Widespread violations of international humanitarian law appear to be part of the Russian way of war. The international response to such crimes could have severe geopolitical consequences for Russia.
ECFR
April 12, 2022
There is overwhelming evidence that Russian forces have committed multiple war crimes in Ukraine. As the Ukrainian military recaptures territory near Kyiv, horrifying scenes of executed civilians and mass graves have come to light. Ukrainian prosecutors say they are investigating more than 4,000 individual war crimes. Ukraine’s chief prosecutor, Iryna Venediktova, states that Russian troops have committed crimes against humanity. These revelations about atrocities in former Russian-held areas, on top of multiple Russian attacks on civilian buildings throughout the war, have been condemned by many world leaders and have led to an intensification of sanctions on Russia. The international reaction to the evidence of such atrocities – typified by Russia’s suspension from the UN Human Rights Council on 7 April – shows that such crimes have the power to shape the geopolitics of conflict.
Codes of conduct for waging war date back to the earliest civilisations, but modern laws of war – commonly known as international humanitarian law (IHL) – originated in the nineteenth century. Since then, a series of agreements that includes the Geneva Conventions of 1949 and Additional Protocols agreed in 1977 has codified a growing body of rules designed to place limits on military forces’ actions in wartime. Many of these rules are now widely agreed by states to apply as customary law – which means that they are binding on all countries, including those that have not signed the treaties concerned. Serious violations of the laws of war are war crimes. And individuals who commit them can be prosecuted before national courts or international tribunals.
IHL is based on a few essential principles. It recognises that armed forces need to use violence to defeat the enemy but balances that military necessity with a principle of humanity. This principle prohibits actions that intentionally harm wounded or captured fighters, as well as the use of arms that cause unnecessary suffering (such as chemical weapons). The principle of distinction, which is central to IHL, requires military forces to limit their attacks to objectives that have military value. Attacks on civilians or civilian objects are expressly forbidden. Finally, the principle of proportionality prohibits attacks on military targets that can be reasonably expected to cause excessive harm to civilians relative to the anticipated military value of the action.
These principles are elaborated in a series of provisions, many of which Russia appears to have flagrantly violated. Russian forces have consistently attacked civilian infrastructure in Ukrainian cities, including hospitals, kindergartens, and a theatre in Mariupol that was clearly marked as a shelter for children. Railway stations can be military targets. But the Russian missile strike on
the station in Kramatorsk caused grossly disproportionate civilian casualties – and if the objective of the attack was to kill civilians, that is clearly a crime.
A specific rule in IHL forbids attacks designed to “spread terror among the civilian population” – but Russia seems to have adopted this as a deliberate goal of its military campaign, as it did earlier in Syria and Chechnya. In areas Ukraine freed from Russian control, including the town of Bucha, there have been widespread and convincing accounts of deliberate killings of civilians, summary executions, torture, and rape – all of which are war crimes.
Pillage – the acquisition of property belonging to an enemy state or its citizens during wartime – is also a war crime. There have been multiple accounts of Russian forces taking property in Ukraine to ship back home, and leaked CCTV footage from a post office near the Belarus-Ukraine border appears to show Russian soldiers preparing stolen goods for shipment.
Under IHL, armed forces are forbidden from forcibly transferring citizens of an opposing state out of occupied territory to the territory of the occupying power. Russia has reportedly done this to large numbers of Ukrainian citizens – more than 400,000, according to one Ukrainian official.
Finally, IHL forbids the use of starvation tactics against civilians as a method of war. The exact scope of the associated war crime remains unclear, but it may apply to Russian sieges that have prevented humanitarian convoys from entering Ukrainian cities.
While any violation of these aspects of IHL is a war crime, there are two linked international crimes that relate to the scale of the atrocities. The first is genocide, which involves acts of violence intended to destroy a significant part of a particular national, ethnic, racial, or religious group. Russia would be found to have committed genocide in Ukraine if it had tried to eliminate Ukrainian national identity in at least part of the country by, for example, killing people because they speak Ukrainian as their first language. A notorious recent article by a Russian propagandist advocates genocide, calling for the elimination of the Ukrainian elite and the reformation of the country under a different identity. The fact that the article was published by state-owned press agency RIA Novosti could suggest that the Kremlin seeks to achieve these goals. But it is probably too early to identify this as a clear objective of the invasion.
However, Russia’s actions in Ukraine clearly appear to constitute crimes against humanity. Falling under the second category of large-scale crimes under international law, these involve a series of acts of violence committed as part of a widespread or systematic attack on a civilian population. The legal scholars who elaborated the concepts of genocide and crimes against humanity, Raphael Lemkin and Hersch Lauterpacht, were both educated at Lviv University in Ukraine (as related by British lawyer Philippe Sands in his book East West Street).
Individuals can be prosecuted for all these crimes if they perpetrated them, planned or ordered them, or if they knew (or should have known) that forces under their command were committing them and did not do what they could to stop them. The International Criminal Court (ICC) could prosecute suspects for these crimes, as Ukraine has accepted the court’s jurisdiction. The country could also prosecute them within its domestic judicial system. And third countries could
prosecute individuals for attacks against their nationals or for international crimes under the principle of universal jurisdiction.
A series of investigations into Russia’s actions in Ukraine are under way. There is a broad range of evidence for investigators to compile, including eyewitness testimony, photograph and satellite evidence, intercepted communications from the Russian military, and – in time, perhaps – statements by Russian soldiers. Captured fighters could soon be prosecuted. Trials of others, including senior commanders, are only likely to occur if there is regime change in Moscow. However, the suspects will be unable to travel to countries that might prosecute them or turn them over to the ICC, as states that are party to the court’s statute are obliged to do.
Even in advance of any possible trials, the scale of Russia’s apparent war crimes has led Europe and the United States to step up their support for Ukraine. Alongside providing resources to support investigations by the ICC and Ukrainian authorities, they have added new sanctions including US measures against leading Russian banks and a European ban on coal imports. But Russian war crimes are also likely to have an impact on the way the conflict ends and the West’s relations with Russia in its aftermath. One of the traditional justifications for IHL is that limiting the violence of war makes it easier to restore ties between contending parties after the conflict ends. Yet the recent atrocities are likely to make Ukrainians less willing to compromise with Russia in a peace agreement. War crimes could also encourage continued Ukrainian resistance in the areas that Russia controls.
Moreover, war crimes investigations and possible arrest warrants will remain in place after the war is over. It is likely they will extend to senior officials within the Russian military and perhaps the political leadership. According to US national security adviser Jake Sullivan, “the issue of broad-scale war crimes and atrocities in Ukraine lies at the feet of the Kremlin and lies at the feet of the Russian president.” That is, the elimination of ‘anti-Russian’ Ukrainians and the large-scale attacks against civilian targets seem to be part of Russian military policy, not just the decisions of mid-level commanders. Even if Putin is not charged with war crimes, he may face a charge of aggression – if the campaign to set up a special tribunal with jurisdiction over that crime is successful. In any case, Western countries will see Putin as morally responsible for the atrocities that his forces committed.
This means that Western leaders are likely to treat Putin and some of his officials as pariahs, even after a peace agreement is signed. European and US leaders will tend to regard Putin in a similar way to President Bashar al-Assad of Syria or former President Omar al-Bashir of Sudan. But he leads a country that is a permanent member of the UN Security Council and the world’s eleventh largest economy. In this, as in other ways, Putin’s war on Ukraine will have a transformative effect on the European and international orders.