President Biden Is Correct: Putin Is a War Criminal – What You Need To Know

By 

Wesley Smith

|
April 12

6 min read

Foreign Policy

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Most people believe President Biden correctly labeled Russia’s President Vladimir Putin as a war criminal.  The scenes from Ukraine are gut-wrenching and shock the senses of even the most calloused hearts.  And a commander or national leader cannot use the defense that he or she did not “order” the atrocities or was not there when they were committed.  That defense was tried—and failed—following World War II.  If a leader knew, or reasonably could have known, of the criminal acts, he or she may be held culpable.  Ordering the criminal acts makes one even more obviously culpable.  Personally committing the acts that constitute a war crime obviously makes one culpable for such acts. “I was just following orders” is not a valid defense. Under the Law of Armed Conflict, one must disobey unlawful orders, and an order to violate the Law of Armed Conflict is an unlawful order. Moreover, prior to war, every Army is required to train its forces in what the Law of Armed Conflict permits and what it forbids in order to mitigate violations should war occur.

There are differences between war crimes and acts of genocide.  Some think that Putin is committing genocide.  That will likely be debated and possibly investigated.  But video evidence and witness accounts from Ukraine indicate that Russian forces are clearly committing war crimes.  An armed conflict is necessary for there to be a charge of war crimes.  However, genocide can be committed in times of war or peace.

Genocide, under Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, is committed when a person  acts with the intent, in whole or in part, to destroy a national, ethnical, racial, or religious group.  It can be done, according to the Convention, by killing members of the group, imposing measures to prevent births of the group, forcibly transferring children in the group to another group, and other ways.  The U.S. State Department charges that China is committing genocide against the Muslim Uyghur population in China.

A war crime is a violation of the Law of Armed Conflict, codified in several multilateral treaties, most notably the Geneva Conventions. These rules are sometimes referred to as the Laws of War or International Humanitarian Law. Virtually all States recognize the Geneva Conventions as binding.

The history of the Geneva Conventions dates back to 1864 when, following multiple wars in numerous countries, there was an international consensus that battlefield behavior had to have limitations.  Even though U.S. General William T. Sherman famously declared that “War is Hell,” many people believed that certain acts are so horrendous, they must be forbidden—even in war. So various nations began discussions on the limits of war.  The name “Geneva” was applied to the agreements in 1906 (to distinguish those agreements from agreements entered into in The Hague, the so-called “Hague Conventions”) when 35 nations met in conference in Geneva, Switzerland, to agree on a broad set of laws of war.  Over the years, more nations have agreed to the rules of the Conventions, and they have been continually updated—most notably in 1949 and again in 1977.

To be a victim of a war crime, the alleged victim must be a protected person under one of four categories of the Geneva Conventions (GC). GC I, II, and III apply to military troops.  GC IV applies to civilians and unlawful combatants.  For example, the Conventions agreed upon in 1949 added protections for military chaplains, medical personnel and facilities, as well as wounded and sick civilians traveling with the military.  In 1977, protections were added for journalists.

Prosecution for war crimes requires the existence of an armed conflict—a declared war is not necessary.  The perpetrator must also be aware of the conflict.  However, ignorance of the specific provisions of the Laws of Armed Conflict, the rules, is not a defense for the commission of war crimes.  A person need not be aware of the Geneva Conventions to be charged, tried, and found guilty of a war crime.

The specific possible violations of the laws of war are a rather long and detailed list.  If reports are accurate, Russia is guilty of many of these.  The forbidden acts in a war include torture, mutilation, rape, biological experiments, and unlawfully deporting or transferring people impacted by the conflict.  Intentionally targeting civilians, non-combatants, peacekeepers, and humanitarian aid workers are clear, stated violations.  In war, all sides must make good faith efforts to provide and honor safe passage for civilians to flee the affected area or provide for those who cannot flee by allowing the Red Cross and other non-combatant agencies access to care for the civilians. 

Intentionally killing or wounding lawful combatants (soldiers) after they have surrendered is against the laws of war.  Intentionally attacking civilian facilities such as schools, hospitals, and churches is a violation—unless the building is being used by the enemy to actively engage in combat.  Intentionally firing on ambulances, clinics, or hospitals is also against the law—as well as trying to sink hospital ships—provided that such facilities are not being used by the enemy for combat purposes.  Under these international agreements, all sides are required by law to rescue those who are shipwrecked in a conflict.

The rules of war dictate what can and cannot be done in a conflict.  They aim to protect civilians and others who are not fighting in the conflict and to place limits on the brutality and violence that is a part of war.  It sets limits on weapons and tactics.  It forbids certain categories of people and buildings as legitimate targets. 

Sometimes war is required to protect human rights, freedom, or national sovereignty.  War, always regrettable, is sometimes necessary.  But contrary to the familiar adage, all is NOT fair in love and war.

The purpose of the rules in an armed conflict is to take what is incredibly violent and horrible—shocking to the human eye and to the conscience—and place limits on the actions by all parties involved.  War is ugly and cruel.  By design, people are killed and wounded.  Others are displaced or taken captive.  That is the nature of war.  But because war is so horrible, there must be limits.

What is going on in Ukraine is beyond the pale.  It must stop. There is clear evidence that Russian forces have intentionally targeted civilians, intentionally targeted protected facilities not being used for combatant purposes (like hospitals and churches), and intentionally terrorized civilians.  Those who commit such atrocities must be held accountable by the international community and by all civilized people and nations.   

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