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Do Russia's assaults on Ukraine amount to war crimes?


On Thursday, Vice President Kamala Harris on her visit to Poland, said there should be an investigation to determine if Russian forces have committed war crimes during their attacks on Ukraine. Those calls have been amplified by a missile strike at a maternity hospital in the southern port city of Mariupol, killing three people, including a child. Ukrainian authorities have said they believe Russia is deliberately targeting medical facilities. Yesterday, former U.S. ambassador on war crimes issues David Scheffer told NPR that evidence of Russian illegality is clear.

DAVID SCHEFFER: One can argue that having invaded Ukraine, everything the Russian military does in Ukraine that injures civilians, that violates these laws of war - everything that they do is per se illegal because it's part of a war of aggression.

MARTIN: Clearly, the violence and trauma Ukrainians are experiencing cannot be denied. But we did think it might be useful to try to better understand what war crimes are and how they're defined, and if that understanding has evolved in recent decades. We called Mark Drumbl for this. He's the director of the Transnational Law Institute at the Washington and Lee University School of Law in Lexington, Va. And he is with us now. Mark Drumbl, welcome. Thank you for joining us.

MARK DRUMBL: My pleasure.

MARTIN: So obviously, what we are seeing is terrible. I mean, it is shocking to many people who have never seen this in their lifetimes. And as you might imagine, that has led to a lot of discussion about what is a war crime, what is an atrocity. So can you simply define what a war crime is?

DRUMBL: So the laws of war have two branches to them, and they address two significant questions. The first is, when is it legal to go to war? And the second is, how should war be waged? The when question involves the crime of aggression. It is legal to go to war in two instances. Firstly, when the United Nations Security Council authorizes it, and secondly, when a nation goes to war in protection of its inherent right to self-defense.

In this instance with Ukraine, I think there's a broad consensus that neither of those justifications apply. And therefore, on the when factor, Russia is engaging in an aggressive war. The second branch of the laws relate, as I mentioned earlier, to how war can be waged. This is the area of law that leads to the colloquialism of a war crime. And international law with regards to how war can be waged establishes quite a rigorous and evaluative set of standards as to how military operations can conduct themselves.

MARTIN: So some of these laws, as I understand it, stemmed from the Geneva Convention, which was a collection of treaties adopted after the Second World War. Have our views of what constitutes a war crime evolved since then?

DRUMBL: Most definitely. With regards to tactics and kinds of weapons, the law has evolved to ban certain kinds of weaponry, such as chemical weapons, which are seen as intrinsically inhumane. And also, this branch of the laws of war have also regulated the kinds of military tactics. And in a nutshell, any tactic that is disproportionate to the securing of a concrete military advantage will be found to violate the laws of war. So, for example, tactics that once had been routine, such as carpet bombing an entire city, are now illegal.

MARTIN: Do you draw any conclusion about whether the Russian military are committing war crimes in Ukraine right now? Recognizing that, you know, our knowledge is imperfect at this moment. We are seeing quite a lot, but we aren't always sure what it is that we are seeing. Do you draw any conclusion right now?

DRUMBL: Yes, I do. I think attacks that have involved civilian infrastructure - apartment buildings, dwellings - attacks that involve civilians who are fleeing war zones - whether as displaced persons, internationally or domestically - both of those examples would constitute the kind of conduct that is off the table.

MARTIN: It's my understanding that the International Criminal Court has launched an investigation into possible crimes, and I think many people might wonder if there will actually be any consequences for Russia and for President Putin as a consequence of these acts, because they're not a party to it.

DRUMBL: Correct, and I think that's a very important question. One of the difficulties that inheres in the International Criminal Court is not only the attention of clear and convincing evidence beyond a reasonable doubt, but also the ability to obtain custody over alleged perpetrators. In this instance, both of those, I think, could constitute stumbling blocks, in particular, obtaining custody.

However, I also don't think we can only appreciate the value of international law if an individual is brought into custody or not. International law gives us a language and a vocabulary of right and wrong. And what we're seeing now through international law is a flat denunciation of war as illegal, wrong, impermissible and intolerable. And I wouldn't underestimate the value - the discursive and persuasive value - of both of those elements in terms of explaining in part why there has been such a quick and rapid turn to sanctions and also such a quick and rapid global dissemination of violence in Ukraine.

MARTIN: That was Mark Drumbl. He's the director of the Transnational Law Institute at Washington and Lee University in Virginia. Professor Drumbl, thanks so much for talking with us today.

DRUMBL: Thank you. Transcript provided by NPR, Copyright NPR.