What are war crimes and how are they prosecuted?

CTV National News: The complexity of war crimes The process of holding Russia accountable for alleged war crimes is underway, but it could take years. Joy Malbon explains.

Reports of war crimes by Russian forces in Ukraine are causing international alarm, even as Russia denies the allegations.

Hundreds of bodies were discovered in mass graves and strewn on streets and buildings in Bucha, a town outside of Kyiv that was recently wrested from Russian forces. Some of the bodies had their wrists bound. Officials in Ukraine allege Russian forces retreating from the town shot civilians as they left, though Russian officials deny the charge.

Several world leaders, including Canada and the United States, have promised support to the International Criminal Court (ICC) in its investigation into war crimes in Ukraine.

But what constitutes a war crime?

According to the United Nations (UN), a war crime is a serious breach of international law committed against civilians or “enemy combatants” during an international or domestic armed conflict.

In contrast with genocide and crimes against humanity, war crimes have to occur in the context of armed conflict, both domestically and internationally.

War crimes can be committed against either combatants or non-combatants, depending on the type of crime, the UN says.

“In international armed conflicts, victims include wounded and sick members of armed forces in the field and at sea, prisoners of war and civilian persons,” it outlines.

“In the case of non-international armed conflicts, protection is afforded to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause.”

The International Criminal Court (ICC) is the principal body that can hold individuals responsible for war crimes. It was founded in 1988 by a treaty known as the Rome Statute, which lays out actions that can be tried as war crimes, including deliberate killings, torture, and intentional attacks on civilians.

According to the book, A World History of War Crimes: From Antiquity to the Present by Michael Bryant, the Nuremberg war crimes trials after the Second World War is where the modern definition of war crimes started and when allied governments took unprecedented action to hold parties accountable.

The London Charter was the foundational document of the trials, setting forth all of the charges against the Nazis.

War crimes are investigated the same way as all criminal activity, by collecting evidence through witnesses, forensics, DNA, and autopsies. It needs to be proven beyond a reasonable doubt that individuals knowingly committed the crime.

However, the ICC does not have its own police force or military presence, and is reliant on countries to hand over their own citizens for prosecution. This barrier makes it difficult to investigate high-level officials, much less a head of state.

The very first file at the ICC for war crimes in Sudan's Darfur region began this week, almost 20 years after the alleged crimes occurred.

According to a press release from the ICC, Ali Muhammad Ali Abd-Al-Rahman (also known as "Ali Kushayb"), the suspected former leader of the pro-Government Janjaweed militia, is accused of 31 counts of war crimes and crimes against humanity committed in Darfur between August 2003 and "at least April 2004."

Ousted former president of Sudan, Omar al-Bashir, is also facing Darfur-related genocide and war crimes charges at the ICC but has so far evaded arrest. He is currently in custody in Sudan, following his removal from power in 2019.

“The International Criminal Court … didn't have access to the field for forever as Sudan did not cooperate. So until very recently, when Omar Bashir, the president that was actually accused of genocide and crimes against humanity was still in power and there was not much they could do,” Fannie Lafontaine, Canada Research Chair on International Criminal Justice and Human Rights, told CTV’s Your Morning on Thursday.

“The prosecutor hibernated the investigation because there was no support from Sudan, but also not from major states like the United States.”

Lafontaine pointed out that an unprecedented number of investigative parties from various countries are already in the field in Ukraine.

On March 28, Canada’s Public Safety Minister Marco Mendicino announced that RCMP officers would be dispatched to support the ICC’s efforts. The Canadian team will assist in collecting and preserving evidence, and interviewing witnesses.

While investigating war crimes is typically very complicated, especially linking atrocities to the individuals most responsible, Lafontaine says that the situation in Ukraine is different.

She said that other countries’ involvement could “accelerate quite a bit the process of collecting the evidence.”

While arrest warrants take a long time, the evidence collection in Ukraine “has a very different sort of scenario going on,” she said.

Lafontaine has clarified that foreign fighters, from countries such as Canada, who join volunteer battalions in Ukraine will be categorized as combatants instead of civilians. That means, if they are killed in combat, their deaths wouldn’t be considered war crimes.

Similarly, their actions with the Ukrainian military would not constitute war crimes, as long as they don’t hurt civilians or violate other parts of the Rome Statute.