Experts say there's clear cut evidence of war crimes in Ukraine, but building a case against Putin will take years and it's unlikely he'll ever face justice

• Insider spoke to experts who explained how a war crimes case could be built against Vladimir Putin.
• The experts said there were already clear signs of war crimes and crimes against humanity in Ukraine.

In the two weeks since Russia invaded Ukraine, there have been reports of schools being hit in missile strikes and civilians being fired on as they try to flee to safety.

These incidents have led many to question whether Russian President Vladimir Putin could be charged with war crimes.

Insider spoke to two experts in the field, who explained how such cases are built, the likelihood of Putin being charged, and how charges would impact Putin's life.

Investigations are already underway

Hannah Garry, the director of the University of Southern California's International Human Rights Clinic, and Ernesto Verdeja, an associate professor at the University of Notre Dame, said the International Criminal Court is the most likely venue to prosecute Putin for war crimes.

In fact, the ICC is already investigating the Ukraine invasion. Normally this would be difficult since neither Ukraine nor Russia are member states of the ICC. But after ICC Prosecutor Karim A.A. Khan QC expressed his increasing concern about the situation unfolding in Ukraine, his office received referrals from 39 member states. Those referrals allow Khan to proceed with an investigation into possible war crimes, crimes against humanity, and genocide.

"This is unprecedented. There's never been a coalition of states like this, this large, that have referred something to the prosecutor at the international court," Garry said.

Verdeja says that the ICC also investigates crimes of aggression, which is basically the invading of a sovereign country. He says "anyone watching the news" can see that this crime has been committed, but the ICC can't investigate this because Ukraine and Russia aren't member states.

Garry says there may be a way to charge Putin down the road with crimes of aggression in a hybrid court, set up specifically to prosecute crimes tied to the invasion, like the Nuremberg trials for the Nazis.

Other options include prosecuting Putin in Ukraine's national court system, or through another country's court system, since some countries — such as The Netherlands — have crimes against aggression outlawed, Garry said.

Cases related to the conflict in Syria, for example, have been tried in Germany. And on Tuesday Germany's justice minister announced that the country's federal prosecution office had launched a probe into suspected war crimes in Ukraine, according to Al Jazeera.

Are war crimes being committed in Ukraine?

Verdeja and Garry were in agreement that there are already clear-cut signs that war crimes and crimes against humanity are being committed in Ukraine.

"Under the laws of war, you have to use precision weaponry and you're not allowed to directly target civilians. Of course, there will be civilian casualties, that's not a war crime. But here the methods being used and the weapons being used seem to indicate direct intent to target civilians and destroy civilian property and infrastructure," Garry said.

Some of the examples Garry and Verdeja listed as possible crimes include reports of the Russian military using cluster bombs and thermobaric bombs; the targeting of hospitals and schools; allegations of soldiers sexually assaulting women; and civilians being killed as they tried to flee the encroaching Russian army.

Verdeja said war crimes can also have some overlap with crimes against humanity, but the latter can happen in non-war times as well.

Warning: Graphic image

Genocide is a "little trickier" to prove, Verdeja said. Garry agreed, saying there's a "very high threshold" for proving genocide.

"The prosecutor has to show that Putin or other high-level Russian officials have the intent to destroy a whole group, a particular protected group in whole or in part. And it has to be a national, racial, ethnic, or religious group," Garry said.

However, Garry and Verdeja say prosecutors may have a case to build for genocide given Putin's statements before the invasion, in which he questioned the validity of the Ukrainian state.

However, Verdeja noted that it's "important not to get too caught up" with whether prosecutors will be able to prove genocide, since war crimes and crimes against humanity are considered "equally atrocious crimes under international human rights law."

The TikTok War

Russia's invasion of Ukraine has been called "The TikTok War" for the way its been documented on social media in real time.

Garry and Verdeja agreed that these firsthand accounts could help prosecutors build a case against Putin, but that they also prove a challenge to authenticate.

Garry said there are already groups working to provide training to civilians on the ground so that they can collect evidence that could be used to prosecute war crimes down the road.

Another issue with all of the videos and photos coming out of Ukraine is disinformation and misinformation.

"We see a lot of examples already of imagery and video clips that either didn't happen in the location or at the time they were alleged to have happened. They happened in other countries, at other periods of time. Or that they've been manipulated in some way and sifting through that is really hard," Verdeja said.

"So it can be a boon, but it can also be a major challenge."

Already, building a war crimes case is a process that can take several years, Verdeja said.

"The office of the prosecutor is looking for documentary evidence for proof of intentionality and orders and organizational plans to carry out atrocities. They have to look at structures of command ... They have to do interviews with survivors and victims. People who have been displaced and others who have expert knowledge on the case. Often you're doing forensic evidence in the field. You're looking at actual sites where mass atrocities occurred. So you're looking at burial locations, destroyed buildings, all these things," Verdeja said.

How likely is Putin to be charged?

Putin is likely to be a focus of these investigations, Garry said, because the ICC "typically is focused on the highest-level leaders of governments and militaries."

However, the challenge for prosecutors will be proving the chain of command that leads from an atrocity being committed, all the way up to Putin.

"It's typically not hard to show that on the ground war crimes are happening. What's hard to show is how the high-level leader is connected to it through some theory of responsibility," Garry said.

Modern day military leaders have also learned from past conflicts and know how to make their role in the chain of command opaque, Garry said.

Nevertheless, Verdeja says that he thinks there's a "decent chance" Putin could be charged with war crimes. Garry pointed to the fact that Putin has been outspoken about his motivations for invading Ukraine and that could be something prosecutors use against him.

An advantage of charging Putin in the ICC is also that heads of state don't get immunity, like they do in other courts. So Putin can still be charged even if he does remain in power.

What would happen if Putin is charged?

Even if Putin is charged by the ICC, Verdeja said it's "pretty unlikely" he'd ever face trial on those charges.

Garry and Verdeja said Putin would likely be forced to hole up in Russia, or only visit friendly countries where he is unlikely to be arrested.

But another advantage of the ICC is that there are no statute of limitations and his arrest warrant wouldn't expire, Garry said.

"What we have seen over time is that as political leaders like Putin lose allies, lose friends, lose power, eventually they do get arrested," Garry said.

Both Garry and Verdeja pointed to Slobodan Milošević, the former president of Serbia and Yugoslavia, who was tried for war crimes in connection to the Bosnian War. The trial ended without a verdict when Milošević, died in his prison cell in The Hague after suffering a heart attack.

Verdeja says Putin may see getting charged as a positive.

"I think he would use it more as proof that the West is against him," Verdeja said.

In the unlikely situation in which Putin does eventually get charged and convicted by the ICC, Garry said he could face up to life in prison, but that the court typically hands down sentences of up to 30 years. That sentence would be served in a prison of a member state.

Verdeja thinks it's likelier that Putin will die before ever facing justice for war crimes.

"Ether someone kills him or he just dies of natural causes," Verdeja said.

Will the investigation impact his decision making?

Garry and Verdeja were in somewhat disagreement over whether a war crimes investigation would have any impact on Putin's decision making in the coming days.

Garry said there's a reason that these investigations are started in the middle of armed conflict.

"Hopefully this will put pressure on Russia and Putin to withdraw," she said.

But Verdeja said he doesn't think the ICC's investigation is something Putin is thinking about at all.

"I don't think Putin cares at all about the ICC. He's simply too powerful, too rich, and just doesn't care. So I don't think it'll affect him at all at this point," Verdeja said.