Opinion: Russia’s war on trial

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’s a look at what actions can be taken.

No respect for humanitarian corridors

From the war’s beginning, the invasion was highly indiscriminate, involving the shelling of Ukrainian cities. Russia’s actions provoked widespread demands to protect citizens fleeing from the destruction.

Possible law of war violations reported

The law of war has long prohibited intentional attacks on civilians, called noncombatants, as well as attacks that do not distinguish between civilian and military targets.

Where the courtroom comes into it

The International Criminal Court (ICC) is the institution perhaps most often mentioned as appropriate for the prosecution of these crimes. The ICC has jurisdiction over both a wide range of war crimes and crimes against humanity. It also has jurisdiction to prosecute genocide. The US is not a member of the ICC, despite its support for the court’s prosecution of other countries’ leaders and military.

But neither Ukraine nor Russia is a party to the Rome Statute — essentially the constitution of the ICC. Though not a party, Ukraine has voluntarily accepted the jurisdiction of the ICC 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 accused are Russian or Ukrainian nationals, or nationals of a third state (for example, mercenaries from Syria).

Also, the accused need not be present on Ukraine territory. That means leaders and commanders may commit war crimes or crimes against humanity — so-called command or leader responsibility — even if they never set foot on the battlefield.

It all depends on whether these atrocities can be traced to their direct orders, or in some cases even willful blindness or failure to prevent anticipated offenses.

Even Putin could be prosecuted — one of the features of the ICC is that a head of government or head of state has no immunity. Of course, bringing Putin or other Russian commanders before the ICC in the Hague involves formidable challenges at a practical level. The ICC does not permit “trials in absentia” where the defendant is not present and it seems unlikely that Putin would fall into the court’s custody any time soon.

There could also be domestic prosecutions

Right now, Ukraine’s own prosecutors and other criminal justice officials are collecting evidence concerning 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 or other prisoners of war captured by Ukrainian forces may be tried for specific war crimes or crimes against humanity. But they cannot be prosecuted merely for fighting in the war.

Other countries are also ready to prosecute

Other countries could prosecute by exercising “universality jurisdiction” — using domestic legislation 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 to all humanity. There is widespread agreement that the crimes set out by the ICC as worthy of prosecution are punishable offenses.

The many groups investigating war crimes

After the apparent massacres of civilians in Bucha and other sites of Russian withdrawal, there has been a steady drumbeat from the White House, NATO, the EU and other international leaders all calling for accountability. In this spirit, a team of international prosecutors has been convened by the US State Department to go to the region to assist the Ukrainian Procurator General’s office to gather evidence of war crimes.

And earlier this month, the United Nations Human Rights Council established an Independent International Commission of Inquiry, to investigate alleged violations of human rights 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 judging crimes during wartime, it’s necessary for peace

What trials could do is underscore individual responsibility for brutality in war — contributing to the road to peace.

There are fairly recent precedents to this. During the 1990s, in the last war in Europe following the collapse of Yugoslavia, we saw the United Nations Security Council establish the International Criminal Tribunal for the Former Yugoslavia (ICTY) — an intra-war tribunal to adjudicate war crimes, crimes against humanity and genocide during the bloody Balkans conflict.

The court was aimed at peacemaking — to deter and end the violence. The international tribunal’s mandate was to indict those responsible for “ethnic cleansing” throughout the region, including ultimately top political and military leaders in the conflict.

Leading political and military officials of the regional conflict — including Slobodan Milosevic, Radovan Karadzic and General Radko Mladic — were prosecuted at the ICTY. Slobodan died during pendency of the trial, while Karadzic and Mladic were convicted in 2016 and 2017 and are currently serving long sentences.

Given ongoing Russian denials of war crimes (including recently of the Bucha massacre) and even of the invasion of Ukraine (calling it an “operation”), trials and establishing a criminal record could go a long way in stopping the nationalist propaganda which has promoted cycles of violence in the region.

As the ICTY showed, international justice can be an ally in negotiating peace. Let’s hope that justice for Ukraine follows in the footsteps of other tribunals during war and advances peace in the region.