Ukraine’s chief prosecutor has announced plans to hold the first war crimes trial for the Russian invasion. Ukraine’s Prosecutor General Iryna Venediktova said investigators had filed more than 10,700 war crimes and 600 suspects had been identified. Venediktova said a 21-year-old Russian sergeant had been charged with the murder of an elderly civilian in the northeastern village of Chupakhivka.
Two other low-ranking Russian soldiers are also expected to be charged with deliberately targeting civilian buildings and a fourth, believed to have committed rape and murder, has been identified but remains at large.
As investigations continue in areas of Ukraine previously occupied by Russian troops, evidence of crimes committed against civilians continues to mount. An Amnesty International report published on May 6 documents what it says is a range of crimes, from extrajudicial executions to the use of banned weapons in Russia’s failed assault on towns and cities in the kyiv region.
In mid-April, Ukrainian President Volodymyr Zelensky announced that he had approved the decision to create a “special mechanism of justice in Ukraine” to investigate Russian “crimes” in Ukraine. This would run alongside any international war crimes investigation and follows Ukraine’s adoption of a new law to create the mechanism to investigate and prosecute war crimes committed in the east of the country, where the conflict has been ongoing since 2014.
Read more: Ukraine: Zelensky’s ‘special mechanism’ to prosecute war crimes explained
So far, only low-ranking military officers have been charged. Whether the people running the war, including Vladimir Putin and his defense minister, Sergei Shoigu, will be brought to justice is another question.
History is littered with massacres and barbaric acts of war, but it took until the second half of the 19th century for a body of law to punish these crimes to develop. It was not until the Nuremberg trials after World War II that a prosecution of such crimes took place. Subsequently, the 1949 Geneva Conventions incorporated serious breaches of international humanitarian law as war crimes and linked these violations of the laws of war with criminal liability.
A turning point in accountability for war crimes came with the UN Security Council’s institution of two special international war crimes tribunals: one to try crimes committed in the war in the former Yugoslavia in the mid-1990s, the other for crimes against humanity during the Rwandan conflict in 1994. This showed the need for a permanent international mechanism to try and punish war crimes and other crimes against humanity. Consequently, in 1998, the International Criminal Court (ICC) was established.
ICC Chief Prosecutor Karim Khan has already opened an investigation into reports of crimes committed in Ukraine since the invasion. Given the amount of digital evidence available, such as satellite and video images, it must be plausible to assume that this investigation will result in the issuance of arrest warrants. However, once arrest warrants are issued, it is more doubtful that they will ever be executed.
The International Criminal Court currently has 123 members (not including the US, Russia and China, which have not recognized the court). Under the Rome Statute, member states are obliged to arrest and extradite to The Hague any person against whom the court has issued an arrest warrant. But, in practice, this rarely happens.
In the case of former Sudanese President Omar al-Bashir, for example, the court issued an arrest warrant in 2009 for Bashir’s role in the genocide in Darfur in the early years of the 21st century, but Bashir managed to continue visiting countries in Africa, countries – even states that are members of the court, including Kenya and South Africa.
The two countries argued that, as Sudan’s head of state, Bashir enjoyed immunity from ICC prosecution. This sparked a debate among legal scholars about exactly who could be subject to ICC jurisdiction. Meanwhile, Bashir remained at large despite arrest warrants.
And here’s the rub, as it stands, any sitting government official can claim immunity under international law. But this immunity does not extend to cover military officers. Generals involved in planning operations in Ukraine could find themselves in a situation where their possible arrest will always hang over their heads like a Damocles sword if they decide to travel, particularly in Western countries.
Convictions can be tough
Even if arrests for war crimes can be made in Ukraine, it is not certain that they will lead to convictions. For example, while article 28 of the ICC Statute states that military commanders are responsible for acts of which they should have been aware, both sides are using de facto mercenaries, so Russian and Ukrainian senior officers could argue that not only did they not order certain atrocities, but they could not be expected to be aware that they were taking place.
Operational arguments can also make any conviction difficult. According to the laws of war, states have the right to attack combatants, but civilians are protected. They cannot be attacked and any force applied must not lead to excessive civilian damage compared to the expected military advantage. But when wars are fought in urban areas where combatants fight from street to street, this can give the attacking force the opportunity to argue that any civilian casualties constituted “collateral damage” and could not be avoided.
This adds to a bleak picture of the prospect of being able to prosecute war crimes as a result of the Russian invasion and the war in Ukraine. It does not mean that no one will be tried or convicted, but it is unlikely that the “big fish” will end up in the dock. Rather than Vladimir Putin or his Defense Minister Sergei Shoigu being prosecuted, field commanders associated with ordering certain operations that resulted in heavy civilian casualties, such as in Bucha or Mariupol, are more likely to be brought to justice. CPI.