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As Russia’s invasion of Ukraine enters its tenth day, many Western nations have been pressured to call out Moscow for committing “war crimes” during its assault.

While some leaders, like British Prime Minister Boris Johnson, have already accused Russian President Vladimir Putin of ordering atrocities, the Biden administration has largely tried to avoid using such language.

On Friday morning, the US Embassy in Kyiv tweeted in response to Russia’s attack on the Zaporizhzhia Nuclear Power Plant: “It is a war crime to attack a nuclear power plant. Putin’s shelling of Europe’s largest nuclear plant takes his reign of terror one step further.”

“The intentional targeting of civilians or civilian objects, including nuclear power plants, is a war crime, and we are assessing the circumstances of this operation,” the State Department said in a separate statement that stopped just short of saying Russia had violated the laws of war. “But — regardless of the legality — this action was the height of irresponsibility, and the Kremlin must cease operations around nuclear infrastructure.”

Ukraine War map
Map of Russian attacks in Ukraine as of Friday, March 4th, 2022.
Ukraine War
Ukraine claims 2,000 civilians have died since the invasion began.
DIMITAR DILKOFF

Geneva ConventionsThe Geneva Convention considers willful killing, torture, or inhuman treatment to be war crimes.
Bettmann

Despite heartbreaking images of civilian casualties emerging on social media, the apparent reluctance from Washington to take the rhetorical step of leveling war crimes charges against Putin has left many wondering: What would it take?

The United Nations has laid out multiple definitions of “war crime” in the Rome Statute of the International Criminal Court, which came into effect in 2002.

Broadly, the UN describes a war crime as “violations of international humanitarian law (treaty or customary law) that incur individual criminal responsibility under international law,” and take place during an armed conflict.

 

While there is no single globally accepted list of all war crimes, the Rome Statute breaks down dozens of offenses that do qualify.

This includes breaches of the post-World War II Geneva Conventions, such as willful killing, torture or inhuman treatment; willfully causing great suffering; extensive destruction of property not justified by military necessity; unlawful deportations and taking of hostages.

War crimes are also defined as “other serious violation of laws and customs applicable in international armed conflict” including launching attacks against civilians or humanitarian assistance; launching an assault knowing it “will cause incident loss of life or injury to civilians”; attacking defenseless towns and villages that are not military objectives; killing or wounding combatants who have surrendered; and engaging in rape, sexual slavery, enforced prostitution or forced pregnancy.

Nuclear plant shelling
The State Department stopped short of calling Russia’s attack on the Zaporizhzhia Nuclear Power Plant a war crime.
Anadolu Agency
Ukrainian President Volodymyr Zelensky
Ukrainian President Volodymyr Zelensky has called Russia’s bombing of Kharkiv a war crime.
Igor Golovniov / SOPA Images

Crucially, the global body says war crimes must have both a contextual element (the fact of taking place during an armed conflict) and a mental element (intent and knowledge) to be categorized as such by the International Criminal Court in The Hague.

Ukrainian officials claim that more than 2,000 civilians have died since the invasion began Feb. 24. However, according to some experts, not all of those deaths could be considered a war crime.

“The laws of war do not always protect civilians from death,” Mark Kerseten of the Munk School of Global Affairs and Public Policy at the University of Toronto told DW. “Not every civilian death is necessarily illegal.”

Raids and bombings that kill civilians be justified as a military necessity. However, the same acts can be considered war crimes if they exceed military objectives.

Still, Ukrainian President Volodymyr Zelensky has accused Russia of committing war crimes in recent days, citing missile strikes on cities like Kharkiv.

“This attack on Kharkiv is a war crime. This is state terrorism of the Russian Federation,” Zelensky said Tuedsay. “After that, Russia is a terrorist state, obviously.”

On Friday, Kharkiv mayor Ihor Terkhov accused Russian forces of “intentionally trying to eliminate Ukrainian people” by targeting civilian areas.

“The situation is extremely difficult,” Terekhov told CNN. “To date, Kharkiv has been hard impacted by continuous bombardment. Planes are flying constantly, [rockets] are being launched, grenades are launched, and residential houses are being hit.”

Since there are no Ukrainian forces stationed at the residential areas, “that means that they are purposefully hitting the residential buildings,” he added.

In the southern city of Kherson, local media and residents have alleged that Russian troops have begun raping women since seizing control of the city Wednesday. Such actions would be considered war crimes under the Rome Statute.

The International Criminal Court (ICC) has opened an investigation into reported war crimes committed by Russia, despite the country not being a member of the body.

The White House steered clear of labeling Russia’s actions as “war crimes” again on Friday, with press secretary Jen Psaki revealing there is an “internal review” ongoing.

However, she did admit that “the intentional targeting of civilians would be considered a war crime.”

White House Press Secretary Jen Psaki
White House Press Secretary Jen Psaki revealed there is an internal White House review regarding possible Russian war crimes.
Win McNamee
The Hague
The International Criminal Court can look into alleged war crimes committed by Russia.
Vyacheslav Prokofyev

The ICC cannot investigate Russia’s invasion of Ukraine as a crime of aggression, according to prosecutor Karim Khan, however, the court can look into alleged war crimes that may have taken place in Ukraine.

If any person is prosecuted as a result of the investigation, three judges will weigh the evidence. If convicted, an individual can be sentenced to prison.

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