--:-- [Sound of a news broadcast]
--:-- Noel King: What's behind Vladimir Putin's brutal siege of the city of Mariupol?
--:-- Jack Losh: For Mariupol in southern Ukraine, it's already a city in ruins after days of bombardments. One reason is obvious, location. It's positioned almost like a bridge between two Ukrainian territories that Russia already occupies.
--:-- Noel King: But there's another possible reason. In 2014, when Russia invaded those territories, it wanted to take Mariupol, too. The separatists certainly had it in their targets. But the Ukrainian forces did beat back the Russians and secured the town, something that some believe Putin never really forgave.
--:-- Jack Losh: On Today Explained, Vladimir Putin seeks revenge, and an international law expert tries to determine the price that Putin should pay.
--:-- [Sound of a commercial break]
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--:-- Jack Losh: Jack Losh is a filmmaker and freelance journalist. He spent a lot of time covering eastern Ukraine since 2014.
--:-- Noel King: He travels roads that cut through endless fields and steps and land that's punctuated by grim gray post-Soviet mining towns, which might explain why he loves Mariupol.
--:-- Jack Losh: Mariupol is by the sea, and you could feel the change in air. It's on a sea called the Azov Sea, where people would kind of go down to the beach, they'd sunbathe, kind of a touch of the Mediterranean atmosphere of just people being out in the streets, taken in the air.
--:-- Noel King: My Mariupol friends have always described it as that much more liberal. It's a city where people prefer marijuana over alcohol.
--:-- Jack Losh: They've said to me that gay people found a more permissive atmosphere in what is fair to say a pretty homophobic country. And some of them have seen that as being the antithesis of what the Putin regime represents.
--:-- Noel King: Of course, it wasn't that far away from the front line. Bombed out villages like Shirokhana were just really a few miles down the road.
--:-- Jack Losh: And you would get echoes of the war there. You'd see sometimes soldiers moving through the street. is just a few kilometers away. But really, for somewhere so close to an active front line, up until recently, it felt quite far from the war. It felt quite peaceful.
--:-- Noel King: Why did this city become such a target for the Russian military?
--:-- Jack Losh: Well, if you can picture a map of Ukraine, along its southern coast, along the Azov Sea and going into the Black Sea, you have Crimea, which of course Russia annexed in 2014.
--:-- Noel King: But they never got further than that, apart from the Donetsk and Luhansk regions in southeastern Ukraine that border Russia.
--:-- Jack Losh: And the thinking was that Putin would always want a land corridor to connect these de facto puppet states occupied by Russia and these Russian-backed separatists, connecting those with the Russian-occupied peninsula of Crimea.
--:-- Noel King: Mariupol lies along that coast, and by securing that city and other towns, you'll be able to connect up those two places, Crimea and Donbass.
--:-- Jack Losh: Why would you want to do that? Well, they built this big bridge connecting Russia with the Crimean peninsula several years ago.
--:-- Noel King: This was the first traffic to cross the newly opened Crimea Bridge. Built it with great cost and it's just one rose. Construction trucks, one driven by Vladimir Putin himself, sped the 19 kilometres across the Kerch Strait.
--:-- Jack Losh: Well, this would just allow another way of supplying the Crimean Peninsula. You know, Mariupol as well, it's a very industrial city.
--:-- Noel King: There's kind of huge plants, factories there. Since we began work in 1973, we've rolled out 61 million tons of steel.
--:-- Jack Losh: So the economic gain of taking over such a city is pretty large. Though, of course, we've seen that infrastructure absolutely gutted over the last few weeks by these Russian rockets.
--:-- Noel King: So it's kind of hard to see what economic interest there is for Russia now there.
--:-- Jack Losh: When and how did the siege of Mariupol start?
--:-- Noel King: Well, I mean, war erupted in Ukraine on the 24th of February. The horrors that we're now seeing unfold really began escalating, I'd say a week or so later.
--:-- Jack Losh: I mean the siege really began ramping up I say at the beginning of this month
--:-- Noel King: One of the problems is that these communication towers these phone towers around the city were taken out pretty early on as well
--:-- Jack Losh: There are two reasons for that. One, to sow chaos. If you can't communicate with the outside world and see what's going on, that's going to induce panic.
--:-- Noel King: And two, it serves impunity. The destruction against the human population and the fabric of the city has been immense.
--:-- Jack Losh: In Mariupol, where food and medicines are running out, 400,000 people are stranded in a paralysed, ruined city.
--:-- Noel King: We've seen bodies of children, women, civilians killed in these unrelenting Russian bombardments and these bodies piling up in mass graves.
--:-- Jack Losh: We've seen Russian airstrikes and Russian artillery shells destroying homes.
--:-- Noel King: Ukraine calls this strike, which hit a maternity hospital in Mariupol, a war crime. Bombing the maternity hospital. If a hospital is hit, how can anywhere be safe?
--:-- Jack Losh: We've heard reports of trapped residents melting snow to drink, burning furniture for warmth in the freezing cold.
--:-- Noel King: Last week, several thousand people, tens of thousands of people actually, thousands of cars did manage to escape, but that followed multiple failed attempts to create humanitarian corridors through this Russian siege.
--:-- Jack Losh: We have not done and would never do anything like this war crime in any of the cities of the Donetsk or Lugansk regions, or of any region, because we are people.
--:-- Noel King: But are you? In terms of the deaths, I mean, no one knows.
--:-- Jack Losh: The official toll has been put at more than two and a half thousand.
--:-- Noel King: We're not going to know for a while.
--:-- Jack Losh: And by stopping Ukrainian civilians and journalists documenting these war crimes and these atrocities, well, that only serves to bolster the lack of accountability the Russians are hoping to face.
--:-- Noel King: People in Mariupol are taking shelter. They're leaving their homes and they're going to public buildings.
--:-- Jack Losh: And it seems as though Russia is deliberately targeting those public buildings where people are hiding, are seeking to be safe.
--:-- Noel King: Can you tell me a little bit about what we've seen in terms of the direct targeting of civilians and how Russia is attacking those areas?
--:-- Jack Losh: Sure. Well, I mean, the world watched in horror last week while hundreds, potentially more than 1,000 civilians were sheltering in the drama theatre in the city centre.
--:-- Noel King: This is video posted on social media said to have been recorded a week ago, and it shows women, children and the elderly seeking refuge in the theater's basement.
--:-- Jack Losh: A beautiful building, kind of neoclassical facade.
--:-- Noel King: And last week, one of these struck the building head on.
--:-- Jack Losh: Ukrainian President Volodymyr Zelensky says the building was hit by, in his words, a huge Russian bomb.
--:-- Noel King: And news started coming out a few days ago that actually the shelter had held up and that people were alive, but they were trapped under many tons of rubble.
--:-- Jack Losh: To be bombing places like that. Places which, by the way, had the Russian word for children written outside in huge letters to let the Russian warplanes know that this was a civilian target clearly didn't do anything to dissuade them from bombing such a civilian target, which would likely qualify as a war crime.
--:-- Noel King: Not only are you bombing these places, but the fact that rescue attempts are stymied as well just gives you a sense of the nightmare that these people have been living through.
--:-- Jack Losh: Based on the conversations you've had with people in Mariupol, people who have left the city. How much longer does Mariupol have, do you think?
--:-- Noel King: Well, there's a great deal of uncertainty.
--:-- Jack Losh: And what we're probably moving towards now is less purely of a distant bombardment of the city. And we're now moving to a much more gruelling phase of street battles.
--:-- Noel King: The battle is going to continue.
--:-- Jack Losh: And that only spells one thing for the hundreds of thousands of civilians who remain there, death, its horrific injuries, its suffering and its fear.
--:-- Noel King: It's not just the people who are in that city. There are many people who grew up in Mariupol who are looking on this from afar with absolute horror who are still waiting to find out if their loved ones are well, let alone alive.
--:-- Jack Losh: I was speaking to my friend Victoria about this a few days ago and I asked her what her hopes were when this nightmare ends, and she told me this.
--:-- Noel King: My husband and I, we discussed why shouldn't we right now go there? Because our hearts want to be there, but we have to stop ourselves because we understand that one day somebody has to build it up again.
--:-- Jack Losh: And I think we are the people who can do this.
--:-- Noel King: Great pain but perhaps a little bit of optimism amid this immense darkness that one day they will be able to take their city back to the happier more peaceful place it once was
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--:-- Noel King: Philippe Sands is a law professor. He's currently visiting at Harvard.
--:-- Jack Losh: He's also a practicing lawyer with deep expertise in crimes against humanity and genocide.
--:-- Noel King: Philippe, President Joe Biden recently called Vladimir Putin a war criminal.
--:-- Jack Losh: Do you agree that's what Putin is?
--:-- Philippe Sands: I listened with interest to President Biden's characterization of Vladimir Putin as a war criminal.
--:-- Noel King: I'm wondering whether the remarks were somewhat off the cuff.
--:-- Philippe Sands: Oh, I think he is a war criminal.
--:-- Jack Losh: And perhaps not quite fully prepared, because I'm not sure what he meant.
--:-- Philippe Sands: There are four existing international crimes under international law. The well-established war crimes, targeting civilians, and genocide.
--:-- Noel King: And then a fourth crime, the crime of aggression.
--:-- Philippe Sands: If President Biden was referring to Vladimir Putin as someone who's perpetrating war crimes, that might go a little far.
--:-- Jack Losh: I think that war crimes seem to be taking place in Ukraine.
--:-- Philippe Sands: There is ample evidence of the targeting, the willful targeting of civilians.
--:-- Noel King: What we don't know, of course, is who is responsible for that.
--:-- Philippe Sands: Is it fighters on the ground? Is it military commanders? Is it Vladimir Putin himself?
--:-- Jack Losh: So I think to characterize him as a war criminal goes a bit far.
--:-- Philippe Sands: I think you can certainly say he is the head of state of a country that is currently perpetrating war crimes.
--:-- Noel King: OK, this is a very interesting distinction, and I want to ask you to dig in a bit more.
--:-- Philippe Sands: A person like me, who's not a barrister, might say, but Putin is the boss of the country, right?
--:-- Jack Losh: So if his forces are doing things that reach the level of war crimes, like what we're seeing in Mariupol with the theater with civilians and children sheltering targeted.
--:-- Philippe Sands: If the president of the country, if the leader of the country is the one on whose behalf that army is acting, isn't it obvious that he's a war criminal?
--:-- Noel King: Well, it may be obvious, but put yourself in the position of the prosecutor at the International Criminal Court, who will surely be investigating the terrible events that are happening at Mariupol, where it seems that individual civilians are being targeted.
--:-- Philippe Sands: The prosecutor has to prove a number of things.
--:-- Jack Losh: He's got to prove that civilians are being hit, that they're being targeted, or that the targeting is reckless, and there is a disproportionate killing or harm to civilians.
--:-- Philippe Sands: But the prosecutor then has to do something else.
--:-- Jack Losh: The prosecutor has to identify the person or persons who are responsible for that.
--:-- Philippe Sands: And that raises a number of questions.
--:-- Jack Losh: It could be the individuals who are actually firing the missiles.
--:-- Philippe Sands: It could be the commanders who are telling the individual who's firing the missiles to fire randomly and to hit civilian targets.
--:-- Jack Losh: Or it could be on instructions or with reckless abandon that the head of state has ordered all of his military to target in that way, which affects civilians in this terrible way.
--:-- Noel King: That's what we don't know, and that's what a prosecutor has to prove.
--:-- Philippe Sands: Now, I have to say the scale of what is happening is certainly consistent with responsibility going all the way to the top.
--:-- Jack Losh: It's called command responsibility.
--:-- Philippe Sands: But I suppose I'm being a little bit cautious in recognizing that a prosecutor's job is to prove the relationship between the individual, in this case, Mr. Putin, and the crimes that are said to be being perpetrated.
--:-- Noel King: And are you being cautious because that is, in fact, a very difficult thing to do?
--:-- Philippe Sands: We know that there are many leaders in this world who do bad things to their people or to other people.
--:-- Jack Losh: They don't often go to trial, do they?
--:-- Philippe Sands: I'm being cautious because bitter experience teaches me that proving a crime at an international court is not a straightforward thing, particularly when it comes to war crimes and crimes against humanity.
--:-- Noel King: The prosecutor at the International Criminal Court is going to have to gather evidence.
--:-- Philippe Sands: That's a long and time-consuming process.
--:-- Jack Losh: And he's going to then have to tie that evidence to particular individuals who he will, presumably at some point, indict.
--:-- Philippe Sands: Now, it may be that it goes all the way to the top, but that is going to take time.
--:-- Noel King: And I do think it's important that political leaders exercise care in what they say.
--:-- Philippe Sands: I think war crimes are taking place.
--:-- Jack Losh: I think it's on such a systematic scale that it appears to be a crime against humanity.
--:-- Philippe Sands: But I'm just being a little more cautious on who exactly is responsible for these crimes.
--:-- Noel King: I wonder if we can step back into history a little bit and just explain the importance of some of these institutions.
--:-- Philippe Sands: So President Biden makes this statement, Vladimir Putin is a war criminal.
--:-- Jack Losh: And then the rejoinder from Biden's critics is the United States is not a member of the International Criminal Court or ICC
--:-- Philippe Sands: Can you explain what the ICC is and why it matters?
--:-- Noel King: The Nuremberg trial in 1945 the famous Nuremberg trial was the first instance of an international criminal tribunal being established.
--:-- Philippe Sands: Nuremberg, Germany, once the shrine city of the Nazis, ravaged by the war Hitler launched on the world, ironically the scene of the final chapter of his partners in conquest.
--:-- Noel King: To prosecute Nazi leaders for war crimes, crimes against humanity, genocide, and the crime of aggression.
--:-- Philippe Sands: The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored.
--:-- Noel King: There have been subsequent tribunals established on an ad hoc basis.
--:-- Philippe Sands: But then in 1998, after 50 years of effort, governments finally came together and created this body known as the International Criminal Court.
--:-- Noel King: The establishment of the ICC is above all a triumph of the universal value of justice, which is shared by all peoples of the world.
--:-- Philippe Sands: It's created by treaty.
--:-- Noel King: I was involved in the negotiations of the statute in Rome in 1998.
--:-- Philippe Sands: And it came into force in 2002.
--:-- Noel King: And it's got about 125 states that have ratified the treaty.
--:-- Philippe Sands: And the parties do not include some significant countries, the United States, Russia, China are not parties to the statute.
--:-- Noel King: Ukraine has accepted the jurisdiction of the International Criminal Court.
--:-- Philippe Sands: But basically, once a state has accepted the jurisdiction of the court, The court has jurisdiction to investigate crimes that fall within its powers that take place either on the territory of a state party or which are perpetrated by the national of a state party.
--:-- Noel King: Since Ukraine declared in 2014 its acceptance of the jurisdiction of the court, the court has jurisdiction for crimes taking place on the territory of Ukraine.
--:-- Philippe Sands: But the jurisdiction of the International Criminal Court is limited, in this case, to war crimes, crimes against humanity, and genocide.
--:-- Noel King: The ICC does not have jurisdiction over the fourth crime, which, to my mind, is the most important one of all.
--:-- Philippe Sands: And that is the decision to wage war in the first place and to continue waging war, which is why I and many individuals, including former British Prime Ministers Gordon Brown and John Major, are calling for the creation of a special tribunal.
--:-- Noel King: Who does have jurisdiction over that?
--:-- Philippe Sands: This is an interesting distinction you've just drawn.
--:-- Jack Losh: It's an important distinction because my concern is, and the concern of many others, is that we find ourselves in a situation in five years' time where some mid-level military or civilian leaders find themselves hauled up to The Hague, being indicted and prosecuted for crimes against humanity or war crimes.
--:-- Philippe Sands: But the main perpetrators, that's to say Mr. Putin and his cohort of characters around him, the finances, the political leaders, the military leaders, somehow are off the hook.
--:-- Noel King: And if you don't focus on the crime of aggression, you're effectively letting the main perpetrators off the hook.
--:-- Philippe Sands: At this moment in time, no international tribunal has jurisdiction to try the crime of aggression.
--:-- Jack Losh: Now, a brief word here on the crime of aggression.
--:-- Philippe Sands: Curiously, it was put into the Nuremberg statute by the Soviets.
--:-- Noel King: And after the Nuremberg judgment in 1946, the Soviet Union and Ukraine and Belarus all incorporated into their domestic laws, into their criminal codes, their penal codes, the crime of aggression as it was drafted at Nuremberg.
--:-- Philippe Sands: And today, all of those countries accept the crime of aggression is a crime within their jurisdiction.
--:-- Noel King: And what the foreign minister of Ukraine and President Zelensky are calling for is an internationalization of Ukraine's domestic criminal jurisdiction over the crime of aggression.
--:-- Philippe Sands: Basically, they're asking for help from other countries to set up an office in The Hague to investigate and, as appropriate, then prosecute for the crime of aggression.
--:-- Noel King: A thing that I wonder, will any of this end the war?
--:-- Philippe Sands: The truth is, Noel, we don't know.
--:-- Noel King: On the legal side, what we do know is that there is ample evidence in other conflicts, and here I go all the way back to 1945 in the spring, that putting people of interest on a list of possible inditees for international crimes investigations does have the effect of concentrating the mind.
--:-- Philippe Sands: The example that comes immediately to my mind is that of Karl Wolf, General Wolf, who was Hitler's major military commander in Southern Europe.
--:-- Noel King: And in the spring of 1945, when he started featuring on various lists, he decided to break ranks and he cut a deal to basically avoid going to Nuremberg in return for downing arms and cooperating much earlier.
--:-- Philippe Sands: And one of the hopes that I have for the crime of aggression, beyond delegitimizing what Russia is doing, providing further support and solidarity with Ukraine and its people is that there will be in Putin's close circle doubters.
--:-- Noel King: We know there are doubters and this might concentrate their minds and that might have the effect of causing them to peel away.
--:-- Philippe Sands: These things seem outlandish at this point, but you know, Noel, in 1942 when the governments in exile came together in London and issued something called the Declaration of St. James calling for the prosecution of Nazi criminals.
--:-- Noel King: I don't think anyone really imagined it would happen, but three years later, there they were, 24 of them in the dock at Nuremberg.
--:-- Philippe Sands: So I think we just don't know what is going to happen.
--:-- Noel King: Today's show was produced by Will Reed, edited by Matthew Collette, engineered by Afim Shapiro, and fact-checked by Laura Bullard.
--:-- Noel King: It's Today Explained, I'm Noelle King.
