Why is it essential to talk about the attack on Okhmatdyt hospital as an international crime?
Every war has rules. No matter how strange it may sound in the conditions in which every Ukrainian lives nowadays. Every war shows us that these rules are constantly being violated. And this suggests that only the inevitability of punishment can bring the world closer to lasting peace.
For more than 10 years of war, Ukraine has experienced many terrible crimes. There are many scars left on Ukraine: scars on human bodies and destinies. And also there are scars on our land: these are thousands of destroyed houses, hospitals, schools, and kindergartens. Ukrainian territory is full of hundreds of torture chambers and countless burials of those who died due to the war.
Every day, the number of scars is growing. However, even in such circumstances, there are crimes that are so cynical that they cannot leave anyone indifferent. And the missile hit on Okhmatdyt is certainly among them.
Okhmatdyt is the largest children's hospital in Ukraine. This institution treats the most serious diagnoses of young patients, including cancer. For many children, this is the last chance to recover and regain their health, full life, and childhood.
A missile strike is something that can have irreparable consequences not only because of people’s suffering, but also as indirect consequences. For many children, stress and simply being in non-sterile conditions is a threat. According to the Ministry of Health, many departments of the hospital were damaged: the toxicology building with the chronic and acute intoxication department was completely destroyed; almost all windows in the old surgical building were smashed, two surgical and two somatic departments, the intensive care unit, and the operating room were damaged; in the new building, eight surgical departments, five oncology departments, two intensive care units, the operating room, and the radiology and radiation therapy departments were damaged.
There were over 600 patients, approximately the same number of doctors, as well as parents and visitors at the time of the missile strike. The exact number of casualties is still unknown as the rubble is being cleared. When you witness such crimes, it is very easy to start evaluating them from the perspective of good and evil. And it's natural. But I believe that it is equally important to give them a legal assessment and hold all those responsible accountable: ideologists, commanders, and direct perpetrators. The missile attack on the Okhmatdyt hospital bears all the hallmarks of a war crime.
Attacks on medical facilities during armed conflicts are considered serious violations of international humanitarian law (hereinafter IHL). Medical facilities are granted special protection and cannot be targets of attacks.
The main objective of IHL is to protect persons not taking part in hostilities, as well as those who have ceased to take part in them due to sickness, injury, or any other reason. The entire body of IHL provisions boils down to the necessity of respecting and adhering to four fundamental principles: distinction; military necessity; proportionality; humanity. The general principles of IHL establish key limitations to reduce the potential consequences of armed conflict.
According to Article 18 of the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War (Geneva Convention IV), civilian hospitals must be afforded protection and must not be attacked under any circumstances. Furthermore, Article 12 of Additional Protocol I to the Geneva Conventions (1977) clarifies this formulation and states that medical units and transports may not be objects of attack if they are used for their intended purpose.
According to Article 8(2)(b)(ix) of the Rome Statute of the International Criminal Court (ICC), intentional attacks against medical facilities which are not military objectives constitute war crimes. An attack on a medical facility is a war crime if:
- the medical facility is used for its intended purpose: a medical institution building cannot be attacked if it is used for providing medical assistance.
- intent: the attack is carried out intentionally, knowing the protected status of the medical facility.
- absence of evident military reasons: a medical facility cannot be attacked if it is not used for hostile purposes.
According to Article 13 of Additional Protocol I, protection of civilian objects, including medical facilities, can only be lifted under certain conditions:
- a) use for military operations or combat. For example, a medical facility is used as a headquarters or base for armed forces. b) adequate warning. Before attacking an object used for hostile purposes, sufficient warning must be given and sufficient time provided to remove the violation.
Precedent practice includes cases of holding politicians and military leaders accountable for attacks on civilian infrastructure, including medical facilities and cultural heritage sites. On May 29, 2013, Bosnian-Croatian politician and general Slobodan Praljak was convicted by the International Criminal Tribunal for the former Yugoslavia for committing war crimes (including the destruction of civilian infrastructure in Mostar) and sentenced to 20 years in prison. In addition, the case of Croatian generals Ante Gotovina and Mladen Markač, initially convicted but subsequently acquitted by the International Tribunal for the former Yugoslavia, emphasizes the impermissibility of striking civilian objects, even if they are near military targets. For this purpose, due attention should be paid to attack planning, weapon selection, consideration of its accuracy, potential errors, and other calculations.
The Security Service of Ukraine (SBU) has opened a criminal investigation into this incident (under Article 438). According to their preliminary data, the attack was carried out using a strategic cruise missile X-101. These missiles are declared as highly accurate and are frequently used by the Russian army for attacks on civilian objects both in Ukraine and Syria. Moreover, the Office of the Prosecutor General stated that they will submit evidence to the International Criminal Court. Ultimately, this has potential, as the ICC has already issued warrants for the arrest of Russian commanders and senior officials for attacks on civilian objects and excessive harm to civilians. This incident can be considered both as an individual episode, qualifying as a war crime under Article 8 of the Rome Statute, and as part of widespread and systematic deliberate attacks aimed against the civilian population of Ukraine, qualifying as "crimes against humanity" (Article 7 of the Rome Statute). Furthermore, such individual egregious crimes should be prepared for the ICC. Particularly because the qualification in Ukraine is still limited and unfortunately, we cannot consider such attacks as crimes against humanity.
Despite the Ministry of Defense of the Russian Federation stating that the video materials indicate the fall of Ukrainian air defense missiles on "civilian objects within the boundaries of Kyiv," the videos currently available in open sources confirm the preliminary conclusions of the SBU. Moreover, fragments of the engine of the cruise missile X-101 were found at the scene of the tragedy. It is still for the investigation to establish the circumstances of this attack, analyze the fragments, and the available materials. However, what can already be said is that directing such weaponry into the heart of a densely populated city is already a violation of the principle of proportionality, as the probable harm to the civilian population exceeds any possible military advantage. Of course, the conclusions are the task of the investigation. However, currently, we have indications of a war crime and another violation of the "rules" of warfare by the Russian army. And they must indeed receive a legal assessment. And all those guilty of committing this crime must receive fair punishment. Without any statute of limitations, until we find every one of the guilty parties.
