Since Russian armed forces invaded Ukraine in late February 2022, the horrific nature of violence endured by Ukrainian civilians at the hands of Russian soldiers has shocked the world. At the time of this writing, there have been 16,000 reports of alleged war crimes, including forcible transfer, torture, killing of civilians, destruction of civilian infrastructure, and stealing of the Ukrainian grains harvest meant to supply many foreign countries that depend on it. More than 1,000 of those reports come from the Kharkiv region—the site of intense fighting. Ukraine’s Prosecutor General, Iryna Venediktova, has said her office receives 200 to 300 reports of suspected war crimes a day.
These atrocities have triggered multiple efforts to prosecute war crimes, including possible genocide, while the conflict is ongoing. Ukraine’s Prosecutor General’s office has identified over 600 suspects including “top military personnel, politicians, and propaganda agents” and are set to commence 80 prosecutions. In the first trial for war crimes, held in Kyiv over the course of just 10 days, the court found 21-year-old Russian sergeant Vadim Shishimarin guilty of premeditating the February killing of Oleksandr Shelipov in the Sumy region of Ukraine and sentenced him to life in prison. A week later, on May 31, a court in central Ukraine found Russian soldiers, Aleksander Bobikin and Aleksander Ivanov, guilty of shelling civilian sites in the Kharkiv region and sentenced them to 11.5 years in prison. The two soldiers pled guilty but claimed they were following orders. On June 23, a court in Kyiv began the first war crimes for sexual offenses, putting Russian solider Mikhail Romanov on trial in absentia.
At the international level, in March, the International Criminal Court (ICC) Prosecutor, supported by referrals from 39 state parties, opened an investigation into war crimes, crimes against humanity, and genocide in Ukraine from November 2013 until present. In May, the ICC sent its largest-ever investigative and forensic team (42 people) to Ukraine. Eighteen countries have opened war crimes investigations, while Ukraine announced they will request other European states to prosecute Russian soldiers under universal jurisdiction.
These efforts to investigate and prosecute war crimes while conflict is ongoing are unprecedented. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions raised concern that a lack of coordination risks duplicating procedures and retraumatizing victims. At the same time, human rights groups continue to monitor and voice concern over Ukraine’s treatment of prisoners of war.
In March, the UN Human Rights Council established an Independent International Commission of Inquiry to investigate suspected abuses and violations of human rights and international humanitarian law related to the Russian invasion of Ukraine including the collection, consolidation, preservation, and documentation of evidence to establish the facts and root causes of all abuses and violations. Meant to work in close coordination with and build on the work of the UN Human Rights Monitoring Mission in Ukraine and the Office of the UN High Commissioner for Human Rights, the independent commission has been specifically asked to review events in the Kyiv, Chernihiv, Kharkiv, and Sumy regions from late February and March 2022 “with a view of holding those responsible to account.” While not yet fully staffed, the commission undertook its first field visit to Kyiv city, Bucha, Irpin, Kharkiv, and Sumy in June.
Judging from the prevalent debates, it appears the commission’s main focus is to prepare and support criminal accountability initiatives.
Various stakeholders, both in Ukraine and internationally, are presenting the investigation and documentation of alleged war crimes as a crucial response to the Russian aggression, in addition to humanitarian assistance. While understandable, it raises questions about the wisdom of such a single-minded approach as well as many concerns based on decades of experience addressing conflicts and their consequences.
Prosecutors in Ukraine have stepped into roles with which they are not familiar nor for which they have extensive training. Even before February 24, Ukrainian prosecutors acknowledged the challenges they faced in obtaining accurate information in relation to human rights violations and breaches of humanitarian law in the territories occupied by Russia proxies in the East, as well as their struggle to adequately articulate the relevant criminal charges and argue them in court. They also described feeling a sense of pressure to treat reports of abuse as war crimes or else risk being seen as disloyal to Ukraine. This pressure has inevitably increased since Russia’s invasion. While Ukrainian prosecutors continue to receive support from foreign expert teams and other international groups, it is not enough given the thousands of open cases, unless a clear and coordinated prosecutorial strategy is developed and adopted. Furthermore, the implementation of such a strategy will take years and require dedicated resources and expertise to not only secure reliable evidence but, equally important, ensure impartial and fair proceedings—an almost impossible mission while fending off bombardments and enemy troops.
The Russian invasion was meant to debilitate Ukraine and thwart its ambition to become a full-fledged Western European democracy, based on the rule of law. These aspirations can hardly be pursued in a time of hostilities. Even in better-resourced jurisdictions with more robust democratic institutions, criminal proceedings in politically charged situations are seldom perceived as independent, impartial, and fair. With that in mind, are we acting responsibly in pursuing criminal accountability with such drive at this moment in time? Are we making good use of the many lessons learned from past experience? Are we not rushing Ukraine onto a slippery road where an inordinate number of criminal cases may be summarily adjudicated in an uncoordinated manner? In addition to draining vital resources, these cases could result in questionable judgments that will most likely frustrate victims and fall short of their expectations, and that at the same time Russia and its allies will herald as examples of retaliation or victor’s justice.
Prosecution is technically complex, prosecution of international crimes even more so. Reliable reports and rigorous evidence admissibility standards are just one element of prosecution. To truly help Ukraine achieve this most central objective, resources and technical assistance should be directed to progressively building the capacity of the Ukrainian judicial and prosecutorial authorities and reinforcing the principles of a democratic, open, and inclusive society, of which the independence and professionalism of the judiciary constitutes a fundamental pillar. In the meantime, efforts and investment should focus on the victims, the civilian population, not only to address the catastrophic humanitarian crisis in which they find themselves but to lay the groundwork and procure all the required elements to deliver justice in all its forms. These elements include accounting for civilian causalities; determining the patterns of violations; collecting strong evidence about and understanding the chain of command and relevant responsibilities; and providing urgent assistance to the most vulnerable victims—victims of sexual violence among others—who not only must be cared for from a moral and social stand point, but whom justice is for.
History has demonstrated the dangers of equating justice with criminal accountability and using prosecution solely for retribution during conflict, especially international conflict. Are we betraying Ukrainian aspirations for the sake of punishing the Kremlin in the name of justice?
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PHOTO: The Russian army destroyed a bridge in the Ukrainian village of Hostroluchchya in March 2022. (Oles_Navrotskyi/DepositPhotos)
