Do Russia’s Actions in Ukraine Constitute War Crimes?
On 2 March 2022, the International Criminal Court (ICC) approved the launch of an investigation into Russia’s actions against Ukraine after the former was accused of war crimes for launching airstrikes which killed Ukrainian civilians. Various countries had requested the investigation before the ICC formally instigated one, including the United Kingdom, and Ukrainian President Volodymyr Zelenskyy had publicly accused Russia of war crimes. The legal technicalities constituting war crimes and the process through which they are investigated are primarily rooted in the Rome Statute of 1998 and the Geneva Convention of 1949. Between these two agreements, the ICC was established and given authority to build cases against those in breach of international law.
The ICC was established by the Rome Statute in 1998 with the intention of holding accountable those guilty of grave crimes on an international level. The court investigates genocide, war crimes, crimes against humanity, and the crime of aggression. President Zelenskyy accused Russia of committing a war crime after launching airstrikes on the Freedom Square in Kharkiv, Ukraine’s second-largest city. This accusation of war crimes is based on the belief that Russia explicitly targeted civilian populations.
According to the ICC, a war crime constitutes a “grave breach of the Geneva Convention of 12 August 1949.” While the term "war crime" is extremely vague and can apply to several crimes that are named in the 1949 Geneva Convention, the specific crime applicable in this situation falls under Rome Statute article 8(2)b, which contains three primary pieces of legislation addressing civilian casualties in international armed conflicts. These statements affirm that war crimes include:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
While the investigation is still ongoing, and the ICC has not yet made a ruling, the evidence thus far has implied that Russia has violated these rules under the Rome Statute.
The basis of these accusations against Russia rests on its attack on Kharkiv. In these attacks, a school and an aid tent were destroyed, killing civilians, despite the fact that Kharkiv allegedly had “no military facilities”. These attacks would clearly constitute a war crime and if the ICC investigations confirm this, Russia would be in breach of international law. Additionally, Amnesty International reported that cluster munitions killed children when dropped on a nursery and kindergarten in Okhtyrka, a town in north-eastern Ukraine. Not only are cluster bombs internationally banned under the Convention on Cluster Munitions but their use in targeting civilian populations is a clear violation of Article 8(2) of the Rome Statute.
Despite these reports, the ICC still needs to conduct its own investigation into the actions in Ukraine to evaluate and declare a verdict. This responsibility falls under the Office of the Prosecutor which is
“An organ of the court responsible for examining situations under the jurisdiction of the Court where war crimes appear to have been committed, and carrying out investigations and prosecutions against the individuals who are allegedly most responsible for those crimes".
The primary obstacle to the investigation, says ICC Prosecutor Karim A. A. Khan QC, is that Ukraine is not a state party to the Rome Statute of the ICC, meaning it has not ratified the statute. However, it has exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes happening on its territory which allows for the investigation to proceed.
As the situation in Ukraine continuously unfolds, the investigation will continue with attempts to evaluate the legality of President Putin’s actions. Regardless of the outcome, the loss of life is harrowing and Putin’s military endeavours have been in clear violation of the Rome Statute.