Alex Whiting

Perhaps it was the way the lifeless bodies, bloodied by bullets, and some with hands bound, had been left strewn about or shoveled into makeshift mass graves. Or the reality of seeing them up close in widely circulated photographs and videos. There have been other atrocities in the weeks since Russia invaded Ukraine, concentrating much of its firepower on the dwellings and gathering spots of ordinary Ukrainians, but the international outrage they provoked has been eclipsed by the reaction to revelations that retreating Russian soldiers left many slain civilians behind near the Ukrainian capital. ... “What’s different here is that you have images of civilians with their hands bound and executed — that’s a completely different kind of crime,” said Alex Whiting, a visiting professor at Harvard Law School who has worked on international war crimes prosecutions. “This very much looks like a crime.”

U.S. President Joe Biden on Monday called for the prosecution of Russian President Vladimir Putin for war crimes over the discovery in Bucha, Ukraine, of mass graves and bodies of bound civilians shot at close range, but various challenges stand in the way. ... Alex Whiting, a visiting professor at Harvard Law School, said the latest images will make the case easier to prosecute. “The question then becomes, who’s responsible and how high up does it go?” he said. Cases will be easier to build against soldiers and commanders but they can also pursue heads of state, experts said.

President Biden has called Vladimir Putin a "war criminal," and said Monday the Russian leader should face a trial over the alleged atrocities in Ukrainian city of Bucha. Yes, but: While similar calls have echoed worldwide, Putin is unlikely to be held criminally accountable, at least as long as he remains in power. The big picture: War crimes have been historically hard to investigate and often even more challenging to prosecute. This is especially true when prosecutors seek to hold leaders or former leaders accountable. For clear cases of war crimes, often the main challenges are determining who is responsible, and what evidence exists that can establish culpability, according to Alex Whiting, a Harvard Law School visiting professor and deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague.

War crimes happen whenever there is war, but seldom have they been investigated in real time and within weeks of the outbreak of hostilities, as is happening with Russia's invasion of Ukraine. After a brief initial hesitation to publicly brand the architects of the Ukraine invasion as war criminals, the United States and its European allies began issuing explicit statements about what they were seeing before the war was one month old. ... U.S. laws even limit the ways the U.S. can support ICC investigations, according to Alex Whiting, a visiting professor at Harvard Law School. "The U.S. has actually taken the position that there are different ways to hold alleged Russian perpetrators to account, citing Ukrainian law and the possibility of prosecutions under that law, prosecutions by third states with jurisdiction, and then finally the ICC," Whiting told VOA.

Longtime war crimes prosecutor Alex Whiting, a visiting professor at Harvard Law School, speaks to reporter Karen Sloan from The Hague about the outlook for indictments by the International Criminal Court.

U.S. President Joe Biden has publicly called Russian President Vladimir Putin a war criminal, but legal experts said a prosecution of Putin or other Russian leaders would face high hurdles and could take years, as outlined below: HOW IS A WAR CRIME DEFINED? The International Criminal Court in The Hague defines war crimes as “grave breaches” of the post-World War Two Geneva Conventions, agreements which lay out the international humanitarian laws to be followed in war time. Breaches include deliberately targeting civilians and attacking legitimate military targets where civilian casualties would be “excessive,” legal experts said. ... “If it keeps happening again and again and the strategy appears to be to target civilians in urban areas, then that can be very powerful evidence of an intent to do so,” said Alex Whiting, a visiting professor at Harvard Law School.

As thousands flee the besieged Kyiv suburb Irpin, allegations are emerging of Russian forces looting, hiding military equipment in residential areas, deploying snipers and cutting water and power as they seek to use the area as a potential launchpad to invade the capital. ... “There is nothing clearly to prohibit cutting water and power” in international law, he said in an email. But under the Rome statute, which governs the International Criminal Court, it is a crime to intentionally starve civilians or “cause conditions where they can’t survive,” according to Alex Whiting, an international law expert and visiting professor at Harvard Law School.

As much of the international community continues to find ways to help Ukraine fight back against Russia's full-scale invasion, some are already looking to find ways to hold Russian President Vladimir Putin accountable for the attacks that have claimed at least 406 civilian lives. ... "It's a war crime to target civilians or civilian objects, like hospitals, and it's specifically a war crime to target hospitals, but you do have to prove that that was the intent, that it was intended as an attack on the hospital and that there were no military targets nearby," former ICC prosecutor and Harvard Law professor Alex Whiting told Newsweek. "So proving it's a war crime is challenging, but if the hospital is targeted, it is definitely a war crime."

Fears over environmental catastrophes are growing among humanitarian experts and environmental organizations as the Russian invasion of Ukraine moves into its second week. On Friday, over 1,000 organizations and individuals from more than 75 countries released an open letter expressing their solidarity with the people of Ukraine and voicing concern over the war’s environmental and human toll. ... Alex Whiting, a Harvard Law professor and former prosecutor at the International Criminal Court, said the way the crime is defined, requiring a balancing between military advantage and environmental damage, coupled with the extremely high threshold of “widespread, long-term and severe damage” makes it extremely unlikely the prosecutor’s office will focus on this provision.

Russian President Vladimir Putin didn’t plan on such fierce military resistance to his invasion of Ukraine, and now he’s predictably lashing out. Russian forces have begun indiscriminately bombing civilian targets, including a missile strike Tuesday in Zhytomyr, 90 miles west of Kyiv, that destroyed the Pavlusenko maternity hospital, according to reporters and Ukraine’s foreign ministry. At least two people died in the bombing. ... But building such a case is complex, and winning one is rare. “There aren’t a lot of war crime prosecutions involving targeting, which are called conduct of hostilities cases,” said Alex Whiting, a professor at Harvard Law School and a former Deputy Prosecutor and Lead Investigator at the ICC. “They’re particularly challenging cases to bring because of the intent requirement. You have to prove the accused intended to target civilians or to use disproportionate force, and that’s often hard.” Historically, prosecutors have favored bringing charges against those responsible for massacres or other more easily demonstrated crimes.

In August 1992, in the Bosnian city of Sarajevo, nearly 2 million books went up in flames. Fragile, 500-hundred-year-old pamphlets and vibrant Ottoman-era manuscripts disintegrated into ash as the building holding them, the National Library of Bosnia-Herzegovina, was shelled and burned. It was not the first act of cultural destruction by Serbian forces against other ethnic groups in the Balkans, and it certainly wasn’t the last: Over the next seven years, Serb nationalists led by dictator Slobodan Milosevic would wreak havoc across the Balkan region. ... Alex Whiting, a Harvard Law School professor and former prosecutor for the ICTY, credits Riedlmayer’s thorough documentation with lasting change in how cultural heritage destruction is viewed. “In cases where thousands of people have been brutalized, driven from their homes, tortured, and murdered, trying to get the court to focus on destruction of churches or monuments can be hard,” Whiting said. “[Riedlmayer’s] work showed this was more than just destruction of buildings … cultural genocide is a people being attacked.”

Alex Whiting has joined the Specialist Prosecutor’s Office (SPO) as Head of Investigations. Whiting, 54, is a prosecutor of French and US nationality with extensive experience of both domestic and international prosecutions, including stints at both the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as a distinguished academic career, the SPO announced on Thursday. According to the SPO Whiting came to the SPO from Harvard Law School, where he had been a professor of practice since 2013.

An op-ed by Alex Whiting: The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has released for comment a draft of her Strategic Plan for the final years of her mandate, 2019-2021. Overall, the plan shows that the Office of the Prosecutor (OTP) is frankly seeking to confront and meet the many challenges that the Court has encountered over the last few years. The most significant change in policy is with respect to the types of cases the OTP will consider bringing. Without abandoning the goal of charging the highest-level perpetrators in a situation, the new draft policy fully embraces an approach of bringing cases that are more modest – either narrower in scope or against lower-level accused, namely mid-level commanders or notorious perpetrators – when it can. While this change may be controversial, it is the best path forward to strengthening the work of the Court.

During his Senate Judiciary Committee hearing Wednesday, Attorney General Bill Barr distilled his controversial views on executive power and obstruction into their simplest form yet – and left legal experts stunned. ...But beyond the concerns with Barr’s legal rationale, experts said his hypothetical didn’t apply to the facts of what Trump actually did. “I think it undermines the President’s case, not support it, because it is so far from what the President did here,” Alex Whiting, a Harvard law professor and former federal prosecutor, told TPM.

The International Criminal Court’s recent rejection of its chief prosecutor’s request to investigate alleged war crimes and crimes against humanity in Afghanistan has laid bare the limitations of its working. The statement of the Court that the current situation in Afghanistan “made the prospects for a successful investigation and prosecution extremely limited” has shocked civil society. ... The judges of the pre-trial chamber seem to have considered not only the interest of justice, but also the prospects of success as equally important in deciding the prosecutor’s request. Alex Whiting in his analytical article on the ICC decision in www.justsecurity.org, said the judges found strong evidence to indicate that for the moment at least, an investigation in Afghanistan simply could not succeed.

Harvard Law School professor and former prosecutor Alex Whiting joins the show to break down the Mueller Report from a legal perspective.

Special Counsel Robert Mueller’s final report, as redacted by the Department of Justice, is now released. Here are some early reactions from legal and intelligence experts. For additional background, see our “Hot Topics” archive on the Russia investigation. ... Alex Whiting (@alexgwhiting), Professor at Harvard Law School and member of the board of editors of Just Security. He served as a former federal prosecutor at the Department of Justice and the U.S. Attorney’s Office in Boston, also hones in on obstruction, including several ways in which Mueller’s report is more damaging to the President than Barr’s summary implied: Four things jump out from an initial read of the obstruction section of the Mueller report. First, Mueller declined to make a call on whether the President committed criminal acts of obstruction solely because of the Justice Department’s current policy that a sitting President cannot be indicted, not because he concluded that such charges could not be supported legally or factually. In fact, he says that they would have stated if they found that he “clearly did not commit obstruction of justice.”

Nearly a month after special counsel Robert Mueller handed in his report to U.S. Attorney General William Barr on the 22-month investigation into Russia’s interference in the 2016 presidential election, the public finally got its first look at the document Thursday. ...To start to make sense of it all, hours after the report was released, the Gazette spoke with former prosecutor Alex Whiting, a professor of practice at Harvard Law School who teaches issues and procedures related to domestic and international criminal prosecutions. He serves on the board of editors and writes regularly for Just Security, a popular U.S. national security law and policy website. From 2010 to 2013, Whiting supervised prosecutions in the Office of the Prosecutor at the International Criminal Court in the Hague.