WAR CRIME

International Criminal Court To Open Probe Into "War Crimes" In Ukraine

Amid the ongoing Russian invasion of Ukraine, the International Criminal Court (ICC) in The Hague announced that it would open an investigation into possible war crimes or crimes against humanity in Ukraine. The decision comes less than a week after Russian forces launched an all-out attack on Ukraine with the stated aim of demilitarising the country. Established in 2002, the Hague-based court investigates and prosecutes genocide, war crimes, and crimes against humanity. An active probe will immediately proceed after the office received the backing of 39 countries. The countries include all EU member states, as well as Australia, Britain, Canada, New Zealand, Switzerland and several Latin American countries.

There are specific international standards for war crimes, which are not to be confused with crimes against humanity. War crimes are defined as serious violations of humanitarian laws during a conflict. The definition, established by the Rome Statute of the International Criminal Court (ICC) is derived from the 1949 Geneva Conventions and is based on the idea that individuals can be held liable for the actions of a state or its military. The UN Office on Genocide Prevention and the Responsibility to Protect separates war crimes from genocide and crimes against humanity. War crimes are defined as occurring in a domestic conflict or a war between two states, while genocide and crimes against humanity can happen in peacetime or during the unilateral aggression of a military towards a group of unarmed people. There is a long list of acts that can be considered war crimes. The taking of hostages, willful killings, torture or inhuman treatment of prisoners of war, and forcing children to fight are some of the more obvious examples. But, in practice, there is significant gray area.

To decide whether an individual or a military has committed a war crime, international humanitarian law lays down three principles: distinction, proportionality and precaution. Proportionality prohibits armies from responding to an attack with excessive violence. If a soldier is killed, for example, you cannot bomb an entire city in retaliation. It is also illegal to target objectives that are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objectives, which would be excessive in relation to the concrete and direct military advantage anticipated,” according to the International Committee of the Red Cross. Precaution requires parties to a conflict to avoid or minimize the harm done to the civilian population. Finally, the principle of distinction says that you have to be constantly trying to distinguish between civilian and belligerent populations and objects

When ICC prosecutors have reason to believe that a war crime has been committed, they start an investigation to find evidence that could point to specific individuals responsible for those crimes. Time is crucial though as evidence can degenerate or disappear. It is very difficult for prosecutors to successfully investigate suspected war crimes after the fact, when one party to a conflict may have tampered with evidence or witnesses are no longer around.

Ukraine had earlier accepted the ICC's jurisdiction to look into alleged crimes under the Rome Statute committed on Ukranian territory from November 2013 to 22 February 2014. Also, in a subsequent declaration, Ukraine extended this time period on an open-ended basis to encompass ongoing alleged crimes committed throughout its territory from 20 February 2014 onwards. According to a report in the Associated Press, these crimes relate to the violent suppression of pro-European protests in Kyiv in 2013-2014 by a pro-Russian Ukrainian administration and allegations of crimes in Crimea, which Russia annexed in 2014, and eastern Ukraine, where Russia has backed rebels since 2014. Amid the ongoing probe into these crimes, the ICC Prosecutor has now decided to expand the scope of investigation to cover alleged crimes that are committed by any party to the conflict on any party of the Ukranian territory during the Russian military invasion. In a related development, Ukraine has filed an application before the International Court of Justice seeking measures against the Russian military operation.