four questions about the law of war

US President Joe Biden said on Monday, April 4, that he wants to “ trial of war criminals “after the discovery of many bodies in civilian clothes in Bucha near Kiev in Ukraine, which, however, indicates that, in his opinion, it was not” genocide “. ” You probably remember that I was criticized for calling Putin a “war criminal”. Well true […] that he is a war criminal “, he added. Earlier today Ukrainian President Volodymyr Zelenskiy visited this small town northwest of Kyiv where the Russians had just withdrawn. Should we therefore expect that Russia and Vladimir Putin will one day face an international court?

War crime or crime against humanity?

War crimes and crimes against humanity are two types of international and non-statutory crimes because of their gravity. Humanitarian law is directed, in particular, to the protection of the civilian population caught in the epicenter of an armed conflict. It is defined by international treaties, including the famous Geneva and Hague conventions and the 1998 Rome Statute establishing the International Criminal Court. Ithe four major crimes under international law are war crimes, crimes of aggression, crimes against humanity and genocide; each of these four crimes has its own definition.

in the crime of aggression is nothing more than the fact of preparing, carrying out or encouraging an armed conflict aimed at destabilizing one or more sovereign states. As for war crimes, is the act of committing summary executions or acts of torture within an armed conflict, in connection with the conflict in question ”, rolls out Julia Grignon, Associate Professor at the Faculty of Law at Laval University, Lecturer in International Humanitarian Law and International Refugee Law.

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Crime against humanity is much more difficult to characterize. Again, these are killings that cannot be committed in the context of an armed conflict, but must be committed in ” part of a widespread and systematic attack on the civilian population “. And for the crime of genocide, the bar is even higher: The crime of genocide requires that the perpetrator of the crime intends to exterminate a particular population group. Therefore, it is necessary to demonstrate the existence of the group and that, in addition, the mastermind of the killings knew that the victims belonged to this group and killed them because they belonged to this group. “, continues the researcher.

Who is investigating and how?

A real legal web has been created in Ukraine “, – notes Julia Grignon. An international investigation has already been launched on behalf of Ukraine with the support of 44 third countries in connection with the violations committed in 2013-2014 and the annexation of Donbass by Russian troops. Thus, the prosecutor of the international criminal court has jurisdiction to investigate the entire territories, and not just in territories annexed 8 years ago.” International Criminal Court prosecutorial teams already present in Ukraine confirm Marianne Julia Grignon. There is also the Human Rights Council, the OSCE and the Human Rights Watch investigation, whose teams are already in Bucha. » An unprecedented abundance of actors in the history of international criminal law. “ This is unheard of. Cornall these parties work together with the Ukrainian civil society. In particular, there is the prosecutor of Kyiv, who opened a criminal case. Everyone works on a specific assignment, stays in their lane and cooperates with other participants. ” she continues.

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But not only international jurisdictions and jurisdictions of the respective country are competent. Third countries may also conduct their own investigations, in particular when one of their nationals is the victim of a war crime. “ Such is the case with the death of a French-Irish journalist killed in the conflict last March. recalls Eric Emero, Colonel of the National Gendarmerie and former head of the Central Directorate for Combating Crimes Against Humanity, Genocide and War Crimes (OCCLCH). An investigation has already been launched, entrusted to the National Anti-Terrorism Prosecutor’s Office (PNAT) and the Central Office for Combating Crimes Against Humanity and Hate Crimes. »

What is the use of the law of war?

Isn’t war, after all, the very abolition of rules and laws? ” Of course, the law never prohibited people from killing each other. Eric Emero continues. But this does not mean, however, that you must free yourself from all rules. This is what humanitarian law wants to do, based in particular on customs and conventions such as the Hague and their additional protocols. The main purpose of these provisions is to protect civilians and prisoners of war. ” War must remain a military matter, not a civil one. “, he continues.

But we must strive not to limit humanitarian law to the single legal process that necessarily takes place after the commission of abuses. ” The first victory of international humanitarian law must be recognized. However, Russia seized on Bucha by the UN Security Council, saying that it was the Ukrainians who committed war crimes. They do not say that there is no international law, but that they respect it. »

If Bucha’s images have attracted public attention, they are far from the only possible violations of international law in Ukraine. ” Yes, it’s time for the chase notes Julia Grignon. But that’s not the most important thing right now. Most importantly, the principles governing armed conflict should be applied immediately. » How?” or “What?” “Currently, the International Committee of the Red Cross has hundreds of delegates who ensure that the rights of prisoners of war are respected and that civilians involved in the conflict can receive food and be evacuated. “Negotiations that are taking place” seven days a week and twenty-four hours a day “, the lawyer assures us.

In the case of an investigation, how to negotiate peace?

This is perhaps the most pressing issue in this conflict: how to negotiate a peace while accusing one side or another of war crimes? “ This can really complicate negotiations. says Eric Emero. But the time of international justice is not the time of military peace: It can take a very long time to decide on a war crime; ten years, maybe more. A lot can happen in Ukraine and in the domestic political arena of Russia until then. continues the former director of the Central Office for Combating Crimes Against Humanity and Hate Crimes. A recent example is the work of the International Criminal Court on the former Yugoslavia. ” Milosevic was able to be tried and convicted because Serbia announced its desire to join the European Union. A condition was attached to it: that the country cleared its war crimes. »

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It is true that there is a whole dialectic between the search for peace and the search for justice. analyzed by Julia Grignon. Let’s look at Colombia: during the ceasefire, we wondered whether the violations committed in the country in the name of peace should be prosecuted or whether a general amnesty should be issued to end this situation and achieve peace. “Therefore, a particularly difficult debate for arbitration. But in Ukraine, an amnesty is impossible: war crimes, if proven, have no statute of limitations. Therefore, they cannot be the subject of an agreement between Russia and Ukraine such as an amnesty in exchange for peace. For Colonel Eric Emero: The risk, if international justice does not prevail, is that popular discontent will flare up and in twenty years it will be like in 1914. »

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