What counts as a war crime?

The conduct of Russian forces in Ukraine is coming under fresh scrutiny after claims that more atrocities have been uncovered in Borodyanka, near Kyiv.

President Volodomyr Zelenskyy said violence in the town had been “more horrific” than in nearby Bucha, where images of murdered civilians led to international condemnation last weekend.

Reports from Bucha also reignited debate about what constitutes a war crime – and whether Russia’s political and military leaders could be held to account.

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According to the United Nations, war crimes are defined as “violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law”. Unlike genocide and crimes against humanity, it says, the violations must “always take place in the context of an armed conflict, either international or non-international”.

Examples of war crimes listed by the UN include wilful killing, torture or inhuman treatment, wilfully causing great suffering, extensive destruction and appropriation of property, compelling a prisoner of war to serve in the military of a hostile power, depriving a prisoner of war of the rights of fair trial, unlawful deportation and taking of hostages.

Evidence in Ukraine

“Investigators and journalists have found what appears to be evidence of the deliberate killing of civilians in Bucha” and the surrounding area to the northwest of Kyiv, said the BBC. When Ukrainian forces entered the area last week they reported finding “mass graves” and “evidence of civilians having been shot dead after their feet and hands were bound”.

Several countries had already backed an investigation launched by the International Court of Justice in late February, but recent reports and images have prompted calls from across the globe “for investigations into war crimes and crimes against humanity”, said Politico.

Joe Biden led calls for the Russian president to face a criminal trial. “I got criticised for calling Putin a war criminal,” he said. “You saw what happened in Bucha, he is a war criminal. We have to gather all the details so this can have a war crimes trial.”

Now it seems likely that international pressure will intensify after Zelenskyy said volunteers and military personnel who were “sorting through the ruins in Borodyanka”, 20 miles from Kyiv, had found evidence of atrocities worse than those seen in Bucha. “It’s much more horrific there,” he said. “There are even more victims of Russian occupiers.”

Russia has denied accusations that it has committed war crimes and claimed, without offering evidence, that Ukrainian “Nazis” were responsible for the Bucha killings.

Experts have warned that war crimes are notoriously complicated to prosecute, fuelling doubts about whether Putin will ever face justice.

Will Russian leaders face war crimes trials?

A “series of one-off courts” have conducted war crimes trials since the Second World War, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) said the BBC. Both of these courts were set up to investigate genocides.

The International Criminal Court (ICC) and the International Court of Justice (ICJ) also have key roles in upholding the rules of war. But the ICJ “cannot prosecute individuals”, the broadcaster noted.

And while the UN Security Council would be responsible for enforcing any ICJ ruling, Russia could veto any proposed sanction as one of the council's five permanent members.

Investigating and prosecuting war crimes can also “take years”, Axois reported, “often leading to frustration for victims”.

And even if prosecutors investigating the Ukraine killings “can show that high-level officials and/or Putin directed or were aware of orders to target civilians or other actions that may constitute war crimes”, a trial “cannot be conducted” unless the official has been arrested and is in custody.

But according to The Economist, “even if success is likely to be limited”, it “is worth trying”. If action is taken, “legal proceedings will grind on and are likely to deal further setbacks to Russia’s legal case and diplomatic standing”.

Such action may also embolden Ukraine’s allies to “find other means of stepping up pressure” on Moscow through measures including “more sanctions” and the delivery of “more lethal weapons” to Kyiv, the paper added.

Ukrainian leader Zelenskyy yesterday demanded justice for the Russian atrocities, warning that the Bucha massacre was “only one of many examples of what the occupiers have been doing on our land for the past 41 days”.

“This undermines the whole architecture of global security,” he told the UN Security Council. “It allows them to go unpunished so they are destroying everything that they can.”