Opinion: Russia’s war on trial

By destroying Ukrainian cities and killing ordinary people, including children, Russia has failed to distinguish between military and civilian targets.

Shocking images of bodies in the street have already emerged from places like Bucha, on the outskirts of kyiv. Ukraine’s President Volodymyr Zelenksy warns that the number of civilian casualties is likely to be much higher in other liberated cities.

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.

In situations like these, the UN Office for the Coordination of Humanitarian Affairs provides what is known as a humanitarian corridor. Despite international agreement on these corridors, Russia has interfered, shooting civilians and leaving roads littered with dead and wounded.

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.

A report this week by Human Rights Watch, based on interviews with eyewitnesses, victims, and local residents of the territories occupied by Russia between February 27 and March 14, documents many violations of the law of war. Interviewees described repeated rapes and summary executions, as well as threats against civilians.
Some of these crimes, especially those brought to light in Bucha, may not only be war crimes, but are so serious that they are considered crimes against humanity. Crimes against humanity comprise the most serious crimes, such as murder, torture and the persecution of civilians as a form of widespread or systematic attack.

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.

The fact that Ukraine is preparing to prosecute Russian war crimes potentially indicates the standards by which it is ready to hold its own military accountable, since committing its own war crimes would expose Ukraine to “tu quoque”: possible accusations that they have also lacked integrity in their military tactics.

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.

For example, Germany has just announced an investigation into Russian aggression against Ukraine. There is already a track record here, as Germany has prosecuted crimes against humanity in Syria, where convictions have already been obtained. In January, a German court sentenced former Syrian Army Colonel Anwar Raslan to life in prison for crimes against humanity, after he oversaw the torture of detainees a decade earlier.

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.

War crimes expert: Russian invaders are crossing the line
Shortly after the Russian invasion began in February, Karim Khan, a prosecutor at the International Criminal Court, also announced that he would open an investigation into the alleged atrocities; expanding on an investigation that originally dates back to the 2014 invasion of Russia.

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.

Then-Secretary of State Madeline Albright said at the time that “the only victor that will prevail in this effort will be the truth.”
Likewise, in the words of the ICTY’s first prosecutor, Richard Goldstone, who justified the accusations in terms of truth and deterrence, “the public record will help attribute guilt to individuals and will be an important tool to avoid the attribution of collective blame to any nation” . or ethnic group.

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.

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