does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court issued its first arrest warrants for Russians allegedly responsible for war crimes in Ukraine.Stefan Schmitt, Project Lead for International Technical Forensic Services, Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1991702023-02-27T13:23:30Z2023-02-27T13:23:30ZCan mass atrocities be prevented? This course attempts to answer the question<figure><img src="https://images.theconversation.com/files/512232/original/file-20230224-1648-wr1thv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2000%2C1245&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather around a hole being dug in search of water in Darfur, Sudan, in 2004.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SudanalBashirsFate/a74921ed1ca247fc8e76c82186cdcf35/photo">AP Photo/Ben Curtis</a></span></figcaption></figure><figure class="align-right ">
<img alt="Text saying: Uncommon Courses, from The Conversation" src="https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=375&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=375&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=375&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=471&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=471&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499014/original/file-20221205-17-kcwec8.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=471&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><a href="https://theconversation.com/topics/uncommon-courses-130908">Uncommon Courses</a> is an occasional series from The Conversation U.S. highlighting unconventional approaches to teaching.</em> </p>
<h2>Title of course:</h2>
<p>“Introduction to Genocide Studies”</p>
<h2>What prompted the idea for the course?</h2>
<p>Many genocide classes take a historical view, spending a lot of time on the <a href="https://www.ushmm.org/learn">Holocaust</a> or <a href="https://www.ushmm.org/genocide-prevention/countries/cambodia/case-study/introduction/cambodia-1975">Cambodia’s Killing Fields</a>. As a <a href="https://humanrights.uconn.edu/person/mike-brand/">scholar-practitioner</a> in the field of atrocities prevention and human rights, I wanted something that would make clear to students that mass atrocities – genocide, war crimes, crimes against humanity and ethnic cleansing – are not just in the past, but are very much happening in the present. </p>
<p>By exploring recent and ongoing mass atrocities in places such as <a href="https://www.ushmm.org/genocide-prevention/countries/syria">Syria</a>, <a href="https://www.ushmm.org/genocide-prevention/countries/ethiopia">Ethiopia</a>, <a href="https://www.ushmm.org/genocide-prevention/countries/south-sudan">South Sudan</a> and <a href="https://www.washingtonpost.com/investigations/interactive/2022/saudi-war-crimes-yemen/">Yemen</a>, students are able to better connect to the material once they realize that these issues have happened during their lifetimes, not decades or centuries ago. </p>
<p>Between exploring recent mass atrocities and focusing on U.S. foreign policy, I try to keep the course grounded in a way that makes some of these abstract concepts much more tangible.</p>
<h2>What does the course explore?</h2>
<p>The course starts off by exploring <a href="https://www.ushmm.org/genocide-prevention/learn-about-genocide-and-other-mass-atrocities/definitions">the definitions of mass atrocities</a> and the associated crimes, how their definitions are similar and different from one another, and constraints within international law.</p>
<p>We review several case studies of mass atrocities. Students also learn about successes and failures of different intervention tactics, everything from peacekeeping to sanctions to military intervention. And we discuss efforts to seek justice, including international tribunals like the <a href="https://unictr.irmct.org/en/tribunal">International Criminal Tribunal for Rwanda</a>, national court systems and the <a href="https://www.icc-cpi.int/about/the-court">International Criminal Court</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd gathers around a pile of sacks containing food." src="https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512094/original/file-20230223-4704-lhcx3i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Refugees from the Rwanda genocide in 1994 get food at a refugee camp in neighboring Democratic Republic of the Congo, then known as Zaire.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsRwandaGenocideTrial/b7f052d2abfb4c2fadc02c6880d8ed5b/photo">AP Photo/Javier Bauluz</a></span>
</figcaption>
</figure>
<p>We then explore the ethical principle called “responsibility to protect,” committed to in a <a href="https://www.globalr2p.org/resources/2005-world-summit-outcome-a-60-l-1/">United Nations agreement in 2015</a>, including its first test with the <a href="https://www.ushmm.org/genocide-prevention/countries/sudan">genocide in Darfur, Sudan</a>. Individual governments are responsible for preventing their citizens from experiencing genocide, war crimes, ethnic cleansing and crimes against humanity. However, if a government is unable or unwilling to protect its people, then the international community must do so.</p>
<p>We also look at the modern-day global anti-genocide movement and efforts to prevent mass atrocities, including by sanctions – though <a href="https://doi.org/10.1080/14623528.2016.1240516">there is little evidence to suggest</a> they work – and military intervention, which is quite rare.</p>
<p>Then we discuss U.S. foreign policy efforts, including <a href="https://www.congress.gov/bill/115th-congress/senate-bill/1158/text">the Elie Wiesel Genocide and Atrocities Prevention Act</a> of 2018, which made it the policy of the United States to “regard the prevention of atrocities as in its national interest.” We also discuss the development of a
<a href="https://www.state.gov/united-states-strategy-to-prevent-conflict-and-promote-stability/">governmentwide strategy</a> to prevent and respond to mass atrocities around the world.</p>
<p>I’ve found that students appreciate learning about what the U.S. government is and is not doing to confront mass atrocities.</p>
<p>The course culminates with a group presentation and individual research into an ongoing mass atrocity situation. After they complete their projects, students often make comments like “I had no idea this was happening” or “I can’t believe I never heard about this before.”</p>
<h2>Why is this course relevant now?</h2>
<p>Unfortunately, this course will likely be relevant for years to come as mass atrocities continue to occur in several places around the world. The <a href="https://truthout.org/articles/more-military-spending-wont-end-atrocities-we-must-focus-on-preventing-them/">ongoing atrocities in Ukraine</a> and <a href="https://2017-2021.state.gov/determination-of-the-secretary-of-state-on-atrocities-in-xinjiang/index.html">genocide against the Uyghurs in China</a> show how intractable these issues are when a powerful nation is the one committing atrocities. </p>
<h2>What’s a critical lesson from the course?</h2>
<p>The <a href="https://www.theguardian.com/commentisfree/2019/oct/03/yemen-airstrikes-saudi-arabia-mbs-us">United States has been accused of complicity in the commission of war crimes</a> in Yemen through its continued support of violence committed by Saudi Arabia and allied forces. This provides an example of how the U.S. does not always play a positive role on the international stage.</p>
<h2>What materials does the course feature?</h2>
<ul>
<li><p>The documentary “<a href="https://www.youtube.com/watch?v=1e0HFCKcVhc">Watchers of the Sky</a>” provides the students with a strong background on the topic of mass atrocities. It discusses the creation of the term “<a href="https://doi.org/10.2307/2192363">genocide</a>” in 1944, and explores key examples, including the <a href="https://encyclopedia.ushmm.org/content/en/article/subsequent-nuremberg-proceedings-case-9-the-einsatzgruppen-case">Nuremberg trials</a> in the wake of World War II and more recent efforts by the International Criminal Court.</p></li>
<li><p>Chapters from Scott Straus’ “<a href="https://www.ushmm.org/genocide-prevention/reports-and-resources/fundamentals-of-genocide-and-mass-atrocity-prevention">Fundamentals of Genocide and Mass Atrocity Prevention</a>” provide a great overview of some key topics. </p></li>
<li><p>David Moshman’s 2001 paper “<a href="https://doi.org/10.1080/14623520120097224">Conceptual constraints on thinking about genocide</a>,” which discusses how not all genocides will resemble the Holocaust. It is important to know that a situation may fit the definition of genocide – intent to destroy, in whole or in part, a national, ethnic, racial or religious group – without employing death camps and gas chambers.</p></li>
</ul>
<h2>What will the course prepare students to do?</h2>
<p>I believe the course provides my students with tangible ways they can get more involved in atrocities prevention advocacy and programs.</p>
<p>They also learn how to research U.S. legislation that is relevant to genocide, contact members of Congress, write op-eds and create fact sheets.</p>
<p>By giving assignments like this, in addition to more traditional papers, my students learn how to effectively engage in human rights advocacy, even in a small way.</p><img src="https://counter.theconversation.com/content/199170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Brand is affiliated with the University of Connecticut and George Mason University’s Raphaël Lemkin Genocide Prevention Program. </span></em></p>Many genocide classes review the Holocaust or Cambodia’s Killing Fields. A scholar wanted to show that genocide, war crimes, crimes against humanity and ethnic cleansing still happen today.Mike Brand, Adjunct Professor of Genocide Studies and Human Rights, University of ConnecticutLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956982022-12-01T14:04:30Z2022-12-01T14:04:30ZEU plans to set up a new court to prosecute Russia’s war on Ukraine – but there’s a mixed record on holding leaders like Putin accountable for waging wars<figure><img src="https://images.theconversation.com/files/498337/original/file-20221130-14-o8uym6.jpg?ixlib=rb-1.1.0&rect=1037%2C35%2C6823%2C5208&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Local residents help exhume the body of a 16-year-old Ukrainian girl, killed by Russian forces, in Kherson, Ukraine in November 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1445424692/photo/civilian-graves-exhumed-near-kherson.jpg?s=1024x1024&w=gi&k=20&c=JXbQLd4k0KcIqsM1osHjPq9_OHNE5MhXrFGTQCp63_E=">Chris McGrath/Getty Images</a></span></figcaption></figure><p>A senior <a href="https://www.reuters.com/world/europe/eu-seeks-set-up-russian-war-crimes-tribunal-von-der-leyen-2022-11-30/">European Union official announced</a> on Nov. 30, 2022, that the EU will work with the United Nations in the hopes of setting up a special court that would investigate and prosecute Russian President Vladimir Putin and other Russian leaders for the crime of aggression in Ukraine.</p>
<p>The <a href="https://theconversation.com/putin-could-be-charged-with-the-crime-of-aggression-for-the-ukraine-war-but-its-an-expensive-process-with-high-stakes-181928">crime of aggression</a> punishes the illegal invasion or use of force against another country. It is a bedrock principle of the <a href="https://www.un.org/en/about-us/un-charter">United Nations Charter</a> and post-World War II international relations.</p>
<p>It is not clear when or even whether the United States government will back the EU proposal made by European Commission President Ursula von der Leyen. Washington has viewed the idea of a special court for aggression warily – there is concern this could establish a legal precedent that then ensnares American leaders if the U.S. itself invades another sovereign country, as it did in Iraq in 2003.</p>
<p>Since Russia first invaded Ukraine in February 2022, there has been <a href="https://foreignpolicy.com/2022/04/19/the-1-percent-chance-that-putin-will-be-prosecuted/">public skepticism</a> that Putin could ever be held accountable for alleged crimes in Ukraine.</p>
<p>History provides some lessons on charging political leaders with war crimes – a <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">legal term</a> that includes attacking and killing civilians during war.</p>
<p>But as a <a href="https://isearch.asu.edu/profile/858959">scholar of human rights</a>, conflict and international courts, I think it is important to understand that
there has been a mixed record of arresting and prosecuting senior political and military leaders allegedly responsible for atrocities. </p>
<p>The <a href="https://academic.oup.com/jicj/article-abstract/6/2/401/858328?redirectedFrom=fulltext">international trial of Serbian leader Slobodan Misolevic</a> in the mid-2000s is one example of how international courts can prosecute war criminals.</p>
<p>Here’s the bottom line: It’s only when leaders like Milosevic fall from power that there is any chance that their governments may arrest and hand them over to international courts for prosecution. </p>
<p>But history also shows that even if Putin is overthrown or otherwise loses power, there’s no clear guarantee that he will ever stand trial before an international court.</p>
<figure class="align-center ">
<img alt="Milosevic sits in a suit, with two guards in blue shirts on either side of him." src="https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Serbian leader Slobodan Milosevic refused a lawyer during his hearings before the
International Criminal Tribunal for the former Yugoslavia in the early 2000s.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/slobodan-milosevic-refuses-the-presence-of-any-lawyer-news-photo/110138118">Raphael Gaillarde/Gamma-Rapho via Getty Images</a></span>
</figcaption>
</figure>
<h2>Milosevic’s fall from power</h2>
<p>There were three major wars in southeastern Europe in the 1990s. In total, approximately <a href="https://www.rferl.org/a/balkan-camp-alic-photo/31385822.html">130,000 people died</a> during the wars in Croatia, Bosnia and Kosovo. The rise of nationalism and tension between different ethnic groups triggered these conflicts.</p>
<p>The spark for these wars was kindled in 1991, when Yugoslavia, a former communist republic that once included Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia, began to <a href="https://history.state.gov/milestones/1989-1992/breakup-yugoslavia">split apart</a>.</p>
<p>Milosevic, a Serbian nationalist leader, was one of the most influential politicians in the region. He fueled the regional wars around and after the time of this dissolution. </p>
<p>In 1993, as the war in Bosnia was still being fought, the United Nations Security Council set up a special court, called the <a href="https://www.icty.org">International Criminal Tribunal for the Former Yugoslavia</a>, to address crimes committed during the wars there. </p>
<p>This court indicted Milosevic for war crimes and crimes against humanity in 1999 during the the ongoing Kosovo war. Milosevic’s alleged crimes in Kosovo included a massive ethnic cleansing campaign waged against Kosovar Albanians, the largest ethnic group there. Most of the people who died during this war were Kosovar Albanians.</p>
<p>But Milosevic was still in power when the indictment was issued, and the Serbian government shielded him from arrest. </p>
<p>Milosevic lost a presidential election in late September 2000 but initially refused to give up power. After widespread protests, Milosevic <a href="https://nvdatabase.swarthmore.edu/content/serbians-overthrow-milosevic-bulldozer-revolution-2000">stepped down</a> a week later, and a democratic government took over.</p>
<h2>Milosevic standing trial</h2>
<p>Almost two years later, Serbian police <a href="https://www.nytimes.com/2001/04/02/world/milosevic-surrender-overview-milosevic-arrest-came-with-pledge-for-fair-trial.html">arrested Milosevic</a>, though on domestic corruption and abuse of power charges. </p>
<p>The <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/">Serbian government</a> transferred <a href="https://www.icty.org/en/press/slobodan-milosevic-transferred-custody-international-criminal-tribunal-former-yugoslavia">Milosevic to the international tribunal</a> in June 2001. </p>
<p>This happened in the wake of U.S. threats to withhold much-needed loans to Serbia unless the government turned over Milosevic. Serbia later also arrested other former leaders wanted for war crimes – following intense Western political pressure and assurances by European countries and the U.S. that <a href="https://academic.oup.com/ijtj/article-abstract/5/1/52/2356990?redirectedFrom=fulltext">the government’s cooperation</a> could result in Serbia’s gaining European Union membership. </p>
<p>The international tribunal <a href="https://www.icty.org/en/press/trial-slobodan-milosevic-will-begin-tuesday-12-february-930-am">launched its trial</a> in The Hague, Netherlands, against Milosevic in February 2002. Milosevic faced dozens of charges for alleged crimes he committed in three different wars.</p>
<p>But Milosevic <a href="https://www.theguardian.com/world/2006/mar/12/warcrimes.milosevictrial">died in prison</a> in 2006, shortly before the end of his trial. </p>
<h2>The challenge for international courts</h2>
<p>International courts set up by the U.N., like the International Criminal Tribunal for the former Yugoslavia, have a twofold problem. First, these tribunals do not have an actual international police force to carry out arrests. </p>
<p>Governments implicated in their leaders’ alleged crimes also often try to obstruct international courts by not turning over suspects.</p>
<p>The enforcement problem, <a href="https://www.cambridge.org/core/books/international-justice-in-rwanda-and-the-balkans/975BC3287F9A8262731808D09BE0B27C">as my scholarship has shown</a>, can allow a powerful country like Russia to evade arrest warrants from international courts – as long as the suspect remains within the country.</p>
<p>The International Criminal Court, for example, has not been able to persuade the Sudanese government to hand over former president Omar al-Bashir for alleged war crimes committed in Darfur in the 2000s.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A row of people wearing dark jackets walk in front of a Ukrainian church" src="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ukraine’s prosecutor general, Iryna Venediktova, left, walks with International Criminal Court prosecutor Karim Khan during a visit to Bucha, Ukraine, in April 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/graphic-content-ukraines-prosecutor-general-iryna-venediktova-and-of-picture-id1239959385?s=2048x2048">Fadel Senna/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>A potential playbook for Putin</h2>
<p>Milosevic escaped a final verdict and potential prison time with his death. </p>
<p>But his trial still shows that under specific circumstances, international courts can overcome their lack of enforcement powers and bring high-level suspects to trial. International political pressure and incentives often serve a role in this process. </p>
<p>Ukraine, meanwhile, has already <a href="https://www.washingtonpost.com/world/2022/05/31/ukraine-russian-war-crimes-second-trial-sentencing/">convicted and sentenced</a> several Russian soldiers for war crimes during the ongoing Ukraine conflict, and, as of the beginning of August 2022, has charged 135 <a href="https://www.reuters.com/world/europe/ukraine-probing-almost-26000-suspected-war-crimes-cases-prosecutor-2022-08-07/">other Russian suspects</a>.</p>
<p>The Ukrainian government has also pushed for the creation of a specialized court – which has now received European Union backing – to prosecute Putin and other Russian leaders for the illegal invasion of Ukraine. Beth Van Schaack, the United States’ ambassador-at-large for global criminal justice, <a href="https://www.state.gov/briefing-with-ambassador-at-large-for-global-criminal-justice-beth-van-schaack-on-justice-and-accountability-for-russias-atrocities-in-ukraine/">said in November 2022</a> that the crime of aggression is the “original sin that unleashed all of the war crimes” happening in Ukraine. These include Russia’s ongoing indiscriminate <a href="https://www.usip.org/publications/2022/10/war-over-global-order-russia-bombs-ukraine-cities">bombing of Ukrainian cities</a> and <a href="https://www.defense.gov/News/News-Stories/Article/Article/3190982/russia-trying-terror-attacks-on-ukrainian-civilians/">atrocities against</a> Ukrainian citizens, including execution and torture. </p>
<p>While the International Criminal Court is investigating Russian war crimes in Ukraine, this Hague-based court does not have the jurisdiction to prosecute Russian leaders for the crime of aggression. This is partially because Russia has never joined the International Criminal Court. </p>
<p>As long as Putin remains in power, it is unlikely that any amount of political pressure or promises will persuade Russia to cooperate with an international court and turn over Putin, if he is indicted. </p>
<p>That could change if Putin ever falls from power. </p>
<p>But much would still depend on the new Russian government and whether Western countries would provide the type of incentives that pushed Serbian leaders to turn against their former political leaders and military heroes. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/international-courts-prosecuting-leaders-like-putin-for-war-crimes-have-a-mixed-record-but-offer-clues-on-how-to-get-a-conviction-182029">article originally published on June 15, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/195698/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victor Peskin receives funding from the Office of Global Criminal Justice, U.S. Department of State.</span></em></p>Prosecuting a leader like Vladimir Putin accused of war crimes is difficult. But the trial of Serbian leader Slobodan Milosevic in the early 2000s offers a potential playbook.Victor Peskin, Associate professor of politics and global studies, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1898042022-09-23T10:11:40Z2022-09-23T10:11:40ZUhuru Kenyatta failed to turn Kenya into as big an international player as he could – here’s why<figure><img src="https://images.theconversation.com/files/482493/original/file-20220902-3755-hm5l3f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Uhuru Kenyatta signs a treaty integrating DRC into the East African Community in June 2022. </span> <span class="attribution"><span class="source">Tony Karumba/AFP via Getty Images</span></span></figcaption></figure><p>One of the notable achievements of Uhuru Kenyatta’s nine-year tenure as president was that he invigorated Kenya’s foreign policy. </p>
<p>A year after his 2013 inauguration, his government launched a <a href="https://www.kenyaembassy.org.tr/uploads/Kenya_Foreign_Policy.pdf">document</a> that outlined Kenya’s diplomatic engagements and foreign relations. It was the country’s first written foreign policy since independence.</p>
<p>Its themes can be distilled into four objectives and practices: regional and continental cooperation; promoting Kenya’s economic interests; revival of pan-Africanism; and an aggressive approach to foreign policy, including a plethora of high-level visits. </p>
<p>It was indeed a dynamic performance. </p>
<p>Nevertheless, in my view, based on the country’s mixed outcomes and foreign policy losses, it’s evident that the Kenyatta government’s foreign policy was not focused, consistent or effectively coordinated. Consequently, it failed to create a regional balance of power favourable to Kenya’s interests. </p>
<p>And while the country became more visible globally and actively engaged in international matters, the returns from this visibility have been dismal – save for an <a href="https://theconversation.com/uhuru-kenyattas-economic-legacy-big-on-promises-but-weak-on-delivery-188698">increased debt burden</a>. </p>
<h2>Regional and continental cooperation</h2>
<p>In the 2014 <a href="https://www.kenyaembassy.org.tr/uploads/Kenya_Foreign_Policy.pdf">Kenya Foreign Policy</a> document, Kenyatta affirmed that Kenya would seek to promote sub-regional and regional integration. </p>
<p>In his <a href="https://www.scribd.com/document/134839269/H-E-President-Uhuru-Kenyatta-Inaugural-Address">inauguration speech</a> in 2013, he said his government would strengthen regional ties through the free movement of people, goods and investment. He underscored the importance of deepening relations with the <a href="https://www.eac.int/">East African Community</a> and Africa as a whole to: </p>
<blockquote>
<p>deliver on the promise of independence and liberation from our colonial past.</p>
</blockquote>
<p>However, critics faulted Kenyatta for using a pan-African approach to overcome the initial global isolation and non-receptiveness Kenya faced from traditional allies like Britain and the US. This chilly reception from the UK and US followed Kenyatta’s election as president despite his facing <a href="https://www.icc-cpi.int/kenya/kenyatta">an International Criminal Court (ICC) case</a>. </p>
<p>As a result, the president’s policy on global politics retracted to operating through the continental body, the African Union. </p>
<p>Kenya became an active contributor to the union’s programmes. In 2014, the country gave <a href="https://www.standardmedia.co.ke/counties/article/2000103662/kenya-pledges-sh130m-to-africas-heritage-preservation">US$1.1 million</a> to support the <a href="https://awhf.net/">African World Heritage Fund</a>. </p>
<p>In 2015, Kenyatta was elected the chairperson of the <a href="https://au.int/en/organs/aprm">African Peer Review Mechanism</a>. This is a voluntary assessment and monitoring system that evaluates and advises African Union member states on their progress in achieving good governance. </p>
<p>Moreover, Kenya was among the countries that contributed troops to the <a href="https://amisom-au.org/kenya-kdf/">African Union Mission in Somalia</a>.</p>
<p>Despite all this activity, Kenyatta failed to effectively exert influence and drive regional integration to Kenya’s advantage.</p>
<h2>Pan-Africanism</h2>
<p>A notable element in Kenya’s foreign policy under Kenyatta was the renaissance of pan-Africanism. In his first address to the African Union Summit in 2013, he <a href="https://www.kenyaembassyaddis.org/wp-content/uploads/speeches/presidential/INAUGURAL_STATEMENT_BY_HIS_EXCELLENCY_HON_UHURU_KENYATTA_PRESIDENT_OF_THE_REPUBLIC_OF_KENYA.pdf">said</a>:</p>
<blockquote>
<p>Pan-Africanism has sparked a Kenyan renaissance.</p>
</blockquote>
<p>The president said he had received tutelage on pan-Africanism from his father, Jomo Kenyatta, Kenya’s first president. </p>
<p>Arguably, this pan-African reinvigoration into Kenya’s foreign policy was motivated by the existential threats of global sanctions that the regime faced. Yet, Kenyatta’s election against the backdrop of the cases at The Hague turned Kenya into an icon of resistance following what was perceived as the unfair targeting of Africa by the ICC.</p>
<p>During Kenyatta’s inauguration, Ugandan president Yoweri Museveni <a href="https://www.theguardian.com/world/2013/apr/09/controversy-kenya-uhuru-kenyatta-uganda">praised Kenyans</a> for rejecting western neo-colonialism. This was in reference to calls by diplomats that Kenyans should not elect people with cases to answer at the ICC. </p>
<p>The African Union convened an extraordinary summit that <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-leads-push-for-immunity-for-leaders-at-world-court-1399762">declared support</a> for Kenyatta and his deputy William Ruto, who was also facing charges at The Hague. </p>
<h2>Economic interests</h2>
<p>Kenyatta’s foreign policy of economic prosperity was pursued and achieved via a triple approach. </p>
<p>First was through encouraging trade ties with traditional allies like the UK, US and some countries in western Europe. Second was through a diversification of economic relations to include new markets in the form of a “look east” policy. </p>
<p>Third was through emphasising intra-African trade. Kenya signed trade agreements with states not considered traditional allies, such as Nigeria and Ghana. Additionally, the country quickly signed the <a href="https://au.int/en/pressreleases/20180321/au-member-countries-create-history-massively-signing-afcfta-agreement-kigali">African Continental Free Trade Area agreement</a> in March 2018. </p>
<p>But questions have arisen on whether Kenya has the <a href="https://theconversation.com/uhuru-kenyattas-economic-legacy-big-on-promises-but-weak-on-delivery-188698">financial capacity</a> to meet present and future economic obligations. </p>
<h2>Assertive foreign policy</h2>
<p>Kenya hosted a wide range of high-level international meetings. Subjects ranged from climate change to trade. Kenyatta also received high-level delegations <a href="https://theconversation.com/how-moi-put-foreign-policy-at-the-centre-of-his-presidency-134048">reminiscent of former president Daniel Moi’s era</a>. His guests included the pope and leaders of India, Israel, US, UK, China and Japan. </p>
<p>From Africa, Kenyatta hosted leaders from Ghana, Ethiopia, Somalia, Uganda and Rwanda, among many others. </p>
<p>By July 2022, a month to the election that would end his term in office, Kenyatta had made <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/how-uhuru-kenyatta-won-over-world-leaders-charm-offensive-3866492">158 official foreign trips</a>. In contrast, his predecessor Mwai Kibaki made just 33 foreign trips over 10 years of leadership. </p>
<p>The country’s foreign policy during Kenyatta’s second term, which began in 2017, is what I would describe as aggressive or assertive. The country took advantage of any international opportunity that arose to make its mark. </p>
<p>In February 2022, Kenya addressed a UN Security Council meeting on Russia’s invasion of Ukraine. Its envoy to the UN, Martin Kimani, <a href="https://www.standardmedia.co.ke/national/article/2001438419/amb-martin-kimanis-full-speech-on-russia-ukraine-tension">came out strongly</a> in defence of Ukraine. He stated that the <a href="https://www.un.org/en/about-us/un-charter">Charter of the United Nations</a> was fading due to “the relentless assault of the powerful”. Kimani compared Ukraine’s plight to Africa’s colonial legacy. </p>
<p>Kenya’s aggressive foreign policy direction earned Kenya a <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-wins-un-security-council-seat-1443488">seat at the UN Security Council</a> as a non-permanent member. </p>
<p>But this aggressive foreign policy also portrayed Kenya as a nation that “wants everything”. This earned it some opposition regionally. For instance, states like Uganda, Burundi, Djibouti and Tanzania <a href="https://www.standardmedia.co.ke/article/2001227877/details-of-how-amina-mohamed-lost-african-union-commission-election">didn’t vote for Kenya</a> in its bid to chair the African Union Commission.</p>
<p>Kenyatta should have streamlined his priorities and made his foreign objectives sharper so as not to appear to be a “Jack of all trades” in foreign affairs. Many foreign interests were projected with little coordination; few were accomplished. </p>
<p>In some cases, the country’s goodwill was squandered in the pursuit of self-interest. </p>
<h2>What next?</h2>
<p>The post-Kenyatta government needs to fast-track the realisation of East African Community objectives. It needs to support South Sudan and the Democratic Republic of Congo’s active participation in regional integration. The new Ruto regime should also maintain a non-disruptive relationship with Rwanda and Tanzania. </p>
<p>In the Horn of Africa, Kenya needs to diplomatically endeavour to reduce Ethiopia’s growing influence in the leadership of the <a href="https://igad.int/">Intergovernmental Authority on Development</a>. </p>
<p>Under Kenyatta, Kenya’s foreign policy practice within the African Union was more “lone ranger”. The Ruto regime will need to forge closer ties with regional powers like Egypt, Nigeria and South Africa to make it easier for Kenya to push through its agenda at the African Union. </p>
<p>It will also need to renegotiate its foreign debts and re-examine <a href="https://www.businessdailyafrica.com/bd/economy/kenya-s-debt-repayments-to-china-shoot-to-sh73-5-billion-3821246">Kenya-China agreements</a> to re-organise debt repayments.</p><img src="https://counter.theconversation.com/content/189804/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wilfred Nasong'o Muliro received funding from the African Leadership Centre, London and the Social Science Research Council (SSRC). He is affiliated with the International Relations Society of Kenya (IRSK). He teaches International Relations and Diplomacy at the Technical University of Kenya</span></em></p>Kenya’s new president needs to forge closer ties with regional heavyweights to create a balance of power that favours his country.Wilfred Nasong'o Muliro, Lecturer International Relations and Security, Technical University of KenyaLicensed as Creative Commons – attribution, no derivatives.