As the horror and brutality of the war in Ukraine becomes ever more apparent, evidence of potential war crimes is being collected. Who will be held responsible and whether it will make a difference is yet to be established.
A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by the combatants, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the conscription of children in the military, committing genocide or ethnic cleansing, the granting of no quarter despite surrender, and flouting the legal distinctions of proportionality and military necessity.
What acts are war crimes?
War crimes are defined by the Geneva Conventions, the precedents of the Nuremberg Tribunals, an older area of law referred to as the Laws and Customs of War, and, in the case of the former Yugoslavia, the statutes of the International Criminal Tribunal in The Hague (ICTY).
War crimes fall into three groups – or four if you include genocide.
Crimes against peace
- planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances
- participation in a common plan or conspiracy for the accomplishment of any of the above
Violations of the laws or customs of war, including:
- Atrocities or offences against persons or property, constituting violations of the laws or customs of war
- murder, ill treatment or deportation to slave labour` or for any other purpose of the civilian population in occupied territory
- murder or ill treatment of prisoners of war or persons on the seas
- killing of hostages
- torture or inhuman treatment, including biological experiments
- plunder of public or private property
- wanton destruction of cities, towns or villages
- devastation not justified by military necessity
Crimes against humanity
Atrocities and offences committed against any civilian population, before or during the war, including:
- mass systematic rape and sexual enslavement in a time of war
- other inhumane acts
- persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated
Responsibility for such crimes
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the crimes above are criminally responsible for everything done by anyone in carrying out such a plan.
The fact that a person was obeying an order of his Government or of a superior does not free him from responsibility, but can be considered and may reduce the appropriate punishment.
The United Nations Office on Genocide Prevention and the Responsibility to Protect (UNOGPRP) gives a very detailed description on what is included the term ‘War Crimes’. It concludes:
“In contrast to genocide and crimes against humanity, war crimes can be committed against a diversity of victims, either combatants or non-combatants, depending on the type of crime. In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons. … protection is also afforded to medical and religious personnel, humanitarian workers and civil defence staff.”
On ‘Crimes against Humanity’, UNOGPRP concludes:
“… crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed …”
The European Union Agency for Asylum defines ‘Crimes against Peace’, ‘War Crimes’ and ‘Crimes against Humanity’ based on the UN terms.
The savagery of war inflicted upon the people of Ukraine joins a long and desperate list of depravity and terror. Those responsible must be held to account.