Russia and Ukraine: what is considered a war crime and can Putin be prosecuted for his actions

Ukrainian cities such as Kiev, Kharkiv, Kherson and Mariupol have come under heavy attack by Russian forces in recent days.

In the last of them there was the bombing of a maternity and children’s hospital this Wednesday, something that was described by the Ukrainian president, Volodymyr Zelensky, as a “war crime”.

It was not the first time that Zelensky had launched such an accusation against Russia. He also did it after the air strikes in Kharkiv, which caused the death of civilians.

Russia has denied that its army attacks civilians and health institutions.

However, following the request of 39 nations, the chief prosecutor of the International Criminal Court (ICC), Karim Khan, said a few days ago that evidence is being collected on alleged war crimes, crimes against humanity and genocide committed by Russian forces. in Ukraine.

Here we tell you what war crimes are and what Russia is accused of.

What is a war crime?

The rules defining a war crime are contained in the Rome Statute and the Geneva Conventionsa broader set of laws relating to the rules and customs of land warfare.

In some cases, the statutes of bodies such as the international criminal courts that tried crimes in the former Yugoslavia and Rwanda are also used.

The Geneva Conventions are several treaties that establish international legal standards for humane treatment during war.

The first three conventions protect combatants and prisoners of war, while the fourth, adopted after World War II, protects civilians in conflict zones.

The 1949 Geneva Conventions have been ratified by all member states of the United Nations, including Russia.

The definition of war crimes of the Fourth Geneva Convention includes:

• Intentional homicide.
• Torture or inhuman treatment, including biological experiments.
• Deliberately causing great suffering or serious injury to physical integrity or health.
• The destruction and appropriation of property, not justified by military necessity and carried out on a large scale, illegally and arbitrarily.
• Forcing a prisoner of war or other protected person to serve in the forces of an enemy power.
• Deliberately depriving a prisoner of war or other protected person of his right to a legitimate and impartial trial.
• Deportation or illegal transfer or illegal confinement.
• The taking of hostages.

The Rome Statute of 1998, another important international treaty related to armed conflicts, also includes as war crimes:

• Intentionally directing attacks against the civilian population or against civilians not taking a direct part in hostilities.
• Intentionally launching an attack knowing that it will incidentally cause death or injury to civilians.
• Attacking or bombing, by any means, defenseless towns, villages, houses or buildings.

Furthermore, it states that certain types of buildings, such as hospitals or those dedicated to religion or education, cannot be intentionally targeted.

It also prohibits the use of certain types of weapons, as well as poisonous gases.

What is the ICC and how are war crimes prosecuted?

The ICC was created in 1998 under the Rome Statute. It is an independent institution that prosecutes people accused of the most serious crimes against the international community.

It investigates war crimes, genocide, crimes against humanity and the crime of aggression.

States can prosecute suspected criminals in their own courts. The ICC can only exercise jurisdiction where states are unable or unwilling to do so. Therefore, it is a “court of last resort”.

The court does not have its own police force and relies on state cooperation to arrest suspects. The sanctions imposed by the ICC can include imprisonment and fines.

Russia and Ukraine are not among the court’s 123 member states, but Ukraine has accepted its jurisdiction, meaning the ICC can investigate certain alleged crimes.

Other prominent non-member countries include the United States, China, and India.

Have there been war crimes prosecutions before?

During World War II, the murder of several million people, mainly Jews, at the hands of Nazi Germany and the mistreatment of both civilians and prisoners of war, led the Allied powers to prosecute those responsible.

The Nuremberg trials between 1945 and 1946 led to the death sentence of ten Nazi leaders. A similar process began in Tokyo in 1948, where seven Japanese commanders were hanged.

These trials set a precedent for later prosecutions.

In 2012, the Congolese warlord Thomas Lubanga he was the first person convicted by the ICC when he was found guilty of recruiting and using child soldiers in his rebel army between 2002 and 2003. He was sentenced to 14 years.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was a United Nations body that functioned from 1993 to 2017, created to prosecute crimes committed during yugoslavia wars.

The court found radovan karadzic, a former Bosnian Serb leader, guilty in 2016 of war crimes, genocide and crimes against humanity for his role in the conflict. Ratko Mladic, the military commander of the Bosnian Serb forces, was also convicted in 2017 of the same offences.

Other ad hoc tribunals have also tried people for genocide and crimes against humanity in Rwanda and Cambodia. The International Criminal Tribunal for Rwanda was the first institution to recognize rape as a means of perpetrating genocide.

What has Russia been accused of?

Wednesday’s bombing of a maternity and children’s hospital in Mariupol caused international outrage.

“What kind of country is this, the Russian Federation, that is afraid of hospitals and maternity hospitals and destroys them?” Zelensky questioned in a recorded speech from Kiev.

Doctors Without Borders, which has staff stationed in Ukraine, said its team is “horrified” by the attack.

“In a city where the health system is on the brink of collapse, depriving people of much-needed health care is a violation of the laws of war,” the organization added.

Moscow is also accused of using cluster bombs in other attacks. Cluster bombs are weapons that, once dropped, disperse smaller munitions.

They are banned by many countries under the 2008 Convention on Cluster Munitions, but not in Russia or Ukraine, which did not sign the agreement.

Human rights groups and Ukraine’s ambassador to the UN also accused Russia of using vacuum bombs in an attack on the northeastern town of Okhtirka.

The bomb of void they are a thermobaric weapon that can cause great destruction by igniting a cloud of vaporized fuel.

There are no international laws that specifically prohibit their use, but if a country uses them to attack civilian populations in built-up areas, schools, or hospitals, then it could be convicted of a war crime under the 1899 and 1907 Hague Conventions.

The Kremlin has denied committing war crimes or using cluster and vacuum pumps. He has dismissed the allegations as “fake news.”

Russian Defense Minister Sergey Shoigu said: “Attacks are carried out only against military targets and exclusively with high-precision weapons.”

Can Putin be prosecuted?

It is much easier to hold accountable a soldier who has committed a war crime than the leaders who ordered him to shoot.

But the ICC can also prosecute for the offense of “waging aggressive warfare”.

That is a crime of invasion or unjustified conflict, which goes beyond justifiable military action in self-defense.

Interestingly, that criminalization originated in Nuremberg, after the judge sent by Moscow convinced the allies that the Nazi leaders should face justice for “crimes against peace”.

But here’s the problem: British professor and magistrate Philippe Sands, an international law expert at University College London, says the ICC would not be able to prosecute Russian leaders for that offense because Russia is not a signatory to the court.

In theory, the UN Security Council could ask the ICC to investigate that offence. But once again, Russia could use its veto as one of the council’s five permanent members. (I)