After attempting and failing a Blitzkrieg invasion in Ukraine, the Russian military has now moved to a new stage — a stage that involves much more bombing. Every hour, reports from Ukraine are coming in about new damage, destruction, and death. As the invasion continues to unfurl, the intelligence community and world leaders are increasingly claiming evidence of war crimes.
What’s in a war crime
There’s no doubt that Russia has brutally broken international law in Ukraine. But have war crimes truly been committed?
The formal concept of war crimes emerges from international law applied to warfare between sovereign states (although in recent decades, the definition has also been expanded to cover civil war). Much of what we consider today to be war crimes were defined in 1949 by the famous Geneva Conventions. While the definition has been changed and tweaked, the Geneva Conventions define the core of what makes a war crime.
Notable war crimes include things like:
intentionally killing civilians;
killing prisoners of war;
unnecessarily destroying civilian property;
genocide or ethnic cleansing.
In particular, the Geneva Conventions list “Willful killing, or causing great suffering or serious injury to body or health” as a grave breach and a serious war crime.
By these definitions, there seems to be little doubt that the Russian military force is committing war crimes in Ukraine.
Some world leaders have pointed this out and have made clear accusations, particularly aimed at Russian President Vladimir Putin and his inner circle. Speaking in Poland, UK Prime Minister Boris Johnson, said Putin had decided to “send missiles into tower blocks, to kill children, as we are seeing in increasing numbers”.
“There’s no doubt that [Putin] is already using barbaric tactics, bombing civilian areas. Everybody involved in the Russian onslaught should understand that all this will be collated in evidence to be used at a future time in what could be proceedings before the International Criminal Court,” Mr. Johnson said.
UK Justice Secretary Dominic Raab, a former Foreign Office lawyer who worked at the International Criminal Court echoed these accusations, urging Russian commanders to disobey orders that break international law.
“There will be no impunity for war crimes. There is a clear determination from the international community to make sure that any war crimes are held to account, whether it is Putin or those around him in Moscow or commanders on the ground. They must know that if they carry out those orders, there is a reasonable prospect… that they will end up spending their twilight years behind bars.”
Irish foreign affairs minister Simon Coveney said there was ‘indisputable evidence’ of war crimes in Ukraine, and Canada has already petitioned the International Criminal Court of justice against Russia, asking the court to investigate the country’s war crimes.
“Unfortunately we are seeing [Putin] stepping up the intensity of the attacks, the broadness of targets including increasingly civilian and infrastructure targets that are absolutely unacceptable,” Canadian Prime Minister Justin Trudeau told a press conference in Ottawa.
Who can judge war crimes?
The above-mentioned International Criminal Court in the Hague is the world’s first permanent international court set up to prosecute individuals for “the most serious crimes of international concern.” It was established in 2002, and while not all countries are a part of it (China is not, and the US has withdrawn its signature), it’s still the likeliest court where war crimes can be judged.
Up until now, the ICC has indicted 45 war criminals in its history, including the likes of Ugandan rebel leader Joseph Kony and Libyan head of state Muammar Gaddafi. Ukraine is not a member of the ICC, but it has accepted the jurisdiction of the ICC, meaning the court can proceed with an investigation and possibly, an indictment.
The ICC defines crimes against humanity as participation in and knowledge of “a widespread or systematic attack directed against any civilian population”. In this sense, it’s not hard to see why actions from Russia’s ongoing invasion would warrant an investigation. The chief prosecutor of the International Criminal Court Karim Khan said that an investigation would be opened “as rapidly as possible”
“Given the expansion of the conflict in recent days, it is my intention that this investigation will also encompass any new alleged crimes falling within the jurisdiction of my office that are committed by any party to the conflict on any part of the territory of Ukraine.”
While Khan is waiting for the formal approval to start proceedings, he and his team are gathering evidence from the ongoing events. Unfortunately, there’s a lot of evidence.
The evidence keeps piling up
As days go by, evidence of potential war crimes like the shelling of civilian areas continues to grow. Russia simply denies it engages in any illegal attacks, but there is already a great deal of footage that says otherwise — and the violence against civilians begins to intensify.
“Compared to attacks during previous days, though, the February 28 attack was significantly more violent and brazen in its targeting of highly populated civilian population areas,” the DFRLab writes.
So far, there’s no comprehensive documentation of all these attacks on civilian areas, because the invasion is still ongoing, and keeping track of it all is difficult. But the reports keep coming in.
Amnesty International says three civilians (including a child) were killed during cluster bombing near a kindergarten in Okhtyrka, about 60 miles west of Kharkiv, with drone footage showing several dead or severely injured people by the entrance.
“There is no possible justification for dropping cluster munitions in populated areas, let alone near a school,” said Agnès Callamard, the secretary general of Amnesty International.
Video evidence shows that Russian missile strikes on Kharkiv, a city with a population of 1.4 million people, were launched with little regard for civilians. A missile strike on Tuesday on a government building was filmed as it happened. Several residential blocks were severely damaged by cluster bombs — which are banned by over 100 states because of their lack of precision and their propensity to hit civilians.
Ukrainian president Volodymyr Zelensky said:
“Russian forces brutally fired on Kharkiv from jet artillery. It was clearly a war crime. Kharkiv is peaceful, there are peaceful residential areas, no military facilities. Dozens of eyewitness accounts prove this is not a single false volley, but deliberate destruction of people. The Russians knew where they were shooting.”
Kremlin spokesman Dmitry Peskov said Russia had not carried out any strikes against civilians and any reports that say otherwise are fabricated.
The ICC has never tried someone in their absence, and its rules state that ‘The accused shall be present during the trial.’ This means that any accused such as Vladimir Putin would have to be present for a war crimes trial to take place.
In the case of an indictment, Putin or any members facing trial could be arrested outside of Russia. In 2016, Bosnian Serb politician Radovan Karadzic was found guilty of genocide, war crimes, and crimes against humanity and was jailed for life without parole.
It’s unlikely that this will happen overnight. But an indictment is likely to make the Russian authoritarian even more of an international pariah.
In the meantime, researchers continue to gather evidence. Eliot Higgins, the founder of the investigative journalism site Bellingcat, told The Guardian that there was evidence of Russia causing “civilian harm”. Higgins added that unlike other recent conflicts (such as in Syria), there is “an open-source intelligence community” that has crystallized and has been collecting and studying evidence “from day one”.
“The day may come when all this ends up at the international criminal court,” Higgins concludes.