With the conflict between Russia and Ukraine carrying on, the eyes of the world are fixed on invading troops to ensure no war crimes are committed.
Russia's invasion has essentially broken nearly 100 years of international norms in Europe to not pursue territorial conquest, but does it inflict upon international law?
While it used to be common to see invasions during the 20th century and before, World War II changed a lot of norms and behaviours of countries in Europe which deterred neighbouring countries from carrying out invasions.
Certain conducts of behaviour during conflicts were solidified following the conclusion of World War II in the 1949 Geneva Conventions which was signed by all members of the United Nations - of which Russia is a permanent member.
In the wake of Russia's invasion of Ukraine, the International Criminal Court’s (ICC) chief prosecutor said he plans to open an investigation “as rapidly as possible” into possible war crimes and crimes against humanity in Ukraine - both alleged crimes committed before the Russian invasion, but also any new crimes that either side might have committed since the invasion started.
Ireland’s Minister for Foreign Affairs Simon Coveney has said there is “indisputable evidence” of Russian war crimes in Ukraine, including "the brutalising of a number of Ukrainian cities" and "the deliberate targeting of civilians".
But what counts as a war crime, and what happens if one is committed?
What is classified as a war crime?
The UN classifies any 'grave breaches' of the Geneva Conventions as a war crime and it lists out in detail a set of war crimes that are related to this, these are:
- Wilful killing
- Torture or inhuman treatment, including biological experiments
- Wilfully causing great suffering or serious injury to body or health
- Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
- Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power
- Wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial
- Unlawful deportation or transfer or unlawful confinement
- Taking of hostages
While these are the war crimes listed in the Geneva Conventions, there are many more listed that apply to different situations in war such as crimes against people not taking part in conflict, international armed conflict and non-international conflicts, such as riots.
What happens if a country commits a war crime?
If a country is believed to have committed a war crime during conflict, the case is handled by the International Crime Court (ICC) which will investigate the matter and provide punishment where appropriate.
The ICC sits in the Hague, in the Netherlands and is the only permanent international court with jurisdiction to prosecute for international crimes of genocide, crimes against humanity and war crimes.
The court began operating in July 2002 and, so far, 45 individuals have been indicted by the court.
They include Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya and Libyan head of state Muammar Gaddafi.
Two people are currently serving long-term prison sentences for crimes tried by the ICC.
In 2006, Thomas Lubanga received 14 years imprisonment for the war crime of conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities in the Democratic Republic of the Congo.
In 2014, Germain Katanga was convicted by the ICC on five counts of war crimes and crimes against humanity as an accessory to the February 2003 massacre in the village of Bogoro. He is serving a 12-year sentence.
Is Russia being investigated for war crimes?
The chief prosecutor of the International Criminal Court (ICC) said he plans to open an investigation “as rapidly as possible” into possible war crimes and crimes against humanity in Ukraine.
Prosecutor Karim Khan said in a statement that the investigation will look at alleged crimes committed before the Russian invasion, but added that “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”.
The court already has conducted a preliminary probe into crimes linked 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.
In December 2020, then-ICC prosecutor Fatou Bensouda said the probe uncovered indications that “a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court have been committed” in Ukraine.
However, the court’s prosecutors had not yet sought permission from judges to open a full-scale investigation.
Mr Khan says he now wants to open the investigation envisaged by his predecessor and broaden it to include crimes committed in fighting since the Russian invasion of Ukraine last week.
Mr Khan said he would continue to monitor developments in Ukraine, where there have been reports of civilian casualties, and he called for “restraint and strict adherence to the applicable rules of international humanitarian law”.
