The Washington PostDemocracy Dies in Darkness

Opinion As Russia escalates its aggression on Ukraine, evidence of war crimes mounts

People fleeing Ukraine pass the border in Tudora Village, Moldova on March 7. (Dumitru Doru/EPA-EFE/REX/Shutterstock)
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Among the many ways Russian President Vladimir Putin’s invasion of Ukraine threatens human progress is the degree to which it defies the laws of war. Those laws emerged from the crucible of the 20th century to reflect a noble, if never fully realized, goal: curbing the worst excesses of armed conflict. As Mr. Putin’s forces bombard Ukrainian cities, the question of war crimes necessarily — appropriately — presents itself. What a prosecutor might call probable cause to suspect Russia of war crimes already exists, relating both to its reasons for launching the conflict and the manner in which it has waged it.

First, Mr. Putin’s rationale for war utterly lacks the necessary legal basis — or jus ad bellum, in legal Latin. Recognized at the post-World War II Nuremberg trials of accused Nazi war criminals, the crime of aggression was defined in a 1998 treaty establishing the International Criminal Court (ICC): “The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” That perfectly fits Mr. Putin’s assault on United Nations member Ukraine’s sovereignty, territorial integrity and political independence.

Next comes the issue of jus in bello — the lawfulness of the Russian military’s actual conduct on the battlefield. The basic rule is that there may be no deliberate targeting of civilians, and that collateral damage is legally tolerable only if it results from attacks that were themselves intended to hit military targets, with proportionate force. Obviously, those criteria leave a lot of room for debate — but not about the massive Russian shelling of Kyiv, Kharkiv, Mariupol and other densely populated cities, which has struck schools, apartment buildings and hospitals. Hospitals are supposed to enjoy special protection because of international law’s requirement that medical care is provided impartially even amid war. Yet the World Health Organization says nine attacks have hit health facilities, health-care workers and ambulances since Feb. 24. Fleeing civilians are entitled to safe passage, yet one of the ugliest incidents of the war so far was Sunday’s sudden mortar attack on a civilian area of Irpin, outside of Kyiv, which killed four people, including an 8-year-old. Even when no one is killed or injured, artillery barrages such as those being unleashed by Russia can violate the laws of war, which expressly prohibit the “wanton destruction” of property.

The ICC’s chief prosecutor, Karim Khan, has announced that the court will investigate potential war crimes stemming from the Russian invasion. This may or may not lead to prosecutions such as those which imposed accountability for atrocities in ex-Yugoslavia during the early 1990s. Russia has never recognized the ICC’s jurisdiction — and neither has Ukraine. (Or the United States.) Unlikely as it may be that Mr. Putin himself ever stands trial, Russian officers assigned with following his orders may be deterred by the prospect that they will be. Lives may yet be saved if those waging this war fully understand that it is a crime in every sense of the word, moral and legal.

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