What Constitutes A War Crime?

Roughly a week after Vladimir Putin ordered Russian troops to attack Ukraine, the International Criminal Court (ICC) has launched an investigation into Russia’s invasion to look for possible war crimes. 

ICC chief prosecutor Karim Khan said in a statement that he believes 'alleged war crimes and crimes against humanity have been committed in Ukraine'. Now, an ‘advanced team’ of investigators are travelling there as part of an investigation that has been backed by 39 countries, including the UK, reports The Guardian.

But the question is, what constitutes a war crime? And how do the Russian military’s actions fall into the criteria?

Speaking to USA Today, Dustin Lewis, research director for the Harvard Law School Program on International Law and Armed Conflict, shed light on the matter, saying, 'From an international law perspective, a war crime is any conduct – whether an act or an omission – that fulfills two cumulative criteria. 

'First, the conduct must be committed with a sufficient connection to an armed conflict. Second, the conduct must constitute a serious violation of the laws and customs of international humanitarian law that has been criminalized by international treaty or customary law.'

Although the banning of certain actions in military warfare can be traced back hundreds of years, the formal concept of war crimes emerged at the end of the 19th century, when international humanitarian law was collated and codified. 

As outlined by the United Nations (UN), among these agreements are the Hague Conventions of 1899 and 1907, a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands.

While there is no official single document that codifies all war crimes, examples of prohibited acts include murder, mutilation, cruel treatment and torture, the taking of hostages, intentionally directing attacks against civilians, unnecessarily destroying civilian property, sexual violence, and enlisting children under the age of 15 into armed forces or groups, among others. 

There are also numerous legal violations that apply to military conflict, including the use of weapons, projectiles and material and methods of warfare that are of a nature to cause excessive injury or unnecessary suffering.

What separates war crimes from other violations of international humanitarian law such as genocide and crimes against humanity is that they take place in the context of international or domestic combat. 

Speaking about the evolution of war crimes, Lisa Reinsberg, executive director of human rights non-profit, the International Justice Resource Center, told USA Today, ‘Our understanding of what is allowed during conflict has evolved as societal standards changed and as international norms developed. The concept of war crimes now covers more situations, types of harm and types of perpetrators than the first attempts to regulate armed conflict.’

Regarding Russia’s invasion of Ukraine, widely-banned cluster munitions were reported to have killed one child and two adult civilians at a preschool in Okhtyrka, Ukraine. Open source reports suggest Russian forces were active in the local area at that time.

Cluster munitions are broadly banned in the global community as they explode and scatter dozens or even hundreds of explosives, which often do not detonate on impact, leaving remains that act as landmines and place civilian life at serious risk.

Amnesty International secretary-general Agnès Callamard said there was 'no possible justification for dropping cluster munitions in populated areas, let alone near a school'.

‘This attack bears all the hallmarks of Russia's use of this inherently indiscriminate and internationally-banned weapon, and shows flagrant disregard for civilian life,’ Callamard said. ‘Plain and simple, this should be investigated as a war crime.’

Russian forces have also been accused of using cluster munitions in an attack against a Ukrainian hospital that killed four civilians and another 10.

Russia's attack on Kharkiv, Ukraine's second-largest city, led to the death of numerous civilians as well as the destruction of hospitals, schools and an apartment building, reports Time. 

Ukrainian President Volodymyr Zelenskyy described the Kharkiv airstrike as a ‘war crime’ in a video statement on Tuesday, March 1, stating, ‘After that, Russia is a terrorist state. No one will forgive. No one will forget.’

The outcome of the ICC’s investigation is yet to be seen, but when asked about reports of Russia using cluster bombs in civilian areas, prosecutor Khan told BBC News: ‘Directing attacks against civilians and civilian objects amounts to a war crime. That's very clear. 

‘And even if attacks are aimed at military objectives but the weapons used are wide-use weapons that are not precise, it may also amount to a war crime as they are likely to cause excessive civilian harm.’

If you would like to donate to the Red Cross Emergency Appeal, which will help provide food, medicines and basic medical supplies, shelter and water to those in Ukraine, click here for more information