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David J. Scheffer, Council on Foreign Relations
David J. Scheffer, Council on Foreign Relations
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Countries including the United States are ramping up calls for war crimes investigations following an apparent massacre in the Ukrainian city of Bucha. Could Russian leaders be brought to justice under international law?
Russia’s invasion of Ukraine constitutes the crime of aggression under international law. The primary charge against senior leaders of Nazi Germany at the Nuremberg trials and Japan at the Tokyo war crimes trials was “crimes against the peace,” meaning the initiation of a war of aggression. These trials resulted in the conviction of three dozen perpetrators for aggression. The 1945 United Nations Charter further embedded the illegality of aggressive war (as opposed to defensive war) in international law.
Because they fall under the overarching crime of aggression, all uses of armed force by Russia on Ukrainian territory can be viewed as illegal. Moreover, the Russian military continues to commit various atrocity crimes, a category which includes war crimes, crimes against humanity, and genocide.
The unprecedented media coverage of Russia’s invasion has recorded the commission of war crimes in real time. The Russian military has targeted civilian infrastructure including apartment buildings, hospitals, factories, stores, churches, schools, and cultural sites. Even where a military target exists, using disproportionate force while knowing that the strike will likely cause death or injury to civilians or damage to civilian structures is a war crime.
Siege tactics to starve civilians into surrender or to force them to flee as refugees, which now number more than four million, represent 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 implied is a possibility, would constitute a war crime because of the collateral damage to civilian lives and property. The use of chemical and biological weapons against any target—civilian or military—would as well.
READ MORE: U.S. announces new sanctions on Putin’s daughters, Russian banks in response to ‘war crimes’
The withdrawal of Russian forces from the Kyiv region at the beginning of April yielded insight into the scale of civilian casualties. In Bucha, a small city on the outskirts of the Ukrainian capital, journalists and human rights observers documented what appear to be mass graves and bodies of civilians targeted by Russian troops lining the streets. The brutal discoveries in Bucha, where an estimated three hundred civilians were killed, and other cities recaptured by Ukrainian forces prompted U.S. President Joe Biden to call for a war crimes trial to impose accountability.
Russia’s invasion likely also involves crimes against humanity, which are those committed as part of widespread or systematic attacks directed at a civilian population, with knowledge of those attacks. Such crimes include murder, the forcible transfer of a 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 similar character that intentionally cause great suffering or serious injury to body or to mental or physical health.
READ MORE: Landmark conviction of senior Syrian official for crimes against humanity hailed by United Nations
In April, Ukraine reported that over four hundred civilians had been murdered by Russian troops, with many more individuals still missing, in the liberated Kyiv region.
Prosecutors may also investigate claims of genocide, which requires the intentional destruction of all or part of a national, ethnical, racial, or religious group. Genocide includes not only killing, 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 calculated to bring about its physical destruction in whole or in part. Establishing the genocidal intent of senior Russian leaders, however, could prove difficult.
WATCH: Ukraine accuses Russia of genocide as retreat outside Kyiv leaves ‘trail of death’
The International Criminal Court (ICC), which has jurisdiction over Ukraine, recently initiated a major investigation after forty countries formally referred the situation to the prosecutor. In addition, the UN Human Rights Council is setting up an investigative commission, and certain governments, the European Union, and nongovernmental organizations are launching their own investigative efforts. This has resulted in the commitment of an unprecedented level of resources for atrocity crimes investigations in a short period of time.
WATCH: Russian retreat from areas around Kyiv reveals ‘pattern of apparent war crimes’
Whatever category of atrocity crimes is ultimately prosecuted, the clear top-down orchestration of the Russian military campaign will lessen the burden of proof for prosecutors. Additionally, ongoing reporting by the media serves as real-time documentation, thus making it difficult for Russian leaders to plead ignorance about atrocity crimes taking place in Ukraine. Nonetheless, they blatantly broadcast their aggressive intentions and, it appears, are doing nothing to prevent such crimes or to punish those who commit them. As a result, building a case against them could be easier.
Although the United States is not a party to the ICC, it could have a major role to play, especially in light of Biden’s assertion that Putin is a war criminal. Washington could orchestrate the collection and delivery of information from many sources, including refugees, satellite imagery, and declassified electronic intercepts. In fact, despite long-standing opposition to the ICC from the Republican party, some of its leading senators have introduced a resolution supporting the court’s investigative efforts. The U.S. military could also help by analyzing the “order of battle” of Russian troops, which provides useful information for investigators and prosecutors.
WATCH: U.S. Ambassador to the U.N. Linda Thomas Greenfield on the atrocities uncovered in Ukraine
Additionally, Washington could support Ukraine in building war crimes cases against Russian soldiers and officers. The Biden administration could immediately lead an initiative at the UN General Assembly for the United Nations to enter into a treaty with the Ukrainian government to establish a special tribunal. This body would be able to prosecute crimes of aggression committed by Russian leaders, which the ICC lacks the jurisdictional authority to carry out. The UN treaties creating the Special Court for Sierra Leone [PDF] and the Extraordinary Chambers in the Courts of Cambodia [PDF] two decades ago serve as models.
The Soviet Union played a major role during and after World War II to investigate and prosecute Nazi war crimes, including the Nazi occupation of Ukrainian cities such as Kharkiv and Kyiv. Between 1943 and 1952, the Soviets prosecuted an estimated eighty-two thousand people as Nazi criminals or collaborators. Soviet officials were also instrumental in creating the Nuremberg tribunal and its prosecution of crimes of aggression. In the 1990s, Russia supported the UN Security Council’s creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
In recent decades, however, the Kremlin has not pressed for domestic enforcement of the laws and customs of war in connection with its foreign military adventures. As a result, it is implausible to expect Moscow to cooperate with the ICC’s investigation of atrocity crimes or with any special tribunal established to prosecute the crime of aggression in the future.
Economic sanctions will primarily provide leverage to compel the withdrawal of Russian forces and the restoration of Ukraine’s sovereignty and territorial integrity. If the sanctions are eventually lifted in stages, it could 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 with respect to indicted Russian fugitives shielded by a nuclear power would be risky.
The enormous destruction of property and other financial losses will highlight Russia’s responsibility to eventually pay for the reconstruction of Ukraine and give compensation to its people. The issue of reparations doubtless will be raised in negotiations to resolve the conflict and as an international condition for resuming any normal relationship with Russia.
NEWS WRAP: U.S. charges Russian media baron over sanctions violations
Western countries will vigorously challenge any expectation by Russia that other nations will bear the entire cost of rehabilitating Ukraine. While the post–World War II Marshall Plan, which was led by the United States, helped to rebuild a devastated Europe, Russia should not expect such outside help this time. It remains a viable economy and society despite the international sanctions, and it bears direct responsibility as the aggressor nation.
Madeline Babin contributed research for this article.
This article originally ran on the Council on Foreign Relations website.
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