The slow road to justice for war crimes in Ukraine
Images that have emerged from Ukrainian cities in recent weeks have shocked the conscience of mankind.
Mariupol under siege and bombardment; torture and mass killings of civilians in Bucha, near Kyiv; and a rocket attack on a train station in eastern Ukraine’s Kramatorsk, from where civilian evacuations are taking place.
Alongside the chorus of international condemnation, calls to hold senior Russian officials – and first and foremost Vladimir Putin – to account are growing.
Addressing the UN Security Council on 5 April, Ukrainian President Volodymyr Zelenskyy emphasised that the reported atrocities do not constitute isolated incidents but form part of a larger pattern of conduct of Russian forces in occupied territory, demanding that “accountability must be inevitable.”
Yet the road to justice for Ukraine and Ukrainians is fraught with difficulty, at least in the short term.
"Alongside the chorus of international condemnation, calls to hold senior Russian officials – and first and foremost Vladimir Putin – to account are growing"
The prime contender for efforts to hold the Russian leadership criminally responsible is the International Criminal Court (ICC) in The Hague, the first and only permanent international tribunal with jurisdiction over core international crimes – war crimes, crimes against humanity, genocide, and aggression.
While neither Ukraine nor the Russian Federation are state parties to the Rome Statute (the international treaty establishing the ICC), Ukraine accepted the Court’s jurisdiction in respect of alleged crimes committed on its territory between 21 November 2013 and 22 February 2014 (the period of the Euromaidan uprising prompting the departure of then-President Viktor Yanukovych) and since 20 February 2014 (the start of Russia’s unlawful military operation to annex the Crimean Peninsula as well as the armed conflict in Ukraine’s Donbas region).
Following Russia’s full-scale invasion of Ukraine on 24 February, more than 40 ICC member states referred the Situation in Ukraine to the Prosecutor of the ICC, Karim Khan, who opened an investigation in March.
Ukraine having accepted ICC jurisdiction in principle paves the way for the Court to investigate, and eventually prosecute, alleged war crimes, genocide, and crimes against humanity committed on Ukrainian territory (but not the crime of aggression, which has special jurisdictional requirements).
A referral by the UN Security Council under Chapter VII of the UN Charter – which would be blocked by Moscow in any event (Russia and China infamously vetoed a referral of the war in Syria in May 2014, while the Assad regime was dropping barrel bombs on Aleppo) – is therefore not needed.
A more difficult undertaking, however, would be proving the criminal responsibility of Putin and senior military officials since the vast majority of crimes will be carried out by soldiers on the ground.
“It is difficult to prosecute those higher up in the chain of command, as finding the evidence that links the acts with the persons who give the order for the crimes, reaching all the way to the top, is not easy,” Olympia Bekou, Professor of Public International Law at the University of Nottingham, told The New Arab.
Another challenge would be securing the extradition of Russian defendants to the Court.
“The ICC does not have its own police force and would have to rely on other states’ cooperation to arrest and surrender possible suspects,” Professor Bekou explained.
In principle, state parties to the Rome Statute are under an obligation to arrest and extradite individuals on their territory for whom the Court has issued an arrest warrant, but the existing track record of compliance is rather mixed.
The recently opened trial of former Sudanese militia leader Ali Muhammad Ali Abd-Al-Rahman, for instance, was only made possible because Abd-Al-Rahman surrendered to the Court more than a decade after the first arrest warrant against him.
He had fled to the Central African Republic following the overthrow of Sudan’s longstanding ruler Omar al-Bashir in April 2019, who himself stands accused of genocide, war crimes, and crimes against humanity.
In order to complement the ICC’s current lack of jurisdiction over the crime of aggression as (allegedly) committed by Russian officials, a number of senior politicians and international lawyers – amongst them former UK Prime Minister Gordon Brown, Professor Dapo Akande, and Professor Philippe Sands QC – have called for the establishment of a “special tribunal for the punishment of the crime of aggression against Ukraine.”
They cite as precedent the January 1942 Inter-Allied Declaration laying the groundwork for the prosecution of major Nazi war criminals before the International Military Tribunal (IMT) at Nuremberg and stress the “grave challenge” that Russia’s invasion of Ukraine poses to the “post-1945 international order ... premised on the idea of the rule of law and principles of self-determination for all peoples and the prohibition of the use of force.”
Much like the IMT, but unlike the more recent ad hoc tribunals established after the end of the Cold War – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – this tribunal would have to be set up by an international treaty between like-minded states rather than the deadlocked Security Council.
"There is nothing inevitable about accountability; it requires time, patience and, all too often, political transition"
According to Professor Bekou, this initiative too brings with it a number of challenges.
“Morally, none of us would object to that. However, the creation of such a tribunal by the international community would be difficult, not least in terms of jurisdiction, funding and ultimately getting hold of the alleged perpetrators.”
This may hold especially true for those high up in the chain of command who planned the war of aggression from Moscow. Furthermore, as Professor Kevin Jon Heller of the University of Copenhagen argued in a recent piece for Opinio Juris, the tribunal might reinforce perceptions of bias given that the architects of the illegal Iraq war, for instance, remain immune to such initiatives.
The ICC too has come under fire for selectivity: since its inception two decades ago, the Court has tried only political and military leaders from the African continent.
Prosecutions in the domestic courts of third states on the basis of universal jurisdiction constitute another potential avenue for obtaining criminal accountability. In theory, trials could take place in the territorial states themselves – Ukraine and the Russian Federation – but as long as the war continues, and in the absence of a political transition in Russia, this remains improbable.
Universal jurisdiction allows countries that are not directly linked to alleged international crimes – they did not take place on their territory, and neither victims nor perpetrators are nationals – to nonetheless investigate and prosecute the acts in question, which is deemed warranted in light of their particularly heinous nature.
Recent trials before European courts – for state torture in Syria and genocide against the Yazidis, for instance – garnered international attention and underscored that universal jurisdiction may constitute a viable first step especially where other options are unavailable.
That being said, the number of perpetrators actually tried on this basis has been very limited, and while the purpose of international criminal law arguably is to bring to justice those most responsible for international crimes, defendants typically do not hail from the highest echelons of power but are comparatively lower-level.
“Universal jurisdiction has its own challenges: arresting and extraditing suspects to face trial, if trials in absentia are not allowed, is hard, as is collecting evidence abroad,” explained Professor Bekou. “Heads of state are also generally immune from being prosecuted before the courts of foreign states.”
"In the not-too-distant future the international community will commemorate Bucha and Kramatorsk, Mariupol and Kharkiv alongside Srebrenica, Sarajevo, Aleppo, and Homs"
A month ago, the German authorities announced the opening of an investigation into war crimes committed by Russian forces in Ukraine, thus expressing at least the political will to conduct trials in the future. As with the ICC and the proposed special tribunal, whether they will be successful is an entirely separate question.
In the not-too-distant future the international community will commemorate Bucha and Kramatorsk, Mariupol and Kharkiv alongside Srebrenica, Sarajevo, Aleppo, and Homs. But President Zelenskyy’s impassioned pleas notwithstanding, there is nothing inevitable about accountability; it requires time, patience and, all too often, political transition.
For victims and survivors in Ukraine, as in many conflicts around the world, this means that the pursuit of justice will likely remain elusive – at least in the short term.
Anna-Christina Schmidl is a human rights researcher and writer currently based in Germany.
Follow her on Twitter: @AnnaCSchmidl