Accountability and Ukraine: Hurdles to Prosecuting War Crimes and Aggression

Social media and news outlets are replete with examples of misconduct occurring during the Russian invasion of Ukraine. In fact, this conflict is being conducted under the public eye—more so even than recent conflicts in Syria or Iraq—given the absence of communications denial in the conflict area so far. In the lead up to the invasion, the United States took the unusual step of making its intelligence public, with the intent of stemming the potential for Russia to use disinformation to legitimize its unlawful entry into Ukraine. As the conflict continues to unfold online, so too do reports of breaches of the laws of armed conflict. The documentation by open-source intelligence (OSINT) agencies, such as Bellingcat, seeking to provide a service to, among other things, support the eventual prosecution of war crimes committed in the conflict, reinforces a new paradigm for furthering accountability for these crimes.

Separately, the President of the International Criminal Court (ICC) announced that he would commence an investigation into the allegations of war crimes and crimes against humanity, that he has “a reasonable basis to believe” have occurred in Ukrainian territory since at least 2014. As Ukraine is not a member of the ICC, the normal route for an ICC investigation would be a United Nations Security Council Resolution (UNSCR), however, this will obviously not be forthcoming due to Russia’s status as a permanent member with a veto power. However, as Ukraine voluntarily subjected itself to the jurisdiction of the ICC for offenses committed on its territory since April 2014, the Prosecutor was able to open a preliminary examination of the conflict. This examination concluded with the Prosecutor indicating he would seek authorization to commence an investigation into the situation. Subsequently, thirty-nine countries promptly referred the situation to the Court which enlivened the jurisdiction of the Prosecutor to investigate the situation without requiring either a UNSCR or Court decision and giving him authority to investigate serious breaches of the laws of armed conflict.

Hurdles for Accountability

Despite these positive steps to hold perpetrators of crimes to account, there remain significant hurdles to achieving accountability for those who have breached the laws of war during this conflict. First, while the ICC has jurisdiction and authority to investigate serious breaches occurring in this conflict, this does not mean that the ICC will prosecute every breach of the law of armed conflict that occurs. The Court was established to deal with the worst and most egregious breaches of international law and is intended to prosecute cases where the offending State is either unwilling or unable to act in those cases that reach this gravity threshold. In the absence of an international, hybrid, or other ad hoc criminal tribunal being established, prosecutions will largely rely on Russia and Ukraine trying their own military forces domestically.

Second, not every breach of the laws of armed conflict will result in the commission of a crime. International criminal law is intended to deal with the most serious and egregious breaches, while the laws of war contain more prohibited actions than just the grave breaches that are codified in the Rome Statute or are derived from the Geneva Conventions. Most domestic criminal law only creates offences derived from international criminal law, as compared to every act prohibited by the laws of war.

After establishing jurisdiction and identifying a crime has occurred, the final hurdles deal with enforcement, that is, trying the perpetrator and having evidence to support those charges. Holding individuals to account is predicated upon obtaining physical custody of alleged perpetrators. This will prove difficult, and an obvious necessity when giving effect to any punishment issued, even if a trial is held in absentia (which some States contend is possible for these kinds of offences, through relying on the doctrine of universal jurisdiction).

Challenges exist in collecting evidence in a conflict zone, even when that conflict appears to have been recorded, documented real-time, and broadcast on the Internet. The complications surrounding authenticity of content given the increasing use of deepfakes in armed conflict create problems in respect of reliance upon OSINT materials for the purpose of prosecutions.

The ICC Threshold

The ICC is designed to deal with “serious breaches.” The Court acknowledges a gravity threshold for prosecutions, as it is expected—and required under international law—that States will prosecute breaches of international criminal law themselves. The Court’s work is said to be complementary to, rather than a replacement of the enforcement work of States.

This leaves other options for enforcement through either domestic criminal trials, the establishment of an ad hoc criminal tribunal as seen previously with Rwanda and the former Yugoslavia, or the establishment of hybrid tribunals such as those in Cambodia. These kinds of ad hoc tribunals have generally been established where the State concerned is unable to conduct the prosecutions, through consent of the parties, or by UNSCR—again, unlikely because of the Russian power of veto.

It is unclear if any military tribunals have been conducted by Russia in response to allegations of war crimes committed by its personnel (in uniform or otherwise) in Crimea stemming back to 2014. Recent military and jury trials into murders of civilians during the Chechen conflict have resulted in the conviction of Russian service personnel, demonstrating a possibility that Russian forces could be held to account by the Russian military for their misconduct. However, prosecution of minor offenders is still likely to be limited.

As for the crime of aggression, the ICC will not have jurisdiction. It is a recently added core crime of the Rome Statute that deals with acts where armed force is used by another State against “the sovereignty, territorial integrity or political independence of another State.” It is committed by a person in a position to direct or control the actions of the State or military.

By all objective measures, Vladamir Putin has committed the crime of aggression in his invasion of Ukraine, despite him making false international law claims seeking to justify his conduct. While this crime falls within the ICC’s competence, the ICC will not have jurisdiction over Putin because neither Russia nor Ukraine is party to the ICC Statute, and the Court’s chief mechanism for jurisdiction (a UNSCR) would be vetoed by Russia. This gap has resulted in calls to establish a Special Tribunal to prosecute this offense, using a similar mechanism as established for the International Military Tribunal and Nuremburg trials following the Second World War. Although the special tribunal approach might close the jurisdictional hole, it is still affected by the issue of physical access to the perpetrators, as well as the evidentiary issues discussed below.

Not Every Breach of the Laws of Armed Conflict Is a Crime

Of the breaches of the laws of war that have been identified, not all of them amount to a crime. International criminal law deals with four “core” crimes, which are also reflected in the Rome Statute: crimes against humanity, war crimes, genocide, and the crime of aggression. Domestic criminal jurisdictions often mirror these offenses in their own laws. Other misconduct, which may amount to a breach of international law, or the laws of armed conflict, must be dealt with using other mechanisms. In the case of armed forces’ conduct, these include administrative sanction or military tribunals where conduct could be considered in breach of the disciplinary code of those forces.

The Ukrainian Ambassador to the United Nations cited examples of Russian forces targeting hospitals—a breach of the laws of armed conflict given that hospitals retain special protection from attack. This conduct, if proved, could amount to a war crime, and the perpetrators of the attack could be the subject of a criminal trial. Other allegations include attacking journalists—who are, like other civilians, protected under the laws of armed conflict; attacking facilities that contain dangerous forces, such as nuclear power plants; and allegations of rape, murder, and torture. This conduct could all amount to specific breaches of the laws of armed conflict, susceptible to criminal prosecution from the individual soldiers responsible, including the chain of command that plans or is otherwise responsible for their conduct.

Contrastingly, the Ukrainians are documented as having used social media to post videos of Russian prisoners of war for the purpose of informing their families of their whereabouts and mobilizing the Russian population against Putin’s invasion—an information operation in the name of exposing and countering Russian disinformation—but an information operation using prisoners of war for public curiosity nonetheless. Similarly, the Russian separatists held parades of Ukrainian prisoners of war in Donetsk in 2014. Although subjecting prisoners of war to acts of public curiosity constitutes a breach of the laws of armed conflict, this offense does not appear in the ICC Rome Statute, nor does it amount to a grave breach under the Geneva Conventions.

Bringing Offenders into Custody

The ability to actually bring individuals and commanders to account for their misconduct during the Ukrainian conflict is dependant largely upon two factors: access to the alleged perpetrators and evidence to support the investigation and prosecution of the offenses.

Although there are multiple ways in which jurisdiction over the offending party can be established for these offenses, a basic principle of justice and fundamental human right is that an alleged perpetrator is entitled to a fair trial, which, includes the opportunity of being physically present at their hearing.

While not inconceivable, it seems unlikely that Russia will voluntarily surrender its personnel to Ukrainian domestic courts for trial. In the event an international, ad hoc, or Ukrainian hybrid tribunal is established, Russian forces will likely be shielded from extradition or arrest by other States, in the same way that most States seek to retain jurisdiction over their personnel.

While the prosecution of individuals is the ideal international criminal law outcome, issuing indictments and arrest warrants against individuals can still have the effect of curbing impunity for these crimes. Even if a court does not gain physical custody of the alleged perpetrator in the near term, this action effectively makes those individuals international pariahs and impacts their freedom of movement to other States in the long term.

Collection and Verification of Evidence

Ongoing access to Internet services during this conflict is creating a real-time record of the conflict and is being dubbed by some as a “social media war.” The capacity to track the progress of the invasion, document alleged misconduct of Russian soldiers, and record the conduct and aftermath of attacks against civilians, civilian objects, and military operations more generally, is unprecedented.

The use of OSINT as a pathway to enforcement, as compared to the use of social media to create support for the conduct of operations, is relatively novel. In most conflicts, and doctrinally for many militaries, one of the first services to be denied during conflict is that of communications. While novel, this is not the first instance of using open-source intelligence to support criminal investigation of breaches of IHL; however, the ability to distinguish between “real” and “fake” content poses additional challenges for collection of evidence for prosecutions.

Separately, preservation of evidence in armed conflict is always challenging. This is grounded in the practical problems of identifying and collecting evidence in a war zone. In recognition of this challenge, the UN Human Rights Council has voted to create an independent international commission of inquiry—an increasingly common phenomenon—to aid in the identification and preservation of admissible evidence by investigating violations and abuses of human rights, the laws of armed conflict, and any related crimes.

The ICC has already dispatched an investigative team to Ukraine. These actions can be attributed not only to an increasing concern for accountability in armed conflict, but also to recognition of the inherent difficulties associated with the collection of evidence during and after conflict. Specifically, access to conflict zones, destruction of crime scenes, preservation and chains of custody of evidence, and the independence of inquiry by nation States who are party to a conflict have proved enormously challenging to evidence collection and preservation.

Concluding Observations

Regardless of the jurisdictional technicalities and enforcement challenges, it is evident that the Ukrainian conflict has focused the international community on accountability measures—fueled in some part by the social media phenomenon broadcasting the fighting to the world in almost real time. Despite this increasing focus, and the benefits of conducting investigations almost contemporaneously with the alleged misconduct supported by this coverage, there remain significant hurdles in ensuring the enforcement of international criminal law in Ukraine.

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Lauren Sanders is a Senior Research Fellow at the University of Queensland’s Law and the Future of War Project. This article represents the author’s personal views and does not reflect those of the Australian Defence Force or Australian Government.

Photo credit: jbdodane via Flickr