The concept
of war crimes is a recent one. Before World War II, it was generally accepted that
the horrors of war were part of the nature of war, and recorded examples of war
crimes go back to Greek and Roman times.
Before the
twentieth century armies frequently behaved brutally to enemy soldiers and non-combatants
alike and whether there was any punishment for this depended on who eventually
won the war.
There are
two different kinds of crime relating to war. The first is the crime of
aggression, which is a crime of resorting to war without a legal basis. The
second is a war crime, which is a crime relating to conduct in the war in other
words, how to fight.
There is
an important question "Is killing civilians during a war always a war
crime?"
The answer
is "Not always." There are several different rules at stake. The
first and most obvious is you can’t target civilians. The only exception to
that is if the civilian is directly participating in hostilities.
1- It’s
lawful to target a military objective, but an attack on such an objective can
be illegal and rise to the level of a war crime if those engaged in the attack
know that the collateral damage expected from that targeting including loss of
civilian life, injury to civilians will be clearly excessive in relation to the
military advantage they expect from attacking that military objective.
Obviously, there’s a lot of debate around what exactly “excessive” means, which
can make it difficult to prosecute.
Read more: 5 worst crimes against humanity in history
2- With all war crimes, prosecutors need to show not just that the act occurred, but also that the individuals who were engaged in the act knew the things they needed to know to be criminally responsible, or, in some jurisdictions, that they were reckless in accepting a substantial and unjustifiable risk. So in this case, did they know that this was a hospital? Did they mean to target that hospital? Did they know that they were going to hit that hospital?
3- It’s also
prohibited to target what are called “civilian objects,” which would include a
theater unless that theater is being used for military purposes. “Really
difficult to prove that.”
4- It’s not clear if Putin would be put on trial if convicted as Russia does not recognize the jurisdiction of the International Criminal Court and would not send any suspects to the court’s headquarters in The Hague, Netherlands. The U.S. does not recognize the authority of the court, either. Putin could be tried in a country chosen by the United Nations or by the consortium of concerned nations. But getting him there would be difficult or impossible.
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