My last article about the law of war contained a discussion about how customary and treaty law has created the international rules of war, and our accepted international norms that most countries abide by.

One current exception to that rules based approach is the current unlawful invasion of Ukraine by Russia, which is escalating and ongoing. The unlawfulness of Russia’s conduct in Ukraine raises not only the illegality of its invasion to begin with, but the spectre of what may be war crimes being committed against the people of Ukraine.

Whilst we all have a broad understanding of what constitutes a war crime, what exactly are the elements of such criminality, and how are war criminals caught and tried?

The jurisprudence creating modern day war crimes has been a long evolution, as we have sought to temper our human aggression. It may not help much in the first instance when what you have on your hands is a military psychopath; however, it can later help to bring an individual to account for their wrongdoing, such as the Nazis at Nuremberg.

As well as customary law, the body of treaties that can lead to indictment, arrest, and trial of an alleged war criminal is familiar to us, and includes The Hague and Geneva Conventions. A war crime, put simply, is a criminal offence that is recognised in international law as a humanitarian crime committed by an individual person.

People, not countries, are war criminals, and what must be proved is the criminal culpability of an individual. There exists the usual presumption of innocence and the necessity for a fair trial. Under the broad umbrella of what we now consider to be war crimes, sits genocide, crimes against humanity, and offences, such as torture.

Whilst the most notorious war crimes are those committed in acts of mass murder and genocide, war crimes can be very specific, such as the crime of shooting a parachutist ejecting from or escaping an aircraft for the purpose of avoiding injury or death. We now recognise that rape and sexual assault can constitute a war crime, most obviously when it is used as a weapon of war; a repellent and appalling infliction of violence against the vulnerable.

The United Nations list of war crimes includes murder, torture, wilfully causing great suffering or injury, forcing POWs to fight for a hostile power, using children under 16 years to engage in hostilities, attacking civilians, unnecessary destruction of property, using poison or poison weapons, attacking such structures as hospitals, places of religious worship or of great historical heritage, and attacking or bombarding defenceless towns. This list is not exhaustive.

Allegations made in the theatre of war may be hard to prove, but there have been notable war crimes convictions in the 21st century, such as those arising from war crimes committed by the Serbs and Bosnian Serbs in the massacre at Srebrenica in 2008.

The huge body of evidence heard in the ensuing war crimes trials attested to the brutality and extent of the atrocities committed against Bosnian Muslims in that infamous and shameful episode of mass murder and attempted genocide. Both President Radovan Karadzic and Commander Ratko Mladic were convicted of war crimes, as were many others involved in those despicable crimes against humanity; against innocent women and children and men.

Serbia formally apologised for the massacre in 2010 and again in 2013. But it has never been recognised as a genocide because in 2015 Russia vetoed the U.N. resolution that would have formally recognised what occurred.

Turning now to the war in Ukraine, unilaterally and unlawfully commenced by Russia and ongoing, there are profoundly disturbing reports of conduct by the Russian military that if proven may amount to war crimes.

A hospital has been allegedly attacked. Russia says the Ukrainians made that one up. Citizens have been attacked as they escaped as refugees along humanitarian corridors. Russia says the Ukrainians made that one up too. Bombs such as cluster and thermobaric may have been unlawfully used. The use of cluster bombs is strictly controlled by international treaty. There are numerous alleged instances of Russians killing unarmed and fleeing civilians including children. These are a bit harder to deny given that some have been filmed. Most recently is an allegation of the use of chemicals.

All this is in addition to the fact that Russia’s unlawful aggression by invading another sovereign nation is in and of itself a breach of international law.

Is all this just pie in the sky stuff? Will any person ever be tried arising out of this illegal war?

There are profoundly disturbing reports of conduct by the Russian military that if proven may amount to war crimes.

At this stage it is anyone’s guess, but if the lessons of the past count for anything the Ukrainians will be carefully documenting what is happening and by whom. It was in this way that the thugs of Srebrenica were indicted, arrested and convicted. We are also witnessing the first war broadcast by social media, and the world of today is all on film, from satellites, to CCTV, to phones, so there will be records of what is occurring.

Russia is not a signatory to the Rome Statute that in 2002 set up the first permanent war crimes tribunal, the International Criminal Court. Neither for that matter is the U.S. or China, although the U.S. has observer status and is moving closer and closer to being fully on board. Only a handful of other nations are not members, or have declined to accept the court’s jurisdiction, and they include Israel, Iraq, Yemen, and Qatar.

War crimes are not automatically tried in the International Criminal Court. War criminals are most often tried by their own domestic countries. Indeed, Serbia itself tried and convicted some of its own war criminals following Srebrenica. But the International Criminal Court exists to try allegations of grave war crimes when member countries do not, or when a war crime is referred because of its character. Its jurisdictions are genocide, crimes against humanity, war crimes, and crimes of aggression.

When can the International Criminal Court reach beyond the citizens of its member countries? The answer is complicated. It certainly can by consent, but can only otherwise do so if there is a referral by the U.N. Security Council.  As Russia is a member of the U.N. Security Council, it seems unlikely it would do anything but veto a resolution that the actions of its leadership be referred to the International Criminal Court. It begs the question after this unbridled act of aggression by Russia whether or deserves to enjoy that status.

But time may be an ally. There is no limitation of time on the prosecution of war crimes. When President Putin falls from power or leaves office, who knows what may happen? It took time to indict and convict the war criminals of Srebrenica but the rule of law succeeded in the end. Justice can afford to be patient. Meantime there may be many Russians who will not now dare step beyond their borders for fear of arrest.

A poster at a rally in Bangkok, Thailand. Photo supplied

As to President Putin, he may be protected within the Kremlin’s walls, but many Russians are concerned about the aggression in Ukraine. Many may not be, and many more may have been fed such endless disinformation by the Russian autocracy that they would not know the truth. However if the time ever comes for the  suspected crimes of some Russians in this war to be tried, it is worth reflecting on what Ann Tusa, the eminent historian responsible for recording much of the contemporaneous history of the Nuremberg trials said, which points to a primary purpose of war crimes trials. In her words:

‘ We must make it clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the War, but that they started it.’ There is also the purpose of holding suspected individual war criminals to account for their crimes. Because it is a fundamental plank of jurisprudence that every person is responsible for their own actions, whether they were commanded to do a thing or not. We know now that the Nuremberg defence was never ever going to stand up to scrutiny. Using Ann Tusa’s observations again:

‘There comes a point where a man must refuse to answer to his leader if he is also to answer to his conscience.‘

There would be Russian troops and Russian citizens thinking just that today.

A tyrant and an autocrat’s reign will always end. Law and justice are endless, as they are relentless.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia