On February 24, a year will have passed since the start of the war in Ukraine. Since then, more than 7,000 civilians have been killed, 11,000 injured and 8 million displaced persons who have left Ukraine. A large number would have taken refuge in Russia (2.8 million), Poland (1.5 million), Germany (1 million) and the Czech Republic (489,000), in particular.
Have war crimes been committed?
In densely populated urban areas, including the capital Kyiv and the second city, Kharkiv, indiscriminate attacks have been launched by Russia, including with weapons that cannot discriminate, such as cluster munitions . Numerous — illegal — attacks have also been carried out directly against civilians and civilian objects, including electrical installations and hospitals.
With regard to the attacks on the Zaporizhia nuclear power plant, this type of installation containing dangerous forces cannot be the object of attacks when they risk releasing forces which would cause severe civilian casualties, even if they constitute military objectives. In Mariupol, under siege for the first three months of the war, access to basic necessities was restricted — while starvation of the civilian population as a method of warfare is prohibited — and humanitarian aid convoys have been blocked – their access in international armed conflicts is nevertheless guaranteed.
Summary executions of civilians in the occupied territories have also been observed, including in the town of Boutcha, occupied from March 4 to 31 and where the bodies of nearly 400 civilians were found. Cases of looting, arbitrary detention, enforced disappearances, and rape against women, girls and men have also been documented by the UN Independent Commission of Inquiry in Ukraine. On both sides, Ukrainian and Russian POWs are said to be tortured or otherwise mistreated at the hands of opposing armed forces. However, if humanitarian law allows prisoners of war to be taken by capturing soldiers, they must be treated with dignity and humanely.
Moreover, the annexation at the end of September of 15% of Ukraine by Russia violates international law – but not international humanitarian law, which does not put its nose in political questions. In the eyes of international humanitarian law, this territory is still occupied Ukrainian territory; however, the establishment of conscription in these territories, if it results for the Ukrainians in the obligation to join the army to fight against their own camp, is a violation of this body of law. As for the forced transfer of Ukrainian people to Russia, it violates the ban on moving the population of the occupied territories outside them.
All of these serious violations of international humanitarian law potentially constitute war crimes.
What about allegations of crimes against humanity? Of genocide?
In recent days, the United States has been loudly accusing Russia of crimes against humanity in Ukraine. For such crimes to qualify, there must be a widespread or systematic attack against a civilian population. It is not excluded that some of the acts mentioned above, if committed on a large scale or in an organized manner, may meet this criterion, and thus constitute both war crimes and crimes against humanity. However, the information is still incomplete and, to date, no formal legal determination has been made.
Moreover, while crimes which could constitute genocide have undoubtedly been committed in Ukraine, for there to be genocide there must also be demonstrated an intent to destroy in whole or in part a national, ethnical, racial group or religious.
For some, the dehumanization of Ukrainian men and women in political discourse, the denial of their existence as a people, as a nation, could constitute indications of such an intention within the Russian political and military classes. If this hypothesis is not excluded, the existence of genocide has not yet been established on a satisfactory basis for the moment.
A sense of failure of international law
The greatest failure of States in the face of this war probably lies on the political rather than the legal level, in their inability to prevent this war, which is as unreal as announced, in line with the sad habit of States and peoples of letting disasters come. Perhaps once the war had started, it was illusory to hope to see Russia back down.
Nevertheless… If the States imposed economic and diplomatic sanctions, asset freezes, expelled Russia from several international organizations; whether the International Court of Justice and the International Criminal Court have been seized; if the States have thus mobilized almost all the mechanisms offered by international law to dissuade Russia from continuing the war, it takes a lot of optimism not to see in the invasion of Ukraine and the duration of this war a failure of international law in the face of the violation of one of its key principles, codified by the Charter of the United Nations after the Second World War: the prohibition of the use of force in international relations.
Certainly, the failure is not total; the international community came forward promptly, as a whole, to send Russia — a great power in the contemporary world — the message that this invasion is inadmissible; millions of displaced persons are hosted by States, in accordance with international refugee law in particular; and I am convinced that many perpetrators of war crimes will be tried.
I even believe that given the political cost of this war and the precedent created by the international mobilization and the massive arming of Ukraine by the West, other States will hesitate before launching a war of aggression in the future. International law is not “useless”. But from the “never again” of the Second World War to the “never again” of Rwanda, we were certainly entitled to hope for better.