• War crimes are defined as serious violations of humanitarian laws during a conflict.

• The definition, established by the Rome Statute of the ICC, is derived from the 1949 Geneva Conventions.

• It is based on the idea that individuals can be held liable for the actions of a state or its military.

• The taking of hostages, willful killings, torture or inhuman treatment of prisoners of war, and forcing children to fight are some of the more obvious examples.

Geneva Conventions (1949)

• The Geneva Conventions (1949) and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war.

• They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).

  • The first Geneva Convention protects wounded and sick soldiers on land during war.

  • The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.

  • The third Geneva Convention applies to prisoners of war.

  • The fourth Geneva Convention affords protection to civilians, including in occupied territory.

• India is a party to the Geneva Convention.

Criteria for War Crimes

• Criteria: To decide whether an individual or a military has committed a war crime, international humanitarian law lays down three principles:

  • Distinction: It is illegal to target objectives that are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objectives, which would be excessive in relation to the concrete and direct military advantage anticipated.

  • Proportionality: Proportionality prohibits armies from responding to an attack with excessive violence.

    • For example: If a soldier is killed, for example, you cannot bomb an entire city in retaliation.

  • Precaution: It requires parties to a conflict to avoid or minimise the harm done to the civilian population.

• Gray Area in Definition: Raids on a cities or villages, bombing residential buildings or schools, and even the killing of groups of civilians do not necessarily amount to war crimes — not if their military necessity is justified.

  • The same act can become a war crime if it results in unnecessary destruction, suffering and casualties that exceed the military gain from the attack.

  • Further, Civilian and military populations have become increasingly hard to distinguish

War Crimes .vs. Crimes Against Humanity

• The United Nations Office on Genocide Prevention and the Responsibility to Protect (or Genocide convention) separates war crimes from genocide and crimes against humanity.

• War crimes are defined as occurring in a domestic conflict or a war between two states.

• While genocide and crimes against humanity can happen in peacetime or during the unilateral aggression of a military towards a group of unarmed people.

Genocide - The most serious war crime

Washington and Kyiv are accusing Russia of genocide in Ukraine, but the ultimate war crime has a strict legal definition and has rarely been proven in court since it was cemented in humanitarian law after the Holocaust.

The 1948 Genocide Convention defines genocide as crimes committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

Three cases so far have met international courts’ threshold: the Cambodian Khmer Rouge’s slaughter of minority Cham people and Vietnamese in the 1970s, who were among an estimated 1.7 million dead; the 1994 mass killing of Tutsis in Rwanda that left 800,000 dead; and the 1995 Srebrenica massacre of some 8,000 Muslim men and boys in Bosnia.

Criminal acts comprising genocide include killing members of the group, causing them serious bodily or mental harm, creating conditions calculated to destroy them, preventing births, or forcibly transferring children to other groups.

What must prosecutors do to prove genocide?

To establish genocide, prosecutors must first show that the victims were part of a distinct national, ethnic, racial or religious group. This excludes groups targeted for political beliefs.

Genocide is harder to show than other violations of international humanitarian law, such as war crimes and crimes against humanity, because it requires evidence of specific intent.

“Genocide is a difficult crime to prove. Parties have to bring a lot to the table,” said Melanie O’Brien, president of the International Association of Genocide Scholars. She cited the combined requirement of showing intent, the targeting of a protected group, and crimes like killings or forcibly removing children.

The International Criminal Court opened an investigation into alleged war crimes and crimes against humanity in Ukraine in February. It also has jurisdiction over genocide.

Ukrainian prosecutors, already investigating alleged Russian crimes since the 2014 annexation of Crimea, said they have identified thousands of potential war crimes by Russian forces since Feb. 24 and compiled a list of hundreds of suspects.

Who is accusing Russia?

Ukrainian President Volodymyr Zelenskiy and US President Joe Biden have both accused Russian soldiers of genocide, focusing on evidence of rape, torture and killings in areas around Kyiv recaptured this month by Ukrainian troops.

“Yes, I called it genocide because it has become clearer and clearer that (Russian President Vladimir) Putin is just trying to wipe out the idea of being able to be Ukrainian and the evidence is mounting,” Biden said.

British Prime Minister Boris Johnson said that the scale of atrocities “doesn’t look far short of genocide.”

Moscow, which called the attack against its smaller neighbour “a special operation” to halt genocide against Russian speakers in Ukraine, says the West has faked evidence to smear its army.

The US administration has declared seven situations genocide since the 1990s: Bosnia, Rwanda, Iraq, Sudan’s Darfur province, Islamic State’s killings including against the Yezidi, the crackdown on Rohingya Muslims in Myanmar and the treatment of Uyghur Muslims in China.

What cases are happening now?

The International Criminal Court previously issued an arrest warrant on charges of genocide against former Sudanese President Omar al-Bashir, but his trial cannot begin until he is in custody in The Hague.

The International Court of Justice also has jurisdiction over the Genocide Convention, the first human rights treaty adopted by the U.N. General Assembly in 1948, stating the international community’s commitment to prevent the atrocities of World War Two from ever happening again.

It is hearing two cases: one claiming Myanmar committed genocide against Rohingya Muslims, the other brought by Ukraine to argue that Russia is using accusations of genocide as a false pretext for invasion. Such cases generally take years to reach a verdict.

Past cases

The International Criminal Tribunal for Rwanda convicted dozens of senior officials, all of them Hutus, of genocide against Tutsis.

When former Rwandan Mayor Jean-Paul Akayesu was found guilty of the crime in 1998, the court became the first international tribunal to interpret the definition of genocide set forth in the 1948 Genocide Convention.

In 2018, a hybrid U.N.-Cambodian tribunal found two leaders of Cambodia’s Khmer Rouge guilty of genocide following years of debate about whether the “Killing Fields” constituted genocide. The judges ruled that the Khmer Rouge had a policy to target Cham and Vietnamese people to create “an atheistic and homogenous society”.

The International Criminal Tribunal for the former Yugoslavia convicted several key figures of genocide for their roles in the Srebrenica killings during the Balkan wars of the 1990s. They include wartime Bosnian Serb military commander Ratko Mladic and Bosnian Serb political leader Radovan Karadzic. Former Yugoslav President Slobodan Milosevic died in custody before his genocide trial concluded.