War crimes or genocide, how to qualify the abuses in Ukraine?

• Ukraine and Western countries accuse Russian troops of "massacre" and "war crimes" after the discovery of corpses in the streets of Boutcha, a small town northwest of kyiv.

• Some politicians, such as British Prime Minister Boris Johnson, have even mentioned a possible "genocide".

• These charges – war crimes, crimes against humanity and genocide – arose after the Second World War, and can be prosecuted by the International Criminal Court (ICC).

A bombed-out pediatric hospital in Mariupol in eastern Ukraine, just days after the Russian invasion began.

Corpses lying in the middle of the street, men, women and children piled up in mass graves, their hands sometimes tied behind their backs... A month and a half after the start of this conflict, international condemnations are multiplying to the rhythm of the images of abuses.

This Wednesday, again, US President Joe Biden denounced “Major war crimes”.

Referring to the Boutcha massacres, British Prime Minister Boris Johnson pointed to a “situation which does not seem far from genocide”.

As for the Ukrainian President, Volodymyr Zelensky, he has repeatedly raised the notion of crimes against humanity.

But all these incriminations are defined by international law.

What exactly do they cover?

takes stock.

•  war crimes

  
  

This is the broadest concept since it encompasses all violations of the various laws and conventions that govern war.

“A certain number of rules to be respected during an armed conflict have been defined, in particular by the Geneva Conventions of 1949 and their protocols”, specifies Catherine Le Bris, research fellow at the CNRS.

The assassination of civilian populations, acts of torture – including against soldiers – or rape are thus prohibited.

Just like looting, executing hostages, intentionally directing attacks against schools, hospitals or museums.

“Indiscriminate attacks against the civilian population, that is to say all those which have no military objective”, can fall into this category, specifies this specialist in international law.

As of March 2, the International Criminal Court (ICC), the competent authority to judge these crimes, opened an investigation into the situation in Ukraine.

“I am convinced that there is a reasonable basis to believe that alleged war crimes have been committed,” said Karim Khan, the prosecutor of this instance, specifying that his investigations would target all acts committed in the country since November 2013. , the beginning of the conflict in the Donbass.

It now remains to carry out the long work of collecting evidence to identify the principals and which battalions were likely to apply them.

Because in this type of case, the accused must respond individually, a State cannot be prosecuted.

•  Crimes against humanity and genocide

  
  

If an exaction, even isolated, can be qualified as a war crime, the concept of crime against humanity, it, takes on a “systematic character”, notes Catherine Le Bris.

And to clarify: “These crimes are committed in application of a policy defined by a State, this is also called a “widespread attack”, which is based on a concerted plan.

Article 7 of the Rome Statute defines it in particular by acts of extermination, enslavement, forced prostitution or deportation.

“From my point of view, what we saw in the images of Boutcha are war crimes.

These are crimes against humanity if we manage to demonstrate that these acts are systematic in this conflict”, illustrates the CNRS researcher.

As for the concept of genocide, used on several occasions by the Ukrainian president, it is difficult, as it stands, to affirm that it can come under it.

According to Article 6 of the Rome Statute, it is an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Unlike crimes against humanity, this notion therefore targets a group of people with the intention of destroying it.

It would thus be necessary for the facts observed in Boutcha, to be able to affirm that behind these images hides an intention to destroy a population group.

Finally, these offenses can be cumulative: a person can be condemned for war crimes, crimes against humanity and genocide.

•  The crime of aggression

  
  

“The crime of aggression is a crime against peace.

It is the act of a state attacking or invading another state,” explains Catherine Le Bris.

Unlike other types of international crimes, the International Criminal Court (ICC) has no jurisdiction to try it.

Initially provided for in the statutes of this jurisdiction, the crime of aggression has not yet come into force because of its political nature.

Moreover, Russia withdrew its signature from the text that defines this crime - the Rome Statute - a few years ago.

This is the reason why certain observers, such as the jurist specializing in international law, Philippe Sands, are now calling for the creation of an

tribunal on the Ukrainian conflict.

According to them, the creation of such a court would allow, for example, to try Russian President Vladimir Putin.

Indeed, according to the Rome Statute, this crime is defined as the execution of an act of aggression by “a person in a position to control or direct the political or military action of a State”.

“In this conflict, we know that the responsible party is the Russian presidency.

The question of the attribution of the crime arises less whereas it can be much more complex to determine within the framework of a war crime or against humanity”, concludes Catherine Le Bris.

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