Russia’s military action into Ukraine continues, with the civilian toll increasing over time. There have been reports of a maternity hospital being shelled by Kremlin, even leading to casualties, while a recent attack on a theatre on Mariupol, which was apparently being used as a shelter by a thousand residents, has been labelled a ‘war crime’ by the ravaged country.
On Thursday, officials posted images that appeared to show the once gleaming whitewashed three-storey theatre hollowed out and ablaze, with bricks and scaffolding piled high, AFP said in a report. Mariupol mayor Vadym Boichenko called the attack a “horrifying tragedy.” “People were hiding there. And some said they were lucky to survive, but unfortunately not all were lucky,” he said in a video message.
As the war continues, so has Western condemnation, with US President Joe Biden labelling President Vladimir Putin a “war criminal” in a recent speech. While his White House aides have refrained from such dialogue, spokesperson Jen Psaki said Biden ‘was speaking from the heart’, and others confirmed the statement to be ‘political’.
However, legal proceedings against Russia are on. The UN’s top court on Wednesday ordered Russia to suspend its invasion of Ukraine, saying it was “profoundly concerned” by Moscow’s use of force. Kyiv hailed the verdict as a “complete victory” saying it will continue to pursue the case “until Ukrainian people can go back to normal life.”
The International Court of Justice decision came as Moscow’s forces remained stationed around major cities, including Kiev, and the UN reported that more than three million people had fled the fighting, according to AFP. Days after Russia’s invasion on February 24, Kyiv had taken Moscow to the International Court of Justice (ICJ) in The Hague. It requested intervention from the legal body, claiming that Moscow was falsely alleging genocide in Ukraine’s Donetsk and Lugansk regions to justify its attack.
With no Russian representatives present at the sitting, presiding judge Joan Donoghue said, “The Russian Federation shall immediately suspend military operations that it commenced on 24 February on the territory of Ukraine.” However, the final decision is pending in the case. “The court is profoundly concerned about the use of force by the Russian Federation which raises very serious issues in international law,” Donoghue said.
But what constitutes a war crime in international law? News18 explains.
A war crime, as defined by the United Nations, is a serious violation of international law committed against civilians or “enemy combatants” during an international or domestic armed conflict.
A war crime occurs when an enemy is inflicted with unnecessary injury or suffering. Regardless of the outrage caused by the bombing of a school or a country’s television station, such actions do not always constitute war crimes. Such bombing will only be considered a war crime if the number of civilian casualties caused by the attack is disproportionate to the military advantage gained from the attack, Al Jazeera says in a report.
War crimes, unlike genocide and crimes against humanity, must occur in the context of an armed conflict.
What history says
In 1474, an ad hoc tribunal of the Holy Roman Empire tried Peter von Hagenbach for command responsibility for the actions of his soldiers, because “he, as a knight, was deemed to have a duty to prevent” criminal behaviour by a military force. Von Hagenbach was convicted, sentenced to death, and beheaded despite his claim that he had obeyed superior orders.
And despite concept of war crimes having ancient roots, rules governing war crimes began to emerge at the end of the nineteenth century. The four 1949 Geneva Conventions clarified the definition of war crimes.
“Wilful killing, torture or inhuman treatment, including … wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” says Article 147 of the Fourth Geneva Convention on the definition of war crimes.
The Geneva Conventions established the authority of states to prosecute such crimes. International courts, such as the Yugoslavia Tribunal and the International Criminal Court (ICC), have exercised jurisdiction over individuals accused of war crimes in recent decades.
Proportionality, differentiation, and caution
The three main pillars of humanitarian law are the principles of distinction, proportionality and precaution. If any or all of these principles are violated, it may be determined that a war crime has occurred.
According to the International Committee of the Red Cross (ICRC), the proportionality principle prohibits military objectives that are “expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objectives that would be excessive in relation to the concrete and direct military advantage anticipated.”
Attacks, according to Damilola Olawuyi, associate professor at Hamad bin Khalifa University, are violations of the Rome Statute if they are clearly excessive in relation to the direct overall military advantage expected, Al Jazeera reports.
Ways for Putin to be Tried
In the context of Putin, there are four approaches to investigating and determining war crimes, each with limitations. One option is to go through the International Criminal Court.
A second possibility is that the United Nations transfers the work of the inquiry commission to a hybrid international war crimes tribunal to prosecute Putin. A third option would be for a group of interested or concerned states, such as NATO, the European Union, and the United States, to establish a tribunal or court to try Putin. One example is the military tribunals held in Nuremberg after World War II against Nazi leaders.
Finally, some countries have their own laws in place to prosecute war criminals. Germany, for example, is already looking into Putin. The United States does not have such a system.
Russia Does Not Recognise ICC Jurisdiction, But Could an Arrest Warrant be Issued Against Putin?
Once sufficient evidence is discovered to establish reasonable grounds that war crimes were committed, the prosecutor may request that an ICC chamber issue an arrest warrant for Putin – but making a case under current circumstances may be difficult.
“Obviously, any criminal prosecution requires a number of steps, including collection of physical evidence, interviewing and collection of witness testimony, collection of contextual information and documentation that explain the circumstances where crimes were committed. And trying to do this in the context of an ongoing active war makes it difficult to do so,” Marti Flacks, director of the Human Rights Initiative at the Center for Strategic and International Studies in Washington told Euronews in a report.
The expectation for prosecuting someone for war crimes and crimes against humanity is that they will be able to demonstrate individual responsibility as well as that they will be directing or responsible for a policy of committing these crimes, Flacks said in the report. “And that can be difficult, especially if you don’t have the cooperation of the state from which that type of person originates, which we obviously do not have in the case of Russia.”
To indict someone, the ICC prosecutor must demonstrate that the alleged crimes are war crimes, such as genocide, crimes against humanity, or war crimes. The prosecutor assesses the gravity of the alleged crimes by considering the scale, nature, manner, and impact of the alleged crimes.
Individuals are tried by the ICC. It does not try states. In the current conflict, for example, Russia would not be a defendant, but Vladimir Putin could be.
If the ICC issued an arrest warrant for Putin, his travel would be severely restricted. “If the ICC sought Putin or someone in his leadership, all 123 members of the International Criminal Court’s Rome Statute would be obligated to turn them over to the ICC,” Flacks told Euronews.
It adds that in order for Putin and other senior leaders to face any kind of charge, Russia would need to undergo regime change – the idea that Putin would be arrested by his own government is “simply unthinkable”.
Russia also does not recognise the International Criminal Court’s jurisdiction and would not send any suspects to the court’s headquarters in The Hague, Netherlands. The United States does not recognise the court’s authority either. Putin could face trial in a country chosen by the UN or a group of concerned nations.
It Might Take Years
If charges are brought against Putin while he is still president, the situation becomes extremely complicated, as it has been with other heads of state who have been indicted and then not brought to bear before the ICC for years because they take steps to avoid physical presence before the court. This is significant because the ICC does not try people in their absence.
Whether or not Putin and other top military and political officials are ever indicted, a decision will most likely take years, the report by Euronews states.
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