‘A heinous war crime’: EU diplomat Josep Borrell, then European Commission President Ursula von der Leyen were not shy about their words on Thursday, March 10, the day after Russia shelled an army children’s hospital in Mariupol, eastern Ukraine. Since the beginning of the war, President Volodymyr Zelensky, as well as Western leaders such as Boris Johnson or US Secretary of State Anthony Blinken, have regularly accused Moscow of committing “war crimes”. For its part, the Attorney General of the International Criminal Court (ICC) on March 2 launched an investigation into “war crimes” simulated by German prosecutors on March 8.
The opposing camp is also making accusations. On Monday, Russia’s spokesman at talks between Moscow and Kiev said Ukraine was preventing civilians from evacuating war-torn cities, which he called a “war crime.” But what exactly is a war crime? To better understand, Franceinfo sheds light on this concept, which emerged at the end of World War II.
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Crimes codified by international law
It was the Nuremberg Tribunal, responsible for sentencing Nazi criminals, that first defined war crimes in 1945. As Le Monde Diplomatique reminds us, the following acts were then called war crimes: “Murder, mistreatment, or deportation for forced labor. , or for any other purpose, the civilian population in the occupied territories, the killing or ill-treatment of prisoners of war or persons at sea, the execution of hostages, the looting of public or private property, the wanton destruction of towns and villages, or devastation not justified by military necessity.” Then this concept is used in the Geneva Conventions signed in 1949. These fundamental documents of international humanitarian law establish the restrictions that must be observed in time of war to protect civilians, medical personnel, the wounded, prisoners of war, etc.
Because even in the event of an armed conflict, there are rules that must be followed. “War crimes are codified by international law,” explains franceinfo Clemence Bechtart, a lawyer representing the International Federation of Human Rights and the French coalition at the ICC. Article 8 of the Rome Statute (PDF), the international treaty that established the International Criminal Court in 1998, lists serious violations. We find, among other things, intentional murder, torture or inhuman treatment (including biological experiments), destruction and embezzlement, illegal detention, deportation, hostage-taking… many war crimes are more than five pages long.
Even if Moscow is not talking about war, but about a “special military operation,” the rules of war still apply in Ukraine because it is an international armed conflict.
Attacks on civilians are war crimes
Residential area in Chernihiv, a school in Zhytomyr or a kindergarten on the outskirts of Lugansk… Since the outbreak of war in Ukraine, civilian homes have been badly damaged. On Wednesday, March 9, a children’s hospital exploded in the port city of Mariupol. Changing tables, beds thrown, everything blown up. According to the mayor’s office, three people died, including a child. “What kind of country, Russia, is afraid of hospitals and maternity hospitals and destroys them? Europeans! Ukrainians! Mariupol! Today we must unite to condemn this war crime of Russia, which reflects the harm that the occupiers have done to our country! Ukrainian President Volodymyr Zelensky was outraged in the video.
In essence, “all indiscriminate attacks against civilians who need to be protected are war crimes,” says lawyer Clemence Becktart. “Civilian installations such as schools or hospitals must not be attacked or bombed. As well as deliberately starving civilians, not sending aid or forcing the population to flee: these are usually war crimes,” she added. Russia denies hitting civilian infrastructure and accuses Ukrainian forces of using it as human shields. Thus, Moscow claimed that the bombed-out Mariupol maternity hospital served as a base for a nationalist battalion (the Russian authorities even claimed that the photographs and images of the victims were fake).
What about attacking a nuclear power plant, as the Russian army did in Zaporozhye? “The act of attacking or bombarding, by any means, cities, villages, dwellings or buildings that are not protected and are not military objectives” is a war crime under the Rome Statute, recalls Clemence Bechtart. The lawyer adds that “this kind of attack” again has consequences for the “civilian population” living around these facilities. Nicolas Goldberg, an energy expert at Colombus Consulting, also considers attacking a nuclear power plant a war crime.
Russian soldiers occupy the territory of the former Chernobyl nuclear power plant (Ukraine), March 7, 2022. (EYEPRESS NEWS/AFP)
The fate of prisoners of war is questionable
On the Ukrainian side, some actions raise questions. Photos and videos of captured Russian soldiers have been appearing on social networks since the beginning of the conflict. We see, for example, how they call their mothers to tell them the news, often in tears and sometimes with their hands tied. The dissemination of these (otherwise difficult to authenticate) images by Ukrainian or pro-Ukrainian Internet users may violate the laws of war, especially if the prisoners can be recognized. Respect for physical and mental integrity, the right to medical treatment… According to Article 13 of the Geneva Convention, “prisoners of war must be protected at all times, in particular against any act of violence or intimidation, insults and public curiosity.”
Other footage of Russian soldiers captured on the Ukrainian front and forced to repent makes international humanitarian law specialists grit their teeth. “The status of prisoners of war is governed by rules that protect dignity. Prisoners of war must be treated well,” Clemence Bekthart develops. Otherwise it could be a war crime. “The images of prisoners of war whose faces we see and which we can recognize constitute a violation of international humanitarian law, but not a war crime,” a nuance, for its part, Marco Sassoli, professor of public international law at the University of Geneva, with AFP.
Two Russian soldiers are taken prisoner by the Ukrainian military near Kiev, February 24, 2022 (UKRAINIAN EMBASSY IN ANKARA/KHAN / ANADOLU AGENCY)
Investigation and collection of evidence, necessary steps
Whether the violations committed meet the definition of a war crime requires investigation and evidence gathering. Complex and painstaking work that can take several months, even several years. This is one of the missions of the International Criminal Court (ICC), which is not the only institution to carry it out. Since the first Russian tanks entered Ukraine, dozens of investigators, ballistics and military experts, independent or members of public organizations, have been looking for digital evidence (photos, videos and satellite images) of potential crimes.
Amnesty International, for example, has its own Crisis Evidence Lab. “We identified two attacks [l’une à Kharkiv, l’autre à Okhtyrka, dans une école, ayant fait trois morts]from which it is safe to say that cluster munitions were used by the Russian army against civilians in Ukraine,” explains Le Monde (paid article) Milena Marin, co-director of this laboratory. Bellingcat Investigation Site (in English) documented its use in Ukraine. The use of these projectiles, which explode in two stages, is prohibited by the 2008 Oslo Convention, which Moscow, however, has not signed. These bombs carry a variety of mini-bombs. This principle of indiscriminate detonation makes any aimed or other accurate military fire impossible, and civilians become collateral casualties.
“All these violations of international humanitarian law attributed to Russian forces are serious and may constitute war crimes,” Amnesty International said. But for Canadian Bill Wylie, who participated in the International Criminal Tribunal for the former Yugoslavia, “it’s too early to draw conclusions.” “What we are seeing is a terrible situation, but it does not yet show the clear existence of a systematic criminal policy,” he told Le Monde.
Separate concept of crime against humanity
The ICC investigation is also open to crimes against humanity. How is this concept different from war crimes? “War crimes are related to the situation of armed conflict. Crimes against humanity are systematic or general crimes against the civilian population, which can be committed both in time of war and in peacetime, ”explains Clemence Bektart. “They do not follow the same logic, but they can coexist. If the Russian state launches a generalized attack against civilians in Ukraine, it would be a crime against humanity,” she adds.
There is also the crime of aggression, i.e. “the planning, preparation, initiation, or execution, by a person having the capacity to actually control or direct the political or military action of a state, an act of aggression” that violates the Charter of the United States. Nations. According to former British Prime Minister Gordon Brown and lawyer Philip Sands, this charge, which the ICC cannot judge, will be directed directly at Vladimir Putin and his closest associates. “A special tribunal to investigate the crime of aggression against Ukraine can be created quickly,” Le Monde said. So far, the current procedure at the ICC promises to be long and limited. And that it is very hypothetical to imagine one day the appearance of Vladimir Putin for war crimes.