Did You Ever Wonder?

What is a “War Crime”?

By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo

The national news has concentrated on the COVID-19 pandemic for over two years. But during the pandemic, and longer, there was the fear of military action that Russia may take against Ukraine. There was a buildup of Russian military forces along the border of Ukraine with political bantering back and forth as to the intention of Russia1. It would not be fair to the reader to go over the promises made by Russia that there would be no overt military action against Ukraine if they surrendered all of their nuclear weapons years ago. But on Thursday, February 24, 2022, Russian military forces entered Ukraine and commenced military attacks on that country and its citizens.

At the writing of this article it is April 11, 2022, and Russia has taken active military action against the country of Ukraine. There is a growing number of both Ukrainian military personnel and civilians of that country who have perished. Russia has also sustained a growing number of its military being killed in action. At this time, there has been no Declaration of War by Russia or Ukraine. The conflict continues as of the date of this article.

Under international law, a declaration of war traditionally contained three ingredients: an announcement of the intention to take violent action, an explanation why and a proposal of what could prevent it.

On Wednesday, March 16, 2022, United States President Joseph Robinette Biden Jr. said that Russian President Vladimir Vladimirovich Putin was a “War Criminal.” On Wednesday, March 23, 2022, President Biden declared that President Putin should be investigated for committing war crimes. Even prior to the statements of President Biden, the news media reported a variety of individuals who suggested that President Putin was a War Criminal and should be prosecuted for his actions.

It occurred to me that I knew a little bit about war criminals based on the Nuremberg trials after World War II (WWII). But I also thought that I had not really looked at the mechanism that war crimes tribunals took. In other words, where is the information about war crimes found? Where is the “criminal code” that defines war crimes and how does the court system work that has the jurisdiction of those crimes?

For my two best fans, you know that I use Wikipedia as part of my initial research. (See https://en.wikipedia.org/ wiki/War_crime) for a definition of war crimes:

“A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by

1One estimate is that there were 200,000 soldiers lined up at the borders of Ukraine.

the combatants, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, the conscription of children in the military, committing genocide or ethnic cleansing, the granting of no quarter despite surrender, and flouting the legal distinctions of proportionality and military necessity.”

The above seems straight forward but, being a fan of definitions, it does leave some ambiguity concerning what some of the crimes really mean. According to other sources, there seems to be a concentration of opinion around “international law.” (See https://en.wikipedia.org/wiki/ International_law):

“International law, also known as International Ethics, public international law and law of nations, is the set of rules, norms, and standards generally recognized as binding between nations. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war, diplomacy, trade, and human rights. International law aims to promote the practice of stable, consistent, and organized international relations.”

So there is a body of “International Law” that has a broad array of coverage for almost all of the nations. Only part of that list contains war crimes. So what are the criminal crimes promulgated by International Law? (See https:// en.wikipedia.org/wiki/International_criminal_law):

“International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.”

This seems a bit more limited in scope for an accusation of the commission of a crime until you get to “...crimes against humanity...” For history buffs I know you will recall one of the main crimes charged in WWII were crimes against humanity. Therefore, the list of crimes that can be used for charging war crimes is enlarged and expanded. What about the entity that is charged with a war crime? Is it the nation or country that is charged? What about the head of that country? What about the Officers in Charge of the military units who are fighting that war?

“Classical international law governs the relationships, rights, and responsibilities of states. After World War II, the Charter of the International Military Tribunal and the following Nuremberg trial revolutionized international law by applying its prohibitions directly to individuals, in this case the defeated leaders of Nazi Germany, thus inventing international criminal law. After being dormant for decades, international criminal law was revived in the 1990s to address the war crimes in the Yugoslav Wars and the Rwandan genocide, leading to the establishment of a permanent International Criminal Court in 2001.” (See https://en.wikipedia.org/wiki/International_criminal_law.)

At this point it looks like we are on the right track to see how this may work if/when someone is charged with war crimes from the actions of Russia against Ukraine. It should also be clear that it is possible that Ukraine could also have committed war crimes if it fits into the same categories listed in this article. Would there be the defense that the Ukraine was merely defending itself against the Russian actions consisting of war crimes? (See https://en.wikipedia.org/ wiki/International_criminal_law#International_ Criminal_Court):

“International Criminal Court: The International Criminal Court in The Hague

The International Criminal Court (French: Cour Pénale

Internationale; commonly referred to as the ICC or ICCt) is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).

The court’s creation perhaps constitutes the most significant reform of international law since 1945. It gives authority to the two bodies of international law that deal with treatment of individuals: human rights and humanitarian law.”

The court was founded by treaty, Rome Statute of the International Criminal Court, on July 1, 2002. The court is officially located in The Hague, Netherlands, but the proceedings may take place anywhere where permitted.

“As of November 2019, 123 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of

Africa. Burundi and the Philippines were member states, but later withdrew effective 27 October 2017 and 17 March 2019, respectively. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare they do not intend to become a party to the treaty. Four signatory states-Israel, Sudan, the United States2 and

Russia3 – have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the Statute.” (See https://en.wikipedia.org/wiki/

International_criminal_law#International_Criminal_Court):

“The court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party,

Continued on page 30

2Ephasis added 3Ephasis added

Continued from page 29

or a situation is referred to the court by the United Nations

Security Council.” (See https://en.wikipedia.org/wiki/

International_criminal_law#International_Criminal_Court.)

So one of the active countries, i.e. Russia, has removed itself from the jurisdiction of the International Court. And as unlikely as it may sound, the United Nations Security Council (UNSC) was recently chaired by Russia. That representative has since been removed from the UNSC chair position4. This does not remove Russia as one of the five members of the United Nations who have veto power.

“Forty-one additional states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court. Ukraine5, a nonratifying signatory, has accepted the Court's jurisdiction for a period starting in 2013.” (See https://en.wikipedia.org/wiki/ International_criminal_law#International_Criminal_Court):

“‘Ukraine accepts ICC jurisdiction over alleged crimes committed since 20 February 2014”.’” (See https://en.wikipedia.org/wiki/International_criminal_ law#International_Criminal_Court.)

As the above indicates, Ukraine does recognize the jurisdiction of the court. However, the court’s jurisdiction is limited.

“It is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.” (See https://en.wikipedia.org/wiki/International_ criminal_law#International_Criminal_Court.)

It would then indicate that a state must acquire jurisdiction at this level and attempt to prosecute the alleged violating state through the International Court.

Who are the judges of the International Criminal Court?

“The judicial division of the court consists of 18 judges who are elected by the Assembly of State Parties for their qualifications, impartiality, and integrity, and serve nineyear, non-renewable terms6. The judges are responsible to ensure fair trials, render decisions, issue arrest warrants or summonses to appear, authorize victims to participate, and order witness protection measures. They elect among themselves the ICC president and two vice presidents who head the court. The Court has three Judicial Divisions who hear matters at different stages of the proceedings:

Pre-Trial, Trial, and Appeals.” (See https://en.wikipedia.org/ wiki/International_criminal_law#International_

Criminal_Court).

“Pre-Trial: three judges decide if there is enough evidence for a case to go to trial, and if so, confirm the charges and commit the case to trial. They are responsible to issue arrest warrants or summonses to appeal, preserve evidence, protect suspects and witnesses, appoint counsel or other support for the defense, ensure that a person is not detained for an unreasonable period prior to trial, and safeguard information affecting national security.” (See https://en.wikipedia.org/wiki/International_criminal_ law#International_Criminal_Court.)

The above is similar to our preliminary hearings but with expanded powers not granted to the defense in Pennsylvania.

“Trial: three judges decide if there is enough evidence to prove beyond a reasonable doubt that the accused is guilty as charged, sentence those found guilty, and pronounce the sentence in public, order reparation to victims, including restitution, compensation and rehabilitation.” (See https://en.wikipedia.org/wiki/

International_criminal_law#International_Criminal_Court.)

4The chair of this committee is rotated between the five major signatories. 5Ephasis added 6DeTulleo Note: Note these judges do not have lifetime appointments.

The above is almost identical to the powers of our trial judges.

“Appeal: five judges handle appeals filed by parties that confirm, reverse or amend a decision on guilt or innocence or on the sentence and potentially order a new trial before a different Trial Chamber. They also ensure that the conviction was not materially affected by errors or by unfairness of proceedings and that the sentence is proportionate to the crimes. The appeal judges are also empowered to confirm, reverse or amend an order for reparations, revise the final judgment of conviction or the sentence, and hear appeals on a decision on jurisdiction or admissibility, interim release decisions and interlocutory matters.” (See https://en.wikipedia.org/wiki/

International_criminal_law#International_Criminal_Court.)

Although the above does not appear to be a sufficient number of judges for the appeals group, the powers they hold are similar to those of the Pennsylvania courts. However, there is only one appeals court for all cases brought to the court.

And not to be confused with the above, the United Nations created another court, The International Residual Mechanism for Criminal Tribunals. (See https://en.wikipedia.org/wiki/ International_Residual_Mechanism_for_Criminal_Tribunals):

“The International Residual Mechanism for Criminal

Tribunals, also referred to as the IRMCT or the

Mechanism, is an international court established by the

United Nations Security Council in 2010 to perform the remaining functions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International

Criminal Tribunal for Rwanda (ICTR) following the completion of those tribunals' respective mandates.”

The above court was meant to separate the activity of the actions and to finalize their adjudication and penalty imperatives so as to cut back on the personnel involved with each case. Those courts are still functioning.

In conclusion, the process of what may or may not happen concerning the actions of Russia against Ukraine is still unknown. The Ukrainian President, Volodymyr Zelenskyy, has publicly stated that he wishes to proceed with accusations of Russian soldiers for war crimes against his people. The reader may refer to multiple news sources to follow this history as it unfolds. It could be said that, for some, there will be a lifetime that takes place before we know the final outcome.

Former Chester County Bar Association President, Andrea Pettine, Esq., was named the 2022-2023 President of the PA Conference of County Bar Leaders!

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