Newswise – The small child and two adult civilians were among those sheltering in a nursery and kindergarten in northeastern Ukraine when the explosives struck.
All three men would perish in the February 25 attack, which was reportedly carried out by Russian forces using internationally banned cluster munitions.
Agnes Callamard, secretary general of Amnesty International, described the incident as a “stomach return”, adding that it should be investigated as a war crime.
As Russian forces continue their assault on Ukraine, pounding its cities with artillery and moving to a new strategy of targeting civilian areas, the International Criminal Court (ICC) has opened an investigation into possible crimes of war in this Eastern European country.
But what constitutes a war crime and how difficult will it be for ICC investigators to find corroborating evidence?
Pablo Rueda-Saiz, associate professor of law at the University of Miami School of Law, whose interests include international and comparative constitutional law, law and society, social movements, armed conflict and globalization, gives an overview of alleged war crimes in Russia. – Ukrainian conflict.
What crimes are prosecuted by the ICC?
The International Criminal Court prosecutes four offences: war crimes, crimes against humanity, genocide and the crime of aggression. However, what is specific about these crimes is that they were behaviors prohibited by international law even before the end of the Second World War. They constituted violations of international law, but they were not crimes in the sense that States would be held responsible for such conduct, and no individual was liable to be punished. But after the Second World War, all these behaviors which already constituted violations of international law were criminalized. People started being punished and going to jail for these crimes. This is what we saw after World War II in the Nuremberg and Tokyo war crimes trials, when Hitler’s associates and the rulers of the Empire of Japan were accused of committing either war crimes, which was the largest category, crimes of aggression.
What is considered a war crime?
Intentionally targeting civilians, attacks resulting in unnecessary civilian casualties, attacks on places such as historical monuments, health care facilities, schools and other civilian sites.
Are war crimes being committed in Ukraine?
What is happening in Ukraine now can be classified as two types of international crimes. One is Russia’s aggression against Ukraine. The invasion itself constitutes the crime of aggression. And then besides that, other behaviors constitute war crimes. For example, Russia attacking the Ukrainian Holocaust memorial or attacking civilians would constitute war crimes under international law.
Will it be difficult to prove that Russia committed war crimes in Ukraine?
It shouldn’t be that difficult. On the one hand, there is the fact that the Russian army attacked a sovereign state. This constitutes the crime of aggression and is absolutely indisputable. But also, there could be additional crimes. And even though there is an armed conflict in Ukraine right now, making access to certain areas difficult, documenting and proving war crimes is easier now than 30 years ago, with cell phone cameras and satellites. With such technology, someone could document the crimes and take the evidence out of the country, provided they had access to the Internet. The whole world is watching what is happening in Ukraine. Videos have been posted on social media, and journalists and human rights groups are documenting eyewitness accounts of attacks on civilians.
Does the fact that neither Ukraine nor Russia are members of the ICC complicate matters when it comes to prosecuting those responsible for war crimes?
It does. As Ukraine is not a member of the ICC, it cannot bring war crimes allegations. However, other ICC member countries can refer alleged crimes to the Court. But since Russia is also not a member of the court, it is not legally bound to hand its people over to possible prosecution. This applies to individual criminal responsibility, but there is also responsibility under general international law, and that is state responsibility. So, in this sense, Ukraine could actually sue Russia and get compensation for damages, including damages for killing people and committing war crimes.