Explainer: What are war crimes and how are they prosecuted?

Among the gravest crimes in international law, war crimes and crimes against humanity are considered atrocities and those who commit them can be prosecuted and punished at any time - no matter how much time has elapsed since they were committed.

In light of the recent developments in Ukraine, the Russian invasion has piqued global concern as accounts of alleged war crimes and crimes against humanity continue to emerge.

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The International Criminal Court, several United Nations bodies, and governments around the world have called for investigations into Russia’s conduct in Ukraine.

What are war crimes?

Before the devastation caused by the Second World War, horrors and atrocities committed during a war were believed to be commonplace during times of conflict.

A war crime occurs when unnecessary suffering is inflicted upon civilians of the warring party. Such instances are categorized as war crimes, but this depends on the extent of civilian casualties involved in the incident(s).

Unlike genocide and crimes against humanity, war crimes occur in the context of armed conflict.

The concept of war crimes only came about towards the end of the nineteenth century and the beginning of the twentieth century, according to the United Nations. Around this time, international humanitarian law, also known as the law of armed conflict, was codified.

In 1899 and 1907, the Hague Conventions focused on the prohibition of warring parties to go about war and conflict in a specific way.

Many other relevant treaties were adopted since then.

The Geneva Convention of 1964, and subsequent Geneva Conventions, focused on the protection of people who were not taking part in fighting or hostilities.

Both Hague Law and Geneva Law identify several of the violations of its norms, though not all, as war crimes.

It is also important to note that there is no single document in international law that codifies all war crimes, the UN stated.

Lists of what constitute as war crimes can be found in international humanitarian law and international criminal law treaties and in international customary law.

According to the Rome Statute of the International Criminal Court, war crimes are, by definition, grave breaches of the Geneva Conventions of 1949, mainly of the following acts (against people or property protected under the provisions of the Convention):

How are war crimes prosecuted?

The ICC “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression,” according to its official website.

Although states can exercise jurisdiction over such crimes, in recent decades, international courts such as the ICC have dealt with such cases.

The ICC expanded the list of crimes that constitute as war crimes under its founding treaty, the Rome Statute.

“…war crimes…are grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes,” the Court’s website states.

After crimes occur, the ICC carries out preliminary examinations under the Office of the Prosecutor where it is determined whether sufficient evidence of the crimes have been gathered and whether they are of sufficient gravity.

If they do not meet the requirements to be categorized as a war crime, or if the situation does not fall under the ICC’s jurisdiction, then they cannot investigate.

After gathering evidence and identifying a key suspect, the Prosecution requests ICC judges to issue and arrest warrant or a summons to appear.

Following this, during the pre-trial stage, the suspect makes an initial appearance where three pre-trial judges confirm the suspect’s identity and ensure that he/she understands the charges.

“After hearing the Prosecution, the Defense, and the Legal representative of victims, the judges decide (usually within 60 days) if there is enough evidence for the case to go to trial. If the suspect is not arrested or does not appear, legal submissions can be made, but hearings cannot begin.”

During the trial stage, the Prosecution will need to provide evidence to prove “beyond reasonable doubt the guilt of the accused.”

After considering the evidence, the judges will then issue a verdict and if there is a verdict of guilt, they issue a sentence.

Suspects can face up to 30 years of imprisonment, and under “exceptional circumstances, a life sentence.”

However, verdicts are subject to appeal by the Defense and the Prosecutor. Judge can also order repatriations for the victims.

If there is not enough evidence, however, the case will be closed and the accused released.

“Both the Prosecutor and the Defense have the right to appeal a Trial Chamber’s decision on the verdict (decision on guilt or innocence of the accused) and the sentence. The victims and the convicted person may appeal an order for reparations,” the ICC website explains.

An appeal is then decided by five judges of the Appeals Chamber.

These judges are never the same as the ones who gave the original verdict, and they decide whether to upload, amend, or reverse an appealed decision.

This is the final judgement, unless the Appeals Chamber asks for a re-trial.

Why is this relevant now?

Russia invaded Ukraine on February 24 in what it calls a “special military operation,” which has since displaced millions and caused over 7,000 civilian casualties, according to the UN High Commissioner for Human Rights (ONCHR).

Major cities in Ukraine remain mostly damaged. The people who remain are living under constant fear of their lives due to potential air or missile strikes.

The International Criminal Court on Tuesday sent a 42-member team to Ukraine to probe alleged war crimes since the Russian invasion in what it called the largest such deployment in its history.

The squad comprises investigators, forensic experts and support staff and will work with Ukrainian authorities, said Karim Khan, the chief prosecutor of The Hague-based ICC.

“This represents the largest-ever single field deployment by my office since its establishment,” Khan said in a statement.

The team will “advance our investigations into crimes falling into the jurisdiction of the International Criminal Court and provide support to Ukrainian national authorities,” he added.

Khan thanked the Netherlands, where the court is based, for sending a “significant number of Dutch national experts” to help the mission.

The ICC prosecutor announced an investigation into alleged war crimes and crimes against humanity just four days after the February 24 Russian invasion.

Khan then said that “Ukraine is a crime scene” as he later visited the town of Bucha near Kyiv, where AFP reporters saw at least 20 bodies lying in the streets after Russian forces withdrew in late March.

The ICC investigators would chase up leads and collect witness testimony “relevant to military attacks,” said Khan in his statement.

They would also work with Ukrainian authorities to “strengthen chain of custody with respect to hard evidence,” he said.

With AFP

Read more: UN rights expert: International support for war crimes investigations in Ukraine needed