The Laws of War: Have War Crimes been Committed in Ukraine?
During times of conflict, it is often difficult to know the exact situation on the ground in real time. Events regularly unfold with only a slight delay. In the unfurling invasion of Ukraine, however, we find ourselves in a position whereby news is ever-changing and accessible like never before. In what some are calling the “first social media war”, we are presented with an opportunity to observe military conduct almost instantaneously.
Perhaps it is these immediate and continual updates which have allowed almost equally synchronised cacophony of international condemnation of Russian actions. Sanctions have been placed on Russia’s banks and financial services, trade and the travel of goods and billionaire businessmen, with reports of new energy sanctions to be put in place. Restrictions have not only been imposed by governmental bodies, a slew of companies such as Ikea, Nike and Apple have also enacted their own boycotts. Disapproval has been widespread, stretching from governments to public rallies, and, most recently, the International Criminal Court (ICC). On 28 February, the ICC declared that an investigation would be opened into Russian actions in Ukraine with Prosecutor, Karim A.A. Khan QC stating that he is “satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine”. But what is a “war crime”?
War is not ungoverned. There are rules to the way that conflict is conducted and consequences when these laws are breached. Warfare is in fact codified in International Humanitarian Law (also known as the Law of Armed conflict) and the Hague Conventions of 1899 and 1907. The Geneva Convention of 1949 also includes rules to limit the brutality of battle and protect non-warring parties.
The Rome Statute of the International Criminal Court defines a war crime as “any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:”
Torture or inhuman treatment, including biological experiments
Wilfully causing great suffering or serious injury to body or health
Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly
Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
Unlawful deportation or transfer or unlawful confinement
Taking of hostages
The rules of law have existed in some form since their first implementation in the first Geneva Convention of 1864 but much like the conduct of war, the regulations have changed somewhat in the 150 years since.
Modern rules of war continue to protect civilians and non-combatants from armed conflict, promoting the foremost rule that civilians may never be the deliberate target of attacks. However, they widen this focus to include “civilian objects” - schools, hospitals, homes and places of worship - which cannot be targeted unless intelligence indicates they are being used for military purposes.
Whilst International Humanitarian Law is broadly devised to limit superfluous cruelty in warfare and inhibit the targeting of civilians, during the last 10-days of Russia’s air, land and sea invasion of Ukraine, many of these rules have been broken. Since Putin ordered troops into Eastern Ukraine on “peacekeeping duties”, troops have attacked Europe’s largest nuclear power plant - a war crime in itself as tweeted by the United States embassy in Kyiv; killed children and civilians using cluster munitions and destroyed hospitals and a maternity clinic in aerial attacks. Russia has blocked websites and radio coverage of the conflict and there have been media reports of Russian “vacuum bombs”, ballistic missiles and rocket attacks that have levelled civilian buildings in Kharkiv. At the time of writing, the United Nations recorded civilian casualties totaling 1,006 in Ukraine since the invasion began at 4 a.m. on 24 February 2022, with a further 1 million fleeing the country within a week.
Denunciation of Russian warfare continues to mount, with accusations of war crimes being declared against Russian President Vladimir Putin. At the Prime Minister's Questions, United Kingdom’s Boris Johnson said bombing innocent civilians “already fully qualifies as a war crime” and to this same end, Linda Thomas-Greenfield, the US ambassador to the United Nations, said “We stand together in holding Russia accountable for its violations of international law”. With this in mind, and in conjunction with 39 nations calling for an inquiry to be opened, it would seem like a clear-cut case. However, this is without significant complication.
The bar of evidence is high for cases of war crimes, as Alex Whiting says:
“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”.
War is a “bloody business” and, sadly, civilian casualties are expected. But to constitute a war crime, demonstrating intention is crucial. Whilst we know that Russia has committed these acts, can we prove that they have done so deliberately?
This is complicated further by the increasingly blurred lines between civilians and fighters. In the ICC announcement, Khan stated that he was opening an investigation into allegations of war crimes in Ukraine “by any person” from November 2013, raising questions of Ukrainian conduct or how Allied forces may be held accountable should they deploy troops to the conflict.
The Ukrainian military is dwarfed by that of Russia, pushing the North Atlantic Treaty Organisation and the European Union to provide military aid and the Ukrainian government to encourage citizens to arms themselves however they can: “‘Make Molotov cocktails, neutralise the occupier!” tweeted Ministry of Defence of Ukraine. In doing so, observes Schabas, ordinary Ukrainians lose their status as civilians, becoming combatants under International Law. This is further problematised by the Ukrainian tactic of posting photos and videos of captured and killed Russian soldiers online, which could be a violation of the Geneva Conventions.
If either side is found to have committed war crimes, what comes next is not clear. Whilst there are active investigations into whether Russia has committed war crimes in Ukraine, neither nation is party to the Court. Whilst Ukraine has accepted the ICC jurisdiction to investigate, defendants from either country could argue that the ICC has no legal authority over them and their potential breaches of the laws of war.
It has been reported that, if found guilty by the ICC, Putin could face life in prison. But, even if the evidence is there, experts are critical that any action will be taken against the leader of the “pariah state”. International institutions have ways to punish and isolate Russia, some of which we are already seeing, but Gow notes that seeing Russian officials being put on trial is unlikely; as long as the Russian government remains reluctant to collaborate and those accused of war crimes stay within Russian borders, there is little that international prosecutors can do. In the words of Bellinger:
“we’ll have to see whether international institutions like the UN, the International Court of Justice, the International Criminal Court, and the General Assembly can rise to this challenge”.
Whether the military action of Russia in Ukraine constitutes a war crime is a question which opens many more. What does this mean for Russia? What does it mean for civilians caught in the crossfire? Perhaps most pertinently, what can be done about it?
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