what is a war crime? Who can be judged and who can judge?

International Criminal Court (ICC) prosecutor Karim Khan announced on March 2 that “immediate opening” of an investigation into the situation in Ukraine. The day before, the prosecutor’s office had been seized by 39 of the Court’s 123 member states.

“I am convinced that there is a reasonable basis to believe that alleged war crimes and crimes against humanity have been committed” in this country, said Mr. Khan on February 28. The investigation covers all acts committed in Ukraine since then “November 2013”the beginning of the Russo-Ukrainian conflict, he added.

What is a war crime? What is the difference with a crime against humanity? Who can be tried for war crimes? What are the legal consequences for the perpetrators of these crimes? The world Make the point.

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How old is the concept of war crimes?

The concept of war crime is as old as the law of war – which has existed since ancient times – which denotes the generally accepted laws upon which the enemy parties agree when at war. In 1945, the Nuremberg Tribunal, which was responsible for trying high-ranking Nazi officials, also defined war crimes as: “violations of the laws and customs of war” and specifies:

“Murder, assault or deportation for forced labor or for any other purpose of civilian populations in occupied territories, murder or mistreatment of prisoners of war or persons at sea, execution of hostages, looting of public or private property, willful destruction of towns and villages, or destruction which is not justified by military necessity. †

What is the current definition of a war crime?

No text of international law codifies all war crimes. The definition of these crimes stems mainly from two international conventions:

  1. The Hague Conventions of 1899 and 1907, which focus in particular on the prohibition of the use of certain combat devices (for example, the use of expanding bullets, which disintegrate in the human body).
  2. The Geneva Conventions of 1949 and their additional protocols of 1977, which provide protection for people who do not or no longer participate in hostilities: civilians, members of medical personnel or humanitarian organizations, the wounded, sick, shipwrecked or prisoners of war.

The most recent definition of what constitutes a war crime is given in Article 8 of the Rome Statute. This international treaty, which entered into force in 2002, made possible the establishment of the ICC. The acts prohibited in wartime are many: intentional manslaughter; torture; intentionally cause great suffering or serious injury to body or health; destruction and appropriation of property not justified by military necessity; deportation; hostage taking; the intentional targeting of attacks on the civilian population or civilian objects; kill or injure a combatant who has laid down his weapons; looting etc.

It is also forbidden to use poisoned weapons; asphyxiating or poisonous gases; methods of warfare that may cause unnecessary injury or suffering; or to commit sexual assault.

More generally, two elements are used to qualify a war crime, the United Nations (UN) underlines. On the one hand, the alleged conduct must have taken place in the context of an armed conflict – this is the contextual element. On the other hand, the intention and knowledge of the accused person with regard to his act and the context must be taken into account – this is the psychological element.

What is the difference with a genocide? With a crime against humanity?

The word “genocide” was first used in 1944 by the Polish Jewish lawyer Raphael Lemkin in his book Rule of the Axis in Occupied Europe† It consists of the Greek prefix genos (“race” or “tribe”) and the Latin suffix cider (” murder “). The definition of genocide is specified in Article 6 of the Rome Statute. It’s an act “committed with intent to destroy, in whole or in part, any national, ethnic, racial or religious group”

According to Article 7 of the Rome Statute, a crime against humanity is an act “committed as part of a widespread or systematic attack against a civilian population”† Unlike war crimes, a crime against humanity can be committed outside of armed conflict. For example, slavery, forced prostitution, forced sterilization or apartheid are crimes against humanity.

What is the nature of the crimes alleged against Russia?

ICC Prosecutor Karim Khan has not specified the exact nature of Russia’s alleged war crimes and crimes against humanity in Ukraine.

British Prime Minister Boris Johnson accused Russian President Vladimir Putin on Wednesday (March 2) ‘guilty of war crime’ after bombing civilians in Ukraine, following a previous impeachment by Ukrainian President Volodymyr Zelensky. Johnson also compared Mr Putin to former Yugoslav President Slobodan Milosevic, who died in a cell before the end of his international justice trial for genocide and war crimes.

For its part, after Russia’s attack on a Ukrainian nuclear power plant, US diplomacy estimated that: “Deliberately targeting civilians or civilian infrastructure, such as nuclear power plants, is a war crime”“Hundreds, if not thousands of civilians have been killed and injured”US Secretary of State Antony Blinken complained on March 3, referring to the deadly shelling of Ukrainian cities.

Another fact that Russia is being blamed for: the use of cluster bombs, which could be a war crime according to the organization Human Rights Watch (HRW). These weapons are banned by the 2008 Oslo Convention, but Moscow has not signed it. They are composed of a container, like a grenade, which groups explosive projectiles of smaller size. Highly inaccurate, these weapons affect a large proportion of civilians. Some remain unexploded and can kill years later, just like mines.

Investigations will now be conducted to wash down evidence to denounce and prevent crimes, and to fuel future ICC files.

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Who judges war crimes?

Under the Rome Statute, the ICC, based in The Hague, Netherlands, is empowered to charge those accused of war crimes, genocide, crimes against humanity, as well as the crime of aggression (the use by a state of armed force against sovereignty, territorial integrity or independence from another state).

Formally, the crime must have been committed in the territory of one of the 123 states that have ratified the Rome Statute, or the crime must have been committed by a national of a state that has ratified it, or a state that has not signed the Statute. statute accepts the jurisdiction of the ICC on an ad hoc basis.

Vladimir Putin decided in 2016 to withdraw Russia’s signature from the Rome Statute (which it had never ratified). Ukraine, for its part, signed this international treaty in 2000, but has not ratified it either. However, as of 2014, Kiev has repeatedly recognized the jurisdiction of the court in The Hague to try serious crimes committed in the territory. Without this recognition on the part of Ukraine, the investigation announced by the ICC on February 28 would not have been possible.

An ICC investigation can be initiated by three actors: the Prosecutor of the Court; a state that has ratified the statute; the UN Security Council (as Russia is a permanent member of this body, it is clear that it would have used its veto power).

Who can be tried for war crimes?

War crimes are considered serious violations of international humanitarian law. They bear the individual criminal responsibility of their authors (and not of states). Any person who has reached the age of majority at the time of the offenses of which he is accused may be tried by the ICC. No immunity law can prevent the Court from prosecuting a person. In addition, crimes under the jurisdiction of the ICC do not have a statute of limitations.

Assuming that the investigation of the Court in Ukraine makes it possible to identify suspects of war crimes, the latter can only be detained on the territory of a state that respects its jurisdiction. The ICC is therefore limited by the discretion of states to arrest suspects present in their territories, as well as by the lack of a police force.

A person suffering from a mental illness; who was “in a state of intoxication that robbed her of the ability to understand the criminal nature” his behaviour; or who has committed any of these crimes under threat of death may be exempted from the legal charges against him.

What are the legal consequences for the perpetrators of these crimes?

At the end of a trial, the court in The Hague can pronounce a prison sentence – which can go up to life – against the perpetrator of a crime. May be added a fine and confiscation of property and profits from the crime. Prison sentences are served in a state designated by the Court from the list of countries that have notified it of their willingness to receive convicts.

In addition, the ICC may award reparations, such as restitution, compensation or rehabilitation, to victims or their next of kin. It is for the Court to assess the extent of the damage, loss or damage caused to the victims.