Russia’s invasion of Ukraine is a clear violation of the U.N. Charter and threatens to upend the rules-based international order established after World War II. With each passing day, there are a growing number of reports of indiscriminate attacks by Russia that likely constitute war crimes. Global outcry over Russia’s alleged atrocities has included war crimes accusations at the highest levels, with President Joe Biden calling Russian President Vladimir Putin “a war criminal.”
To ensure accountability for crimes committed—and to attempt to deter future ones—it is imperative that the international community act swiftly to pursue justice; establish accountability mechanisms where needed for those committing crimes in Ukraine, including war crimes, crimes against humanity, and the crime of aggression; and enforce penalties. While these steps are unlikely to alter Putin’s current course, if Russian soldiers and lower-level leaders see that there is a unified and determined effort to ensure they will be held accountable for atrocities committed against the Ukrainian people, they may change their calculus in carrying out Putin’s orders. The international community’s message must be clear: Russia’s acts of aggression and any human rights violations against the Ukrainian people will not go unpunished.
Mechanisms for prosecuting atrocities
While the wheels of justice for atrocity crimes turn slowly, they do turn. Over the past several decades, the world has seen incredible strides for justice and accountability for some of the most heinous crimes. Convictions for these crimes have come for those serving at all levels and in a variety of venues, from national leaders such as Liberian President Charles Taylor, who was tried and convicted at the Special Court for Sierra Leone; to commanders such as Bosnian Serb General Ratko Mladić, who was tried and convicted at the United Nations’ International Criminal Tribunal for the former Yugoslavia; to lower-level officers such as the former Syrian colonel Anwar Raslan, who was tried and convicted in the German court system. The Russian government and officers and soldiers conducting operations in Ukraine would do well to remember these successful prosecutions.
International efforts underway to seek justice for Ukraine
There are currently several international efforts underway to seek justice for war crimes and crimes against humanity committed in Ukraine and to halt Russian advances through legal means, including at the International Criminal Court (ICC) and the European Court of Human Rights, among others. Many countries, including the United States, are also assisting these efforts by collecting evidence of possible war crimes and other human rights violations and providing funding to civil society groups on the ground that are trying to gather and preserve evidence.
Ukraine has also sought to halt Russia’s advances through the International Court of Justice (ICJ), where it filed an application to institute proceedings at the court and requested provisional measures to halt Russian hostilities in the country. The ICJ recently granted a ruling in Ukraine’s favor ordering Russia to suspend military operations immediately. While Putin is unlikely to comply with this order, it certainly has symbolic power and demonstrates the international condemnation of his actions.
Additionally, Germany is seeking justice for suspected war crimes committed in Ukraine using the principle of universal jurisdiction, which holds that since such crimes threaten the global order, every state has a stake in ensuring that perpetrators of the most serious crimes—genocide, crimes against humanity, and war crimes—are held accountable. Therefore, when established international justice mechanisms are unable to provide accountability in such cases, national courts can provide another path. Germany has had success using this approach in the past, winning the historic conviction of a former Syrian intelligence officer Anwar Raslan for war crimes committed on behalf of the Syrian regime, and it is likely to succeed in holding lower-level Russian officers accountable for their actions.
An independent tribunal for the crimes of aggression in Ukraine
However, no pathway currently exists for the pursuit of crimes of aggression—which are separate in international law from war crimes and crimes against humanity—against Ukraine, leading to calls for the establishment of a dedicated tribunal to complement the efforts of the ICC and others. Although exactly how such a tribunal should be established remains open to debate, it is clear that it must be done swiftly if the course of this conflict—and potential future conflicts—is to change. One multilateral pathway for doing this would be through a recommendation from the U.N. General Assembly and a subsequent agreement between the United Nations and Ukraine to establish such a tribunal. Carried out in this way, the General Assembly could bypass a likely Russia veto in the U.N. Security Council and provide a tribunal with overwhelming international backing, making it harder to circumvent and less subject to accusations of selectivity.
Conclusion
To ensure the greatest measure of success for the investigation and prosecution of perpetrators at all levels of war crimes and crimes against humanity committed in Ukraine, the international community must continue to provide financial and political support to the international and national efforts currently underway. Additionally, given the inability of existing mechanisms to investigate and prosecute crimes of aggression in this particular situation, the international community must work collectively to establish a complementary tribunal focused on such crimes.
Having clear, vocal, and resounding support for these efforts could help change the calculus for those operating on the ground; would send a warning against similar criminal acts in the future; and most importantly, would provide victims and survivors with some measure of justice.