How will those accused of war crimes in Ukraine be tried?

Every day a wonderful story comes out of Ukraine: a bomb attack on a maternity hospital in Mariupol. A mother and her children have been killed while fleeing Irpin in a humanitarian corridor. The apartment block is burning. Mass grave. A child has died due to dehydration in a town under siege, refusing humanitarian aid.

Such a picture contributes to a growing global consensus that Russia must be held accountable for war crimes in Ukraine.

“The bottom line is that this is a medieval war in Ukraine. This is exactly the kind of war that armed conflict law was designed to prevent, “said David Crane, a veteran of numerous international war crimes investigations. “The world’s powerful are looking like crocodiles … We must show oppressors around the world that the rule of law is stronger than the rule of guns.”

Even because of the conflict, a huge instrument is being created to collect and preserve evidence of possible violations of the international law of war created after World War II. Less than a month after Vladimir Putin ordered the first bombing of his neighbor, the United States announced that Russian forces were committing war crimes in Ukraine. However, it is not clear who will be held accountable and how.

Here’s a look at what war crimes are and what the options are for bringing those responsible to justice.

What is war crime?

Violation of war crimes war laws. Although the architecture of international criminal law has been built for decades, the concept is straightforward.

“If there is no military necessity to target something, then it is a war crime. If you shoot like ‘Mad Max Thunderdom’, it’s a war crime, “Crane said.

The basic principles of international humanitarian law are enshrined in the Geneva Conventions, most of which came into force after World War II, and the Rome Statute, which established the International Criminal Court in 1998.

They provide protection to civilians as well as prisoners of war and the wounded during war. Potential war crimes reported in Ukraine: mass destruction of people’s homes, firing on civilians as they evacuate through safe corridors, targeting hospitals, indiscriminate use of weapons such as cluster bombs in civilian areas, attacks on nuclear power plants, deliberate obstruction of humanitarian access . Help or basic needs such as food and water.

But purpose is important. Destroying a hospital alone is not evidence of war crimes. Prosecutors must show that the attack was intentional or at least reckless.

Crimes against humanity, which have been added to the rules of several international criminal tribunals, when a state launches widespread or systematic attacks on civilians involved in murder, deportation, torture, disappearances or other inhumane acts.

The mass mobilization of Ukrainian citizens to fight the Russian aggressors could complicate the case against Putin. Russia may try to use the vague distinction between civilians and fighters as a justification for attacks on civilian areas.

Some examples of recent suffixes:

12In 2012, the International Criminal Court convicted warlord Thomas Lubanga Diallo for drafting and enlisting children under the age of 15 to fight in an ethnic conflict in the Democratic Republic of Congo. He is serving a 14-year sentence.

োভRadovan Karadzic, president of the Republic of Srapska, a self-proclaimed Serbian republic in Bosnia, has been convicted of crimes against humanity, war crimes and genocide – most notably for killing more than 7,000 Bosnians in Srebrenica in 1995. Sentencing to life imprisonment imposed by the International Criminal Tribunal for the former Yugoslavia.

-Jin-Paul Akayesu, a mayor convicted of genocide, crimes against humanity – including rape – and inciting genocide for the 1994 Rwandan ethnic bloodshed. The Rwandan International Criminal Tribunal sentenced him to life in prison.

What is the International Criminal Court?

The International Criminal Court in The Hague can try individuals for war crimes, crimes against humanity, genocide and aggression.

The court controls its 123 member countries. Ukraine is not among them but the ICC has given jurisdiction. On 28 February, the ICC’s chief prosecutor, Karim Khan, announced that he would investigate suspected atrocities in Ukraine when an unprecedented 39 member states asked him to do so. Since then, more states have signed the petition.

“There is good reason to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine,” Khan said at the time.

There are significant limitations to what the ICC can do. Russia does not have the power to investigate what judges at the Nuremberg Tribunal after World War II called “the highest international crime,” the crime of aggression – the decision to wage a brutal, unpleasant war against another country. , Which international lawyers say is the easiest way to hold Putin accountable.

Because Russia, like the United States, is not on the side of the ICC.

When ICC rules were amended to include the crime of aggression, the United States, Russia, and China pushed for and received an engraving to protect citizens of countries that have not signed the court from facing trial on that charge. The UN Security Council may vote to refer the matter to the ICC, but Russia has a seat on the Security Council and could easily torpedo any such initiative.

Another limitation of the ICC is that courts cannot try missing persons.

“There will be no trial at the ICC until Putin is physically present in court,” said David Schaefer, who was the first U.S. ambassador to the United States to lead the US delegation in negotiations to establish the International Criminal Court. .

But the ICC could accuse Putin even if he stays in Moscow and issues an international warrant for his arrest, Schaefer said. This would seriously reduce Putin’s foreign travel and damage his position at home and abroad.

Has any court already moved against Russia for its action in Ukraine?

Yes. On March 1, the European Court of Human Rights in Strasbourg called on Russia to stop attacking civilians and bombing people’s homes, hospitals and schools, and to ensure safe evacuation of civilians and access to humanitarian aid. Then, on March 16, the UN Supreme Court, the International Court of Justice, ordered Russia to suspend military operations in Ukraine. Both courts consider violations by the state rather than individuals.

Russia has simply ignored them.

“There is no international police or international military force that can support the International Court of Justice’s decision,” said Ivan Lishchina, an adviser to Ukraine’s justice ministry who helped Ukraine sue the European Court of Human Rights. “It simply came to our notice then. It’s much more complicated. “

Many Ukrainians, including Lishchina, want Russia to pay for its transgressions and cover the huge cost of repairing the damage caused by its bombs. “If compensation is paid, I will consider that I have done something good in my life,” Lishchina said.

The ECHR may order Russia to pay compensation. But if Russia does not pay, ECHR’s only leverage will be to exclude it from the Council of Europe – which is already March 16. The ICJ may also order Russia to pay compensation, but the UN Security Council – where Russia has a permanent seat and veto power – must enforce the ruling.

Scholars, prosecutors and politicians have begun discussing whether Russian assets seized under global sanctions could be used to compensate Ukraine in the future.

Can other countries prosecute Russian officials for war crimes, even if they are not directly affected?

Yes. Estonia, Lithuania, Germany, Poland, Slovakia, Sweden and Switzerland have all launched independent investigations into Russia’s activities in Ukraine within the first month of the conflict. They can do this under the legal concept of “universal jurisdiction” which allows countries to use domestic courts to prosecute individuals for serious violations of international law, such as crimes against humanity, torture and war crimes – even if they are committed abroad by foreign criminals. Against foreign prey.

This method has produced results in the past. So far, German government officials have been the only ones to blame Syrian government officials for the atrocities committed during the country’s long-running civil war. Courts in other European countries have also convicted members of Syrian armed groups, including Islamic State militants, of crimes committed during the war.

In the first months of Russia’s war against Ukraine, Polish prosecutors say they have collected about 300 testimonies from refugees crossing the border. In March, Poland, Lithuania and Ukraine agreed to form a joint international investigation into Russia’s war crimes in Ukraine. Efforts continue to expand the scope of that cooperation.

Although the ICC usually handles a few high-profile cases, the cases in the national courts can cast a wider net and hold more people accountable. But they also have a limitation: senior officials like Putin, sitting president, and Russian Foreign Minister Sergei Lavrov, usually have immunity from trial in other countries, says Ryan Goodman, a law professor at New York University and a former special defense adviser.

“This is likely to erode the independent national jurisdiction of Germany, Poland, etc., in the power of Putin, Lavrov and others,” Goodman said. “But they will be able to follow many senior Russian officials.”

Is Ukraine prosecuting Russian war crimes?

Yes. In the first month of the war, Ukraine began investigating more than 2,500 war crimes cases and identified 186 suspects, including Russian government officials, military leaders and propagandists, said Ukraine’s Prosecutor General Irina Venediktova.

But as top government officials, Putin and Lavrov will likely be acquitted in a Ukrainian court.

Is there any other option?

Yes. The Nuremberg Tribunal, set up after World War II to try Nazi war criminals, is a great example of how Putin could be held accountable by a special court set up for that purpose. And special tribunals for criminal investigations were established in Yugoslavia and other places in Rwanda.

Theoretically, such a court could do what the ICC cannot do: try Putin for the crime of aggression, even if he is in Russia.

In early March, a campaign to form a special tribunal to investigate crimes of aggression against Ukraine, called Justice for Ukraine, began and gained momentum. More than 140 prominent lawyers, scholars, writers and political figures have signed the agreement, including Ukrainian Foreign Minister Dimitro Kuleba, former British Prime Minister Gordon Brown and a former prosecutor at the Nuremberg tribunal. A public petition in support of the effort has received more than 1.3 million signatures in a week.

Criticisms of this approach include that it can take too long to set up, cost too much, lack legitimacy, and create the appearance of electoral justice. Why, some argue, should there be a special tribunal for Russian aggression in Ukraine when there was none against the United States and its allies to invade Iraq?

But others say Putin’s attack on Ukraine has shown how inadequate existing legal options are and that a new approach is urgently needed.

“Since World War II, we have not seen a single sovereign European nation carry out shameless, large-scale aggression against another,” said Mykola Gnatovsky, a prominent Ukrainian lawyer and professor who has been tapped by the Ukrainian Foreign Ministry to assist in a craft. New Nuremberg-style tribunal for Russian aggression. “Accountability is important because accountability is a way to prevent this in the future.”


Monica Sisloska, an Associated Press reporter in Warsaw, Josh Goodman in Miami, and Sarah El-Dibb in Beirut contributed to the report.

Leave a Comment