In 1945 the United Nations instituted a charter that made aggressive war (different from defensive war) illegal in international law. Based on the charter’s provisions, Russia’s invasion of Ukraine falls within the confines of aggression crimes.
In the Nuremberg trials of 1945-1946, senior leaders of Nazi Germany were convicted on charges of war aggression. The Tokyo war crime trials also had similar outcomes for the perpetrators.
The question then becomes, what are war crimes, and is Russia committing war crimes in Ukraine? Here’s everything you need to know.
What Is a War Crime?
The international law war crime definition is as follows: A serious violation of the customs or laws of war as outlined by international treaties and international customary law. The original definition has evolved tremendously since the end of World War I and now encompasses a wide range of criminal war activities.
In 1863, President Abraham Lincoln issued the “Lieber Code” – named after its author Francis Lieber – for distribution among military personnel. It contained a series of instructions for the United States armies on how to conduct themselves when out in the field. The Lieber Code became the first-ever systematic attempt to define military activities that would constitute war crimes.
For instance, according to the provisions of the Code, it was against the law of war for military personnel to commit wanton violence such as rape, murder, and maiming against individuals in the invaded country. It also made it illegal for the war victors to force enemy subjects into service. Any officer convicted of these crimes would face the death penalty.
The definition of war crimes has since been expanded and embedded in various international statutes, including those that gave rise to the International Criminal Court (ICC) and those used in war crime tribunals in Rwanda and Yugoslavia. Unlike the earlier versions, modern-day definitions of war crimes are broader and criminalize various actions taken by both soldiers and civilians.
At the heart of the definition of a war crime is the idea that any individual can be held criminally liable for the actions of their country or its military personnel. War crimes and crimes against humanity are among the most severe offenses in international law. They are so grave that there’s no limitation period for them.
Anyone who commits these crimes can be arrested, prosecuted, and convicted regardless of how much time has elapsed since the commission of the crimes.
List of War Crimes
War crimes are defined by the International Criminal Court statutes, Laws and Customs of War (an older area of law), the precedents set by the Nuremberg Tribunals, and the Geneva Conventions. With that in mind, there are generally four categories of war crimes:
1. Crimes Against Peace
Any act of aggression that involves planning, preparing, initiating, or waging war in violation of international agreements, assurances, or treaties constitutes a crime against peace. Additionally, participating in a conspiracy or common plan to accomplish any of the aforementioned activities is also considered a crime against peace.
2. Crimes Against the Laws and Customs of War
War crimes that fall in this category involve offenses or atrocities against individuals or property that go against the provisions of the laws and customs of war. Other war crimes include:
- Murder, deportation to slave labor, or ill-treatment of the civilian population in the invaded territory
- Murder or ill-treatment of the individuals taken as prisoners of war
- Murder of hostages
- Torture or inhumane treatment of hostages and the civilian population of the occupied territory, including conducting biological experiments
- Plunder of private or public property
- Wanton destruction of towns, villages, or cities
- The devastation of the invaded territory without any military justification
3. Crimes Against Humanity
War crimes that fall into this category involve offenses and atrocities committed against the civilian population of an invaded territory both before and during the war. Crimes against humanity include enslavement, deportation, extermination, and murder.
Mass sexual enslavement, systemic rape, and other inhumane acts perpetrated by soldiers and civilians in the occupied territory also constitute crimes against humanity.
Additionally, persecuting any individual based on their political, religious, or racial affiliation in connection with or in the execution of any crime that falls within the ICC jurisdiction is considered a war crime.
Keep in mind that the violation question doesn’t have to violate the domestic laws of the country in which it was perpetrated for it to be deemed a war crime.
4. Genocide
Genocide is considered to be among the gravest crimes against humanity. It refers to the deliberate intent to extinguish, in whole or in part, a racial, ethnic, national, or religious group based on their affiliation. The term “genocide” is derived from a combination of the Greek word “genos,” which means race, and “cide,” which is Latin for “kill.”
Below is a list of acts that constitute genocide:
- The forcible transfer of children belonging to the group to a different group
- The imposition of measures designed to prevent the additional births among members of the group
- The deliberate infliction of life conditions on the group to cause physical destruction in whole or in part
- The deliberate infliction of grievous bodily or mental harm to individuals affiliated with the group
- The mass killing of individuals belonging to the group
The targets of genocide are selected as victims purely and exclusively on the basis of their membership in the target group and not based on anything the individuals in question may have done. International law classified genocide as a crime even if it is not criminalized in the country in which it is perpetrated.
In short – Is killing civilians a war crime? Intentionally killing civilians, hostages, and prisoners of war all constitute war crimes.
What Happens When You Commit a War Crime?
The 1919 Treaty of Versailles was one of the first documents created to discuss war crimes. In the document, the authors came up with a list of war acts that would be deemed war offenses. They faced a lot of challenges when deciding what constitutes criminal activity and what does not.
There was even more dissension when deciding on the appropriate punishments for each war crime. During that period, the idea of establishing an International Court of Justice was proposed, but most of the participants did not support it.
After World War II, war crimes were discussed in greater detail, with member states belonging to the Allied Forces setting up international tribunals at Tokyo and Nuremberg.
These tribunals were charged with delivering judgment on offenses perpetrated during the war. The majority of the principles laid down by the tribunals remain at the heart of international criminal law as we know it today.
In 1946, the UN General Assembly adopted these principles. It started creating resolutions that defined punishments for individuals convicted of war crimes as well as crimes against humanity.
Punishment for War Crimes
Today, war crimes are punishable in two ways: Long-term imprisonment or death. For an individual to receive one of these sentences, the instance of the war crime they stand accused of must be tried at the International Criminal Court. The purpose of the ICC, which was established on July 1, 2002, is to hold war criminals accountable for their role in a war crime.
The court’s existence is based on a treaty supported by 108 countries. The nations that have signed and agreed to the ICC treaty are required to adhere to and respect the authority of the ICC. Soldiers from non-participating countries cannot be subjected to ICC trials even if they are found to have perpetrated war crimes.
For a case to be tried at the International Criminal Court, it needs to fall within any of the categories that fall under its jurisdiction. These categories include war crimes, crimes against humanity, and genocide. While each of them is notably broad and includes several specific crimes, none of them include acts of terrorism.
Geneva Convention Rules on Weapons
In a bid to outlaw or restrict specific types of weapons and firearms used in war, a total of 51 countries negotiated the Inhumane Weapons Convention, also known as the Convention on Certain Conventional Weapons (CCW). The idea behind it is to protect military personnel from sustaining inhumane injuries as well as to prevent civilians from getting killed or wounded by certain types of weapons.
The treaty, which was enacted in Geneva in December 1983, applied to mines, booby-traps, weapons designed to injure by dissipating tiny fragments, and incendiary weapons. Since that time, several additional provisions have been added, including bans on blinding laser weapons and rules to address the danger posed by leftover, unexploded munitions once active combat concludes.
Weapons Banned by the Geneva Convention
The CCW has several provisions annexed into various protocols. Any state that becomes a CCW member is required to sign on to a minimum of two protocols contained within the convention. It is not mandatory for them to sign on to all of them.
In the beginning, the scope of the CCW was limited to international armed conflicts. Parties to the convention later amended one of the protocols, expanding the scope to include intrastate conflicts. In 2001, this modification was applied to all the protocols in the entire convention.
Unfortunately, the convention does not have the means to ensure that state parties adhere to it, nor does it have verification mechanisms to ensure compliance. It also lacks a formal mechanism to resolve compliance issues.
Below is a list of the weapons banned by the Geneva Convention as spelled out in the various protocols:
- Protocol 1 – Non-detectable fragments: Any weapon that can injure or kill through tiny fragments that are undetectable by x-rays.
- Protocol 2 – Booby-traps, landmines, and other devices: Landmines and mines delivered by missiles, artillery, or aircraft have to be outfitted with self-destruct or self-deactivation mechanisms to disarm them after a certain period.
- Protocol 3 – Incendiary weapons: Any weapon such as a thermobaric weapon designed to burn or set fire to its target.
- Protocol 4 – Blinding lasers: Laser weapons that lead to permanent blindness.
- Protocol 5 – Explosive remnants of armed conflict: Gravity bombs, grenades, artillery shells, and munitions that fail to explode as they’re supposed to, left unmanned by military forces.
Is It a War Crime to Use Nuclear Weapons?
Nuclear weapons have been deployed during warfare twice in history – in the 1945 bombings of Hiroshima and Nagasaki. In 1946 the United Nations General Assembly adopted the first-ever resolution that set up a Commission to deal with the issues surrounding the discovery and use of atomic energy.
Since then, several multilateral treaties have been established to prevent the testing and proliferation of nuclear weapons without necessarily curtailing the progress made in nuclear disarmament. Among these are:
- The Treaty on the Prohibition of Nuclear Weapons
- The Comprehensive Nuclear-Test-Ban Treaty
- The Partial Test Ban Treaty
- The Treaty on the Non-Proliferation of Nuclear Weapons
There are several potential uses of nuclear weapons that would fall in the realm of a war crime.
- If the properties of the weapon itself render it indiscriminate by nature;
- If its characteristics can result in unwarranted suffering or superfluous injury;
- If the weapon is used indiscriminately and directed at the civilian population.
If any of the above conditions are met, using nuclear weapons in warfare would constitute a war crime.
Is Russia Committing War Crimes in Ukraine?
There have been several reports of Russian mercenaries committing violations that go against the laws and customs of war. These atrocities have been committed against civilians in the Kyiv, Kharkiv, and Chernihiv regions of Ukraine.
Some of these include instances of summary executions, unlawful threats and violence meted against civilians, and rape. The individuals who perpetrated these abuses are guilty of committing war crimes and can be made to answer for their actions.
All parties involved in the armed conflict involving Russian and Ukrainian forces are required to adhere to the International Humanitarian Law (IHL) provisions, including customary international law and the protocols of the Geneva Conventions.
The laws of war prohibit the inhumane treatment of prisoners of war and civilians in custody, torture, all forms of sexual violence, willful killing, looting, and pillaging.
Russia has a legal obligation to the international community to investigate all alleged reports of war crimes committed by its military personnel.
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