On 2 March, 39 governments asked the prosecutor of the International Criminal Court (ICC), Karim Khan, to open an investigation into possible war crimes and crimes against humanity in Ukraine. Even if the ICC's prosecutor may not be able to try suspects, a finding to confirm Russia's atrocities would deepen the country's already profound diplomatic isolation.
Khan announced Wednesday that he was opening an investigation, as requested, into allegations of war crimes, crimes against humanity or genocide in Ukraine "by any person" from November 2013 onward.
A preliminary investigation found "reasonable basis to believe crimes within the jurisdiction of the Court had been committed" and "identified potential cases that would be admissible," Khan said in a statement. In order to indict someone, the ICC prosecutor must prove that the alleged crimes are atrocity crimes: genocide, crimes against humanity or war crimes.
British Prime Minister Boris Johnson, has voiced similar accusations. President Biden said Wednesday, "it's too early to say" whether Russian President Vladimir Putin is a war criminal." White House press secretary Jen Psaki said Friday that the White House is conducting an "internal review" to collect evidence on Russia's alleged targeting of civilians in Ukraine.
Linda Thomas-Greenfield, the US ambassador to the United Nations, said Wednesday Russia has used vacuum and cluster bombs in its invasion, both weapons which are banned under the Geneva Conventions. Secretary of State Antony Blinken said Sunday that there are "credible reports" of Russian targeting Ukrainian civilians, which he says would "constitute a war crime."
The widespread opposition of 141 states at the UN General Assembly is a clear signal to Vladimir Putin that he could face personal accountability for this invasion.
However, neither Ukraine nor Russia are signatories to the ICC. But Ukraine has made two declarations to the ICC giving the court ad hoc jurisdiction for war crimes committed in Ukraine.
Russia has been accused by the US of war crimes for its attacks on Ukrainian nuclear power plants and its alleged use of weapons banned by the Geneva Conventions - which provide the legal definition of war crimes.
The term war crimes, however, has a precise, technical definition, referring to violations of international law that is meant to govern the conduct of militaries during wartime or occupation.
Crimes of aggression, according to the ICC, include invasion, military occupation, the annexation of land, bombardment and the blockade of ports. And the ICC defines crimes against humanity as participation in and knowledge of "a widespread or systematic attack directed against any civilian population".
Russia is already under serious allegations of war crimes in Ukraine, even though the Russo-Ukrainian war is no more than two weeks underway.
So are the Russians committing war crimes?
The United Nations defines a war crime as a serious breach of international law committed against civilians or "enemy combatants" during an international or domestic armed conflict. War crimes are classified into three groups, according to the Geneva Conventions 1949.
Crimes against peace happen when planning or waging a war in violation of international treaties, agreements or assurances. Most importantly, when there are violations of the laws of war which include atrocities against persons or property; murder or ill treatment of prisoners of war; killing of hostages; torture - including biological experiments; plunder of public or private property; destruction of cities, towns or villages or devastation not justified by military necessity, a war crime has been committed.
In terms of upsetting the peace, the West condemns Russian invasion on Ukraine as 'unprovoked and unjustifiable.' However, Vladimir Putin had issued several warnings, in the past, that if NATO (military alliance among 28 European countries and two North American countries) continues its expansion in former Soviet Union nations, there would be severe consequences.
In the invasion's early stage, Putin's plan was to cripple Ukraine's air defence structure. Several hangars and military air bases were blown to bits by a barrage of Russian missiles.
A missile strike on 1 March in Zhytomyr, 140 kilometres west of Kyiv, destroyed the Pavluchenko maternity hospital, reportedly killing at least two people. In another instance, Russia's cluster bombs outside a hospital in Vuhledar, Donetsk Oblast, killed four civilians and injured another 10. Six of them were healthcare workers. Along with the damaged hospital, an ambulance and civilian vehicles were damaged too.
In both the instances, it was not clear if the hospitals were the intended targets since they are located close to important Ukrainian military infrastructure. The destruction upon the hospitals could, perhaps, be seen as collateral damage.
There has also been an attack on a kindergarten in Okhtyrka, about 60 miles west of Kharkiv, on Friday, the second day of all-out fighting. "There is no possible justification for dropping cluster munitions in populated areas, let alone near a school," said Agnès Callamard, the secretary general of Amnesty International.
On 3 March, in Chernihiv, Northern Ukraine, a Russian air strike hit two schools and homes, killing 47 people. In Kharkiv, in eastern Ukraine, two more schools were bombed.
A United Nations report verifies that so far there have been 1,123 civilian casualties in Ukraine, with 364 killed and the rest injured. By 1 March, Russian troop casualties stood at 1,597, with 498 dead. This information was backed up by the Russian Defence Ministry. However, the real number of casualties on both ends are not independently verified.
Eliot Higgins, the founder of the investigative journalism site Bellingcat, said there was evidence of Russia causing "civilian harm," including the use of "cluster bombs in civilian areas." Cluster munitions, which indiscriminately scatter small bombs over a wide area, are banned by more than 100 states including the UK, France and Germany because of their lack of precision.
Further evidence of the use of cluster munitions has emerged, including the remains of a rocket motor from a BMP-30 Russian cluster munition found in a road in Kharkiv on Friday.
A missile strike on Tuesday – possibly a Kalibr cruise missile – on the regional government building in the centre of Kharkiv killed at least 10 civilians in the morning attack in the heart of the industrial city of more than 1 million people. On Monday, serial explosions from multiple launch rocket systems (MLRS) obliterated buildings in Kharkiv.
Scaling up from schools and hospitals, the Kremlin is calling this invasion a 'special military operation.' In the second week of the invasion, Russian troops took over the Zaporizhzhia power plant, approximately 500 kilometres from Kyiv, South Ukraine, Europe's largest nuclear power plant. Ukraine operates 15 nuclear power plants, six of which are in Zaporizhzhya alone.
In war, capturing critical landmarks to have the upperhand falls well within the 'ethics of war.' According to Ukrainian President Volodymyr Zelenskyy's accusations, this constitutes a war crime.
As of today, the Russo-Ukrainian War stands in its second week and having captured the primary source of utility, the tables are slowly turning in Russia's favour. But the nature of war is deceptive.
Looking at the Russian atrocity and the casualties caused to civilians and civilian structures from above, it can be said that war crimes can be attributed back to Putin.
However, a foregone conclusion that war crime is already being perpetrated at this stage is still nothing more than speculation and requires more grounded proof.
ICC Prosecutor Karim Khan has yet to gather and collate a lot more circumstantial evidence of war crime to stick it to Russia. The appeal from 39 governments stacks the stakes against Russia. What remains to be seen is how swiftly and quickly this investigation follows through.