THE RECENT EVENTS in the Ukraine town of Bucha have stopped the world in its tracks. Reporters who visited the suburb of Kyiv which was under Russian control until recently have described seeing the bodies of civilians scattered throughout the streets.
Images of the dead are there for us to see today, many with hands tied behind their backs, reports too that some children and elderly are among them, the accusation being they were all murdered by Putin’s soldiers. Bucha has also fueled concerns that similar crimes may also have been perpetrated against innocent civilians elsewhere in Ukraine as the war rages on.
The bloodied streets of Bucha have placed the attention of the international community on the issue of war crimes and whether this requires investigation by the International Criminal Court (ICC). For this to happen we need to be clear on the type of atrocity that took place. Was the event genocide, a crime against humanity or a war crime?
These crimes can be defined as follows, according to the UN:
Genocide: The intent to destroy, in whole or in part, a national, ethnical, racial or religious group by killing members of the group, inflicting conditions to bring about their demise, forcibly transferring children from one group to another.
Crimes against humanity: Any acts when committed as part of a widespread or systematic attack directed against any civilian population, including murder, enslavement, deportation, rape and torture.
War Crimes: A violation of the laws of war that gives rise to individual criminal responsibility, such as intentionally killing civilians.
Today, US President Joe Biden has called for a “war crimes trial” over events in Bucha and while visiting the scene, Ukrainian President Volodymyr Zelenskyy accused Russia of war crimes that would be “recognised by the world as genocide”. I believe whatever happened in Bucha might be termed, it was unacceptable and requires a full investigation.
Civilian vs military losses
The nature of warfare has changed in a century. It may be interesting to note that in WWI 90% of casualties were soldiers. By WWII, soldiers made up about 60% – now, it is civilians who make up more than 80% of casualties (mainly in intra-state conflicts).
During the war in Bosnia in the 1990s, Serbs in Sarajevo erected military positions within civilian neighbourhoods, close to UN positions and even took UN officers hostage and handcuffed them to Serb defence positions, daring the opposition to fire.
The horrendous crimes perpetrated by Serbian forces in Srebrenica in 1995 – where more than 8,000 Bosnian Muslim men and boys were murdered over a two week period – are by now well documented.
Based on the information we have so far from Ukraine, there appear to be differences between Srebrenica and Bucha. In the case of the former, there was a UN presence in the enclave. There is video evidence of convoys of trucks carrying away many of the victims and we had Serbian forces commander, General Ratko Mladic boasting that he would protect the population.
In Bucha, to date, we have images of bodies strewn along the streets wearing civilian attire. This may not be the complete picture, however, it is enough to launch an investigation and one that must be meticulous.
Holding Putin accountable
The history of Russian brutality is not confined to Ukraine. One only has to look back at the dreadful killings in Afghanistan, Chechnya and the Second World War for stories of brutal warfare. In recent years, Putin’s forces have also been accused of committing war crimes in Syria.
As described by Jack Watling of RUSI (Royal United Services Institute) on BBC Radio Four “This is a doctrine of anti-partisan warfare, which is about collective punishment”. This is what we have possibly witnessed in Bucha, Putin wants to punish Ukrainian civilians for standing up to this invasion.
This crimes in Bucha are not the only such incident of the Ukrainian war. The shelling of apartments all over the country, the destruction of much of the city of Mariupol, the confinement of a large percentage of its citizens, and the systematic shelling of civilian targets all add to the belief that Russia wants to destroy the soul of Ukraine.
There are many challenges for the ICC to overcome. Neither Russia nor Ukraine are party to the Rome Statute that established the ICC in The Hague.
Ukraine cannot refer any alleged crimes itself but the ICC does have jurisdiction over crimes committed on its territory. Russia withdrew from the ICC in 2016 after a report published by the court classifying the Russian annexation of Crimea as an occupation.
If a state is not a party to the ICC, its individuals cannot be prosecuted by the court for this specific offence. The only exception is that the UN Security Council can refer a non-party to the ICC but as Russia holds a veto as a permanent member of the council, I cannot see this happening.
Criminal investigations of this type and size take an inordinate period of time to investigate. It is particularly difficult in this case when it comes to investigating Bucha as the area is an active war zone. That will mean limited access not only to the area but in relation to the gathering of evidence, and listening to witnesses and victims – a major challenge in itself.
The ICC will have to gather the evidence necessary to assess if there are grounds to believe that crimes have taken place and who is culpable. It is very difficult to link a political leader to offences committed by armed forces on the ground.
Then there is the obstacle of arresting Putin (if that course of action is declared in a ruling). The ICC cannot hold court without the accused being in attendance. For this to happen I suspect he would have to be removed from office and extradited by a new government to The Hague.
Regardless of the perceived difficulties in pursuing this issue the international community should proceed with an immediate investigation of these war crimes to bring the perpetrators to account. The people of Ukraine deserve no less.
Colm Doyle is a retired Irish officer. He was a battalion commander in Lebanon and a Commandant of the Military College. He served abroad with the UN in Cyprus, Lebanon and the Middle East. He served with the EU in Bosnia in 1991/92 in 2004 was appointed Chief of Staff of the Military Division at UN HQ in New York. He testified at four trials at the International Criminal Tribunal in The Hague. He is the author of a memoir of his time in Bosnia “Witness to War Crimes: the Memoir of a Peacekeeper in Bosnia.”
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