Marissa Jaime Priceman, former law fellow at the ABA Center for Human Rights, discusses the possible consequences Russian President Putin could face for his use of cluster munitions in Ukraine...
Before February 24, 2022, Russian President Vladimir Putin had an “off ramp.” He could have withdrawn troops from Russia’s border with Ukraine and slinked away to an island. However, several developments have eliminated the possibility of an “off ramp.”
On February 28, 2022, ICC Prosecutor Karim Khan announced he opened an investigation into “alleged war crimes and crimes against humanity” in Ukraine. Around the same time, geospatial imaging and expert analyses confirmed reports of Russian forces using cluster munitions that have hit schools, hospitals, and urban residential buildings.
Russia’s confirmed use of cluster munitions—and reported use of vacuum bombs for that matter—is shuddering. Originally designed “to incapacitate military personnel dispersed over a large area” where “the primary objective may be to eliminate the crews of anti-aircraft or field-artillery units,” a single cluster munition can “cover an area the size of several football fields.” Unlike traditional unitary warhead bombs that strike single targets, cluster munitions involve a dispenser, container, or shell filled with bomblets or grenades. When the dispenser, container, or shell reaches its target, it opens and disperses bomblets (submunitions), which are like single projectiles when they hit targets, over a large area.
The “bedrock of modern humanitarian law,” which governs conduct during war, is civilian protection. A person is entitled to civilian protection if they are not a member of the armed forces and are not participating directly in hostilities.
It is a war crime to intentionally direct attacks against civilians and/or civilian objects. Even if there is a legitimate military target, it is a war crime to engage in an indiscriminate or disproportionate attack.
While it could be argued that cluster munitions can be effectively and legally used against armored columns in the open or in airfields, their use in urban areas is often, if not always, a war crime.
The seminal legal case discussing the use of cluster munitions against targets located in or near civilian populations is Prosecutor v. Martić. In Martić, the defendant ordered troops to fire rockets with cluster munitions on “the Ministry of Interior, Ministry of Defence, Zagreb/Plešo airport which had a military purpose, and the Presidential Palace.” At the time of the order, the defendant knew “beyond doubt” of the nature and effects of such munitions, and knew the alleged military targets were located in civilian areas. The ICTY Trial Chamber found that the defendant committed an indiscriminate attack and willfully targeted the civilian population. In finding the weapon was indiscriminate, the Trial Chamber noted that “the weapon was fired from the extreme of its range” and the weapon was a “non-guided high dispersion weapon.” Because the defendant “knew of the effects of” the weapon and its indiscriminate nature, the Trial Chamber also found the defendant “willfully made the civilian population of Zagreb the object” of the attack.
The use of cluster munitions in civilian areas also triggers concerns of disproportionate use of force. There is significant risk of incidental loss when cluster munitions are used in areas with large civilian populations. The high dispersion of bomblets makes it impossible for armed forces to target a single military target, and “incorrect use, wind, and other factors” can cause free-falling submunitions to “strike well outside the intended target area.” Although bomblets are usually designed to explode upon contact, many “are unreliable and fail to explode,” and 10% to 40% fail to detonate. These ticking time bombs pose significant risks to: children, who “are often attracted by the shape, size and colour of cluster munitions;” evacuation efforts; humanitarian relief operations; and eventual reconstruction efforts. Moreover, survivors of bomblet explosions “are likely to have serious, often multiple blast or fragment injuries,” including “damage to vital organs,” “eye injuries,” and “the loss of hands and feet.”
To be proportionate, such extensive expected collateral damage would need to be outweighed by expected “concrete military advantages.” Although “civilian property making an effective contribution to military action whose total or partial destruction offers a definite military advantage may constitute a legitimate military objective,” it is unclear how the urban areas hit by Russian forces would provide “concrete military advantages.” A military advantage only consists of “ground gained and in annihilating or weakening the enemy armed forces.” This does not include “creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population.”
It is reasonably likely that the ICC Prosecutor’s Office will indict Putin for war crimes under a perpetration-by-means theory of liability (encapsulated in article 25(3)(a) of the ICC Statute), or a command responsibility theory of liability (encapsulated in article 28 of the ICC Statute). Historically, indictments against heads of state have been brought within just months of opening investigations. For example, the ICC’s indictment against Libyan President Muammar Gadaffi in 2011 came just three months after the ICC Prosecutor opened its investigation.
There is no escape for Putin. Head of state immunity only applies in foreign state courts. As established by the ICTY’s indictment of Slobodan Milošević, and confirmed by the ICC’s indictments of Muammar Gadaffi and Omar al-Bashir, the underlying principle of par in parem non habet imperium (equals have no sovereignty over each other) is inapplicable to international criminal tribunals.
While it is reasonably likely that the ICC will find sufficient evidence to indict Putin, the question of his extradition remains. State parties to the ICC Statute are obligated to “arrest and surrender” indicted heads of state physically within their territories, and it seems reasonable that many non-State parties would agree to extradite Putin considering the UN General Assembly’s widespread condemnation of Russia’s invasion.
Even if Putin wants to live out his days in Russia, he will likely be the next Slobodan Milošević. After committing war crimes and crimes against humanity in the 1990s as President of Serbia (a constituent republic of Yugoslavia) and President of the Federal Republic of Yugoslavia (FRY), Milošević was indicted for war crimes and crimes against humanity by the ICTY in 1999. Like Putin’s regime, Milošević’s cracked down on opposition and censored the media. However, heavy international sanctions against the FRY led to mass support for opposition groups, which ousted Milošević in October 2000. Months later, after Milošević was arrested by FRY law enforcement on domestic charges, the Serbian government extradited Milošević to the Hague in exchange for international aid needed to rebuild infrastructure.
Assuming international sanctions remain even after the cessation of hostilities, as they did in the FRY, we could see Putin indicted and extradited within the next three years. There may be no purgatory for Putin, but he very well may die in a cell awaiting trial or serving time.
Marissa Jaime Priceman is the former law fellow at the ABA Center for Human Rights. Since leaving the ABA Center for Human Rights, Ms. Priceman has worked on legal issues relating to evacuation efforts and civilian protection in active conflict zones. She holds a J.D. from Georgetown University Law Center.
Suggested citation: Marissa Jaime Priceman, Putin Has No “Off-Ramp” For Using Cluster Munitions in Urban Areas, JURIST – Professional Commentary, March 13, 2022, https://www.jurist.org/commentary/2022/03/marissa-jaime-priceman-putin-off-ramp-war-crimes-ukraine/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at email@example.com
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