A conversation with friend and colleague Charles Madigan about Russia and Ukraine.

Charlie: There are dozens of points during the Russian invasion of Ukraine that people have used the description “war crimes” to depict what has been playing out across the conflict.

Almost all the descriptions involve accusations against Russian troops moving with murderous intent on civilians unfortunate enough to be in their way. The Russians leave bodies in their wake of civilians — men, women and children — who have been killed by single shots to the head, none of them involved in fighting.

But are these war crimes?

They are crimes for certain, taking civilian lives in a military conflict has been viewed as criminal behavior now for decades, murder in fact. But that doesn’t mean a court in The Hague or anywhere else is going to step in and prosecute the perpetrators.

A United Nations International Commission of Inquiry concluded after its intensive investigation of allegations of war crimes charges that war crimes have clearly been committed in the conflict, but prosecuting those cases involves a delicate dance across international law, even to the question of can you have war crimes when no war has been declared? Some investigators claim the tally on war crimes has reached 50,000.

Jim: That’s a great question, Charlie. The International Criminal Court (ICC) in the Hague could give an answer as the “court of last resort.” It’s supposed to step in when national courts in member states can’t or won’t prosecute criminals.

I think the definition of a criminal who turns a blind eye to murder fits Putin like a glove. He may not have had an actual hand in the crimes in Ukraine, but he cheers on an Army that routinely murders innocent by-standers, women and children. It’s sickening.

Any signatory to the United Nations statue adopted in Rome in 2002 can request the prosecutor’s office to initiate an investigation. The Rome Statute has been signed by 123 nations but not Russia. America hasn’t signed it, either. Do you think the ICC can or will step make a case against Putin?

Charlie: Rockets hitting apartment blocks and bodies rotting on the streets might well look like proof of war. But it takes more than appearances to prove the case. Until Thursday, Putin has referred to the incursion as a “special military operation.” But he used the word “war” for the first time.

“Our goal is not to spin the flywheel of military conflict, but on the contrary, to end this war,” Putin told reporters in Moscow. “We have been and will continue to strive for this.”

U.S. observers say that was most likely a slip of tongue, but it may take a while for that to be worked out. It could just be another step on the way to a negotiated solution.

Regardless, if the Russians are going to call the Ukraine incursion a “war” then the rules of warfare, which have evolved through an array of conflicts in the 20th Century, come into play. The question then is who would prosecute war crimes? There is no shortage of evidence, but there could well be a shortage of willpower?

Jim: That might be the case. The court’s current chief prosecutor, Mr. Karin Khan from the UK, has sent a team of investigators to Ukraine, but no charges have been filed and cases can linger at the Hague for years. In its 20 years of existence, the ICC has issued 50 arrest warrants, but only convicted ten defendants. Four were acquitted and five died before a verdict. The New Yorker’s Masha Gessen did a great in-depth story on the ICC and Ukraine’s complex cases against Russian soldiers in an August 2002 story.

I vividly remember watching the trial of one of the accused who died. I first saw a confident and lively Slobodan Milosevic when he ran for President of Serbia with, by the way, help from American political consultants. I was in Belgrade on a trip that took me to Croatia and Bosnia during the war in the 1990s. To no one’s surprise, Milosevic won in December 1990. I saw him next in the witness stand in The Hague at the U.N. tribunal, a forerunner to the ICC. He faced charges totaling 66 counts of genocide, crimes against humanity, and war crimes in Croatia, Bosnia and Kosovo, including the massacre of about 8,000 Bosnian Muslim prisoners in Srebrenica during 1995. He looked haggard from years in jail. Nonetheless, struck a defiant pose in the court. The prosecution called 290 witnesses, but he was never convicted of anything. He died before a verdict could be reached on the charges for leveled in 2001. He passed away in his cell — apparently of natural causes.

Even if the ICC has the will power to make a case, we may see it suffer the same fate as Milosevic.

—James O’Shea and Charles Madigan

James O’Shea is a longtime Chicago author and journalist who now lives in North Carolina. He is the author of several books and is the former editor of the Los Angeles Times and managing editor of the Chicago Tribune. Follow Jim’s Five W’s Substack here.

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Charles Madigan is a writer and veteran foreign and national correspondent for UPI and the Chicago Tribune, where he also served as a senior writer and editor. He examines news reporting, politics and world events.

War Crimes