WAR CRIMES - LEGAL CONCEPT OR OXYMORON?

The seemingly unending military confrontation in Ukraine continues unabated. As Russian troops move from areas they controlled to a newly declared front in the Donbas region, they leave behind gruesome evidence of inhumane depravity and savagery, inflicted on a defenseless civilian population. In Bucha, a suburb of Kyiv, so far more than 500 bodies have been discovered: shot, tortured, raped, burned, killed without apparent pretext. For the greater Kyiv area the additional body count already exceeds 1000. Add to these statistics the lethal result of the horrific missile attack on the train station in Kramatorsk, where 4,000 refugees were waiting to escape the fighting, and the more than 20,000 civilians estimated to have been killed in Mariupol and elsewhere, the picture becomes crystal clear: with genocidal intent and its advance successfully obstructed by Ukrainian forces, Putin's military is pursuing a scorched earth strategy, leaving nothing behind. As she was interviewed while exhuming another mass grave in Bucha, Ukraine's Prosecutor General Iryna Venediktova observed that, throughout the country, more than 6,000 alleged war crime cases were already being investigated. (Mark Lowen, BBC News, Apr. 14, 2022). Charging the aggressor with committing war crimes helps to define the extent of the war as experienced by the domestic population. However, to have those charges adjudicated, they need to be prosecuted before the International Criminal Court in The Hague. Its process is quite time consuming and does not produce swift justice. To make their case, prosecutors would have to establish a direct line of responsibility from the top of Russia's government to the atrocities on the ground - and show they were not just committed, but ordered. The use of the term "war crimes" raises a number of questions. Some would argue that war in itself is a criminal, lawless activity involving ruthless, inhumane violence. If that is true, "war crimes," a legal concept, implying a violation of, supposedly, non existent "rules of war," is really an oxymoron, a contradiction in terms. While this may be an academic debate, over time other national actors have attempted to modify the severity of military conflict by establishing "rules of war" that embody the essentials of human dignity. Attempts at civilizing warfare date back at least to the Code of Hammurabi, a legal text created by the king of Babylon around 1755 - 1750 BC. It imposes a code of conduct in the event of war, designed to "keep the strong from oppressing the weak." The Bible and Quran also contain rules of respect for adversaries. Over time, frequently following horrendous exhibitions of genocidal conflict, these rules evolved. In 1863, President Abraham Lincoln issued a set of rules, commonly known as the "Lieber Code," which introduced a code of conduct for Union soldiers during hostilities throughout the Civil War. This code inspired other countries to adopt similar rules for their military and served as a template for international efforts to codify the laws of engagement during war. Ultimately international treaties were agreed upon, culminating in the Geneva Convention adopted in 1949, dictating what can and cannot be done during armed conflict. Many crimes identified in the protocols adopted by much of the international community responded to horrendous acts of cruelty displayed by feuding armies. These include Hitler's "euthanasia program," murdering newborn infants displaying mental or physical disabilities to cleanse the "Aryan" race of people considered genetically defective, killing at least 10,000; the Holocaust, killing more than 6 million; medical experiments conducted by Japan's Lieutenant General Ishii Shiro, leading to the assassination of up to a half million mostly Chinese and Russian human beings; the genocide of Armenian and Assyrian people, resulting in the death of well over a million; hundreds of thousands killed in the Balkans during the Yugoslav wars at the end of the last century, and many others. The Geneva Convention specifically identifies intentionally killing civilians and prisoners of war, torture, taking hostages, sexual violence, pillaging, genocide and ethnic cleansing as violations of the rules of war. Many of these certifiably apply to acts committed by Russian troops in Ukraine. The International Criminal Court, which was established by the Rome Statute in 1998, nominally assumes jurisdiction over alleged war crimes. The Statute is designed to facilitate and prosecute war criminals before the court and, since inception, multiple heads of state have had their cases tried in this facility. Some of these include notorious defendants like Japan's General Hideki Tojo, Serbian President Slobodan Milosevic, Bosnian President Radovan Karadzic and Lybian leader Muammar Gaddafi. The Court's tenure has not been without controversy. It is often accused of only trying cases brought by the winners of military conflict, suggesting these cases result in "victors' justice," in pursuit of revenge. Some question why not all horrific bloodshed was prosecuted as war crimes, such as the atomic bombings of Hiroshima and Nagasaki. The U.S., Russia, China and Israel have not recognized the Court's jurisdiction, although the U.S. participates as an observer. Finally, it is important to recognize that proceedings before the Court can only be brought by a national government or by the U.N. Security Council - in which Russia has veto power. Also, the Court tries people, not countries. While establishing responsibility for the war crimes committed in Ukraine would not be problematic, pointing clearly at the Russian president, to give the allegations their intended effect, Vladimir Putin would need to be apprehended and taken to The Hague for trial, something not likely to happen any time soon. So, yes, "war crimes" is an internationally recognized legal concept. However, unless the world can bring Putin and his chief collaborators to justice, identifying the thousands of openly flaunted violations of this concept, while illuminating, remains effectively symbolic. Theo Wierdsma