What Is a War Crime? Here’s the History to Know
Recent photographs show that the Russian military has withdrawn from Kyiv. This shocks a world already shocked by Ukraine’s invasion.
Images emerged of hundreds of bodies in mass graves and in the middle of the streets—some with hands bound—in Bucha, a town the Ukrainians recently liberated outside Kyiv. Ukrainian officials claim that Russian troops fired on civilians during their withdrawal from the area. Russia refutes this allegation. In an April 3 interview with London’s Times Radio, Ukraine’s Foreign Minister Dmytro Kuleba said he wanted the International Criminal Court to send representatives to Bucha and other liberated towns “to collect all the evidence of these war crimes” so it can be used to “prosecute those who committed these atrocities.” And on Wednesday, the U.S. and its allies announced a new wave of sanctions against Russia in response to what President Joe Biden has also called “war crimes.”
TIME interviewed Michael Bryant from the author of War Crimes to help understand.A World History of War Crimes. He discusses both the evolution and origins of war crimes, as well as the conflict that has shaped the way war crimes are investigated.
TIME: What is war crime in its most broad sense?
BRYANT – War crimes, as used in the traditional sense of it, are acts that violate the laws of war. War crimes can be described at the most fundamental level as: [objectionable] acts committed by combatants, either against other combatants or against noncombatants—that is, civilians—during wartime.
What date does history start? When was it possible to find evidence for war crimes prosecution?
This term appears for the first-time in English when it is used in 1906. This was in the book “The Book of English”. International LawLassa Oppenheim is a famous and well-known lawyer. The term “war crime” was first used in German in 1872 by Johann Casper Bluntschli. It was military forces that act without order during wartime. He considered it a war crime. Some say Francis Lieber, a very famous American jurist who wrote the so-called Lieber Code—which was used during the Civil War to define offenses against the law of war for Union armies—supposedly used the term “war crimes,” but he never wrote it down. Some claim that he spoke the term in conversation. Lieber wrote these codes partly in reaction to marauding acts by Missouri partisans.
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What is the difference between the definition of war crimes in 19th-century Europe and today’s?
The definition of a war criminal was never settled. There was such a stress on the power of the nation-state to define its own conception of what’s good and what’s not good in wartime. It was really repelled by the idea that other countries could intervene to tell sovereign nations how they should behave during wartime. There was no international criminal law at this point in the 19th Century. Not until the 20th century—we began to see, in the community of nations, the willingness to challenge state sovereignty and insist that there are certain principles of international behavior during wartime that had to be followed, regardless of whether it was a sovereign nation or not. This idea came later. The First World War was the catalyst for this idea. Because of the graveness of German war crimes, World War I saw that the Allies were compelled to investigate how these individuals could be held accountable.
How many world conflicts is necessary to bring the whole world together in order for them to define what war crimes are?
This was actually World War II. The Nuremberg war crime trials. International Military Tribunal (the first) was established in November 1945. It ended in October 1946. The London Charter, the founding document of this proceeding was also a key element. This document outlines all charges that Nazis will face. And so that’s where I think it really starts. Here is where we get the modern definition for war crimes. So many of the principles of law come out of Nuremberg, such as the essence of international criminal law today, which is the notion that if you’re a head of state and you commit these sorts of crimes, you can’t just plead that you were head of state in order to avoid liability. Nuremberg’s principles include the notion that countries cannot be indicted under international criminal law for their actions towards their own people.
How loaded is the term “war crime”? Does the term “war crime” depend on what some countries consider a war criminal versus what others see as war crimes?
It’s really not that controversial. There’s a fairly secure anchorage for it now in international law. The most common place you will find controversy is over the administrationThe international criminal code. People are often prosecuted for their leadership of nations or their military commanders. They are usually from Africa or less powerful countries. And the criticism is that you just don’t find some other political leaders from more powerful countries and more prominent countries being prosecuted for their crimes. And I think that’s a legitimate criticism. This is largely due to the ability of powerful, wealthy nations to protect their politicians and military personnel from any prosecution.
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Are all war crimes prosecuted?
It’s hard to get to that point. Another traditional kind of criticism of war crimes is that—other than the U.N., and bodies created by the U.N. like the International Criminal Court, or some of these ad hoc tribunals—we just don’t have a true international police that would arrest offenders. It’s not the problem anymore to define war crimes. It’s prosecuting them actually, administering justice, that seems to be the primary obstacle.
Is there anything you should remember about the Russian invasion and subsequent war crimes in Ukraine?
If you take a look at Article Five of the International Criminal Court’s 1998 statute, it talks about crimes against peace, and there’s a provision that criminalizes aggressive warfare. The problem with bringing Putin and the Russians to trial for aggression warfare at the ICC? They aren’t members of the ICC. Ukraine is not. Article 15 states that one of two sides in the conflict must be a member to allow the ICC jurisdiction. Therefore, crimes against peace could not be prosecuted by the international community for Putin’s invasion of Ukraine.
The most important thing would be documenting what’s happening. The most critical thing in any sort of conflict involving allegations of humanitarian violations is to document what’s happening. And only after we’ve assembled as much evidence as we can are we in a position then to determine what should be done. Although it is possible to demand war crimes trials now, this might seem a bit premature. The dust hasn’t settled.
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