Questions and answers
War crimes are serious violations of the Geneva Conventions of 1949 and other serious violations of the laws and customs of war defined in Article 8 of the Rome Statute. They are one of the international crimes (crimes under general international law), which also include the crime of genocide, crimes against humanity and the crime of aggression.
War crimes can be divided into two types:
a) grave breaches of the Geneva Conventions of 1949, namely wilful killing, torture, causing suffering, deportation of the population, taking hostages, etc.;
b) other serious violations of the laws and customs of war (deliberate attacks on the civilian population and objects, personnel and transport of humanitarian aid, killing and wounding belligerents who laid down their weapons, improper use of the enemy's flag, deliberate attacks on religious, cultural, historical sites, hospitals, a statement that there will be no mercy, looting cities, etc.) (Article 8 of the Statute of the International Criminal Court).
Below are examples of common war crimes for understanding (the list is not exhaustive):
- injuries/deaths of civilians as a result of the use of weapons;
- torture, physical violence, inhuman treatment or deprivation of liberty of civilians;
- taking civilians hostage;
- damage or destruction of civilian infrastructure that was not a military purpose;
- deliberate strikes on personnel, vehicles or objects involved in the provision of humanitarian aid;
- location and use of military equipment in residential areas, conducting military operations by the occupier in residential areas;
- intentional damage/destruction of religious buildings (temples, mosques, synagogues, etc.), buildings of educational institutions, science, art, historical monuments that were not for military purposes;
- violence against medical personnel, damage to medical vehicles, hospitals and medical equipment that were not a military objective;
- use by the occupier of uniforms and insignia of the Armed Forces of Ukraine, distinctive emblems of humanitarian and medical institutions during military operations;
- use of civilian infrastructure facilities and civilians to cover the Russian military;
- deliberate actions aimed at creating obstacles to providing assistance to the civilian population.
A war crime is not the same as a military crime.
Military crimes - international crimes, violations of international laws and customs of war. War crimes are listed in Article 8 of the Rome Statute of the International Criminal Court. The types of war crimes are listed in the answer to question 1.
Військові злочини - (Article 401 of the Criminal Code of Ukraine) criminal offenses against the procedure for military service established by the legislation of Ukraine. Unlike war crimes, military crimes can be committed not only during war, but also in peacetime (for example, violation of statutory relations, and disobedience to superiors, destruction or damage to military property). However, it is worth noting that some military crimes defined by the Criminal Code coincide in their composition with war crimes defined by the Rome Statute, namely: looting, violence against the population in the area of military operations, mistreatment of prisoners of war, illegal use of symbols of the Red Cross, Red Crescent, Red Crystal and abuse of it. However, in general, the key difference is as follows: war crimes - violation of international laws and customs of warfare, military crimes - violation of the order of military service, regardless of the presence or absence of war.
The perpetrators are criminally liable for committing war crimes. If the International Criminal Court convicts war criminals, they will be liable in the form of imprisonment for up to 30 years or life imprisonment, and the court may order payment of a fine or confiscation of assets acquired because of the commission of a crime, and, separately, compensation for damage to victims. Under Ukrainian law, such military personnel will also bear the penalty established for a specific crime, in particular in the form of imprisonment for up to 15 years or life imprisonment.
No, waging war in itself is not a war crime. War criminals are those persons who have directly committed war crimes listed in the Rome Statute /the corresponding crimes specified in the Criminal Code of Ukraine, and those persons who have directed those who have committed such crimes, knew about the possibility of committing or directly committing war crimes by their subordinates, but did not make efforts to prevent or stop them.
If the military commit a war crime by executing an order, they are responsible in the event of an obvious crime of such an order. The fact that they comply with the order cannot be an excuse for committing a war crime. According to the Rome Statute, there is an exception when the following criteria coincide at the same time: a person was legally obliged to comply with an order; he did not know that the order was illegal; the order was not clearly illegal. At the same time, orders to commit genocide or crimes against humanity are automatically explicitly illegal.
Both can be held responsible for war crimes. The commander of a certain military group is responsible for the war crimes of his subordinate if he (the commander) had information about the possibility of committing a war crime by the subordinate or was obliged to have that information, but did not make efforts to prevent or stop them. The commander is also responsible for issuing the criminal order, and the subordinate is responsible for executing the criminal order, if his criminality was obvious.
Yes, together with certain military crimes that coincide in their composition with war crimes (looting, violence against the population in the area of military operations, ill-treatment of prisoners of war, and illegal use of symbols of the Red Cross, Red Crescent, Red Crystal and abuse of it). the Criminal Code of Ukraine also provides for liability for violation of the laws and customs of war (Article 438 of the Criminal Code), genocide (Article 442), crimes against persons and institutions with international protection (Article 444), etc.
For the current period, several thousand crimes against the peace, security of humanity and the international legal order have been registered in connection with the invasion of Ukraine by the Russian Federation, which include violating the laws and customs of war, planning, preparing or unleashing and waging an aggressive war, propaganda of war, etc. In addition, a large number of crimes against the foundations of national security were registered: encroachment on the territorial integrity and inviolability of Ukraine, high treason, sabotage, etc. Criminal proceedings have also been opened under the relevant articles against ministers, deputies, military command, other officials, heads of law enforcement agencies, propagandists of the Russian Federation. The number of proceedings is constantly updated, and you can follow the statistics here: https://warcrimes.gov.ua/all-crimes.html
Ukraine in 2015 recognized the jurisdiction of the International Criminal Court (ICC) to investigate and judge persons who committed relevant crimes on its territory, respectively, this institution will be able to bring to justice the top political leadership of the Russian Federation for some international crimes committed, namely, war crimes, crimes against humanity, genocide. However, the ICC has no jurisdiction over the crime of aggression committed by Russian officials (since the Russian Federation is not a party to the Rome Statute). Accordingly, in order to hold the leadership of the Russian federation accountable for the crime of aggression, an alternative means is to create a special tribunal, the charter of which would provide an opportunity to judge the leadership of the Russian Federation for the crime of aggression.
The International Criminal Court (ICC) is a permanent body authorized to investigate and try persons who have committed international crimes (aggression, genocide, war crimes, crimes against humanity), and which, in established cases, complements the activities of the bodies of the National Criminal Justice. This is the first such body to operate on a permanent basis. The court has been operating since July 2002 and may exercise its functions and powers in the territory of any state party and, with special consent, in the territory of any other state. Located in the city Hague, Netherlands. To date, 137 states have signed the Rome Statute, but have recognized its operation in their legislation (including through ratification) - 123 states.
Upon the commencement of an investigation by the ICC Prosecutor, the ICC, on the recommendation of the Prosecutor, issues an arrest warrant or an order to appear in court. In order to ensure the presence of the accused in the proceedings, various international legal instruments are used, in particular, sending a request for arrest and placing a person at the disposal of the court (including through Interpol), transit of the arrested person through the territory of the state requests for other forms of cooperation.
The Rome Statute provides for the general obligation of states parties to cooperate with the court. The ICC, among other things, may send requests for the arrest and placement of the person concerned at the disposal of the court to the states parties or any other states, or send requests for other forms of cooperation. The Rome Statute stipulates that the trial takes place in the presence of the accused, so all Russians who will be brought to it receive proper punishment within the jurisdiction of the court.
As for the execution of the sentence, it does not take place in The Hague, but in one of the states selected by the ICC from the list of states that have expressed a desire to accept convicted persons.
Any person who is found guilty of a crime under the Rome Statute may be punished by a court with one of the following basic penalties:
1) imprisonment for a certain term not exceeding the maximum term of 30 years;
2) life imprisonment in cases where this is justified solely by the grave nature of the crime and the individual characteristics of the person found guilty of committing it.
In addition, the ICC may impose penalties such as a fine and confiscation of income, property and assets obtained directly or indirectly because of a crime.
Thus, the Rome Statute provides for an open format of hearings with certain exceptions, in the interests of victims, witnesses and accused. Victims may make submissions to the Pre-trial Chamber in accordance with the Rules of Procedure and evidence, and may also provide comments to the court and use the assistance of representatives.
The Rome Statute does not contain detailed regulation of the period for consideration of a case. Cases in the ICC are considered for a long time, practice shows that 10 years or more can pass from the first appearance of the accused in court to sentencing. However, it is important to remember that there are no statute of limitations for bringing to justice for international crimes, so criminals will not escape responsibility no matter how much time passes.
Since Ukraine has recognized the ICC's right to investigate all relevant crimes on its territory committed since February 20, 2014, the ICC can exercise its jurisdiction even without ratifying the Rome Statute. However, the lack of ratification still poses certain serious barriers for Ukraine, so in the long term it is necessary to ratify the Charter, especially since this is an obligation of Ukraine under the association agreement with the EU.
The special tribunal is a new separate body that can be specially created to administer justice in relation to international crimes committed by the Russian Federation during the armed conflict in Ukraine. Unlike the ICC, it will be created exclusively for such purposes and will operate until they are achieved. The Statute or other instrument that will govern the activities of this tribunal may regulate all aspects necessary for the effective administration of justice, while the ICC has significant limitations of jurisdiction. Thus, the ICC will not be able to investigate and consider the crime of aggression of the Russian Federation as a separate type of international crime, so this is one of the main reasons why it is necessary to create a tribunal.
In addition, according to the Rome Statute, in particular, it is virtually impossible to judge the use of indiscriminate weapons and weapons that cause excessive damage and suffering, because the list of such weapons has not yet been agreed. The ICC may also not consider cases in absentia (without the presence of the accused). For establishing a special tribunal, all these shortcomings can be taken into account and overcome. A special tribunal can be either completely international (for example, the Tribunal for the former Yugoslavia or the Tribunal for Rwanda, which were formed by the UN Security Council), or hybrid, that is, formed under an agreement between Ukraine and an international organization, such as the UN or the EU, etc. (such as the special court for Sierra Leone, the special court for Kosovo, etc.). For Ukraine, the second option looks more realistic, since as long as the Russian Federation is a permanent member of the UN Security Council, it will block the creation of an international tribunal through the UN.
Yes, they will. The fact that Ukraine is defending itself from the armed aggression of the Russian Federation does not release the Ukrainian military from responsibility if their actions contain elements of a war crime. For the relevant acts, the responsibility of Ukrainian military personnel is provided for by both the Rome Statute and the Criminal Code of Ukraine. As for the special tribunal, everything will depend on how the provisions of its Charter are written out, although according to the practice of the latter tribunals (courts), crimes are punished regardless of the party to an armed conflict.
In the case of the ICC, in addition to imposing a penalty of imprisonment and a fine or confiscation of property and assets acquired because of the commission of a crime, the ICC may also decide to compensate victims in various forms, including monetary compensation. If we are talking about national legislation, then within the framework of criminal proceedings, you can file a civil claim for compensation for material and moral damage, as provided for by the Criminal Procedure Code of Ukraine.
As mentioned above, victims will be able to receive compensation based on the results of consideration by the ICC, a special tribunal (if established), and national courts of Ukraine against individuals. As for receiving compensation from Russia as a state directly, it can be reparations as a form of liability for violation of international law, consisting in payments by one state to another state, and not to the population of the state, although international law does not exclude the possibility of material compensation to the population directly.
In any case, in the current circumstances, Russia has long refused to voluntarily fulfill its international obligations and it can only be forced to do so. Accordingly, at this stage, compensation is likely to be received in a different way, for example, Russian assets frozen abroad will be sent to Ukraine to compensate for the damage caused by the Russian Federation. In this case, the state will receive the money and pay compensation to people in accordance with domestic law.