Christy Shucksmith-Wesley, associate professor and senior tutor at the University of Nottingham School of Law, considers the possibility of proceedings on violations of international humanitarian law in Ukraine…
After the Second World War, the International Committee of the Red Cross created new treaties to constrain the methods and means of warfare—a stark acknowledgment that armed conflict would continue to exist and that the world needed updated legal limits on the waging of war. The Geneva Conventions (1949), Additional Protocols (1977) and customary international law offer protection to civilians should they find themselves in the theater of war.
The international armed conflict between Russia and Ukraine is governed by international humanitarian law, which applies to all parties. Civilians are not combatants in the conflict and should not be targeted, nor should their homes, hospitals, schools or essential utilities be purposely targeted or attacked. People are living without water, electricity, food, warmth and, in many cases, without a connection to the outside world. Civilian status should preclude attacks against them and unnecessary harm and suffering, and infrastructure vital to survival should not be deliberately attacked. Nevertheless, when we look at the situation on the ground in Ukraine, it is clear these basic protections afforded to all civilians under international humanitarian law are not being respected.
The situation on the ground evolves quickly; the one constant is the plight of civilians and violations of international humanitarian law committed daily. Evidence continues to emerge of mass killings, summary killings, torture, sexual violence and inhuman treatment of captured combatants and civilians. Most recently, in an anticipated but nevertheless shocking development, on April 12, 2022, reports emerged of the alleged use of chemical weapons in Mariupol. Chemical weapons are banned because of the indiscriminate and appalling suffering they cause. Violations of international humanitarian law may also include the use of cluster bombs in civilian areas of Kharkiv.
What we must never forget is that international humanitarian law is underpinned by fundamental principles, including the principle of humanity. Where is the humanity? Where are the limits to indiscriminate attacks on civilians? In fact, the attacks are worse than indiscriminate. Civilians are not suffering the collateral damage of a campaign of war waged by Russia; they are being purposefully and intentionally killed, maimed, violated and terrorized.
Anyone who orders or deliberately commits such acts, or aids and abets them, is responsible for war crimes. Command responsibility means that commanders who knew or had reason to know about such abuses and crimes but did not attempt to stop them or punish those responsible are criminally liable. When violations are committed, offences may be war crimes, crimes against humanity or genocide.
War Crimes in Bucha
Bucha was seized early in the invasion of Ukraine, which was ordered by President Putin on February 24, 2022. Russian atrocities in Bucha are abhorrent violations of international humanitarian law. As international lawyers, we can catalogue the violations and make the case that they are, in fact, war crimes. On March 30 or 31, Russian forces withdrew, and Ukrainian troops retook control of Bucha. Since then, satellite images and on-the-ground investigations have revealed evidence of atrocities. As Russia was forced to withdraw from Kyiv, it is reported that the cruelty and brutality endured by the civilians in Bucha intensified. The images of civilians lying in the streets, many with their hands tied behind their backs and bullet holes in the back of their heads, and the discovery of mass graves have galvanised public outcry against the invasion. Such deliberate killing of civilians in Bucha and other violations of international humanitarian law are evidence of war crimes in Ukraine.
The images, footage and news reports coming out of Bucha have pierced the public conscience. Taken together with atrocities in Mariupol, Kharkiv, Chernihiv and Irpin, they are increasingly likely to be considered evidence of genocide. Evidence continues to be gathered of mass killings. The systematic approach suggests premeditation: the civilians are bound, tortured and killed in groups. Meanwhile, Russia claims that the footage from April 1, 2022, and satellite imagery from March 19, 2022, are fake. Russia claims that it is Ukraine that is committing genocide against Russian populations in Donestsk and Luhansk.
Evidence of war crimes continues to amass, but are we also able to define the actions of Russia in Ukraine as a genocide? Genocide is defined in international law as the “deliberate killing of people from a particular national, ethnic, racial or religious group, with the intention of destroying the group—whether entirely or in part.” Genocide is a specific war crime that requires proof of the intent to destroy the group.
Russia claims Ukraine has committed acts of genocide in the Luhansk and Donestsk regions. It further claims that its own “special military operation” in Ukraine is in accordance with Article 51 UN Charter, as it is an exercise in self-defence.
Calls to Prosecute Putin for War Crimes and Genocide
Ukrainian President Volodymyr Zelensky has defined Russia’s actions as war crimes. In March, US President Joe Biden labelled President Putin a “war criminal” and UK Prime Minister Boris Johnson said that bombing of innocent civilians “already fully qualifies as a war crime.” Annalena Baerback, Germany’s foreign minister, denounced “uninhibited violence.” She said Russia must pay for its “war crimes” in Bucha.
How to Enforce International Humanitarian Law
On March 2, 2022, the prosecutor of the International Criminal Court (ICC) announced it would be investigating the situation in Ukraine. ICC’s chief prosecutor, British lawyer Karim Khan QC, confirmed evidence is being gathered of war crimes, crimes against humanity and genocide. As of April 12, 2022, 42 States Parties have referred the situation to the ICC. The investigation will go back as far as 2013, the year before Russia annexed Crimea. The key problem is that Russia is not a signatory to the court.
On March 16, 2022, the ICJ determined provisional measures were to include the suspension of military operations that it commenced on February 24, 2022, in the territory of Ukraine. Moreover, the Russian Federation must ensure that any military or irregular armed units that may be directed or supported by it, as well as any organizations and persons that may be subject to its control or direction, take no steps to further these military operations. The Provisional Measures were agreed 13:2.
Through the adoption of Resolution 49/1, the Independent International Commission of Inquiry on Ukraine, established on March 4, 2022, by the UN Human Rights Council, has a mandate to investigate violations of human rights and international humanitarian law. Three experts were appointed on March 30, 2022, and will submit their report in March 2023.
On April 7, 2022, the members of United Nations General Assembly voted to suspend Russia from the Human Rights Council: 93 members voted in favor, 24 against and 58 abstained.
Russian plans in Ukraine purportedly include the consolidation and reorganization of troops in the east and south. There is no sign of any intention to cease military operations. At the same time, voices of outcry against violations of international humanitarian law are getting louder. Time, resources, determination and bravery will contribute to the investigations necessary to hold President Putin and his forces to account. However, it is all very well to establish commissions or refer situations to the ICC, but the inherent problem will be attribution. As Russia is not a member of the International Criminal Court, did not participate in oral proceedings at the ICJ and has been suspended from the Human Rights Council, is there a forum in existence that can oversee proceedings on war crimes and genocide for those who have ordered and committed atrocities against the civilian population of Ukraine?
Christy Shucksmith-Wesley is an associate professor and senior tutor at the University of Nottingham School of Law.
Suggested citation: Christy Shucksmith-Wesley, War Crimes and Genocide in Ukraine, JURIST – Academic Commentary, April 20, 2022, https://www.jurist.org/commentary/2022/04/Christy-Shucksmith-Wesley-Russia-Ukraine-war-crimes.
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