The ICC’s decision to open an investigation into possible war crimes commited in Ukraine
The International Criminal Court (ICC) Prosecutor, Karim A.A. Khan Q, recently announced his decision to open an investigation into possible war crimes and crimes against humanity committed during the ongoing Ukraine war waged by Russia.
Although Ukraine is not a signatory of the Rome Statute creating the ICC, it has ‘accepted the ICC’s jurisdiction over alleged crimes committed on Ukrainian soil from 20 February 2014 onwards.” Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.” (icc-cpi.int
Crucial to such an investigation by the ICC would be the collection and preservation of all relevant evidence evincing possible violations of international humanitarian law enshrined in the Geneva and Hague conventions, and other international treaties. For instance, increasing videographic and photographic evidence of the Russian military’s use of cluster munitions to devastate civilian residential buildings in Kharkiv has come to light. ICC prosecutor to investigate possible war crimes in Ukraine | Ukraine | The Guardian
Children buried under rubble of a bombed hospital
Evidence of the bombing of a children’s hospital in Mariupol has drawn strong condemnation by the international community and the Ukranian President Volodymyr Zelenskiy decrying the attack as evidence of ‘genocide’, Zelenskiy stated on Telegram:
“Hospitals and schools are destroyed. Churches and ordinary buildings are destroyed. People are killed. Children are killed. The aerial bombing of a children’s hospital is the ultimate evidence that genocide of Ukrainians is happening.” Ukraine president decries Mariupol hospital bombing ‘genocide’ as US $13bn aid bill passes first hurdle | Ukraine | The Guardian
Such attack on civilians in hospitals conducted by the occupying Russian forces in Ukraine violate ‘the most fundamental principle’ of International Humanitarian Law (IHL), the principle of distinction requiring belligerents ‘to distinguish between military objectives and the civilian population and objects’ and to ‘direct their operations only against military objectives ( AP 1, Art 48) (Cryer, Robinson and Vasiliev, 2020, p.283)
The Additional Protocol to the Geneva Convention 1949 AP I, Art 51(5)(b) (1977) states that:
the following types of attacks are to be considered as indiscriminate:
”an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
AP I, Art 51(5)(b) 1977 enshrines a principle that complements the principle of distinction: the principle of proportionality. So even if Russian air strikes and mortar attacks are directed against a military objective in Ukraine, ‘the anticipated incidental civilian damage must not be disproportionate to the anticipated military advantage.” (Cryer, Robinson and Vasiliev, 2020, p.285).
Yet, It does not take much of a stretch of imagination to realize that children, babies and women in maternity wards of the bombed Mariupol hospital are part of a civilian population which AP I, Art 51(5)(b) 1977 envisions; ( note: Treaties, States parties, and Commentaries – Additional Protocol (I) to the Geneva Conventions, 1977 – 51 – Protection of the civilian population (icrc.org)
The prohibitions of AP I, Art 51(5)(b) 1977 is the subject of International Criminal law and further criminalized in Art. 85(3)(b) of AP I and additionally in Art. 8(2)(b)(iv) of the ICC Statute, which criminalizes:
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Applying Art.8(2)(b)(iv) of the ICC statute to the Russian airstrike of the Mariupol hospital, the question is whether the anticipated civilian damage or injury was excessive to the anticipated military advantage gained by the Russian forces in carrying out the attack.
Maria Zakharova, a Russia’s foreign ministry spokesperson attempted to justify the Russian airstrikes claiming, without providing a shred of evidence, that Ukraine had put firing positions inside the children’s hospital in Mariupol;
While UNICEF Executive Director Catherine Russell, “horrified” by the reported attack on the hospital, stated:
“In less than two weeks, at least 37 children have been killed and 50 injured, while more than 1 million children have fled Ukraine to neighboring countries.” https://abcnews.go.com/International/mariupol-childrens-hospital-destroyed-targeted-attack-ukrainian-officials/story?id=83350914
Ordinarily, compliance with the proportionality test is not easy to assess; for instance, assessing the anticipated civilian damage is a difficult endeavor, ‘requiring a prediction of consequences based on available information under circumstances”. (Cryer, Robinson and Vasiliev, 2020, p.286).
Art. 8(2)(b)(iv) of the ICC Statute further includes the term ‘clearly excessive’ in relation to ‘Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects’ –
in view of the fact that the judges of the ICC would be considering decisions of military commanders ‘ex post facto with the benefit of hindsight, failing to take into account the fog of war: incomplete information, urgency, confusion and limited time for critical decisions.” (Cryer, Robinson and Vasiliev, 2020, p.287).
Additionally, general principles of Criminal law in the ICC Statute Art. 30 (Mental Element) require proof of the requisite mental element necessary for a violation of Art. 8(2)(b)(iv) of the ICC Statute:
”…...a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.”
3. ”For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”
International Criminal Law scholars Cryer, Robinson and Vasiliev clarify the mental element required for convicting individuals of war crimes:
“It is clear that a perpetrator must have awareness of the extent of the anticipated harm and military advantage.”, the question to be asked is whether it is ‘sufficient that what the perpetrator knew of the advantages and risks is in fact disproportionate enough to satisfy the ‘clearly excessive’ standard?’‘ (Cryer, Robinson and Vasiliev, 2020, p.288).
There is little doubt that the video-graphic evidence and first-hand testimony of survivors and witnesses of the Russian air- strike of Mariupol hospital indicate the attack was ‘clearly excessive’, and deliberately carried out on civilians.
Operatives of the International Committee of the Red Cross (ICRC), whose mandate is derived from the Geneva Conventions of 1949, had this to say about the indiscriminate targeting of civilians by the Russian military:
“The sound of warfare is constant. Buildings are struck and shrapnel flies everywhere. This is the situation every person in the city faces,” said ICRC’s operational leader in Mariupol, Sasha Volkov.
Another seemingly deliberate attack on civilians took place when the Russian military struck a theatre in which hundreds of people were sheltering, and are now trapped under the rubble;
a theatre where the word ‘children’ was written in huge letters on the pavement on both sides of the builidng’, clearly visible from the air. Survivors Emerge From a Bombed Theater, but Ukraine’s Suffering Grows – The New York Times (nytimes.com)
A satellite image shows the Drama Theater in Mariupol, Ukraine, on Monday, before it was bombed. The word “children” had been written in large white letters in Russian in front of the building and behind it.
Credit…Maxar Technologies Survivors Emerge From a Bombed Theater, but Ukraine’s Suffering Grows – The New York Times (nytimes.com)
Holding Perpetrators accountable for War Crimes committed against the Ukranian People
The need for accountability of perpetrators of atrocities arises amidst the US senate passing a unanimous resolution branding Vladmir Putin a war criminal, Wednesday briefing: US senators unite to brand Putin with war crimes | | The Guardian—
while calling for countries to petition the International Criminal Court to investigate possible war crimes committed by the Russian military and its president US Senate passes resolution condemning Russia over Ukraine invasion | Business Standard News (business-standard.com),
Who exactly within the Russian military and government might be prosecuted for war crimes and Crimes against Humanity by the International Criminal Court?
The International Criminal Court ( ICC) statute recognizes different modes of criminal liability for such crimes. Art. 25(3)(a) of the ICC Statute criminalizes a person ‘who commits such a crime whether as an individual, jointly with another or through another person, regardless of whether that person is criminally responsible.’ Cryer, Robinson and Vasiliev explain the three forms of perpetration that the ICC identified in the context of Art. 25(3)(a). Cases in which the accused;
(a) ”physically carries out all elements of the offence ( Commission of the crime as an individual)
(b has together with others, control over the offence by reason of the essential tasks assigned to him ( commission of the crime jointly with others) or
(c) has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person.” ( Katanga and Ngudjolo , ICC PTC , 2008) (Cryer, Robinson and Vasiliev, 2020, p.343).
These possible modes criminal liability suggest that International Criminal law recognizes not just the liability of immediate perpetrators of atrocities committed by the Russian military , but also the possible liability of their commanders and those higher up in the military and poltical hierarchy, who may have given the orders for the use of cluster bombs, mortal attacks and missile strikes killing civilians and devastasting civilian infrastructure.
War Crimes and Crimes against Humanity defined
A war crime is defined as ‘a serious violation of the laws and customs applicable in armed conflict ( also known as as International Humanitarian Law, or IHL) which gives rise to individual criminal responsibility under International law.’ (Cryer, Robinson and Vasiliev, 2020, p.259).
The laws and customs enshrined in IHL over the centuries provides for the humane treatment of civilians and wounded soldiers taken captive by military forces of a State; they recognize the need to retain one’s humanity and respect the humanity of others amidst the horrors of war by laying down ‘the ground rules for military conflict’, rules that cultures across the globe lend their agreement to. (Cryer, Robinson and Vasiliev, 2020, p.259)
When we consider the senseless destruction of cities like Mariupol in Ukraine by the Russian military we might think of the Hague Conventions such as the1907 Hague regulations which serve to ‘limit the methods and means of warfare in order to to reduce the unnecessary destruction and suffering’ by stating that ‘the rights of belligerents to adopt means of injuring the enemy is not unlimited.’ (Cryer, Robinson and Vasiliev, 2020, p.259).
A war, therefore waged under the pretext of protecting people…who ‘have been facing humiliation and genocide perpetrated by the Kiev regime’ Full Transcript: Why Is Russia Invading Ukraine? Putin Speech Feb. 24 Tells Why – Bloomberg is not exempt from the prohibitions imposed by the International law of warfare; neither is it exempt from the imperatives of the four Geneva Conventions of 1949 that provide protection for civilians and non- active combatants. (Cryer, Robinson and Vasiliev, 2020, p.260)
Both Ukraine and the occupying force, Russia are parties to the 1949 Geneva Conventions and Protocol 1 Russia, Ukraine & International Law: On Occupation, Armed Conflict and Human Rights | Human Rights Watch (hrw.org)
Even if Russia were to claim that it has withdrawn from such International Treaties, both the 1907 Hague regulations and the 1949 Geneva Conventions are recognized by the International Community as Customary law; these provisions are binding on States irrespective of whether they have ratified the Conventions. ( Cryer, Robinson and Vasiliev, 2020, p.260)
Cryer, Robinson and Vasiliev, An Introduction to International Criminal Law and Procedure, 2020, 4th ed. Cambridge.)