Associated Press reporters in Bucha have counted dozens of corpses in civilian clothes and apparently unarmed, many apparently shot at close range and some with their hands tied or burnt flesh. All of this has led to accusations of Russian war crimes. The CBC explains how such blatant war crimes would be prosecuted and the challenges that prosecutions may face.
Would the apparent Russian attacks on Ukrainian civilians be considered war crimes?
During the war, the 1949 Geneva Conventions, together with the 1977 Additional Protocols, outlined certain protections for civilians and prisoners of war. Any serious violation of these safeguards can be considered a war crime. This includes killings, torture or inhuman or degrading treatment or punishment, intentionally carrying out attacks on civilians and killing a gunman who has laid down his arms.
Since the start of the invasion of Ukraine on February 24, there have been accusations that Russia has committed war crimes. Such allegations include last month’s bombing of a theater and maternity hospital in Mariupol in southeastern Ukraine.
Tom Dannenbaum, an assistant professor of international law at Tufts University in Massachusetts, said the two incidents may well have been war crimes. However, determining this could pose challenges, he said, as it can be difficult to prove that these sites were targeted or that those responsible for the bombings knew they were hitting a theater or hospital.
The challenge, he said, is to distinguish between deliberately targeting such objects or destroying them in indiscriminate attacks by mistakes attributed to the “fog of war”.
“But as soon as you see people with their hands tied behind their backs, clearly executed, that’s simple,” Dannenbaum said. “It’s very difficult to understand this as anything other than the deliberate killing of someone who is protected by law.”
Even if they were fighters, once they were captured, they would have been protected under the Geneva Conventions from being killed as prisoners of war, Dunenbaum said.
A satellite image of the area behind the church of St. Andrew and Pyervozvannoho of All Saints in Bucha, Ukraine, reveals the possible existence of a mass grave. (Maxar Technologies)
Gregory Gordon, a law professor at China University in Hong Kong, said it was clear that recent images of Ukraine with people tied up and being shot indicated that war crimes had been committed, “the question is who”.
“If we are talking about bringing people to justice, then it becomes a much more complicated issue,” said Gordon, who has worked with the International Criminal Court’s Office in Rwanda.
Who investigates war crimes allegations?
The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations of war crimes, and last month ICC Prosecutor Karim Kahn said he was launching an investigation “into the situation in Ukraine”. However, countries can open their own war crimes investigations, regardless of where the war crimes took place or the perpetrator’s nationality. They must, however, adopt domestic legislation that allows universal jurisdiction over war crimes. (Canada did so, under its Crimes Against Humanity and War Crimes Act, passed in 2000.) So far, some countries, such as France, Germany, Norway, Poland and Ukraine, have launched investigations into alleged war crimes committed in Ukraine. The RCMP has said it will launch its own investigations into Canada.
How is a case made to prove that a war crime was committed?
Human rights teams and on-site investigators will gather information that may include documentation, photographs, videos, and witness statements. In the case of Ukraine, “ideally, you want to supplement it with interceptions, for example, that show what the Russian troops were saying to each other, what the commanders were saying to their troops, what the troops were saying to their commanders and how this was going up the chain.” Said Dannenbaum. CLOCKS Evidence of war crimes, crimes against humanity in Ukraine, but not genocide, says veteran researcher:
Evidence of war crimes, crimes against humanity in Ukraine but not genocide: Veteran researcher
“It is clearly a war crime and indeed its breadth and depth suggest that there are also crimes against humanity,” said veteran war crimes investigator Bill Wiley. “There is no evidence of genocide at this point.” 7:16
The challenge then is to determine who will be charged, said Gary Solis, author of the International Committee of the Red Cross’ comments on the Geneva Conventions.
A commander, for example, is responsible for the actions of his subordinates, even if the commander was not there at the time of the alleged war crime, Solis said.
“If he closed his eyes to what he knew or reasonably should have known what was happening, he could be convicted.”
But Solis said it was important to get to the “root” – the commander, officer or politician in power who gave the floor to commit the crime.
“It does not need to be clear. It can be as little as a wink and a nod,” Solis said. “The problem is the identification of this person.”
What are the usual goals of a war crimes investigation?
While anyone involved in an alleged war crime could be prosecuted, the International Criminal Court has zeroed in on what it calls the most responsible, which means it tends to focus on those at the top, Dunenbaum said. “A lot is based on the relationship between a person and the illegal act,” he said. “Connections can be quite complicated, because surely the more you go up, the harder it is to show exactly who knew what at what time.” CLOCKS Ukrainian President denounces Bucha’s assassination as “genocide”
Ukrainian President denounces Bucha’s assassination as “genocide”
Ukrainian President Volodymyr Zelensky visited Bucha, a city near Kyiv, on Monday, where an unknown number of people were killed during the Russian invasion, some of whom appeared to have been shot at close range. 5:49
The ICC has also prosecuted those who committed the crimes themselves. For example, Dominic Ongwen, commander of the Lord’s Resistance Army in Uganda, was sentenced last year to 25 years in prison for a series of crimes including murder, rape and forced marriage committed in northern Uganda between July 2002 and December 2005.
Gordon said when he was a prosecutor at the International Criminal Tribunal for Rwanda, set up by the UN Security Council, it was often just a question of who could be detained.
But he said the ICC could also prosecute at a lower level, “just to have a sense of justice”.
What could be the challenges of prosecuting possible war crimes in Ukraine?
For Ukraine, a member state in the International Criminal Court will have the duty to detain any Russian commander charged with war crimes who has been issued an arrest warrant. But because Russia is not a member of the ICC, those accused of war crimes can avoid prosecution by avoiding countries where they could be arrested. That’s the gap in the law, said Solis, who is also a former assistant professor at Georgetown University Law Center in Washington, DC. “You are not going to try someone in absentia,” he said. “Do you want the body before the courts, or what the law calls personal jurisdiction?” However, there is no statute of limitations for war crimes charges, which means that an arrest warrant will always be hung over a person charged with such crimes.
What about the persecution of Russian President Vladimir Putin?
Putin could certainly be held responsible for war crimes in Ukraine, say legal experts, apparently if he gave direct orders. If not, his guilt would be based on what he knew and what he could have done to stop it. CLOCKS World leaders condemn Russia for alleged killing of civilians in Bucha:
World leaders condemn Russia for alleged killing of civilians in Bucha
Amid condemnation from world leaders, US President Joe Biden did not mince words – calling for a war crimes trial against Russian President Vladimir Putin over the civilian deaths in Bucha. Despite the growing evidence, it is still unclear whether Putin could be prosecuted. 1:49
Regarding the prosecution, Dunenbaum said that a doctrine known as the immunity of the head of state would mean that the Russian leader would have immunity from persecution by countries that had accused him of war crimes, as long as he remained in power.
But there is a question as to whether it would be protected by the International Criminal Court if Russia is not a party to it.
For example, an arrest warrant was issued in March 2009 for Omar al-Bashir, then President of Sudan, for war crimes, but many states avoided arresting him because he was the head of the Sudanese state and not a state party. in the ICC.
Al-Bashir, who has been in prison in Khartoum since being ousted from power in 2019, also faces ICC charges of genocide and crimes against humanity related to the Darfur conflict.
“The ICC has repeatedly stated that it had a duty to arrest him and has finally said that the reason is that we are an international tribunal and therefore its immunity is not being attributed to us,” Dunenbaum said. “And so the immunity of Putin’s head of state would not protect him in the ICC, at least as the rule is currently understood by the International Criminal Court.”
Dunenbaum said: “If he is no longer the head of state, he will be fully exposed to criminal prosecution in foreign domestic courts or in the International Criminal Court.”
Also, if …
title: “How Putin And Russian Commanders Could Avoid War Crime Prosecutions " ShowToc: true date: “2022-11-19” author: “James Willis”
Associated Press reporters in Bucha have counted dozens of corpses in civilian clothes and apparently unarmed, many apparently shot at close range and some with their hands tied or burnt flesh. All of this has led to accusations of Russian war crimes. The CBC explains how such blatant war crimes would be prosecuted and the challenges that prosecutions may face.
Would the apparent Russian attacks on Ukrainian civilians be considered war crimes?
During the war, the 1949 Geneva Conventions, together with the 1977 Additional Protocols, outlined certain protections for civilians and prisoners of war. Any serious violation of these safeguards can be considered a war crime. This includes killings, torture or inhuman or degrading treatment or punishment, intentionally carrying out attacks on civilians and killing a gunman who has laid down his arms.
Since the start of the invasion of Ukraine on February 24, there have been accusations that Russia has committed war crimes. Such allegations include last month’s bombing of a theater and maternity hospital in Mariupol in southeastern Ukraine.
Tom Dannenbaum, an assistant professor of international law at Tufts University in Massachusetts, said the two incidents may well have been war crimes. However, determining this could pose challenges, he said, as it can be difficult to prove that these sites were targeted or that those responsible for the bombings knew they were hitting a theater or hospital.
The challenge, he said, is to distinguish between deliberately targeting such objects or destroying them in indiscriminate attacks by mistakes attributed to the “fog of war”.
“But as soon as you see people with their hands tied behind their backs, clearly executed, that’s simple,” Dannenbaum said. “It’s very difficult to understand this as anything other than the deliberate killing of someone who is protected by law.”
Even if they were fighters, once they were captured, they would have been protected under the Geneva Conventions from being killed as prisoners of war, Dunenbaum said.
A satellite image of the area behind the church of St. Andrew and Pyervozvannoho of All Saints in Bucha, Ukraine, reveals the possible existence of a mass grave. (Maxar Technologies)
Gregory Gordon, a law professor at China University in Hong Kong, said it was clear that recent images of Ukraine with people tied up and being shot indicated that war crimes had been committed, “the question is who”.
“If we are talking about bringing people to justice, then it becomes a much more complicated issue,” said Gordon, who has worked with the International Criminal Court’s Office in Rwanda.
Who investigates war crimes allegations?
The International Criminal Court (ICC), based in The Hague, has the power to investigate allegations of war crimes, and last month ICC Prosecutor Karim Kahn said he was launching an investigation “into the situation in Ukraine”. However, countries can open their own war crimes investigations, regardless of where the war crimes took place or the perpetrator’s nationality. They must, however, adopt domestic legislation that allows universal jurisdiction over war crimes. (Canada did so, under its Crimes Against Humanity and War Crimes Act, passed in 2000.) So far, some countries, such as France, Germany, Norway, Poland and Ukraine, have launched investigations into alleged war crimes committed in Ukraine. The RCMP has said it will launch its own investigations into Canada.
How is a case made to prove that a war crime was committed?
Human rights teams and on-site investigators will gather information that may include documentation, photographs, videos, and witness statements. In the case of Ukraine, “ideally, you want to supplement it with interceptions, for example, that show what the Russian troops were saying to each other, what the commanders were saying to their troops, what the troops were saying to their commanders and how this was going up the chain.” Said Dannenbaum. CLOCKS Evidence of war crimes, crimes against humanity in Ukraine, but not genocide, says veteran researcher:
Evidence of war crimes, crimes against humanity in Ukraine but not genocide: Veteran researcher
“It is clearly a war crime and indeed its breadth and depth suggest that there are also crimes against humanity,” said veteran war crimes investigator Bill Wiley. “There is no evidence of genocide at this point.” 7:16
The challenge then is to determine who will be charged, said Gary Solis, author of the International Committee of the Red Cross’ comments on the Geneva Conventions.
A commander, for example, is responsible for the actions of his subordinates, even if the commander was not there at the time of the alleged war crime, Solis said.
“If he closed his eyes to what he knew or reasonably should have known what was happening, he could be convicted.”
But Solis said it was important to get to the “root” – the commander, officer or politician in power who gave the floor to commit the crime.
“It does not need to be clear. It can be as little as a wink and a nod,” Solis said. “The problem is the identification of this person.”
What are the usual goals of a war crimes investigation?
While anyone involved in an alleged war crime could be prosecuted, the International Criminal Court has zeroed in on what it calls the most responsible, which means it tends to focus on those at the top, Dunenbaum said. “A lot is based on the relationship between a person and the illegal act,” he said. “Connections can be quite complicated, because surely the more you go up, the harder it is to show exactly who knew what at what time.” CLOCKS Ukrainian President denounces Bucha’s assassination as “genocide”
Ukrainian President denounces Bucha’s assassination as “genocide”
Ukrainian President Volodymyr Zelensky visited Bucha, a city near Kyiv, on Monday, where an unknown number of people were killed during the Russian invasion, some of whom appeared to have been shot at close range. 5:49
The ICC has also prosecuted those who committed the crimes themselves. For example, Dominic Ongwen, commander of the Lord’s Resistance Army in Uganda, was sentenced last year to 25 years in prison for a series of crimes including murder, rape and forced marriage committed in northern Uganda between July 2002 and December 2005.
Gordon said when he was a prosecutor at the International Criminal Tribunal for Rwanda, set up by the UN Security Council, it was often just a question of who could be detained.
But he said the ICC could also prosecute at a lower level, “just to have a sense of justice”.
What could be the challenges of prosecuting possible war crimes in Ukraine?
For Ukraine, a member state in the International Criminal Court will have the duty to detain any Russian commander charged with war crimes who has been issued an arrest warrant. But because Russia is not a member of the ICC, those accused of war crimes can avoid prosecution by avoiding countries where they could be arrested. That’s the gap in the law, said Solis, who is also a former assistant professor at Georgetown University Law Center in Washington, DC. “You are not going to try someone in absentia,” he said. “Do you want the body before the courts, or what the law calls personal jurisdiction?” However, there is no statute of limitations for war crimes charges, which means that an arrest warrant will always be hung over a person charged with such crimes.
What about the persecution of Russian President Vladimir Putin?
Putin could certainly be held responsible for war crimes in Ukraine, say legal experts, apparently if he gave direct orders. If not, his guilt would be based on what he knew and what he could have done to stop it. CLOCKS World leaders condemn Russia for alleged killing of civilians in Bucha:
World leaders condemn Russia for alleged killing of civilians in Bucha
Amid condemnation from world leaders, US President Joe Biden did not mince words – calling for a war crimes trial against Russian President Vladimir Putin over the civilian deaths in Bucha. Despite the growing evidence, it is still unclear whether Putin could be prosecuted. 1:49
Regarding the prosecution, Dunenbaum said that a doctrine known as the immunity of the head of state would mean that the Russian leader would have immunity from persecution by countries that had accused him of war crimes, as long as he remained in power.
But there is a question as to whether it would be protected by the International Criminal Court if Russia is not a party to it.
For example, an arrest warrant was issued in March 2009 for Omar al-Bashir, then President of Sudan, for war crimes, but many states avoided arresting him because he was the head of the Sudanese state and not a state party. in the ICC.
Al-Bashir, who has been in prison in Khartoum since being ousted from power in 2019, also faces ICC charges of genocide and crimes against humanity related to the Darfur conflict.
“The ICC has repeatedly stated that it had a duty to arrest him and has finally said that the reason is that we are an international tribunal and therefore its immunity is not being attributed to us,” Dunenbaum said. “And so the immunity of Putin’s head of state would not protect him in the ICC, at least as the rule is currently understood by the International Criminal Court.”
Dunenbaum said: “If he is no longer the head of state, he will be fully exposed to criminal prosecution in foreign domestic courts or in the International Criminal Court.”
Also, if …
