By destroying Ukrainian cities and killing ordinary people, including children, Russia has failed to distinguish between military and civilian targets.
As the horrors of Russian President Vladimir Putin’s invasion become more apparent, how should Ukraine and the international community react to what may be war crimes and crimes against humanity? Here is a look at the actions that can be taken.
No respect for humanitarian corridors
From the beginning of the war, the invasion was very indiscriminate and involved the bombing of Ukrainian cities. Russia’s actions sparked widespread demands to protect citizens fleeing destruction.
Possible violations of the law of war reported
The law of war has long prohibited intentional attacks against civilians, called non-combatants, as well as attacks that do not distinguish between civilian and military targets.
Where does the courtroom come in?
The International Criminal Court (ICC) is perhaps the institution most frequently mentioned as being appropriate for the prosecution of these crimes. The ICC has jurisdiction over a wide range of war crimes and crimes against humanity. It also has jurisdiction to prosecute genocide. The United States is not a member of the ICC, despite its support for the court’s prosecution of other countries’ leaders and militaries.
But neither Ukraine nor Russia are party to the Rome Statute, essentially the ICC constitution. Although not a party, Ukraine has voluntarily accepted ICC jurisdiction on an ad hoc basis over crimes committed on its territory. This allows the ICC to investigate and, where appropriate, prosecute any of the crimes listed in the Rome Statute that take place, in whole or in part, on Ukrainian soil.
This applies whether the defendants are Russian or Ukrainian citizens, or citizens of a third state (for example, mercenaries from Syria).
In addition, the defendant does not need to be present on the territory of Ukraine. That means leaders and commanders can commit war crimes or crimes against humanity, so-called command or leader responsibility, even if they never step foot on the battlefield.
It all depends on whether these atrocities can be attributed to his direct orders or, in some cases, even to deliberate blindness or failure to prevent intended crimes.
Even Putin could be prosecuted: one of the characteristics of the ICC is that a head of government or head of state does not have immunity. Of course, bringing Putin or other Russian commanders before the ICC in The Hague poses formidable practical challenges. The ICC does not allow “absentee trials” where the accused is not present and it seems unlikely that Putin will fall into the court’s custody any time soon.
There could also be internal processes
At the moment, Ukraine’s own prosecutors and other criminal justice officials are collecting evidence on war crimes and crimes against humanity in Ukraine. In fact, the ICC operates on the basis of “complementarity”: it will only prosecute in situations where Ukraine is unwilling or unable.
Russian prisoners of war or others captured by Ukrainian forces may be tried for specific war crimes or crimes against humanity. But they cannot be prosecuted simply for fighting the war.
Other countries are also ready to prosecute
Other countries could prosecute under “universal jurisdiction,” using national law to prosecute war crimes, even if they were not committed on their territory, by or against their citizens.
Historically, there have always been crimes, such as piracy, that are considered offenses against all of humanity. There is widespread agreement that crimes designated by the ICC as worthy of prosecution are punishable offences.
The many groups investigating war crimes
Following the apparent massacres of civilians in Bucha and elsewhere in the Russian pullout, the White House, NATO, the European Union, and other international leaders have repeatedly called for accountability. In this spirit, the US Department of State has called in a team of international prosecutors to go to the region to help the Ukrainian Prosecutor General’s office collect evidence of war crimes.
And earlier this month, the United Nations Human Rights Council established an International Independent Commission of Inquiry to investigate alleged human rights violations in Ukraine.
Of course, many human rights organizations, such as Human Rights Watch and Amnesty International, are also gathering evidence, as are countless journalists.
Despite the challenges of prosecuting crimes in times of war, it is necessary for peace
What the tests might do is underline individual responsibility for brutality in war, contributing to the path to peace.
There are fairly recent precedents for this. During the 1990s, in the last war in Europe after the collapse of Yugoslavia, we saw the United Nations Security Council establish the International Criminal Tribunal for the former Yugoslavia (ICTY), an internal war tribunal to judge crimes of war, crimes against humanity and genocide during the bloody Balkan conflict.
The court was aimed at pacification, to deter and end violence. The international tribunal’s mandate was to indict those responsible for “ethnic cleansing” throughout the region, including, ultimately, the main political and military leaders of the conflict.
The main political and military officials of the regional conflict, including Slobodan Milosevic, Radovan Karadzic and General Radko Mladic, were prosecuted at the ICTY. Slobodan died while the trial was pending, while Karadzic and Mladic were convicted in 2016 and 2017 and are currently serving long sentences.
Given Russia’s continued denials of war crimes (including recently the Bucha massacre) and even of the invasion of Ukraine (calling it an “operation”), trials and the establishment of criminal records could go a long way in stopping nationalist propaganda. that has promoted cycles of violence in the region.
As the ICTY demonstrated, international justice can be an ally in negotiating peace. Let us hope that justice for Ukraine will follow in the footsteps of other courts during the war and promote peace in the region.