A Tufts expert explains the international rules and how they might apply to the fighting in Ukraine
Since invading Ukraine in late February, Russia has allegedly bombed a maternity hospital and a theater filled with civilians and blocked aid convoys trying to bring food and water to people trapped in a besieged city. Assaults like these have caused international alarm and are now being investigated as possible war crimes.
On March 23, the United States officially declared that members of the Russian armed forces have committed war crimes in Ukraine. In the announcement, U.S. Secretary of State Andrew Blinken said the U.S. would pursue accountability “using every tool available, including criminal prosecutions.”
That doesn’t mean that the U.S. will haul Russian soldiers or leaders into court, Tufts professor Tom Dannenbaum explained. The U.S. has not passed the legislation necessary to do that. But the U.S. may share information with allies and international institutions that can prosecute individuals for war crimes.
The announcement indicates that “the U.S. government wants criminal justice to be pursued in this situation,” said Dannenbaum, an assistant professor of international law at The Fletcher School. “The statement suggests that the administration wants to facilitate such processes where possible, and that it is going to devote resources to doing that.”
The International Criminal Court (ICC), based in the Netherlands, is investigating possible war crimes and crimes against humanity that may have been committed in Ukraine. A growing number of countries with the legal jurisdiction to do so have also launched investigations, said Dannenbaum, who writes extensively on the laws of war and is the author of The Crime of Aggression, Humanity, and the Soldier.
Tufts Now spoke with Dannenbaum to learn more about war crimes, how they’re defined, and whether a leader like Russian President Vladimir Putin is likely to be tried for committing them.
Tufts Now: What is a war crime?
Tom Dannenbaum: There are two different kinds of crime relating to war. The first is the crime of aggression, which is a crime of resorting to war without a legal basis. So that’s about the invasion of Ukraine in the first place. Liability for that crime attaches only to those in leadership positions.
The second is a war crime, which is a crime relating to conduct in the war—in other words, how to fight. Liability for war crimes can attach at any level in the command chain.
A war crime is a serious violation of the law governing the conduct of armed conflict, for which individuals can be held responsible. These rules regarding how to fight apply to both sides. The International Criminal Court statute lays out 34 different criminal categories applicable in international armed conflicts.
Is killing civilians during a war always a war crime?
Not always. There are several different rules at stake. The first and most obvious is you can’t target civilians. The only exception to that is if the civilian is directly participating in hostilities. Civilians engaged in ordinary life, even civilians working in munitions factories and so on, can’t be targeted.
It’s lawful to target a military objective, but an attack on such an objective can be illegal and rise to the level of a war crime if those engaged in the attack know that the collateral damage expected from that targeting—including loss of civilian life, injury to civilians—will be clearly excessive in relation to the military advantage they expect from attacking that military objective. Obviously, there’s a lot of debate around what exactly “excessive” means, which can make it difficult to prosecute.
The next category is what we call an indiscriminate attack on a civilian population. This is where those engaged in the attack target an area without discretely targeting a specific military objective. That is prohibited and can also qualify as a war crime.
Relatedly, belligerents are not allowed to attack a civilian population, even if there are some combatants present. If the population is composed predominantly of civilians, it can’t be claimed that they were collateral damage.
Russian strikes on a maternity hospital and a theater in Ukraine drew international outrage. The theater was reportedly marked with the Russian word for children in letters large enough to be visible from the sky. Does that make a difference?
There are specific war crimes associated with attacking hospitals or medical units. Those are protected objects, regardless of whether they are displaying the emblem of the Red Cross or Red Crescent.
It’s also prohibited to target what are called “civilian objects,” which would include a theater unless that theater is being used for military purposes. Targeting the theater itself would be a war crime and targeting the people in it, if they’re civilians, would also be a war crime.
With all war crimes, prosecutors need to show not just that the act occurred, but also that the individuals who were engaged in the act knew the things they needed to know to be criminally responsible, or, in some jurisdictions, that they were reckless in accepting a substantial and unjustifiable risk. So in this case, did they know that this was a hospital? Did they mean to target that hospital? Did they know that they were going to hit that hospital?
Similarly with the theater, did those who targeted it know that that was a civilian object? The fact that the word children had been written outside may help in answering that question, but it wouldn’t end the analysis. The prosecutor would have to establish what the specific individual facing charges knew at the time that they engaged in the operation.
Who created the legal definition of war crimes, and are all countries bound by it?
The rules applicable in war are comprehensively laid out in a number of treaties going back to the 19th century. They include the Geneva Conventions of 1949. All states are parties of the Geneva Conventions.
In this particular conflict, they also include Additional Protocol I from 1977, which updates a number of those rules. Both Russia and Ukraine are parties to that treaty.
Additionally, there is customary international law, which is a set of practices that have hardened into legal requirements, even though they’re not codified in a particular treaty.
And there’s the International Criminal Court statute, which was agreed in 1998. Neither Russia, Ukraine, nor the United States is party to that treaty, but 123 states in the world are.
The ICC statute allows a state, even if it hasn’t ratified the ICC statute, to on an ad hoc basis accept the ICC’s jurisdiction over crimes committed on its territory or by its nationals. Ukraine did that in 2014 and again in 2015, with the latter declaration still in effect today. That’s why the ICC has jurisdiction over any war crimes, crimes against humanity, or genocide occurring in Ukraine.
Is the ICC the only court that can prosecute war crimes?
Any violation could be prosecuted domestically by the states whose forces are engaged in the action. In addition, any state in the world can prosecute war crimes if it has passed the necessary legislation. So you can have a Syrian national perpetrate war crimes against Syrian victims in Syria and a German court can exercise jurisdiction over that case because it involves war crimes.
Many states have passed universal jurisdiction legislation that allows them to hear cases of war crimes, crimes against humanity, and genocide without the kind of territorial or nationality links that would ordinarily be necessary.
That’s why it’s significant to say something’s a war crime. It means that what would otherwise have been a domestic law violation, or maybe not a violation at all, is now a legal violation that underpins this extended form of jurisdiction.
It also means that the state implicated has a specific obligation to prosecute those individuals. Of course, often it doesn’t, and that’s when universal jurisdiction and the International Criminal Court become important alternatives.
Can the U.S. prosecute war crimes?
Not those arising in Ukraine at the moment. The United States does not have universal jurisdiction over war crimes. It hasn’t passed that legislation domestically. But many other states have universal jurisdiction over war crimes.
A number of states—Estonia, France, Germany, Latvia, Lithuania, Norway, Poland, Slovakia, Spain, Sweden, and Ukraine—have already opened investigations into alleged crimes occurring in Ukraine with a view to possibly bringing cases before their domestic courts.
How successful are war crimes prosecutions?
Insofar as success is measured by the effective processing of cases with a full and fair evaluation of the evidence, it varies.
The International Criminal Court has struggled in its first two decades, particularly with cases brought against high-level state officials or former officials. The ICC depends heavily on states to cooperate in the investigative process and to arrest and transfer those charged. It has faced significant challenges in both respects. Other tribunals, such as the International Criminal Tribunal for the former Yugoslavia, have been more successful.
One of the things that has distinguished the situation in Ukraine has been the immediate and significant support that states are providing to criminal justice efforts, including through voluntary donations to boost the ICC’s budget and through cooperating among themselves in their universal jurisdiction investigations. That enhances the prospects of effective accountability in this situation.
However, even with that extraordinary coordination and support, it is extremely difficult to bring cases against high-level officials in powerful states. That obstacle will be difficult to overcome in this context.
Who is held responsible for war crimes?
A number of individuals can be held responsible. It’s not just the person pulling the trigger or dropping the bombs. And in each case, you need to establish what they knew at the time and what they intended to do at the time. It’s important to note that obedience to orders is not an excuse in international criminal law.
For alleged war crimes in Ukraine, would prosecutors focus on soldiers, or commanders, or might we see Russian President Vladimir Putin pulled into court?
Soldiers certainly could be prosecuted, but it would be unusual for lower-level troops to be prosecuted at the ICC. They’ll normally go for somebody slightly higher in the command chain.
Those who give the orders are also criminally liable. Even if they didn’t give the orders, if commanders knew or should have known that their subordinates were engaged in criminal activity and they didn’t do anything to prevent it, then they can be held responsible for that failure.
Can that command responsibility go all the way to Putin?
Yes. However, it gets increasingly difficult to make the linkage evidence stick the further up the chain you go. Those prosecutions tend to be more complicated and sometimes fail.
There’s an additional challenge with respect to Putin, which is that the head of state is immune from criminal prosecution before any other state’s courts for as long as they remain head of state. Foreign ministers can also invoke this protection.
The only exception to that, and this is controversial, is that the ICC would take the position that Putin’s head of state immunity doesn’t block a case at the International Criminal Court. And as I said earlier, the ICC has jurisdiction because of Ukraine’s ad hoc acceptance.
So the ICC could issue an arrest warrant and states would then have an obligation to arrest and transfer Putin were he in their territory. But states have not always accepted the ICC’s position on head of state immunity.
The one final thing I’ll say about Putin is that the crime of aggression—the decision to invade Ukraine, in this case—is a leadership crime. And that’s one where this question of the evidence is more straightforward because it’s clear that Putin made the decision to invade, along with a cabal of leaders at the very top. The Russian security council had a meeting on TV. The problem is that the jurisdictional obstacles to prosecuting the crime of aggression are more daunting—the ICC, for example, would not be available.
We’ve focused on Russian actions, but a war crimes investigation would look at both sides of the conflict. Have any Ukrainian actions risen to the level of a war crime?
A video circulating on the internet allegedly shows Ukrainian soldiers shooting Russian prisoners of war. If this action is verified, it would clearly constitute a war crime. Ukrainian authorities have stated that they will investigate, as they are required to do under international law.
What is the significance of the United States formally declaring that members of the Russian military have committed war crimes in Ukraine?
The most significant implication of the statement is its indication that the U.S. government wants criminal justice to be pursued in this situation. The statement suggests that the administration wants to facilitate such processes where possible, and that it is going to devote resources to doing that.
The announcement suggests that, where the United States has evidence, it will cooperate with other actors that might be pursuing war crimes prosecutions, either in domestic courts exercising universal jurisdiction or in the International Criminal Court.