The withdrawal of the Russian Army from Bucha, a town on the outskirts of kyiv, the Ukrainian capital, has left appalling scenes of dead civilians and corpses lying in the streets. The Ukrainian government accuses Russia of carrying out a “deliberate massacre”. From Moscow, on the contrary, the images are described as “montage” and “provocation”. Beyond the exchange of accusations, war also has its rules, embodied in international humanitarian law, which describes war crimes and crimes against humanity, in addition to genocide. The first two have been denounced by Ukraine almost from the beginning of the Russian invasion. The genocide, which is the crime of crimes and the most difficult to prove, was mentioned by the Ukrainian president, Volodímir Zelenski, in a statement to the American network CBS. He has claimed: “We do not want to submit to the Russian Federation and we are being destroyed and exterminated.” The language of international justice has permeated speeches and comments in the last month, but in view of the development of the conflict, what crimes could be being committed in Ukraine?
What are the laws of war and where are they collected?
Formally called international humanitarian law, it is the set of legal rules that establish what can be done —and what cannot— in an armed conflict. In essence, they regulate how a war is waged to try to limit barbarism and are universal: they appear in the Geneva Conventions (1949) and their additional protocols (1977). The former have been ratified by all member countries of the United Nations, but not the latter. They must be respected by both government forces and non-state armed groups, and their violation entails the search and prosecution of the perpetrators. Demonstrated attacks against the civilian population constitute a war crime, which is why Ukraine has appealed to the International Criminal Court (ICC). This court is the only permanent instance to judge both war crimes and crimes against humanity as well as genocide, and a team from its Prosecutor’s Office is collecting evidence on the ground. Its subsequent analysis should clarify the nature of the possible crimes perpetrated by both parties.
What is a war crime?
They must always take place in the context of an armed conflict, whether international or not, and criminal responsibility is individual. They include violations of the Geneva Conventions and other laws and customs applicable to a conflict. The ICC has classified them in the Rome Statute (1998), its founding text. It indicates the following: intentional homicide; torture; inhuman treatment; subject to biological experiments and deliberately cause great suffering or mutilation. In a long relationship, the destruction and appropriation of goods also appears; compelling to serve in enemy forces; denial of a fair trial; illegal deportation or removal; illegal detention and hostage taking. At the same time, attacks against the civilian population and civilian targets (historical buildings, religious buildings, homes, schools, hospitals) are contemplated.
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Looting also figures; attacks against personnel of a peacekeeping or humanitarian assistance mission; cause excessive death, injury or damage; attack undefended places; cause death or injury to a person hors de combat. Further on, it appears that the improper use of a white flag, or an enemy or United Nations flag, insignia or uniform, as well as the transfer by the occupant of part of its civilian population to the territory it occupies, either inside or outside of that territory. The list covers the attack against protected property, the use of poisoned weapons, gases, devices or prohibited bullets. Rape, sexual slavery, forced pregnancy or any form of sexual violence. Finally, there is the forcible enlistment of children under 15 years of age and forcing them to actively participate in hostilities, the use of human shields, and starvation as a weapon of war.
The images of Ukrainian homes, hospitals, shelters or schools attacked by Russian projectiles broadcast live by the international media, can constitute a war crime if it is shown that they were expressly targeted. Although Ukraine is not a member of the Rome Statute, the Prosecutor’s Office acts because kyiv did admit the partial competence of the ICC to verify what has happened in its territory since February 2014, and the subsequent Russian annexation of Crimea. In addition, 38 countries have asked the chief prosecutor, Karim Khan, to get started in Ukraine, a gesture that has allowed him to work without having to ask the court judges for permission, as is mandatory. Once the information has been collected, a link will be sought with those most responsible. Russia is not part of the court and denies its jurisdiction.
What constitutes a crime against humanity?
It is a crime whose notion has evolved over time, and is of great importance to the international community as a whole. Crimes against humanity can also be committed in peacetime, and are not specifically directed against ethnic, racial or religious groups. They appear in the statutes of the special courts for the former Yugoslavia and for Rwanda. The Rome Statute, for its part, reflects the broadest and most recent consensus on the matter, and defines them as “a widespread or systematic attack against a civilian population and knowledge of said attack.” The acts need not constitute a military assault.
Thus, murder is considered a crime against humanity; extermination (a killing of members of a civilian population, for example); slavery, deportation or forced population transfer; imprisonment or severe deprivation of physical liberty and torture. Rape, sexual slavery, prostitution, pregnancy and forced sterilization also appear. sexual violence; persecution; forced disappearance of people; apartheid and inhumane acts.
In the context of crimes against humanity, there must be violence on a large scale relative to the number of victims, or occurring over a wide geographical area. This excludes isolated, random or accidental acts of violence. To prove them, it is not necessary to show that there was a specific intention. “It is enough with the intention to commit any of the acts enumerated in the list”, according to the CFI. The perpetrator must also act knowing that this is an attack against civilians, and that he participates in it. Given the threshold of proof required for crimes against humanity, they are often more difficult to prove than war crimes. This is something that can also happen in the case of Ukraine, which is why the investigation by the prosecution of the International Criminal Court is meticulous.
When can we speak of genocide?
Genocide implies intending to destroy, in whole or in part, a national, ethnic, racial or religious group as such. Because of this, it is the most difficult crime to prove. It is not just about cultural destruction, or dispersing the attacked group: it consists in destroying it by deliberately attacking its members. Along with massacres or serious injuries to physical or mental integrity, it contemplates the imposition of measures to prevent births or the forcible transfer of children. In practice, the crime has been associated with a State plan or by an organization.
In the same statements to the CBS network, the Ukrainian president, Volodímir Zelenski, has come to describe the invasion of his country by Russia as genocide because he considers that they face “the elimination” of their nationality and system of government. For his part, in his explanations for invading Ukraine, Russian President Vladimir Putin alleged that genocide was being committed against the majority Russian-speaking population of the Donbas region, located in the east of the country.
Genocide was first recognized as a crime in 1946 by the United Nations General Assembly. In 1948, it was made a crime in the Convention for the Prevention and Punishment of the Crime of Genocide. The ICC points out that this treaty represents the principles that are part of customary international law (the practices accepted by the States as norms), so that it can also be applied to those that have not signed the Convention. Among the most recent genocides recognized by international justice are Rwanda (1994) and Srebrenica (Bosnia, 1995).
And the crime of aggression?
It is a crime against peace and it is understood that the attacker has planned, prepared, initiated or carried out an act of aggression. “That the perpetrator was in a position to effectively control or direct the political or military action of the State that committed the aggression. And that said use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, has been in any other way incompatible with the Charter of the United Nations. This is how the TPI defines it, which has been contemplating it since 2018, and which can fit into the Russian invasion of Ukraine. However, Russia is not a member of the court, so the Prosecutor’s Office has no jurisdiction in this case. The ICC only judges those most responsible for all these crimes, perpetrated in conflicts in various countries. Although it does not take into account the immunity of the Heads of State or Government to exercise its jurisdiction, it does not have its own police force. It depends, therefore, on the will of its members so that they execute the arrest warrants.