What are war crimes?

In June of 2020, just days after the International Criminal Court or ICC decided to launch a probe into alleged war crimes in Afghanistan, the then US president Donald Trump issued an executive order imposing sanctions on ICC officials involved in probing Americans.

The United States is not a state party to the ICC. And its citizens cannot be tried in the international court.

Two years later, as Russian fighter jets bombed Ukraine, leaving scores of civilians dead, western countries led by the United States want its president Vladimir Putin to be tried for war crimes.

It is clear that civilians withstand the worst of wars.

Keeping that in mind, protection of civilians has been made central to international humanitarian law, which regulates how a war is supposed to be conducted. Presently, the International Criminal Court and the International Court of Justice are involved in upholding the rules of war.

Since civilian casualties have taken place in all recent conflicts, without any of those being labelled as war crimes, you might be wondering exactly what amounts to being a war crime.

For example, the bombing of say a school or a theatre might cause global outrage. But these actions might still not be called war crimes.

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This is because a war crime is said to have occurred only when unnecessary injury and suffering is caused by one or more belligerents engaged in a conflict.

Let’s consider our earlier example. The bombing of the hypothetical school or theatre will be considered a war crime only if the extent of civilian casualties is excessive, compared to the military advantage gained.

There are three main pillars of humanitarian law. First, is the principle of distinction, which requires distinguishing between civilians and combatants. Second, is the principle of proportionality, which prohibits military actions that would cause incidental loss of civilian life that would be excessive when compared to the military advantage gained. And, third, is the principle of precaution, under which the parties to a conflict must avoid or minimise harm to civilians. If any one or all of these principles are not adhered to, it could be said that a war crime has occurred.

Article 147 of the Fourth Geneva Convention defines war crimes as “wilful killing, torture or inhuman treatment, including … wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”

War crime was defined in the Geneva Conventions, as “wilful killing, torture or inhuman treatment, including … wilfully causing suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person …” 

Civilians, along with infrastructure vital to their survival, cannot be deliberately attacked. The sick and the wounded have to be cared for. This includes injured enemy soldiers, who have rights as prisoners of war.

The ICC is supposed to investigate and prosecute individual war criminals who are not standing before the courts of individual states.

While the ICJ deals with disputes between states, it cannot prosecute individuals. Ukraine has begun a case against Russia at the ICJ. If the ICJ were to rule against Russia, it’s the UN Security Council that would be responsible for enforcing that ruling.

However, Russia is one of the council’s five permanent members and would veto any proposal to sanction it.