The longer the war in Ukraine lasts and the more atrocities against civilians come to light, the louder the calls for consequences for the perpetrators. But who bears the criminal responsibility for committed war crimes? The soldier, his unit, the military - or ultimately the Russian president? In an interview with ntv.de, the author Gerd Hankel describes the challenges faced by international criminal justice in view of the Ukraine war. And he shows their limits.
ntv.de: Mr. Hankel, can a soldier who takes part in a war of aggression that violates international law actually act in accordance with the law?
Gerd Hankel: Participation in a war of aggression that violates international law does not mean that the soldier is liable to prosecution. If he follows the rules that exist for warfare, nothing will happen to him. A war of aggression is a crime of leadership: whoever plans it or orders it is liable to prosecution. The individual soldier acts only as an instrument of the planner. That's not forbidden.
Adhering to all the rules in war may not be easy, however...
When a soldier takes part in the fighting, there is always a risk that at some point he will find himself in the midst of committing war crimes.
So it would be safest to surrender directly?
Naturally. Those who do not participate are not liable to prosecution. There is probably a legal conflict with the laws of your home country, but that's another issue.
Bucha, Balaklija, Irpin - apparently the worst crimes against humanity have been committed by the Russian army. Who is responsible in such cases? The individual, his unit - or just the superior?
First of all, the immediate perpetrator is responsible - i.e. the person who pulled the trigger or raped the woman. But those who stood by and did nothing to prevent the crime are also responsible. And the superior is also responsible if he made this possible by helping to dehumanize the enemy or even prompting him to act.
Can the soldier justify himself by only acting on orders?
Not automatically. Even a Russian soldier, whether he comes from Moscow or Kamchatka, has to recognize when something is obviously wrong. Impunity can only exist if the person receiving the order is himself threatened with life and limb if he does not carry out the order. No one is obliged to defend the lives of others with their own lives.
In your book you write that the shooting of prisoners of war can also remain unpunished if "their guarding and supplies hinder the advance and the fulfillment of tactical tasks". That sounds unbelievable at first.
In martial law, this was previously accepted when taking care of prisoners of war would have endangered further operational events. Today that is forbidden.
It would also violate the Geneva Convention, wouldn't it?
That's right. You can no longer justify everything with the necessity of war. Because that would mean that the end justifies all means - according to the motto: If the goal is set high enough, everything is allowed.
However, deadly violence against civilians in war may go unpunished.
Yes, that's actually a contradiction. But when it comes to establishing martial law that is observed by as many states as possible, then it must also be open in a certain respect. A lamentable openness is the trade-off between military advantage and civilian harm, for the military usually takes precedence—unless the civilian harm is unbearably high. This sometimes leads to dozens of deaths being justified because someone can irrefutably claim that they wanted to achieve a specific military objective. That is a big problem.
In your book you hesitate to refer to the attack on Ukraine as genocide. Why?
Genocide presupposes a certain number of victims, which is however not defined. Is it 100? Is it 1000? Is it 10,000? The number must be high enough to stir public conscience. It may have already happened in Ukraine. What has certainly happened is the targeted destruction of Ukrainian cultural monuments and other buildings that represent Ukrainian identity. It is not yet possible to say whether this process of annihilation will also be transferred to the people who make up the Ukrainian nation. In any case, a genocidal intent must also be proven. In other words, the Russian leadership must have been intent on wiping these people out of the world - all of them, from infants to the elderly, or they must have given the people of Ukraine a kind of slave existence with great energy. I don't know if one can currently find the necessary clear evidence for this.
Sounds rather unlikely, the intention must have been documented somewhere.
There's another possibility: if the factual process makes it perfectly clear that someone must have had this intention, they can't wriggle out or say they didn't mean it. With cultural destruction, which is actually a war crime, it might still work. If many thousands of deaths are added, that is not possible. And it certainly doesn't work if nuclear weapons are used.
It's always being threatened.
At that point at the latest, the requirement of intention would be very, very evident.
At the beginning of the war, the Chancellor also spoke of "Putin's war" - as if the Russians were completely uninvolved in it. Is that legally correct?
According to the constitution, the government is the authority that declares a state of war. In that respect it is correct. The Russians are not responsible for what the Russian President decides, if only because of the high degree of depoliticization in the country.
Is there no civil society complicity?
No, because under this dictatorship there is no longer an opportunity to articulate oneself and to criticize, which could be dangerous for the Kremlin. Think of the many murders of Kremlin critics - or what happened to [opposition politician] Alexei Navalny. Civil society's options for exerting influence are also extremely limited. In this respect, it also has no criminal liability. And I don't think moral either.
In order for Putin to be brought to justice, he would first have to be arrested and extradited to the International Criminal Court (ICC). How likely do you think that is?
If I had been asked many years ago whether I thought Slobodan Milošević was likely to be indicted, I would have said: "It will never happen". Umar al-Bashir [Ex-President of Sudan] is also an example: Many things can happen in life. And it can also happen that Putin is arrested, extradited and charged. The ICC is the right instance for this. Because in Russia there will be no such serious change that the country itself judges the crimes in a kind of transitional justice.
Can't Putin be brought before a Ukrainian court?
Of course that would work too. However, there would be a high suspicion that some kind of victor's justice would be practiced there. Incidentally, Putin's actions not only violated Ukraine, but also fundamentally violated the laws of mankind. The thousands of victims, the material damage - this is something that other countries, including Germany, are increasingly concerned about. In this respect, there is an interest in these procedures beyond the borders of Ukraine.
However, he cannot be prosecuted before the ICC for the war of aggression against Ukraine. Why not?
The facts of the case were only subsequently added to the Rome Statute - as the international criminal code is called. The rule is that someone who orders a war of aggression can only be prosecuted before the ICC if their state is a party to the Rome Statute. This was done in order to get the agreement of the contracting states. Otherwise this would not have been possible.
And Russia is not a state party.
Exactly. Hence the idea of setting up a special tribunal. This is not only demanded by Ukraine, but also by the USA and Great Britain. It could justify itself and charge Putin with the war of aggression.
Modeled on the Nuremberg trials.
Yes. Nothing can be said against the proposal, but the idea is supported by the USA and Great Britain, who themselves are suspected of having committed war crimes in Iraq. So there would be immediate objections from countries in Asia, Africa and Latin America. The tribunal's credibility would have been damaged from the start.
What is the point of the ICC if it cannot put those responsible behind bars?
While Putin cannot be indicted by the ICC for aggressive war, he can be charged with war crimes and crimes against humanity. There are life sentences for that too. If that didn't happen and Putin would turn up unmolested at international conferences again at some point, it would be a disaster for international criminal law. In the future, how are you going to hold leaders who ordered war crimes accountable when someone who did it with great openness and evidence goes unpunished? The foundation and the whole idea of an international criminal justice system would be extremely shaken.
Judith Görs spoke to Gerd Hankel
