War crimes: How are they defined and how can perpetrators be brought to book?

The International Criminal Court has announced an investigation into Russia’s conduct in Ukraine as the invasion continues and more atrocities are alleged. Since the invasion began on 24th February 2022, more than 40 countries have referred Russia to the ICC for investigation.

Karim Khan, chief prosecutor at the International Criminal Court (ICC), confirmed that he would open an investigation into alleged Russian war crimes, and that he was satisfied that there is a reasonable basis to believe that both war crimes and crimes against humanity have been committed in Ukraine.

So, what will happen next?

How are war crimes defined?

The rules of war, or international humanitarian law, set out what can and cannot be done during an armed conflict.The core of these laws is enshrined by the Geneva Conventions.

Today, the ICC is charged with upholding the laws of war.The Rome Statute, grants the ICC jurisdiction over four main crimes:

    1. Genocide – characterised by the specific intent to destroy in whole or in part a national, ethnic, racial, or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group
    2. Crimes against humanity – serious violations committed as part of a large-scale attack against any civilian population including murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid, and deportation.
    3. War crimes – grave breaches of the Geneva Conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science, or charitable purposes.
    4. Crimes of aggression -the use of armed force by a State against the sovereignty, integrity, or independence of another State.

What is the process for bringing perpetrators to book?

The ICC operates a six-stage process:

    1. Preliminary investigations – during which the office of the prosecutor must determine whether there is sufficient evidence of crimes of sufficient gravity to fall within the ICC’s jurisdiction
    2. Investigations – after gathering enough evidence and identifying a suspect an ICC judge issues an arrest warrant and a summons to appear voluntarily
    3. Pre-trial – the defendant makes an initial appearance to confirm identity and ensure that they understand the charges being brought against them, the judge will then hear from the prosecution and defence teams, as well as legal representatives of the victims to determine if there is enough evidence to go to trial
    4. Trial – the prosecution must prove the guilt of the defendant beyond reasonable doubt in front of three trial judges, who will then issue sentence for a verdict of guilt.The judges can sentence a perpetrator up to 30 years imprisonment, or a life sentence for exceptional circumstances, they can also order reparation for victims
    5. Appeals – both the prosecution and defence have the right to appeal an ICC verdict.An appeal is decided by five different judges to those presiding over the original verdict, they can uphold, amend, or reverse the original decision or indeed order a re-trial
    6. Enforcement – sentences are served in countries that have agreed to enforce ICC sanctions (whilst neither Russia nor Ukraine is party to the ICC, Ukraine does recognise the court’s jurisdiction so the ICC can move ahead with its investigation)

Cooperation with the UK, other international states, and the UN

The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not are unwilling or unable to do so genuinely.

In the UK our mechanism is the Crimes Against Humanity and War Crimes Bill, which provides for the implementation of the Rome Statute of the ICC.This means that the UK provides support to the ICC for making arrests, transferring arrested persons to The Hague, freezing assets, and enforcing sentences.

The ICC operates in cooperation with the United Nations (UN).When a situation is not within the Court’s jurisdiction, the United Nations Security Council can refer the situation to the ICC granting it jurisdiction.

What will happen next for Putin?

Neither Russia nor Ukraine is a member of the ICC. However, as mentioned previously Ukraine has given its approval to examine alleged atrocities on its territory.It is unlikely Russia will decide to cooperate with the ICC and any trial would be delayed until Putin or any other defendants are arrested, such as soldiers, commanders, and heads of state.

Legal experts have raised the possibility of creating a separate tribunal to examine potential war crimes in Ukraine, which could be done through the United Nations or a treaty.

Leverets will continue to stay ahead of developments in Ukraine and the ICC investigation into Russian atrocities and will keep you updated via our website.

Please also get in touch if you would like to discuss the legal impact and practical consequences of Russian and Belarusian sanctions on your operations.

Photo by Tetiana SHYSHKINA on Unsplash