Below please find the opening paragraphs of an essay outlining international law as it pertains to war crimes and Russia’s invasion of Ukraine. Made available on April 1 by Consortium News, it is the second part of a two-part series by former U.S. Marine Corps intelligence officer and former United Nations arms inspector Scott Ritter. The first part is HERE. — MCM
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Russia, Ukraine & the Law of War: War Crimes
During his recent four-day European tour, U.S. President Joe Biden made headlines when, during a meeting with Polish President Andrzej Duda, he described Russian President Vladimir Putin as “a man who I quite frankly think is a war criminal,” adding “I think it will meet the legal definition of that as well.”
Putin’s spokesperson, Dmitry Peskov, condemned Biden’s comment as “unacceptable and unforgivable rhetoric on the part of the head of a state whose bombs have killed hundreds of thousands of people around the world.”
Biden made his remarks following a statement issued by Secretary of State Antony Blinken in which Blinken announced that the State Department had made a formal assessment that the Russian military had committed war crimes in Ukraine. “Based on information currently available,” Blinken said, “the U.S. government assesses that members of Russia’s forces have committed war crimes in Ukraine. “Our assessment,” Blinken added, “is based on a careful review of available information from public and intelligence sources.”
According to Blinken, “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded. Many of the sites Russia’s forces have hit have been clearly identifiable as in-use by civilians.” Blinken declared that this category “includes the Mariupol maternity hospital” as well as “a strike that hit a Mariupol theater, clearly marked with the Russian word for ‘children’ — in huge letters visible from the sky.”
Blinken’s accusations echo those made by the Ukrainian government and organizations such as Amnesty International. Karim Khan, the lead prosecutor for the International Criminal Court, has announced that his office will begin investigating allegations of Russian war crimes committed during its ongoing military operation in Ukraine.
The narrative that paints Russia and the Russian military as perpetrators of war crimes, however, runs afoul of actual international humanitarian law and the laws of war. The issue of jus in bello(the law governing conduct during the use of force) set forth a framework of legal concepts which, when allied to specific actions, help determine whether an actual violation of the law of war has occurred.
Jus in bello is derived from treaties, agreements, and customary international law. Two sets of international agreements, the Hague Conventions of 1899 and 1907, and the four Geneva Conventions of 1949, serve as the foundation for the modern understanding of jus in bello, regulating, respectively, what is permissible in the execution of war, and the protections provided to non-combatants, including civilians and prisoners of war. “Grave breaches” of jus in bello can be prosecuted in courts of relevant jurisdiction as war crimes.
Starting from the proposition that war is little more than organized murder, the issue of how to define what constitutes murder sufficient to be categorized a being of a criminal nature is far more difficult that one might think. Michael Herr gave voice to this reality in his book, Dispatches, about America’s war in Vietnam, when he observed that, “Charging a man with murder in this place was like handing out speeding tickets at the Indy 500.”
One of the key considerations that distinguishes a legitimate act of war, and a war crime, is the notion of “military necessity.” According to the precepts set forth in the law of war, military necessity “permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed . . . READ MORE . . .