A Kiev court on Monday sentenced a Russian soldier to life in prison for killing an unarmed man, accusing 21-year-old Bhandi Shishimarin of premeditated murder and violating “rules and regulations of war”.
Ukraine’s Prosecutor General Irina Venediktova said on Monday that authorities had launched an investigation into more than 13,000 suspected war crimes committed by the Russian government and military. Two more soldiers are already on trial for firing on civilian targets in the Kharkiv region.
Ukraine is still prosecuting Russian forces under its own criminal code. However, the chief prosecutor of the International Criminal Court in The Hague is also investigating alleged war crimes and crimes against humanity in Ukraine.
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Which is considered a war crime?
After the Second World War, the Nuremberg Trials gave birth to the modern framework for war crimes assessment. Nazi party officials, military officers and German elites were tried on various charges, including crimes against humanity. At that time, the international community wanted to establish a watchdog that would reduce the severity of future conflicts.
William Shabas, a professor of international law at Middlesex University in London, says people often use the term “war crimes” to describe a range of actions prohibited under international law during a conflict. But the term has a precise, technical definition, referring to violations of international law governing conduct during war and occupation.
These violations are spelled out in international treaties such as the 1949 Geneva Convention and the Rome Statute, which established the International Criminal Court in 2002 to try those responsible for war crimes, including crimes against humanity and genocide – setting legal parameters with their own complex terms.
War crimes include deliberately targeting civilians; Military-motivated attacks that cause inconsistent civilian casualties; And attacks on hospitals, schools, historical monuments and other important civilian sites. Lots of horrific acts of violence resulting from civilian deaths will not meet the definition.
The Rome Statute specifies that deliberately launching an attack that would cause “extensive, long-term and fatal damage to the natural environment” may be a crime, depending on the circumstances.
The use of certain weapons, including chemicals, is also prohibited.
Cluster munitions, which indiscriminately detonate bombs and leave unexploded ordnance that pose a threat to civilians after the conflict, are banned by many countries – but not Russia and Ukraine. Russia’s alleged use of those weapons in Ukraine, as well as “vacuum weapons” is not automatically illegal, Shabas said. That determination depends on whether Russia has taken steps to avoid harming civilians.
What are cluster and vacuum weapons and how has Russia used them in the past?
There is also a separate legal section for crimes against humanity, which includes genocide, slavery and torture. Genocide is another crime over which the ICC has jurisdiction. A 1948 legal convention defines it as an independent offense that kills, “causes serious physical or mental harm”, prevents birth or forcibly transfers children to a group with the intent to “completely or partially destroy” a national, ethnic, racial or religious group. ” The imposition of living conditions for the purpose of destroying a group completely or partially is also considered genocide.
“Unfortunately there is a real disconnect between the legal use of the term genocide and the way genocide is understood in popular discourse,” said Rebecca Hamilton, a professor of international law at American University and a former lawyer in the ICC’s prosecutor’s office.
Genocide, he said, is often used by members of the public to “describe a situation that is horrific, which seems unimaginable, where civilians seem to be being killed for reasons other than being Ukrainian.” . “But the legal definition of genocide is very precise and we are not yet at the stage where enough evidence has been gathered to make a legal assessment of whether genocide is taking place.”
International law regulates conflict more than just war. Ukraine has adopted a strategy of posting pictures and videos of captured and killed Russian soldiers online, which could be in violation of the Geneva Conventions.
Who has the power to investigate?
Until the justice system in Ukraine is in place, the Ukrainian authorities have the primary responsibility to investigate alleged violations of international law in Ukrainian territory, says James Go, professor of international peace and security at King’s College London.
In the cities, Ukrainian prosecutors filed Russian war crimes cases
Another way: the International Criminal Court.
Neither Ukraine nor Russia is a party to the lawsuit, so no one can bring charges against prosecutors. But Ukraine has twice acknowledged the court’s jurisdiction over its territory – and other countries can refer to the criminal court there. ICC chief prosecutor Karim Khan said in early March that his office had received referrals from 39 countries.
Khan announced that he had been investigating allegations of war crimes, crimes against humanity or genocide in Ukraine “by any person” since November 2013.
A preliminary investigation has identified “reasonable grounds to believe the crime was committed within the jurisdiction of the court” and “potential cases that would be admissible,” Khan said in a statement.
Separately, the UN’s top human rights body voted to form a commission to investigate alleged Russian human rights abuses during the attack. The Biden administration has announced support for a multinational team of prosecutors who will visit the region to gather evidence of atrocities, when French prosecutors opened three investigations into possible war crimes committed by Russian troops against French citizens in Ukraine on 5 April.
What evidence is needed to bring the perpetrators to justice?
A large amount and it will be difficult.
ICC investigators have begun gathering evidence, and Khan has appealed to countries to provide additional funding to his office.
Elliott Higgins, founder of the open source group Bellingcat, told the Guardian that his organization was working with others to preserve evidence of potential war crimes that would be accepted in court.
The world is seeing the war unfold in real time as a result of the flood of videos across Facebook, Telegram, Tiktok and Twitter. Destruction A TV tower near a Holocaust memorial in Kiev is left by an apparent bunch of weapons and assault. Human rights groups and journalists have verified and published social media accounts of eyewitness attacks in civilian areas.
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Amnesty International’s Crisis Evidence Lab analyzes digital evidence – including images, videos and satellite images of indiscriminate attacks # Ukraine. They have verified violations of international law that could be war crimes. pic.twitter.com/4HvPykiYVn
– Amnesty International (amnesty) March 1, 2022
Social media can help with documentation investigations. However, there are more barriers to evidence in war crimes cases, say international legal experts.
War is a bloody business, and civilian casualties are expected In many cases, to prove that the killing of civilians is a war crime, the attacker must show intent to harm civilians or to attack prohibited targets, such as hospitals and schools. So to hold top officials accountable, communication usually needs to be interrupted through a chain of command, Go said.
“Proportionality” is a thematic value that is not clearly defined, says Shabas – and Ukraine’s defense strategy, which includes Kiev’s strongholds, gives Russia legal cover to attack civilian areas.
Russia kills civilians in Ukraine Kiev’s defense strategy increases the danger.
“It’s very difficult to prove a crime on the battlefield,” he said. “There have been very few successful trials for this type of crime.”
Creating a case is more complicated because of the growing blurred lines between civilians and fighters. Ordinary Ukrainians took up arms and gathered to make Molotov cocktails. When they are fighting they will lose their status as civilians under international law, Shabas said.
Can Russian officials be held accountable?
Shortly after Putin launched his aggression, calls for accountability began around the world.
World leaders have faced war crimes trials in the past. In a famous example, an international court tried former Yugoslav President Slobodan Milosevic in 2002 for war crimes and crimes against humanity in the 1990 Balkan Wars. Milosevic died in custody before the trial.
Despite the evidence, Gao said Russian officials – let alone Putin – are unlikely to face trial in Russia without major political changes. As long as the Russian government is reluctant to cooperate, and the Russians accused of the crime do not travel abroad, international prosecutors cannot do much.
Nevertheless, it is important to collect and preserve evidence of potential war crimes and crimes against humanity, Gau said, as the situation in Russia could change.
“No one likes to be identified as a war criminal, so there are [an] Significant potential psychological and political impact will be gained immediately from the investigation, ”he said.
And even if the perpetrators of any war crimes in Ukraine are not punished, the accumulation of evidence can serve as an important correction for misrepresentation.
Milosevic’s International Judicial Tribunal says the “greatest achievement” of the judiciary is creating a rearrangement of evidence to the public as “an obstacle to a harmful attempt to correct history.”
Erin Cunningham, Mary Burger and Amber Phillips contributed to this report.