Can Russia be held responsible for war crimes in Ukraine?
What war crimes are being committed in Ukraine?
Russia’s invasion of Ukraine constitutes a crime of aggression under international law. The main charge against top leaders of Nazi Germany at the Nuremberg trials and Japan at the Tokyo war crimes trials were “crimes against peace”, i.e. initiating a war of aggression. These trials resulted in the conviction of three dozen perpetrators for assault. The 1945 Charter of the United Nations further entrenched the illegality of aggressive war (as opposed to defensive war) in international law.
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Because they fall under the general crime of aggression, all Russian use of armed force on Ukrainian territory can be considered illegal. Moreover, the Russian military continues to commit various heinous crimes, a category that includes war crimes, crimes against humanity and genocide.
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War crimes. Unprecedented media coverage of the Russian invasion recorded the commission of war crimes in real time. The Russian military has targeted civilian infrastructure, including apartment buildings, hospitals, factories, shops, churches, schools and cultural sites. Even when a military target exists, using disproportionate force knowing that the strike is likely to cause death or injury to civilians or damage civilian structures is a war crime.
Siege tactics aimed at starving civilians into surrender or forcing them to flee as refugees, who today number nearly three million, are clear war crimes, as would any use of cluster munitions or so-called vacuum bombs on civilian areas. The use of a tactical nuclear weapon, which Russian President Vladimir Putin and Foreign Minister Sergei Lavrov have hinted as a possibility, would constitute a war crime because of the collateral damage to life and property. civilians. The use of chemical and biological weapons against any target, civilian or military, would also be.
Crimes against humanity. The invasion of Russia likely also involves crimes against humanity, which are those committed as part of widespread or systematic attacks directed against a civilian population, with knowledge of the attacks. These crimes include murder, forcible transfer of population, severe deprivation of physical liberty in violation of fundamental rules of international law, persecution against identifiable groups of civilians, sexual violence and inhumane acts of a similar character which intentionally cause great suffering or serious injury. to the body or to mental or physical health.
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Genocide. Prosecutors can also investigate allegations of genocide, which requires the intentional destruction of all or part of a national, ethnic, racial or religious group. Genocide includes not only murder, but also causing serious bodily or mental harm to members of the group (in this case, those of Ukrainian nationality) or deliberately inflicting on the group conditions its total or partial physical destruction. Establishing the genocidal intent of senior Russian leaders, however, could prove difficult.
How could the investigations proceed?
The International Criminal Court (ICC), which has jurisdiction over Ukraine, recently opened a major investigation after 40 countries formally referred the case to the prosecutor. In addition, the UN Human Rights Council is setting up a commission of inquiry, and some governments, the European Union and non-governmental organizations are launching their own investigative efforts. This has resulted in the commitment of an unprecedented level of resources to atrocity crime investigations in a short period of time.
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Whichever category of atrocity crimes will ultimately be prosecuted, the clear, top-down orchestration of the Russian military campaign will lighten the burden of proof for prosecutors. Moreover, continuous media reports serve as real-time documentation, making it difficult for Russian leaders to plead ignorance of the atrocities committed in Ukraine. Nevertheless, they openly broadcast their aggressive intentions and, it seems, do nothing to prevent such crimes or to punish those who commit them. As a result, building a case against them might be easier.
What role could the United States play in the search for accountability?
Although the United States is not a party to the ICC, it could have a major role to play, especially in light of President Joe Biden’s recent claim that Putin is a war criminal. Washington could orchestrate the collection and dissemination of information from many sources, including refugees, satellite imagery and declassified electronic intercepts. In fact, despite the Republican Party’s longstanding opposition to the ICC, some of its top senators have introduced a resolution supporting the court’s investigative efforts. The US military could also help by analyzing the “order of battle” of Russian troops, which provides useful information to investigators and prosecutors.
Additionally, Washington could help Ukraine build war crimes cases against Russian soldiers and officers. The Biden administration could immediately lead an initiative in the United Nations General Assembly for the United Nations to enter into a treaty with the Ukrainian government to establish a special court. This body would be able to prosecute crimes of aggression committed by Russian leaders, which the ICC does not have the jurisdictional authority to carry out. The UN treaties creating the Special Court for Sierra Leone [PDF] and Extraordinary Chambers in Cambodian Courts [PDF] two decades ago serve as models.
What is Russia’s record of investigating these abuses?
The Soviet Union played a major role during and after World War II in investigating and prosecuting Nazi war crimes, including the Nazi occupation of Ukrainian cities such as Kharkiv and Kyiv. Between 1943 and 1952, the Soviets prosecuted approximately eighty-two thousand people as Nazi criminals or collaborators. Soviet officials also helped establish the Nuremberg Tribunal and its prosecution for crimes of aggression. In the 1990s, Russia supported the establishment by the UN Security Council of international criminal tribunals for the former Yugoslavia and Rwanda.
In recent decades, however, the Kremlin has failed to insist that the laws and customs of war be enforced domestically in its overseas military adventures. As a result, it is implausible to expect Moscow to cooperate with the ICC’s investigation of atrocity crimes or any special tribunal created to prosecute the crime of aggression in the future.
If there are indicted fugitives, could sanctions help compel them to surrender?
Economic sanctions will primarily serve as leverage to compel the withdrawal of Russian forces and the restoration of Ukraine’s sovereignty and territorial integrity. If sanctions are eventually lifted in stages, it might prove effective to include conditions requiring the surrender of indicted fugitives. This tactic served as a powerful incentive for the surrender of indicted leaders such as Slobodan Milosevic to the tribunal for the former Yugoslavia in The Hague. However, Serbia did not possess nuclear weapons, so attempts to use similar leverage against indicted Russian fugitives protected by a nuclear power would be risky.
Will Russia have to pay reparations?
The enormous destruction of property and other financial losses will highlight Russia’s responsibility to eventually pay for the reconstruction of Ukraine and to compensate its people. The question of reparations will undoubtedly be raised in the negotiations to resolve the conflict and as an international condition for the resumption of any normal relationship with Russia.
Western countries will vigorously challenge any Russian expectation that other nations will bear the full cost of Ukraine’s rehabilitation. While the post-World War II US-led Marshall Plan helped rebuild a devastated Europe, Russia should not expect such outside help this time around. It remains a viable economy and society despite international sanctions, and bears direct responsibility for this as an aggressive nation.
Madeline Babin contributed research for this article.