The images were horrifying. A crowded shopping mall in Kremenchuk, a city in central Ukraine, engulfed in flames after a Russian airstrike. At least 18 civilians were killed and another 36 missing; 58 more were wounded. More than 1000 people – police, rescue personnel, medics, and other volunteers – worked through the night sifting the rubble for survivors.
In his address to the country that evening, Ukrainian President Volodymyr Zelensky called the strike “one of the most defiant terrorist attacks in European history.” The Russian target just “an ordinary shopping mall with women inside, children, ordinary civilians inside.” He noted that “this is not an off-target missile strike, this is a calculated Russian strike – exactly on this shopping mall.”
Russian Foreign Minister Sergei Lavrov – Moscow’s version of Baghdad Bob – was quick to refute the accusations, claiming without any evidence that the mall was in fact somehow part of – or at least adjacent to – a suspected military munitions depot where Western weapons were being stored. It was the same old story we’ve heard time and again since the invasion: attacks on civilians were actually targeting legitimate military sites. Classic Kremlin gaslighting.
War and Peace
Even war has rules. The law of war – which traces its roots to the Code of Hammurabi – is a component of international law that regulates the conditions for initiating war and the conduct of warring parties. The law of war is principles-based, with those principles including military necessity, distinction, proportionality, humanity, and honor. Ultimately, the law of war is meant to protect both combatants and non-combatants from unnecessary suffering, ensure human rights, and help facilitate a return to peace.
By definition, war crimes are relatively easy to identify, and intent typically separates them from the other events in war. The intentional killing of civilians, unnecessarily destroying civilian property, wartime sexual violence, pillaging, torture, and ethnic cleansing and genocide are all war crimes. The first war crime tribunal was that of the Burgundian knight Peter von Hagenbach in 1474, for atrocities committed by soldiers under his command. Despite his claims that he was simply following orders, he was tried, convicted, and beheaded.
The Nuremberg Trials were noteworthy for the scope and scale of war crimes committed by the Nazis before and during the Second World War. Similarly, the Tokyo War Crimes Tribunal addressed Japanese atrocities committed during that same period. More recently, the International Criminal Court (ICC), established by the Rome Statute in The Hague, maintains prosecutorial responsibility for war crimes committed since its inception on July 1, 2002.
Prosecuting war crimes is more problematic. It’s a lot easier following the capitulation of a combatant, where the lines of victory and defeat are clearly drawn. It’s much more difficult when the criminal proves evasive or, in the case of Russia, is still very much an active combatant that refuses to so much as acknowledge their crimes.
Crime and Punishment
The missile attack on the shopping mall in Kremenchuk clearly falls under the definition of a war crime, despite the Kremlin’s refusal to acknowledge its willful targeting of a civilian structure. Since Russia’s invasion of Ukraine on February 24, the toll of the war – most of which has fallen on the shoulders of the civilian populace – has been staggering. A recent report estimates that as many as 5,000 civilians have been killed and nearly 6,000 more injured. Of those dead, 330 were children, with nearly 500 more wounded. As many as 15 million civilians have been displaced, creating the worst humanitarian crisis in Europe since World War II.
It seems at times as if Russia commits another war crime with each passing day. The frequency with which Vladimir Putin’s forces breach the law of war is mind boggling. If it’s not a shopping mall, it’s a school, a movie theater, or a hospital. Ukraine has been almost as effective telling the world about these atrocities as the Kremlin has been in denying them.
Even as Ukraine has begun to take action when and where they can, true accountability will continue to be evasive. There are exceptions, though. In May, a 21-year-old Russian soldier was convicted of executing 62-year-old Oleksandr Shelipov. He admitted to the crime, but claimed to be acting on orders, an argument that has never worked well in war crimes tribunals. Ukraine is also preparing cases against 41 other Russian troops for war crimes ranging from murdering civilians to rape and looting. But the question on everyone’s mind: Can Putin be held accountable?
As the BBC noted in a recent article, “It’s far easier to pin a war crime on the soldier who commits it, than the leader who ordered it.” Russia isn’t a signatory to the Rome Statute, and likely cannot be prosecuted by the ICC. There’s always the UN Security Council, which could ask the ICC to investigate, but such a measure would be vetoed by Russia as a matter of course. Short of being deposed in a coup and extradited to Kyiv, Putin will likely escape this war without consequence.
Red Menace
The accusations of war crimes against Russian forces have plagued this conflict from the outset. Putin’s army operates with a wanton disregard for human life that doesn’t distinguish combatants from non-combatants. Spilled blood is the path to victory. Enough spilled blood will crush the will of Ukraine.
But not all war crimes are equal – even in a war as brutal as this one, some crimes are worse than others. The worst war crimes need to be documented and remembered. A time will come one day when people are called to atone for them.
1. Attacks in Mariupol.
On March 2, a Russian artillery barrage rained down on a residential neighborhood for nearly 15 hours. On March 9, the Russian Air Force bombed a maternity hospital. On March 16, Russia bombed a theater being used as a shelter by as many as 1,200 Ukrainians. Already considered among the century’s worst humanitarian disasters, Amnesty International classified the attacks as war crimes in a recent report.
2. Bucha massacre.
During the occupation of the town of Bucha, Russian forces systematically tortured and murdered countless citizens. After their departure on March 31, mass graves were uncovered, and the true nature of the occupation was revealed.
3. Attacks on hospitals.
As of May 9, 165 separate attacks on health care facilities had been documented, a number that is believed to have since eclipsed 200. Each attach represents a war crime.
4. Sexual violence.
From the outset, Russian forces have used rape as a tool of war to deepen the trauma of war. Men, women, and children have been victimized on a persistent basis. Where Russian troops move, sexual violence follows.
5. Treatment of civilians.
As if sexual violence wasn’t enough, ill-treatment, torture, and willful killing of civilians has become commonplace on a scale not seen since the early days of the Soviet Union. Russian forces have systematically launched indiscriminate attacks against non-combatants, used them as human shields, and forced millions into mass migration through “deportations.”
Accountability may prove elusive, but history will remember.
