On March 2, the International Criminal Court (ICC) launched an investigation into “war crimes” against Russia in the context of the conflict in Ukraine. We explain to you what this legal term has been hiding in international law for several years now and what freedom of action the International Tribunal in The Hague can count on to impose sanctions on Vladimir Putin and the Kremlin.
The accusation comes from the highest representatives of the Ukrainian government, as well as from humanitarian associations and some heads of Western states. Russia is allegedly guilty of war crimes since the invasion of Ukraine began.
After the explosion of the children’s hospital in Mariupol, this term was also used by the President of the European Commission, Ursula von der Leyen. And finally, on March 2, the Attorney General of the International Criminal Court (ICC) decided to open a “war crimes” investigation, as did the German Attorney General’s Office. But what exactly are we talking about?
The concept of a war crime is clearly defined in international law. It appeared for the first time after the Second World War, was used by the Nuremberg Tribunal to qualify the crimes of the Third Reich, then was picked up in 1949 by the Geneva Conventions – treaties that establish limits on legal behavior in the event of a conflict.
What war crimes are listed in international law?
On its website, the United Nations (UN) summarizes the activities prohibited in time of war under Article 8 of the Rome Statute, the most recent text defining war crimes. The list spans several pages, but we find it on others:
- I’murder, abuse or deportation for forced labor civilian population in the occupied territories,
- I’killing or ill-treatment of prisoners of war or people in the sea
- I’execution of hostages,
- in looting of public or private propertysenseless destruction of cities and towns or devastation not justified by military necessity.
- intentionally directing attacks on civilian objectsthose. objects that are not military purposes,
- intentionally directing attacks on buildings dedicated to religion, education, art, healthcare and in places of congestion of the sick or wounded, if they are not military objectives.
Thus, the list of abuses considered “war crimes” is long and should not be confused with “crimes against humanity”. The second case refers to a crime “committed as part of a widespread or systematic attack against any civilian population and in recognition of that attack”, as stated in Article 7 of the Rome Statute.
In Mariupol, Chernobyl or Kharkov, a long and complicated investigation
If suspicions mount, the International Criminal Court must first collect irrefutable evidence to support the war crimes charge. Since the beginning of the Russian invasion, dozens of ICC investigators, as well as independent experts or NGO members, have collected photographs, videos and satellite imagery.
In Ukraine, they are closely monitoring the shelling of the Russian army in Mariupol, Kharkov and Akhtyrka, where a school was shelled. They are also looking for evidence of the use of cluster munitions, which by definition hit random targets with massive collateral damage.
The fighting and bombing around Ukrainian nuclear power plants and on the territory of Chernobyl are also in the field of view of observers.
What are Russia and Vladimir Putin really risking?
On March 2, proceedings began at the International Criminal Court (ICC). Could this lead to condemnation of Vladimir Putin or other Russian civilian and military leaders? Not really. Because the ICC is sovereign only if the crime is committed on the territory of one of the 123 states that have ratified the Rome Statute, or on the territory of a state that has not ratified the treaty, but officially recognized it.
Ukraine has never ratified the Rome Statute, but has repeatedly recognized the jurisdiction of the international tribunal in The Hague to consider war crimes. Russia also has not ratified the Rome Statute. But most importantly, in 2016, Vladimir Putin decided to withdraw his recognition from the ICC.
As a result, the International Criminal Court may well judge Russia’s actions in Ukraine. But in case of conviction, he will be able to apply sanctions only with the consent and with the assistance of … Russia.