This Tuesday the international community attacked Russia again, whom it points to for the killing of hundreds of civilians in the Bucha suburb, near kyiv. The International Criminal Court has begun an investigation into the events in Ukraine, in which they will study possible crimes such as war crimes and crimes against humanity.
Amid international outrage over the hundreds of dead lying in Bucha streets after the withdrawal of Russian troops from the town northwest of kyiv, many politicians and world leaders speak of “war crimes.”
The Government of Ukraine has accused Russia of this “heinous massacre”, while the Kremlin assures that the devastating images of the Ukrainian suburb are a “montage” to stain its image. However, Western leaders such as US President Joe Biden have gone so far as to describe Russian President Vladimir Putin as a “war criminal”. Ukraine’s president, Volodymyr Zelensky, even accused him of genocide, one of the most difficult war crimes to prove.
But the definition of “war crime” is complex, as is the differentiation from other terms such as crimes against humanity. Often these are not determined until years and even decades after the end of the conflict, after thorough investigations and a succession of trials.
Let’s look at the main concepts:
What is a war crime?
In the first place, a war crime is an act that is committed during an armed conflict, such as the one in Ukraine, and that violates international humanitarian laws – which precisely establish what can and cannot be done during this type of conflict -.
According to UNHCRthe UN Refugee Agency, the murder or mistreatment of prisoners of war, forced labor, genocide or rape, among others, are considered war crimes.
“During war you can kill enemy combatants, but you can’t kill civilians. The latter is a war crime,” Luis Moreno Ocampo, a former prosecutor at the International Criminal Court, told France 24.
Some historical examples of war crimes are the war in Syria or in Yemen.
The humanitarian laws that regulate these crimes are established in several treaties, such as the 1949 Geneva Convention, and the entity that can prosecute non-compliance is the International Criminal Court (ICC).
These cases are investigated like any other – with evidence, witnesses, forensic analysis, etc. – and it usually takes decades for them to be proven since the end of the conflict. ICC prosecutors must prove with absolute certainty the authorship of these crimes in order to carry out a sentence; since they are very serious crimes.
What is the difference between a war crime and a crime against humanity?
In addition to war crimes, there are also others known as crimes against humanity or crimes against humanity. The main difference with the former is that a crime against humanity must not necessarily be committed in a context of war or armed conflict.
“A crime against humanity is a massive or systematic attack against the civilian population,” said Moreno Ocampo.
Another characteristic that differentiates this type of crime is that it is not necessarily directed against a specific ethnic, religious or racial group. According to him Rome Statute of the ICC, affirms that it does not need to take place in a context of military assault, as has happened with the attacks on Ukraine. Although in that case it is not ruled out either, that is why the ICC needs to be relentless in its investigations.
the crimes include genocides, exterminations, slavery, murders and forced prostitution, among others. Among the historical examples we find apartheid in South Africa or ISIS in Syria. A genocide can end up typified as a crime against humanity, a crime that does have the intention of ending a specific group.
And when can one speak of genocide?
Genocide implies the desire to eradicate a group, while the crime against humanity does not need that intention -although it may have it-. In other words, the crime against humanity usually follows the political guidelines of a country or organization, while genocide wants to eliminate all members of an ethnic or racial group as an end in itself.
In this line, this is the most difficult crime to prove in court because concrete evidence must be obtained about the intention to destroy a particular group.
The president of Ukraine, Volodymyr Zelensky, assured that Russia has committed this crime for wanting to “eliminate” the Ukrainian population for not wanting to follow Moscow’s guidelines, while Putin points to Ukraine for destroying the population of Donbass, where a high rate of citizens is separatist and Russian-speaking.
Among the best known, we find the Rwandan genocide or the Nazi Holocaust.
Is there evidence of war crimes in Ukraine?
Both the Human Rights Watch organization and Ukraine’s Attorney General, Iryna Venediktova, have pointed to murders, rapes, executions and looting of civilian property, facts that if proven would constitute war crimes.
“What they did in Bucha, or the bombing of a hospital or a school, are prima facie war crimes,” said Kwon O-Gon, an international law expert who served as a judge at the International Criminal Court, to the New York Times newspaper.
Images of attacks on hospitals, schools or other civilian shelters by Russian troops could also constitute war crimes. However, it must be proven that these were directed against civilians with an express will; otherwise they would not be listed as war crimes.
Also on the other side, these types of accusations have been registered, Human Rights Watch asked Ukraine to investigate war crimes against imprisoned Russian soldiers; allegedly tortured and killed at the hands of the Ukrainians.
All these facts will be investigated by the ICC, since although Russia does not recognize the organization, Ukraine requested it and admitted the partial jurisdiction of the International Criminal Court (ICC) to verify what has happened in its territory since February 2014, and the subsequent Russian annexation of Crimea.
If proven true, will those responsible pay for the crimes?
The ICC does not have its own police or military forces, and when they hand down a sentence, they depend on the country handing over the accused person for trial.
In the specific case of Bucha, in Ukraine, “it will take a long time to prove who killed those people and, above all, who ordered it,” Moreno Ocampo said.
Also, it largely depends on the ICC prosecutor, who is Karim Khan at the moment, as he is the one who decides the scale of the investigation. That is, if he decides to go on a smaller scale – and investigate and indict captains or lieutenants – or go on a larger scale and persecute a head of state or president.
Regarding Ukraine, according to Moreno, the crime that can already be proven is that of aggression, since Putin officially ordered “military intervention in the country.” The problem in this case is that it cannot be investigated because, in order for it to go forward, the UN Security Council must approve it with a resolution. Something that will not happen, since Russia and China have veto power.
“The ICC investigation will also reach Vladimir Putin? It could, it all depends on the prosecutor who takes the case,” Moreno bet.
These processes will take years and even decades to resolve. But if someone ends up being convicted, the sentence is for life and can be applied against a president or politician even when he has already ceased to exercise his functions.
“It takes time, but in the end justice comes,” Moreno concluded.
with local media
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