New Delhi: Ukrainian President Volodymyr Zelenskyy Tuesday took the stage at the United Nations to accuse Russia of committing war crimes, particularly in Bucha, a city in Kyiv Oblast located 24 km northwest of the Ukrainian capital.
While Russia termed the accusations false and “yet another provocation” by Ukraine, members of the media on the ground have contradicted Russia’s claims, citing local eyewitness accounts, satellite imagery, and Ukrainian officials.
Ukraine has also been accused of having committed war crimes this week — a video verified by the New York Times apparently shows Ukrainian soldiers outside Kyiv killing Russian soldiers who had already been captured.
Major powers such as the United States and the European Union have since brought on more sanctions against Russia in the form of energy bans and financial restrictions. Additionally, the United Nations General Assembly voted Thursday to suspend Russia from the UN Human Rights Council.
As international calls to bring Russia to account bring the notion of war crimes into sharp focus, ThePrint examines the contours of international laws to show why it may not be that simple.
Also read: Status of Ukraine war: Donbas now Russia’s priority, troops retreat from Kyiv & Chernihiv
What are war crimes?
According to Article 8 of the Rome Statute of the International Criminal Court, war crimes primarily signify “grave breaches” of the 1949 Geneva Convention. These breaches include wilfully killing or causing bodily harm, torture, wanton property destruction, depriving a prisoner of war (POW) of a fair trial or forcing them to serve for a “hostile power”, and taking hostages.
According to the Statute, war crimes also refer to intentionally killing or attacking civilians, vehicles, or personnel involved with humanitarian work or peacekeeping, pillaging, rape, and using poisonous or chemical weapons.
The Rome Statute of the International Criminal Court was drafted and signed on 17 June 1998 and came into effect on 1 July 2002. The Statute classifies genocide, crimes against humanity, war crimes, and crimes of aggression as the four major categories of international crimes.
However, the International Criminal Court — the international criminal court with its seat in The Hague, the Netherlands, instituted under the Rome Statute to investigate war, genocide, and crimes against humanity — only has jurisdiction over countries that are state parties, i.e. that signed and ratified the Statute.
Complications and holdouts
While 123 countries, including the United Kingdom, France, Germany, Japan, and South Africa, have ratified the Rome Statute over the years, several countries are still holding out, including countries that signed initially but have withheld their ratification, such as Iran, Egypt, Syria, UAE, and Ukraine, and even countries that later withdrew their signatures, such as Russia, United States, Israel, and Sudan.
For instance, Ukraine signed the Statute in 2000 but did not ratify it, in light of a constitutional court ruling in 2001 that declared the Statute as “incompatible” with the Ukrainian Constitution.
However, amid the Euromaidan revolution — the 2014 protests in Ukraine that lead to then-Ukrainian President Viktor Yanukovych’s eventual ouster and growing separatist violence in Donbas region — a disputed territory where Russia controls two separatist territories, Donetsk and Lugansk — the ICC was granted jurisdiction in November 2013. Subsequent, constitutional amendments in 2019 mean that Ukraine could have ratified the Rome Statute at any point in the last three years. But it has yet to do so.
The Euromaidan revolution was massive public protests sparked by Yanukovych’s refusal to sign the European Union-Ukraine Association Agreement and the Deep and Comprehensive Trade Agreement— both aimed at strengthening ties between Ukraine and the European Union. The former president is currently living in exile in Russia.
Russia also signed onto the Statute in 2000 without ratifying it. However, in November 2016, a day after the ICC published a report that classified Russia’s 2014 annexation of Crimea as an “occupation”, Russia informed UN Secretary-General Ban Ki-Moon that it was withdrawing its signature.
On the other hand, India and Pakistan are among the non-party states that never signed onto the Statute in the first place even though commentators from both countries have been calling on them to reconsider their positions.
Pakistan’s non-signature has received relatively little attention over the years aside from these commentaries, but India’s decision to abstain from the Rome Statute vote at the ICC in 1998 has been controversial.
India cited the possibility that the ICC would be made “subordinate” to the UN Security Council and the possible “political interference” of its permanent members among its various objections. It also said the Statute’s definition of war crimes did not include terrorism and usage of nuclear weapons, Dilip Lahiri wrote for ORF.
Also read: Russia-Ukraine conflict has a ‘Kautilyan’ side to it. And pointers for India
Why Russia may get off
The biggest hurdle facing the ICC since the establishment of the Rome Statute has been universal jurisdiction, or the lack thereof, as signatory countries to the Statute rejected granting universal jurisdiction to the ICC. Past incidences of war crimes taking place in nations the ICC did not have jurisdiction over, such as Darfur in 2005, were instead referred by the UN Security Council to the ICC.
Since neither Russia nor Ukraine is a state party to the Rome Statute, the ICC’s jurisdiction in investigating war crimes remains in some doubt. Ukraine’s granting of the jurisdiction in 2013 to the ICC means that the court has jurisdiction over war crimes that have taken place within Ukraine. But, if even ICC did have the jurisdiction to investigate the war crimes, the legal process to try Vladimir Putin or any other alleged Russian perpetrator of the crimes in Bucha could be a long one, according to a report in Al Jazeera.
Where do the US and UK stand
In the context of war crimes and the ICC, however, some of the biggest complications have involved a state party, the United Kingdom, and a long since withdrawn signatory, the United States, particularly for historic actions allegedly committed by their armed forces in Iraq and Afghanistan.
For the UK, the most well-known case of investigations into alleged war crimes was the protracted Iraq Inquiry. First announced by former prime minister Gordon Brown in 2009, the key report of the inquiry, known as the Chilcot Report, was not published until 2016.
The report primarily focused on the actions of then-British Prime Minister Tony Blair prior to the war, such as “exaggerating the threat” of Iraqi head of state Saddam Hussein 2002-03 and not paying heed to warnings of what could happen post-invasion. The report also said that the UK did not do its due diligence in keeping track of the number of Iraqi civilians killed, citing broad approximations instead.
By 2014, the ICC had reopened its own investigation into allegations of war crimes committed by the UK in Iraq but dropped it in 2020, stating that despite the evidence of crimes, “there was no proof that UK authorities had blocked any investigations or were unwilling to pursue them”, The Guardian had reported.
Meanwhile, the US had signed the Rome Statute under President Clinton in 2000 but remained outside the ICC’s jurisdiction because less than two years later, President Bush announced he was withdrawing from the Rome Statute.
Despite different positions expressed across different presidential administrations, the US has had a laundry list of criticisms towards the Statute and the ICC in the years since then. These have ranged from “politicised prosecutions” and accountability of the ICC prosecutors, to general jurisdiction issues over US military activities, and a “lack of due process”.
Most notable, however, was the US’ hostility towards the ICC during the Trump administration. In September 2020, the country imposed sanctions on ICC prosecutor Fatou Bensouda amid her investigations into alleged US war crimes in Afghanistan.
While Trump’s successor in President Biden has called on the ICC to investigate Russia’s ongoing alleged war crimes, the situation in Ukraine has put the Biden administration in a bind over supporting an international organisation that the US itself has previously blocked from looking into its own military actions, Foreign Policy reports.
Also read: Russia has already lost the war in Ukraine. It’s a result of failing globalisation
(Edited By Uttara Ramaswamy)