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War crimes and the rules of war

Published: 14th Mar, 2022

Context

Russian President Vladimir Putin has ordered a "military operation" in some parts of eastern Ukraine on 24th February, 2022.

  • While announcing about the operation he warned of bitter consequences if they interfered.
  • Russia thus started the invasion and the crisis escalated with each day passing. 

Background

Background (Genesis of War Crimes)

  • As per United Nations, the concept of war crimes developed particularly at the end of the 19th century and the beginning of the 20th century.
  • During that time, the international humanitarian law, which is also known as the law of armed conflict, was codified. 
  • The Hague Conventions was adopted in 1899 and 1907.
  • The Hague Conventions prohibited the warring parties of using certain means and methods of warfare. 

Geneva Conventions:

  • Apart from Hague Conventions, several other related treaties have also been adopted.
  • The Geneva Convention of 1864 and subsequent Geneva Conventions (four 1949 Geneva Conventions and the two 1977 Additional Protocols) focus on the protection of persons not or no longer taking part in hostilities. 
  • Hague Law and Geneva Law identify several of the violations of its norms, however, all violations are not war crimes. 

Analysis

What are war crimes?

  • As per the Rome Statute of the International Criminal Court, when it comes to war crimes, the court has jurisdiction when the crime is committed as part of a plan or policy or as part of a large-scale commission of such crimes. 
  • For the purpose of this statute, 'war crimes' means grave breaches of the Geneva Conventions of 12 August 1949.
  • Violation as per the above statute includes:
    • wilful killing
    • torture or inhuman treatment (including biological experiments)
    • wilfully causing great suffering (or serious injury to body or health)
    • extensive destruction and appropriation of property
    • compelling a prisoner of war or other protected person to serve in the forces
    • wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
    • unlawful deportation or transfer or unlawful confinement, taking of hostages

What about ‘grey areas’ in the definition?

  • As per the UN Office on Genocide Prevention and the Responsibility to Protect, war crimes are separated from genocide and crimes against humanity. 
    • Genocide and crimes against humanity can happen in peacetime. It can happen during the unilateral aggression of a military toward a group of unarmed people. 
  • On the other hand, war crimes are defined as occurring in a domestic conflict or a war between two states. 
  • There is no white and black when it comes to identifying and defining war crimes, a lot of grey is also there because what constitutes a war crime may differ, depending on whether an armed conflict is international or non-international. 
  • UN states that war crimes contain two main elements –
  • A contextual element:"the conduct took place in the context of and was associated with an international/non-international armed conflict".
  • A mental element:intent and knowledge both with regards to the individual act and the contextual element.

What are the rules of war?

  • There are some principal points of international humanitarian law that makes up the rules of war, which aims to protect people no longer or not taking part in hostilities. 
  • The civilians cannot be attacked as the impact of warfare on them should be limited.
  • The detainees must not be tortured or face inhumane treatment. 
  • Hospitals and aid workers should not be attacked. 
  • Civilians should be given safe passage to flee. 
  • Humanitarian organisations should be provided access. 
  • There should not be unnecessary or excessive loss and suffering. 

Did Russia commit war crimes?

  • When the death toll in Ukraine started to increased, voices were raised to probe Russia's actions on whether it has committed war crimes during its invasion of Ukraine. 
  • Ukrainian President Volodymyr Zelensky had described Russia's missile strikes in civilian areas as war crimes.  
  • Russia has been accused of using cluster munitions in the bombardment of residential areas in the Ukrainian city of Kharkiv.
  • Human rights groups say the weapons are indiscriminate and the Russians’ use of cluster munitions in a populated area could be considered a war crime.

Wrapping Up

War crimes investigations and trials often take years to come together, and sometimes fail to secure a conviction. In the case of Ukraine, events have moved at an unprecedented pace. After dozens of governments formally requested action, the ICC launched a war crimes investigation just weeks into the conflict. Still, legal experts said proving in court that a military unit has intentionally targeted civilians, or recklessly bombarded them, is a difficult task

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