Since the beginning of the war in Ukraine, commentators, politicians and many others have argued that Vladimir Putin and the Russian Army are committing ‘war crimes’.

The recent images of executions in Bucha have only furthered those allegations.

Indeed, International criminal law and national security scholar, Jonathan Hafetz, was quoted in Reuters stating that the executions in Bucha was a “quintessential war crime”.

So, what is a war crime?

Well, for a start, they’re different to genocide or crimes against humanity.

The concept of war crimes was developed at the end of the 19th century when international humanitarian law was codified. The Hague Conventions of 1899 and 1907 prohibited warring parties from certain means and methods of warfare.

In addition to the Hague treaties and the others that followed, the Geneva Conventions of 1864, 1949 and the two 1977 Additional Protocols were established.

The National Wales: The signing of the Geneva Conventions in 1949 cc-by-2.0The signing of the Geneva Conventions in 1949 cc-by-2.0

Unlike the Hague Conventions, the Geneva Conventions focus on protecting people who are not taking part in armed conflict. This could be civilians, or it could be combatants who have either laid down their weapons or who are injured and are therefore no longer in the fight, so to speak.

The violation of the laws of both the Hague and the Geneva Conventions – although not every law within them – is identified as a war crime.

There is no set list of what constitutes a war crime, however Section 2 of Article 8 of the Rome Statute of the International Criminal Court (ICC) states that ‘war crimes’ mean ‘grave breaches of the Geneva Conventions of 12 August 1949 and acts against a person or property protected under the provision of the relevant Geneva Conventions.’ 

The section goes on to list acts such as: wilful killing; torture or inhumane treatment; committing rape, sexual slavery, enforced prostitution; extensive destruction and appropriation of property; intentionally directing attacks against civilian population not taking direct part in hostilities; and, intentionally directing attacks against civilian objects which are not military objects.

There are several other examples.

The National Wales: The International Criminal Court in The HagueThe International Criminal Court in The Hague

Shortly after Russia began its assault on Ukraine it was announced that the ICC’s chief prosecutor, British lawyer Karim Khan QC, would open an investigation into potential war crimes following an unprecedented petition by 39 of the court’s 123 member states.

On the 24th of March, the UK government announced they will offer the ICC support by way military personnel, policing and an additional £1 million in funding to assist with an investigation to help uncover evidence of war crimes.

This will include mobilising the War Crimes Team within the Metropolitan Police Counter Terrorism Command who will conduct their own investigation along with coalition partners across other nation states who have taken similar steps to the UK government.

Even if there is conclusive evidence such as documents, photos, interviews and eye-witness accounts that war crimes have indeed been committed by Putin and/or the Russian Army, it will be difficult to prosecute individuals at the Hague – home of the ICC.

Russia pulled out of the ICC in 2016 and is no longer a member state. The court relies on member states to arrest and extradite individuals to the Hague for prosecution – and Putin isn’t going to do that. If an individual crossed into another country, they could then be arrested by that state. But that’s unlikely if that individual is aware they’re wanted by the ICC.

So, is there anywhere else that could run such a trial?

The UN could do this but there’s a significant hurdle in the way. Russia is a permanent member of the UN security council and will veto any attempt to hold a trial, which has obviously led to calls for Russia to be removed from the security council. That process, however, isn’t straight forward – hence why it hasn’t already happened.

The National Wales: The Nuremberg trials 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.The Nuremberg trials 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.

Another option for a trial may be a special tribunal that would be something akin to the Nuremburg Trials that were established to prosecute Nazi leaders following the second world war. But, again, the issue will be getting the individuals to any trial.

This all means that diplomacy and international agreement will be key on how best to approach any prosecution relating to the war in Ukraine.

That may mean a tribunal that looks at a different and easier charge to prosecute Putin, such as the crime of aggression for waging an unprovoked war against another sovereign nation.

A column for another day, perhaps.

Jonathan Williams is a solicitor at Watkins and Gunn. Disclaimer: The above article does not constitute legal advice.  

The National Wales:

If you value The National's journalism, help grow our team of reporters by becoming a subscriber.