Claire Parker writing in The Washington Post:
The modern framework for assessing war crimes was born out of the Nuremberg trials1 after World War II, in which Nazi Party officials, military officers and German elites were tried on charges including crimes against humanity. The international community sought to set guardrails that would minimize the horror of future conflicts.
War crimes include the deliberate targeting of civilians; attacks that cause disproportionate civilian casualties given the military objective; and attacks on hospitals, schools, historic monuments and other key civilian sites. Plenty of horrific acts of violence resulting in civilian deaths would not meet the definition.
A key challenge is that Ukrainian authorities have the primary responsibility to investigate alleged violations of international law committed on Ukrainian territory if its judicial system continues to function. If not, another option is the International Criminal Court )(ICC)but neither Ukraine nor Russia is a party to the court, so neither can bring allegations to prosecutors.
Even so, the ICC has found grounds to commence an investigation into the situation in Ukraine after receiving referrals of the Situation in Ukraine from 39 ICC States Parties2.
The prosecutor explained that these referrals enable his Office “to proceed with opening an investigation into the Situation in Ukraine from 21 November 2013 onwards, thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person.”
Although this is a positive development, the investigation will take time and the results are uncertain.
The United States was not among the parties making a referral to the ICC because it is not a State Party to the Rome Statute of the International Criminal Court (Rome Statute). Other countries that have not become parties to the Rome Statute include India, Indonesia, and China.