Is the use of cluster munitions a war crime that leads Russia to the ICC?

Ninth day of Russian invasion of Ukraine, Russian forces continue to bomb several Ukrainian cities, including Mariupol, Kharkiv and the capital Kiev and its environs. Since the beginning of the invasion, Russia has ensured that it is only targeting military targets. But Ukrainian officials have denied the allegations, accusing Russia of targeting public places such as schools, city centers and residential areas.

In addition, on Friday March 4, the United Nations Human Rights Council approved a resolution in support of a resolution to the fire at Zaporizhi, Europe’s largest nuclear power plant in southern Ukraine. International Commission of Inquiry into Human Rights and Humanitarian Violations in Ukraine.

The International Criminal Court (ICC) also acted urgently and, at the request of its 39 state parties, launched an inquiry into the situation in Ukraine on March 2, accusing Russia of involvement in war crimes.

This International Court of Justice is independent and impartial in prosecuting those accused of war crimes, crimes against humanity and genocide.

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“It is clear today that Russian forces have already committed war crimes against the Ukrainian people and Ukrainian soldiers. That is why the ICC has decided to launch an investigation,” said William Julie, an international professional criminal law firm contacted by France 24.

War crimes defined and enforced by the Geneva and The Hague Accords correspond to violating international law by targeting civilians or militants during a conflict.

Accordingly, the UNWar crimes may involve a large number of attacks on individuals, in particular, “assault, assault on integrity or health, rape, intentional assault on civilian property, looting and destruction of public property, sometimes necessary for the survival of civilians illegally and arbitrarily.”

According to William Julie, there is little doubt about Russia’s responsibility: “The bombing of schools, homes and civilians cannot justify the targeting of soldiers or military bases in a proportionate manner. It will create war crimes.”

Use of illegal explosives against civilians

In Ukraine, Russian forces are not only accused of attacking civilians, but also suspected of using weapons prohibited by international law: cluster munitions. The weapon consists of a container filled with projectiles (e.g. a shell, a rocket or missile) (known as auxiliary ammunition) that explodes when a bomb explodes. These bombs, on the one hand, are very sensitive and, on the other hand, by releasing their submits, they cover a very wide range of impact.

So they can not aim accurately. So, step by step NGO Handicap International, “The public represents 97% of victims” and, the organization notes, 36% of them are children. In addition, according to Handicap International, “up to 40% of submits do not explode when hit on the ground”. If buried underground, they can explode after many years. For all these reasons, the use, production, trade and stockpiling of these weapons were banned by the 2010 Oslo Convention.

According to William Julie, “the use of this type of weapon in the context of an armed conflict can be classified as war crime, as long as the operation and use of these weapons are systematically and indiscriminately targeted at civilians.”

Russia’s use of these weapons (not signed by the Oslo Accords like Ukraine) was condemned by NATO’s Secretary-General on Friday, especially by NGOs. Amnesty International And Human Rights Watch And Bellingcat Investigative Media. By conducting investigations, they discovered that Russian forces had used cluster munitions in Ukraine since the invasion. Human Rights Watch, for example, believes the use of such weapons is “a war crime” and documented their use on February 28 in “at least three residential areas in Kharkiv, Ukraine’s second city.” Editorial staff of France 24 Observers also documented the use of cluster munitions in Kharkiv on February 28, 2022, based on research by Michael Sheldon, a researcher at the Atlantic Council, an American think tank, using satellite imagery.

After NGOs and the media, the International Court of Justice took over. ICC Advocate General Kareem Khan, who was summoned by France 24, said “a domain team has set out to gather evidence.”. Gathering evidence, intensifying the material and proof of the projectiles … a long task awaits the investigators. Especially since “from November 21, 2013” the investigation will cover all the acts committed in Ukraine, said Kareem Khan. According to him, “all past and present allegations of war crimes, crimes against humanity or genocide committed by any person in any part of the territory of Ukraine”.

“Which country will decide to arrest Vladimir Putin?”

Once the evidence is collected, the judicial machine will start. Ukraine certainly does not recognize Rome law, the international treaty establishing the ICC, but recognizes the jurisdiction of the court to investigate crimes committed within its borders. For its part, Russia withdrew its signature from Rome law. But as Karim Khan pointed out to France 24, “these are actions that take place in the territory of Ukraine, not in Russia.”

In this context, the ICC rules that individuals can “prosecute Vladimir Putin, his colonels, as well as his military leaders, if the ICC collects sufficient evidence to convict them of war crimes.” The ICC may consider this case strong enough to initiate an investigation and issue international arrest warrants. “Legally all of this is possible, but the question that arises is: can an arrest warrant be executed? In other words, which country will decide to arrest Vladimir Putin?” Asks William Julie.

In fact, the ICC is limited by the lack of its police force and the willingness of states to arrest suspects on their soil. To date, only one international arrest warrant has been issued against former Sudanese President Omar al-Béchir, especially for a head of state wanted for crimes against humanity during the genocide and the conflict in Darfur.

Russia and Ukraine are not signatories to the Oslo Accords on Cluster Munitions. “This agreement has been signed by a significant number of states to date, so in the international community, a large number of countries agree that these weapons should be banned,” William Julie explains. . The prosecutor continued: “Ukraine and Russia have not signed this conference. In my opinion, direct action cannot be taken against anyone before an International Court of Justice judge.” Conference.

“But on the other hand, it is obvious that the use of these weapons comes under the purview of the ICC’s lawyers or magistrates to classify war crimes,” he asserts. With this investigation, the ICC has embarked on a long and arduous journey that will certainly take many years. But for now, international justice has no other strings attached to its bow.