War crimes in Ukraine: the campaign to hold Russia to account

When the last Russian troops in Bucha found themselves cornered by advancing Ukrainian forces in late March, they began shooting civilians, says Serhiy Konovalov.

“My brother was killed right here on these steps,” says the 46-year-old. “He was going to the basement in the evening and stopped to light a cigarette when one soldier just shot him for the sake of it.” He believes his brother Dima’s corpse deterred Russian soldiers from entering the basement and prevented the killing of three people sheltering underground without heat and electricity for a month.

Konovalov, who witnessed his brother’s shooting from the ground floor of the house, points to graves around his neighbourhood marked with makeshift wooden crosses. “No one will forgive these Russians,” he says. “Their grandchildren and great-grandchildren will also pay for these heinous crimes.”

As pictures of decaying bodies, many with their hands tied behind their backs, were beamed around the world from Kyiv’s satellite towns this week, demands grew that the Russian officials responsible should face prosecution for wartime atrocities.

US president Joe Biden described his Russian counterpart Vladimir Putin as a “war criminal” and said he should face trial. Emmanuel Macron, the French leader, said there were “very clear indications of war crimes” in Bucha, and those responsible should answer for them. German chancellor Olaf Scholz deplored the “terrible and grisly” images and said: “We must unsparingly investigate these crimes of the Russian military.” Moscow accused the Ukrainians of staging “fake” killings and hiring actors to play victims, despite ample evidence to the contrary, including satellite pictures that showed corpses strewn on Bucha’s streets when the Russians still controlled the town of more than 40,000 people.

Human rights groups urged investigators to be brought in and steps taken to secure what they described as crime scenes. They say that Bucha — a short drive from Kyiv — is only one small window into what they believe is a pattern of unlawful killings, rapes and other crimes against civilians in swaths of eastern and southern Ukraine that were seized after the Russian invasion began on February 24, in what Putin called a “special military operation”.

Serhiy Konovalov, whose brother was shot dead by Russian troops in Bucha
Serhiy Konovalov, whose brother was shot dead by Russian troops in Bucha, crouches over his makeshift grave © Andres Schipani/FT

In other Kyiv suburbs from which Russian troops have withdrawn in recent days, photographers at the scene took shocking pictures: corpses stuffed into wells with bags over their heads; a dead woman with a swastika carved into her flesh, a brutal reflection of Putin’s casus belli of defeating “Nazis” in Ukraine.

Even before the massacres, work had begun in international justice circles on tracking abuses connected to the Russian attack. Legal specialists say this work is remarkable in its speed, but that it will test the limits of a chronically underfunded system that has long been criticised for being plodding in its procedures and patchy in its ability to prosecute those ultimately responsible for some of the world’s gravest crimes.

“These are some of the worst atrocities seen in Europe since the [1990s] Balkan wars,” says Kingsley Abbott, head of global accountability and international justice at the International Commission of Jurists. “What has been remarkable is how the whole international justice framework is being brought to bear — and is being tested as well.”

The Hague-based International Criminal Court, which has the power to prosecute war crimes and crimes against humanity, opened an investigation four days after the invasion began. Its chief prosecutor, Karim Khan, took the unusual step of visiting western Ukraine briefly in March, where he held a video conference with Ukraine president Volodymyr Zelensky. In Geneva, the UN Human Rights Council mandated a commission of inquiry to begin collecting information on human rights abuses, including potential war crimes, comparable to mechanisms for Syria and Myanmar, which have become repositories for digital and other information that might one day be admitted as evidence in court.

Yet a leader such as Syrian dictator Bashar al-Assad is yet to face any legal proceeding, although the UN has set up a fact-finding mechanism to support future trials over crimes committed during the civil war. Germany in January convicted a Syrian colonel who acted as one of his regime’s torturers of crimes against humanity and jailed him for life.

Zelensky this week accused Russia of war crimes and “genocide” — the gravest of crimes against humanity — and said he had approved the creation of a “special mechanism of justice” under which Ukrainian and international investigators, prosecutors and judges will work together to lay the groundwork for a future war crimes tribunal.

President Volodymyr Zelensky and Ukrainian military walk through the city of Bucha on April 4
Volodymyr Zelensky, who visited Bucha on April 4, this week accused Russia of war crimes and “genocide” © Ronaldo Schemidt/AFP/Getty Images

“It is time to do everything possible,” Zelensky said, “to make the war crimes of the Russian military the last manifestation of such evil on earth.”

However, international justice experts say that any legal reckoning for Russian leaders suspected of the crimes — including Putin — will be riddled with risks. Neither Russia nor Ukraine are members of the ICC, and the court lacks jurisdiction to prosecute the crime of aggression, defined by experts as waging a manifestly illegal war — the charge that delivered convictions of senior Nazi leaders at the Nuremberg Trials, seen as a defining milestone in the history of international justice. With Ukraine’s institutional capacity still stretched by the war, jurists and diplomats are working out how evidence will be gathered and where any future tribunal might do its work.

When that is decided, international justice experts say the postwar consensus will also be on trial.

“This moment is about whether the 1945 settlement survives or dies,” says Philippe Sands, a lawyer and author who is representing The Gambia in a genocide case it brought against Myanmar at the International Court of Justice over its atrocities against Rohingya Muslims. “The concern I have is that we fast forward three years and there are half a dozen or so trials for mid-level commanders in The Hague for people who did things at Bucha, but the rest of the people like Putin and his military and defence leaders are unscathed.”

“That would be a deplorable outcome,” he adds.

Building a case

After the horrors of the second world war, prosecutors laying the groundwork for the Nuremberg trials devised the concept of crimes against humanity to protect people against systematic attack. The crime against humanity that is today called aggression — then called crimes against peace — was used to prosecute Nazi and Japanese wartime leaders, but has not been brought in an international criminal law setting since. The UN codified the crime against humanity of genocide in 1948.

International criminal justice had another heyday in the 1990s, after the end of the cold war, when tribunals were established for crimes committed in former Yugoslavia, as well as in Rwanda. The ICC came in to existence in 2002. In 2012, in what is now seen as a high point for international justice, Charles Taylor, the former Liberia president, was convicted and sentenced to 50 years’ imprisonment for his role in atrocities carried out by rebels in neighbouring Sierra Leone.

Residents walk past destroyed Russian tanks on the streets of Bucha on April 6
Residents walk past the wreckage of Russian military machinery after Bucha was retaken by the Ukrainian army © Roman Pilipey/EPA-EFE/Shutterstock

International courts and tribunals are, however, expensive, and like most multilateral endeavours politically fraught. The US, perhaps wary of being prosecuted for its own military campaigns over the past 20 years, declined to join the ICC, though it has supported its work — which is funded by member states — at times.

In Ukraine, justice officials and civil society groups began documenting suspected war crimes and crimes against humanity in 2014-15, when Russia annexed Crimea after the pro-western Maidan uprising, then fomented a separatist uprising in the Donbas, leading to a war in which about 14,000 people have died. Ukraine did not join the ICC, but its parliament accepted the court’s jurisdiction and it opened an investigation into the war.

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This wrapped up in 2020 when the court concluded that war crimes and crimes against humanity had been committed, but declined to prosecute, citing a lack of resources and the “operational challenges” of the Covid-19 pandemic.

Since the invasion began, more than 40 countries have referred Russia to the ICC for investigation. The clamour has been fed by multiple attacks on civilian targets including Russia’s bombardment of a maternity hospital, and a theatre where women and children were sheltering in Mariupol, as well as Friday’s missile attack on a railway station in Kramatorsk that killed dozens. Justice authorities and civil society watchdogs in Ukraine have begun gathering evidence that might be used in future trials.

“Ukraine is already documenting and collecting all the facts of serious international crimes taking place in our territory,” says Gyunduz Mamedov, a former deputy prosecutor-general of Ukraine. He is part of a coalition of non-governmental groups investigating everything from Russian attacks on residential buildings to the use of banned weapons such as cluster bombs, and the murder of civilians in places such as Bucha.

Iryna Venediktova, Ukraine’s chief prosecutor, has asked the public to submit digital evidence of suspected crimes committed during the war, and has already opened about 5,000 cases “in order to bring to justice all those who started this war”.

European protesters reference the killings in Bucha by walking with their hands tied with white cloth
Protests across Europe have referenced horrifying images from Bucha, including pictures of civilians found shot dead with their hands tied with white cloth © Sean Gallup/Getty Images

Outside Ukraine, open-source investigation groups such as Bellingcat have been combing through online material ranging from non-secured Russian radio communications where soldiers have discussed apparent atrocities, to TikTok videos showing the movement of Russian troops before the war, and satellite images of Russian artillery positions after it started.

“My hope is that once we do more in-depth investigations, we can combine all those bits of information and establish a chain of responsibility going from impact to launch site to the unit involved, to who is giving orders to fire,” says Eliot Higgins, Bellingcat’s founder. “There is very strong evidence that war crimes are being committed — but that’s up to international justice to decide.”

The crime of aggression

The legal threshold for proving war crimes and crimes against humanity is high. And the system has in the past proved tortuous in its proceedings and slow to deliver justice. Ukraine and Russia are still at war.

“Everyone goes out to ask for war tribunals and a new Nuremberg, but everyone forgets that before submitting itself to Nuremberg, Germany lost the war,” says Sergio Jaramillo, a former Colombian defence official who designed the country’s peace process that brought an end to more than five decades of armed conflict with Marxist rebels, and is now with the European Institute of Peace.

As Russia is not a member, the ICC’s remit is limited in Ukraine to prosecuting crimes against humanity and other war crimes, and not the crime of aggression — the one that gets to the heart of Moscow’s invasion and which some legal experts believe might be most effective against officials such as Putin. Any such criminal case targeting senior Russian leaders would require either amending the Rome statute, the ICC’s founding treaty, or pursuing an aggression case in another national or international court. For Ukraine, it would be time-consuming, expensive and legally challenging, as much of the evidence is in Russia and senior officials are often protected by immunity from prosecution.

One option under active discussion in legal and diplomatic circles — and seemingly endorsed by Zelensky this week — is that Ukraine pursues a prosecution of aggression under its own law but with international support, perhaps from the Council of Europe. Such a hybrid tribunal might then begin its work outside Ukraine, as happened in previous criminal tribunals for Kosovo and Sierra Leone. With international backing, it might hope to have the mandate and the financial support to pursue a case of aggression.

Kateryna Ukraintseva, a Bucha city councillor, holds up her phone
Kateryna Ukraintseva, a Bucha councillor who left the city pre-invasion, got desperate calls for help from citizens trapped there © Andres Schipani/FT

“The crime of aggression is a slam dunk,” says Sands. “You can get an indictment on the crime of aggression in three months.” However, he adds, a hybrid tribunal would need political support from western powers such as the US, UK and France, who might be wary of international charges being brought against them in the future.

Another crime under which prosecutors might seek to indict senior Russian officials, one veteran prosecutor says, would be forced displacement: so far more than 4mn people have fled Ukraine and more than 7mn are internally displaced. “11 million civilians were displaced as a consequence of a strategy adopted by Putin,” says Luis Moreno Ocampo, who served as the ICC’s first prosecutor between 2003 and 2012.

A number of countries have also begun opening legal cases under the principle of universal jurisdiction, in which a crime committed in one country can be tried elsewhere if it is grave enough. Prosecutors in Poland opened an investigation into aggression by Russia shortly after the invasion. In Paris this week, prosecutors opened investigations into war crimes against French citizens in Mariupol, Hostomel and Chernihiv.

Any future war tribunal might, alongside atrocities carried out by invading Russian forces and their civilian leaders, also be expected to investigate reports of alleged crimes by Ukrainian soldiers during the war, including reported abuse of Russian prisoners. Mamedov, the former deputy state prosecutor, endorses this, saying: “We should do this and give our assessment.”

Complicating any future trials, Ukrainian officials say that Russia is now taking steps to destroy evidence. Mariupol’s mayor Vadym Boychenko, citing eyewitnesses, said this week that “collaborators” were incinerating bodies of people killed during the siege and bombardment in Russian mobile crematoria.

The legitimacy, progress and outcome of any judicial proceeding will be watched closely in Ukraine, including in Bucha, where this week officials were still looking for corpses of people killed before the Russian retreat. Kateryna Ukraintseva, a city council member who left the town before the invasion, is among those searching. She recalls feeling impotent after receiving desperate calls and messages from townspeople begging for help in getting them out.

“I am also a lawyer, and I can say the president of the Russian Federation should be tried as the kingpin of an organised criminal group,” says Ukraintseva. “That’s it. That’s who he is.”

However, she doubts the international justice system will ever get the Russian president in the dock. “Do you know what I dream about?” she asks, “that [someone] conducts a ‘special operation’ to kill Putin”. War crimes in Ukraine: the campaign to hold Russia to account

Adam Bradshaw

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