POLITICS

War crimes in Ukraine and international tribunals

May 18, 2022
By Jean-François Ratelle
Jean-François Ratelle looks at the challenges facing the prosecution of war crimes and crimes against humanity committed in Ukraine and cautions against expectations of a swift process.
Since the end of the Cold War, tremendous progress has been made in the field of international law with ad hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR), as well as the creation of the International Criminal Court (ICC). The prosecution of international crimes has become more common and led to important advances in the field of international humanitarian law and international human rights law. At the same time, international accountability for war crimes and crimes against humanity still faces many challenges, and in the case of Ukraine in particular. This brief looks at some of the challenges facing international and Ukrainian prosecutors. In doing so, the paper also seeks to mitigate expectations and potential frustrations linked to the prosecution of international crimes committed in Ukraine.
A destroyed Russian BMP-3 near Mariupol, 7 March, 2022. Source: Wiki Commons
Jurisdiction: International or national courts

Following the withdrawal of Russian forces from Northern Ukraine in April 2022, widespread atrocities were discovered in Bucha and in other towns surrounding Kyiv. These war crimes come on top of reports in Eastern Ukraine of indiscriminate bombing, destruction of civilian infrastructure, unlawful deportation and transfer of the civilian population, torture, looting and sexual violence. According to Ukraine’s Prosecutor General, roughly 2,000 cases of war crimes are currently being investigated. This number should climb sharply if/when investigators are able to access Russian-controlled areas in Mariupol, the Donbas and Kherson Region. The systematic and widespread nature of crimes committed appears to also conform to patterns of crime against humanity and eventually genocide.

The case of Bucha has led many Western nations, as well as Ukrainian President Volodymyr Zelensky, to call for international prosecution of the crimes committed in Ukraine. Although some leaders and scholars have talked about a potential international or regional tribunal being created by the UN Security Council to deal with the crime of aggression and other international crimes, such a possibility appears very unlikely due to Russia’s veto power.

The ICC seems to be the logical choice to prosecute the war crimes at the international level, as it has both jurisdiction over crimes committed in Ukraine and the legitimacy to do so. Since 2015, Ukraine has accepted the ICC’s jurisdiction over alleged crimes committed on its territory since February 20, 2014. This jurisdiction covers war crimes, crimes against humanity and genocide committed by any actors on Ukrainian soil. At the same time, it is worth noting that the principle of complementarity enshrined in the Rome Statute limits the jurisdiction of the court to cases where states are unable or unwilling to prosecute crimes.

In the case of Ukraine, it appears that the state is both willing and probably able to prosecute war crimes committed on its territory. Recently, Ukraine’s Prosecutor General filed the first indictment against a captured Russian solider for violations of the laws and customs of war. The prosecution of war crimes has other advantages for the Ukrainian state. It can help to support the judicial reforms addressing corruption in Ukraine, increase its international legitimacy and potentially pave the way for its future integration with the European Union.

At the same time, Ukraine might choose to refer prominent cases involving international extradition or international negotiations to the ICC. The international tribunal might be better equipped to conduct transnational investigations, including securing evidence and resources from member states.

In both cases, Western countries will have a major role to play in terms of financing and providing intelligence to support the investigative and judicial process. An alternative option would be to use universal jurisdiction to prosecute war crimes, crimes against humanity and genocide in the national courts of any countries willing to do so. As the case of Malaysia Airlines Flight 17 has underlined, in absentia trials in Western Europe can be conducted against perpetrators but have a lesser, symbolic impact.

Who should or could be prosecuted?
"In a war of the scale of the Russian invasion of Ukraine and given the number of war crimes that have been reported so far by activists, journalists, human rights workers and government officials, it is very unlikely that an international court or even national courts could or would be able to prosecute all the perpetrators."
Choices will have to be made with regard to prosecution strategies. In general, international tribunals focus on prominent actors for symbolic and deterrence purposes, while national courts often deal with other perpetrators.

Recent international trials have demonstrated that leaders are no longer immune to prosecution. Since the end of the Cold War, targeting political and military leaders responsible for atrocities has been quite common. Charles Taylor (Liberia), Slobodan Milosevic (Serbia) and Laurent Gbagbo (Côte d’Ivoire) were indicted and prosecuted by various international courts. However,
"...in the case of Vladimir Putin and his inner circle, it would be the first time that a political leader of an undefeated superpower or its governing elites would be indicted by the ICC."
European Union President Ursula von der Leyen and other EU and Ukrainian officials visit Bucha after the massacre, 8 April 2022. Source: Wiki Commons
So far, the ICC has indicted only African leaders and prosecuted cases mostly in Africa. Obtaining an ICC arrest warrant for the Russian president would represent a major achievement even though prosecution appears very unlikely at this stage.

A more realist scenario appears to be the prosecution of members of the 64thSeparate Guards Motor Rifle Brigade allegedly responsible for the crimes committed in Bucha. In order to prosecute them, international tribunals or Ukrainian national courts will have to seek their extradition from Russia or capture them in Ukraine. In the case of the former and given the current relationship between the West and Russia, negotiations for extradition represent an enormous challenge. If Western Balkans countries previously had an incentive to collaborate with the ICTY, it appears unlikely that Russia will be willing to do so without obtaining something in return.

Recent cases of international assassinations allegedly organized by Russian intelligence services in Turkey, the United Arab Emirates, Germany and Great Britain have made clear that Russia will not extradite members of its security and armed forces to be prosecuted abroad. Furthermore, international warrants from the ICC or Interpol have also proven difficult to enforce internationally. In the case of Omar al-Bashir, many countries have willingly chosen to refuse to collaborate with the ICC.
"The neutrality shown by many countries of the global south regarding the Russian invasion of Ukraine suggests that any international warrant would not be simple to enforce."
Wall of names at the Srebrenica Genocide memorial, 2009. Source: Wiki Commons
Prosecution versus reconciliation

Although international tribunals play a major in holding perpetrators accountable and writing the history of an armed conflict, documenting crimes and atrocities committed, they can often hinder the post-conflict reconciliation process. International prosecution can exacerbate tensions between ethnic groups and feed into conspiracy theories about the West and its ethnic bias. Post-conflict reconciliation following armed conflicts can take decades, particularly when belligerents live in different countries. The task facing international tribunals is not only to hold perpetrators accountable, but also to establish legitimacy and support peacebuilding in the long term. The case of Serbia has underlined how a lack of public support can lead to increased mistrust toward international institutions and hinder reconciliation. In Serbia, a considerable part of the population casts doubt about the impartiality of the ICTY and its contribution to establishing the truth about the war.

In the case of Ukraine, the role of an international tribunal cannot be limited to the prosecution of war crimes. Prosecution and reconciliation should not be seen a mutually exclusive. Gaining public support for transitional justice in Russia would help to address issues of mistrust toward the ICC and any other international tribunals, as well as lay the foundation for political reconciliation between the two nations. An approach focused only on retributive justice can exacerbate tensions created by the war. In other words, the choice should not be between truth and reconciliation, but how international tribunals can play a positive role in both. A middle ground can contribute to finding a long-term solution in such intractable conflicts and avoid perpetuating freshly reinforced warring identities.

For the moment, as the vile crimes committed by Russian forces are fresh in everyone’s minds, reconciliation might appear difficult to conceive. Furthermore, discussions about reconciliation between Ukrainians and Russians will remain elusive as war crimes continue to be widely committed across Eastern Ukraine and as the Russian state continues to depict Ukrainians as Nazis, hyper-nationalists and proxies for Western countries. However, a reconciliation strategy should be part of the overall process supported by Western countries and NATO. A long-term post-conflict resolution requires addressing the deeply rooted grievances between people.

The case of Rwanda has underlined that international tribunals can achieve better results in that regard when working in coordination with national courts or an alternative reconciliation process, such as the Gacaca courts or the South African Truth and Reconciliation Commission. Historical cases connected with difficult decolonization, such as the relationship between France and Algeria following the Algerian War, should also inform future strategies. One should remember that such decolonization takes time and requires dedication to resolve the deep-rooted issues sustaining the conflict. Recent speeches by Vladimir Putin and Dmitry Medvedev have shown continued colonial stereotypes among Russian elites. In this matter, international prosecution and transitional justice can play a leading role as long as they are expanded beyond retributive justice.

The judicial process cannot be perceived as a Western-imposed tribunal or based on victor’s justice. Broad acceptance beyond Western countries and Ukraine, including within Russian society, should be a primary objective. Keeping that objective in mind, it is paramount that the alleged crimes committed by Ukrainian forces and volunteers also be investigated and prosecuted by any international tribunal dedicated to Ukraine.This is the only way that the judicial process can include the Russian population in a broader conflict transformation that addresses deep-rooted stereotypes and grievances, which would pave the way for a positive peace between the two nations. Long-term reconciliation between Ukrainians and Russians will require an introspective process from the latter and a better understanding of crimes committed during the Russian invasion. A perception of legitimacy surrounding an international tribunal for Ukraine would play a critical role in this.

Conclusion

Overall, one should not expect a swift judicial process with regard to the war crimes and crimes against humanity committed in Ukraine. Managing expectations among victims appears critical for its legitimacy.
"As shown by previous international tribunals and the ICC, years can pass before a guilty verdict is delivered for crimes committed during an armed conflict."
It took almost six years for the ICC to deliver its first conviction in the case of Thomas Lubanga Dyilo (Democratic Republic of Congo). International justice will also have to manage potential perceptions of Russian elites not being held accountable. Any international tribunal dedicated to crimes committed during Russia’s war in Ukraine will represent a groundbreaking event both for the ICC and international law in general. Such limitations should not be portrayed as a complete failure and be allowed to feed cynicism toward the international judicial process. Finally, national courts and the ICC’s jurisdiction is strictly anchored to individual criminal responsibility rather than collective guilt. The guilt of the Russian state, its people or Russia in general would fall outside of the scope of international tribunals and be left to historians and social scientists.

Although the burden of the investigative and judicial process might fall on the Ukrainian state, Western countries will have a key role to play in the process. The cases of the ICTY and ICTR have demonstrated that successful international tribunals depend on the collaboration of Western countries, which must provide resources, share intelligence and demonstrate political will. An international tribunal should not be an afterthought of the peace process, but an integral part of it. Before any sanctions are lifted, Western countries should ensure the full cooperation of Russia in post-conflict transitional justice. Transitional justice, including its retributive and restorative mechanisms, are often as important as the peace itself.
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