Baba’s Explainer – War Crimes

  • IASbaba
  • June 9, 2022
  • 0
International Relations
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  • GS-2: Important International institutions, agencies and fora- their structure, mandate.

Context: ON May 23, a domestic court in Ukraine sentenced a 21-year-old Russian soldier to life in prison for committing war crimes. The soldier had shot dead an unarmed civilian in Ukraine. This was the first conviction related to the ongoing war between Ukraine and Russia.

Since the war began, Ukrainian authorities have claimed commission of around 10,000 war crimes by the Russian soldiers.

What are war crimes?
  • War crimes are violations of rules of international humanitarian law that create direct criminal responsibility under international law.
  • A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon an enemy.
  • At the heart of the concept of war crimes is the idea that individuals can be held criminally responsible for the actions of a country or its soldiers.
  • They are considered so serious that there is no period of limitation for such crimes – which means that those who commit them can be prosecuted and punished no matter how much time has elapsed since the crimes were committed.
  • The meaning of war crimes was clarified in the four 1949 Geneva Conventions.
  • International humanitarian law regulates the actions of warring parties of a war or armed conflict. These laws are provided for under the four Geneva Conventions, which protect
    • ‘Wounded and Sick in Armed Forces in the Field’
    • ‘Wounded, Sick and Shipwrecked Members of Armed Forces at Sea’,
    • ‘Prisoners of War’
    • ‘Civilian Persons in Time of War’.
  • In addition to these four conventions, there are three Additional Protocols which provide further rules for protection of victims in international and non-international armed conflicts. Combined, these documents govern war, and protect combatants and civilians.
  • India domesticated the Geneva Conventions by enacting the Geneva Conventions Act, 1960.
  • Serious offences such as murder, rape or mass persecution of a group are known as “crimes against humanity” or, in some circumstances, “genocide”.
How has the concept of War Crimes evolved over period?
  • The concept of war crimes is a recent one. Before modern times, it was generally accepted that the horrors of war were part of the nature of war, and recorded examples of war crimes go back to Greek and Roman times.
  • Before the twentieth century armies frequently behaved brutally to enemy soldiers and non-combatants (civilians) alike – and whether there was any punishment for this depended on who eventually won the war.
  • Commanders and politicians usually escaped any punishment for their role in war – or, if they lost, were summarily executed or imprisoned.
  • There was no structured approach to dealing with ‘war crimes’ nor any general agreement that political and military leaders should take criminal responsibility for the acts of their states or their troops.
  • The term war crime has been difficult to define with precision, and its usage has evolved constantly.
  • The first systematic attempt to define a broad range of war crimes was the Instructions for the Government of Armies of the United States in the Field—also known as the “Lieber Code” after its main author, Francis Lieber—which was issued by S. President Abraham Lincoln during the American Civil War (1861-65)
    • For example, the Lieber Code held that it was a “serious breach of the law of war to force enemy subjects into service for the victorious government” and prohibited “wanton violence committed against persons in the invaded country,” including rape, maiming, and murder.
  • Immediately following World War I (1914-18), the victorious Allied powers convened a special Commission which recommended that war crimes trials be conducted before the victors’ national courts and, when appropriate, before an inter-Allied tribunal
    • The Allies prepared an initial list of about 900 suspected war criminals and submitted the list to Germany.
    • The commission’s main target was Germany’s Emperor (Kaiser) William II, who took refugee in Netherlands that refused to extradite him. Most of the remaining suspected war criminals on the list similarly managed to avoid prosecution, because Germany was reluctant to turn them over to the Allies.
    • Only a small number of suspects to be tried in Germany which resulted in few convictions with most sentences ranging from a few months to four years in prison.
  • Attitudes changed during World War II (1939-45) when the murder of several million people – mainly Jews – by Nazi Germany, and the mistreatment of both civilians and prisoners of war by the Japanese, prompted the Allied powers to prosecute the people they believed to be the perpetrators of these crimes.
Have individuals been prosecuted for War Crimes before?
  • Individuals were prosecuted for war crimes for the first time at the Nuremberg Tribunal in the aftermath of the Second World War.
    • The Nuremberg trials, series of trials held in Nürnberg, Germany, in 1945–46 were held by the Allies against representatives of the defeated Nazi Germany for plotting and carrying out invasions of other countries and other crimes in World War II.
  • Subsequently, many prosecutions have happened at international and ad-hoc criminal tribunals.
  • For example, the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda prosecuted individuals for, inter alia, war crimes.
  • Today, the International Criminal Court (ICC) and the International Court of Justice (ICJ) both have roles upholding the rules of war.
  • The International Court of Justice (ICJ) rules on disputes between states, but cannot prosecute individuals.
    • Ukraine has begun a case against Russia.
    • If the ICJ ruled against Russia, the UN Security Council (UNSC) would be responsible for enforcing that.
    • But Russia – one of council’s five permanent members – could veto any proposal to sanction it.
  • The International Criminal Court (ICC) investigates and prosecutes individual war criminals who are not before the courts of individual states.
    • It’s the permanent modern successor to Nuremberg, which prosecuted key Nazi leaders in 1945.
    • The court is also investigating war crimes committed by Russian soldiers related to the ongoing Russia-Ukraine war. But Russia has denounced the court and denied all allegations of war crimes.
What is International Criminal Court (ICC)?
  • Governed by an international treaty called ‘The Rome Statute’ of 2002, the ICC is the world’s first permanent international criminal court.
    • On 17 July, 1998 Rome Statute was adopted by 120 States in direction of creating a more just world.
    • On 1 July, 2002 Rome Statute took effect upon ratification by 60 states, officially establishing the ICC.
  • ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community:
    • Genocide
    • War crimes
    • Crimes against humanity
    • Crime of aggression.
  • Through international criminal justice, ICC aims to hold those responsible for their crimes and to help prevent these crimes from happening again.
  • India is not a party to Rome Statute along with US and China.
  • Today the ICC has over 900 staff members from approximately 100 States.
  • ICC Headquarters at The Hague, the Netherlands.
  • Currently, ICC is prosecuting 27 defendants for charges of war crimes.
  • 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.
  • ICC is not a UN organization but is has a cooperation agreement with the United Nations.
  • 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. This has been done in the situations in Darfur (Sudan) and Libya.
Limitations/ Concerns with ICC
  • As a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.
  • ICC has been accused of being a tool of Western imperialism and biased in favour of powerful countries against weak states.
  • ICC cannot impose a death sentence; it can impose lengthy terms of imprisonment of up to 30 years or life when so justified by the gravity of the cases.
  • The ICC court has no retrospective jurisdiction as it can deal only with crimes committed after 1 July 2002 when the 1998 Rome Statute came into force.
  • ICC has automatic jurisdiction only for crimes committed on the territory of a state which has ratified the treaty; or by a citizen of such a state; or when the United Nations Security Council refers a case to it.
  • Procedural and substantive deficiencies leading to delays and frustration, have questioned the efficacy of the court. It also faces scarcity of human resources and funds.
What has been Russia’s historical stance on international crimes?
  • Historically, Russia has played a significant role in the evolution and development of the field of international criminal law.
  • Soviet Union was on the forefront of arguing that hostage taking is illegal as per international law. After the Second World War, the Soviet Union’s position was recognised through Article 34 of the Fourth Geneva Convention, which states that “The taking of hostages is prohibited”.
  • In the aftermath of the Second World War, it was the Soviet Union, through then Premier Joseph Stalin, which first mooted the idea of individual criminal responsibility for committing war crimes.
    • In 1941, Stalin had asked for “punishment of Hitler’s criminals”.
  • It was the Soviet Union which pushed for trial by an international tribunal, a suggestion opposed by the United Kingdom and the U.S.A. However, subsequently, both the countries, along with other victors of the Second World War, agreed for an international tribunal.
    • They signed the Nuremberg Charter and tried German soldiers for crimes against peace, war crimes and crimes against humanity
  • Despite being a proponent of trials for war crimes, Russia is trying to evade responsibility for the same when its soldiers are under trial in Ukraine. This takes us to another question – can Russian soldiers be tried at an international tribunal like the ICC?
Can Russian soldiers be tried at the International Criminal Court?
  • Russia had signed the Statute in 2000, but did not ratify it. When the ICC started investigating the Crimean annexation, Russia officially withdrew from the process of joining the court.
  • In theory, the UN Security Council could ask the ICC to investigate this offence. But again, Russia could veto this.
  • Neither Ukraine nor Russia is a member of the ICC. But via Article 12.3 of the Rome Statute, which allows non-members to accept the Court’s jurisdiction, Ukraine has accepted the ICC’s jurisdiction.
    • This is not the first time Ukraine has accepted the ICC’s jurisdiction. Earlier, when Russia had annexed Crimea, Ukraine had used Article 12 to bring Russia’s actions before the ICC.
  • Despite this, it will be difficult to bring Russian soldiers to trial before the ICC. The court doesn’t try individuals in absentia and hence getting custody of the individuals will be a tough task.
    • The court is already facing a similar situation in the Afghanistan case, in which members of the Central Intelligence Agency of the U.S.A. are to be investigated.
  • Another hurdle, which is not being discussed right now, is the possibility of Ukrainian soldiers being investigated and prosecuted for committing war crimes. Ukraine’s acceptance of ICC’s jurisdiction does not mean that only Russian soldiers can be prosecuted.
    • The court now has jurisdiction over the entire conflict, and it means, if a Ukrainian soldier commits any crime which is within the court’s jurisdiction, they too can be prosecuted.
    • Such a scenario might force Ukraine to withdraw its consent to the court’s jurisdiction.
Can President Putin be tried for Crime of Aggression at the ICC?
  • Such a scenario is far-fetched because he is a Head of State (HoS). Under international law, a HoS enjoys immunity from prosecution.
  • There have undoubtedly been instances of HoSs being tried for international crimes. Examples include former Yugoslavian President Slobodan Milosevic, former Liberian President Charles Ghankay Taylor, and former Iraqi President Saddam Hussein.
  • One important distinction between these cases and that of Putin is that the latter is an incumbent HoS.
  • ICC has in the past unsuccessfully tried to prosecute an incumbent HoS when it issued an arrest warrant against former Sudanese President Omar al-Bashir. Even after Bashir was removed from his office, the ICC has been unable to get him under its custody till date.
  • Even if tomorrow Putin is voted out of his office, and if the ICC issues an arrest warrant against him, it is very improbable that he will land in its custody.
What is genocide?
  • Genocide is considered one of the most severe crimes against humanity. It means the deliberate attempt to destroy a national, ethnic, racial or religious group.
  • The term was coined in 1943 by the Jewish-Polish lawyer Raphael Lemkin who combined the Greek word ‘genos’ (race or tribe) with the Latin word ‘cide’ (to kill).
  • After witnessing the horrors of the Holocaust – in which every member of his family except his brother and himself was killed – Dr Lemkin campaigned to have genocide recognised as a crime under international law.
  • His efforts led to the adoption of the UN Convention on Genocide in December 1948, which came into force in January 1951.
  • Individuals are chosen as victims purely, simply and exclusively because they are members of the target group, and not because of anything an individual has done.
  • Genocide is a crime under international law even if it is not a crime in the country where it takes place, and incitement to commit genocide is also a crime.

Mains Practice Question – Critically analyse the role & significance of International Criminal Court.

Note: Write answers to this question in the comment section.



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