The Russian invasion of Ukraine has raised the concern of the entire international community. During the last days we have seen an increasing of Russian military action against civil infrastructures as well as population. There are several witnesses of shelling and street fighting in the southern city of Kherson, and in the southern seaport town of Mariupol, which is without electricity after an intense bombardment. The ongoing attacks of Russian forces in Zhytomyr caused the death of four people, including a child, when their homes were struck by a Russian air strike, apparently aimed at a nearby military base.
On Tuesday, Russian forces targeted the city of Kharkiv with the launch of missiles hitting the local government building, causing a massive explosion blowing out windows of surrounding buildings. The witnesses of the residences of Kharkiv report that the streets are the scenario of repeated fights between Russian and Ukrainian troops, while Russia’s artillery and aircraft heavily bombarded the city hitting also the population. The news concerning the air strike in Kharkiv reports at least 10 people killed and 35 hurt when an opera house, a concert hall and government offices, situated in the Freedom Square, were targeted by the launch of missiles. In addition, the main TV tower in the capital Kyiv was also hit, knocking media off air and killing five people. The Ukrainian President Zelensky condemned the attacks on Kharkiv as “State terrorism on the part of Russia”, claiming a more serious commitment of the European Union in order to support the Ukrainian forces in their efforts to slow down the Russian advancement. Mr. Zelensky has also expressed a severe judgement about the attack to the Babyn Yar ravine, where a memorial of the Holocaust victims is located, affirming that is vain “saying ‘never again’ for 80 years, if the world stays silent when a bomb drops on the same site of Babyn Yar”.
The sixth day of Russia’s invasion of Ukraine saw continued attacks on several fronts, while Moscow warned residents near Kyiv’s military areas to leave their homes. In the meantime, the Russia’s Defence Ministry said it was not targeting cities, only military infrastructure, and that there was no threat to the civilian population. However, the witnesses concerning the situation on the ground show a different reality than the one presented by the Russian authorities. More than 600,000 people across Ukraine have fled their homes to escape the fighting, according to the United Nations, and Kyiv says more than 350 civilians, including 13 children, have been killed in Ukraine since the invasion began.
The dramatic situation in Ukraine and the multiplication in the number of the civilians killed have lead thirty-eight governments to take a significant step toward ensuring documentation of potential war crimes by asking the International Criminal Court prosecutors to open an investigation in Ukraine. On 28th February, the ICC prosecutor Karim A.A. Khan announced his decision to open an investigation into the situation in Ukraine on the basis of the article 14 of the Rome Statute. The latter allows the Court to open an investigation concerning a State that has not ratified the Statute when the situation is referred to the Office of the Prosecutor by a State party to the Rome Statue. These referrals enable the Office of the Prosecutor to proceed with an investigation into the Situation in Ukraine from 21th November 2013 onwards “thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person”.
The Ukraine is not a member of the International Criminal Court, as said before, but it accepted the Court’s jurisdiction over alleged crimes committed on its territory since November 2013, as well as the obligation to cooperate with the Court. On March 2nd, the International Criminal Court presidency assigned the Ukraine situation to a panel of judges following a statement from the prosecutor indicating his intention to seek authorization to open a formal investigation. After receiving the referral, Khan notified the court’s Presidency of his plans to immediately proceed with an investigation. Because Russia is not a member of the International Criminal Court, its authorities are not bound to cooperate with the court. However, under the Court’s rules governing its jurisdiction, the International Criminal Court prosecutor has a mandate to impartially investigate allegations of crimes committed in Ukraine by all parties to the conflict, regardless of the nationality of the person allegedly responsible. The International Criminal Court’s jurisdiction in Ukraine covers genocide, crimes against humanity, and war crimes. The responsibility for these crimes is not limited to those who carry out the acts, but also those who order, assist, or are otherwise complicit in these crimes. In this situation, the liability for these crimes on the basis of the command responsibility includes that military and civilian officials, up to the top of the chain of command, can be held criminally responsible for crimes committed by their subordinates; when they knew or should have known that such crimes were being committed, but failed to take reasonable measures to stop them.
For what concerns the war crimes there is not a single treaty listing all of them, but they can be found in several humanitarian law and international criminal law treaties, as well as in international customary law. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare. In parallel, the Geneva Convention of 1864 and subsequent Geneva Conventions, notably the four 1949 Geneva Conventions and the two 1977 Additional Protocols, focus on the protection of persons not or no longer taking part in hostilities. In particular, the four 1949 Geneva Convention contained rules considered as customary law and, as such, they are legally binding for all States, whether or not States have ratified the treaties themselves. War crimes are the most serious criminal offenses in the criminal legislation, which are classified as criminal offenses against humanity and human dignity and are also considered one of the international criminal offenses whose incriminations have arisen from international conventions. Thus, they are related to violations of the rules of international law during warfare, armed conflict and occupation, and the consequences of these crimes are usually related to a larger number of injured persons. According to international standards, to classify illegal actions
as war crimes, they must contain two main elements. The first is a contextual element which depends on “the conduct that took place in the context of international/non-international armed conflict and was related to it”. The second is a mental element grounded on the intent and knowledge both with regards to the individual act and the contextual element. In this case, “war crimes are acts contrary to the Law on International Armed Conflicts and lead to criminal liability of persons who have committed prohibited acts.”
The Rome Statue provides a definition and a categorisation of war crimes in the article 8. According to the present article, war crimes are those violations of international humanitarian law, provided by treaties or customary law, that incur individual criminal responsibility under international law. What constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. The article 8 of the Rome Statute categorises war crimes in four types: as grave breaches of the 1949 Geneva Conventions – related to international armed conflict-; as serious violations of the laws and customs applicable in international armed conflict; as serious violations of Article 3 common to the four 1949 Geneva Conventions – applicable to non international armed conflict-; as serious violations of the laws and customs applicable in armed conflict not of an international character.
The international community has already condemned the action of the Russian forces and its President decision to violate the sovereignty of another State and the International Criminal Court has started an investigation on the recent facts. The results of the investigation on the recent moves of the international community may change the history of the conflict, as happened during the war in Kosovo.
Ukraine: Countries Request ICC War Crimes Inquiry, https://www.hrw.org/news/2022/03/02/ukraine-countries-request-icc-war-crimes-inquiry.
Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation,
https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine.
Ukraine conflict: Russia’s Kharkiv attacks are war crimes, says Zelensky, https://www.bbc.com/news/world-europe-60579247.
United Nations (s/d). Definitions. War Crimes. Office on Genocide Prevention and the Responsibility to Protect. https://www.un.org/en/genocideprevention/war-crimes.shtml.
Russia-Ukraine: ICC to launch probe into possible war crimes, https://www.aljazeera.com/news/2022/2/28/russia-ukraine-icc-to-launch-investigation-into-possible-war-crimes.
ICC to begin investigation into possible war crimes in Ukraine, https://www.aljazeera.com/news/2022/3/2/icc-to-begin-investigation-into-possible-war-crimes-in-ukraine.
Bershov, H., Hrytenko, O., Khashev, V., & Fialka, M. (2022). Assessing and Evaluating the General Legal Characteristics of War Crimes: A Basic Necessity or a Confused Platform. Ius Humani. Law Journal, 11(1), 43-60. https://doi.org/https://doi.org/10.31207/ih.v11i1.295.
By The European Institute for International Law and International Relations.
