The stench of war crimes is once more in the air with devastating human consequences. The names of Mariupol, Bucha and Kherson now join those of Aleppo, Idlib, Bagram, Abu Ghraib. Crimes we primarily associate with post-1945 have been propelled centre stage in recent times by events in Kosovo, Syria, Afghanistan and, now, Ukraine.
The details and consequences of what are popularly termed war crimes against innocent individuals, families and communities are horrifically portrayed on television daily.
Central to the concept of war crimes is the idea that individuals can be held responsible legally for the actions of a country, its leaders or its soldiers. Since the middle of the 19th century, and particularly since 1945, war crimes and crimes against humanity have been among the most serious crimes in international law.
There is almost unanimous international agreement that Vladimir Putin, his regime, his generals and many in his army must be held accountable for what is being done to Ukrainians and to Ukraine.
Prior to 1945, it was popularly accepted that horror and criminality were the inevitable consequence of war. Accountability largely depended on who won. Politicians, military leaders and soldiers routinely escaped punishment unless on the losing side, when they were executed or imprisoned.
This changed fundamentally after 1945 because of the murder of several million people – predominantly Jews – by Nazi Germany and the mistreatment of prisoners and civilians by the Japanese. The Allied powers initiated the prosecution of those they believed guilty of war crimes.
Such crimes then became defined increasingly by the 1949 Geneva Convention (and subsequent protocols), the Nuremberg Tribunals and, in the case of the former Yugoslavia, the statutes of the International Criminal Tribunal in The Hague. War crimes fall into four groups (including genocide). The crime of aggression (or crimes against peace) includes the planning, preparation and waging of a war of aggression or one in violation of international agreements.
War crimes include widespread and systematic atrocities against people or property, murder, ill-treatment or forced deportation, the killing of hostages, use of torture or inhuman treatment and the wanton destruction of cities and towns. Crimes against humanity include atrocities and offences committed against civilians before or during wartime, including murder, deportation and rape.
Clearly, most of these war crimes apply to the situation in Ukraine today.
In theory, the International Criminal Court has jurisdiction over all such crimes but when its statute was adopted in 1998 the decision was made not to give it jurisdiction over the crime of aggression. Many states feared such a crime might be attributed also to them.
Last month, 39 states requested the ICC to investigate any acts of war crimes, crimes against humanity and genocide alleged to have occurred in Ukraine from November 2013 . That investigation is ongoing.
As has been widely argued, the current war of aggression in Ukraine should be transformational; it should be an urgent wake-up call on double standards in the prosecution of war crimes and hostility to the ICC, especially by the US.
It is simply not credible to adopt a position that the ICC has jurisdiction over Russian nationals while arguing it has no such jurisdiction over Americans. This situation undermines the effective prosecution of war crimes. It is time for the US to join the 123 member states of the ICC.
There is an alternate move to accuse Putin and his regime of the crime of aggression but it faces the same difficulty: dominant powers fear its future application to them.
War crimes are being systematically committed in Ukraine but the imperative that the guilty be prosecuted is undermined by superpower politics. This situation urgently needs to change.