Ukraine Symposium – Comprehensive Justice and Accountability in Ukraine

As the war between Russia and Ukraine enters its second month there are increasing allegations of serious law of armed conflict (LOAC) violations. The allegations, amplified by graphic images and videos which are sometimes even narrated by purported witnesses, have sparked two different accountability lines of effort. The first effort is by parties to the conflict, the Russian Federation and Ukraine. The second is a range of proposals for collective/international post-conflict accountability mechanisms, including a regional tribunal and/or referral to the International Criminal Court. The first effort line has acknowledged and encouraged the second, while proposals for the second line seem to envision collective/international mechanisms as the beginning, middle, and end of accountability efforts.

Both lines are important and necessary, but they are unlikely to be sufficient or yield a consensus that accountability has attached and justice delivered. That’s because the number of alleged offenses is already well beyond what Russia and Ukraine can address. While international tribunals may have an important role to play, realistically that role only encompasses a relatively limited number of offenses and offenders.

States that are not parties to the armed conflict could occupy this space between the accountability lines. Without their intervention, the accountability lines would create a two-legged stool. A two-legged stool can function, but only if the weight to be borne is considered in advance and balanced throughout the stool’s use. At the same time, we cannot be surprised when a two-legged stool collapses.

This post highlights both the importance and limitations of the two accountability lines and the need for a third.

Accountability Efforts by the Parties

Much has been said in terms of the scope and application of LOAC accountability requirements on parties to the conflict. Subject to a reminder and a caveat, more need not be said given the work of, among others, Mike Schmitt, the Turkel Commission, Sean Watts, and more recently a group of experts at the Geneva Academy in explaining the requirements.

The reminder is that Russia and Ukraine are both States Parties to Additional Protocol I (AP I) to the Geneva Conventions. Additional Protocol I expands and informs the accountability obligations from the Geneva Conventions. In particular, AP I requires military commanders take action to prevent, and where necessary, report, investigate, and suppress LOAC violations.

The caveat is that while Russia and Ukraine are most certainly obligated to effectively and promptly investigate and respond to credible allegations of LOAC violations during the armed conflict, what constitutes a LOAC violation may need recalibration.

As Alon Margalit wrote in discussing the Turkel Report and LOAC accountability obligations,

Clearly, under LOAC, not every death during armed conflict indicates a legal breach as deaths of combatants and civilians who take a direct part in hostilities, as well as civilian deaths which fall within proportionate collateral damage, are lawful. Civilian casualties that are the result of erroneous attacks normally do not trigger criminal responsibility as well.

Additionally, for over twenty years, non-international armed conflicts (NIAC) have been the norm, while Russia-Ukraine is of course an international armed conflict (IAC). This is not to suggest there is a different standard for LOAC violations based on conflict classification. But we should avoid conflating policy-driven lower thresholds for initiating investigations in NIAC with the LOAC requirement to do so.

It’s hard to overstate the importance of accountability efforts by parties to a conflict. Because these efforts occur during the conflict, the lessons learned may prevent or mitigate reoccurrence.

Additionally, the parties to a conflict are able to document what happened and why closer in time to the events’ occurrence. The passage of time (and the more combat actions that occur) complicates subsequent efforts to investigate as participants and witnesses may be killed and relevant property and equipment damaged or destroyed.

But there are limits to what parties to the conflict can reasonably be expected to do. Ukraine for example claims to be investigating over 4,500 allegations of LOAC violations during an ongoing armed conflict which will of course yield more.

The second line of accountability, regional or international tribunals, can play an important role.

But while important, this role is by definition and design, limited.

Collective and International Accountability Efforts 

As mentioned at the outset, a two-legged stool can work—if there is balance and coordination. But neither is evident in the host of proposals for regional and international tribunals or referrals to the ICC. Portraying regional and/or international criminal tribunals as the exclusive or even majority source of accountability for LOAC violations is a weight those mechanisms simply cannot bear.

That’s not a criticism, it’s a statement of fact. Regional and international tribunals have never provided the bulk of post-conflict accountability.

We tend to forget, for some of us willfully, the inherent limitations of regional or international criminal tribunals. This “misremembering” often starts with post-Second World War accountability mechanisms against the Nazis.

The focus tends to be singularly on the International Military Tribunal (IMT). The victorious Allies created the IMT for the “just and prompt trial and punishment of the major war criminals of the European Axis.” From the IMT Charter adoption in August 1945, the Tribunal issued its first indictments in October 1945 and over the course of a year indicted twenty-four and prosecuted twenty-two defendants (one of those indicted was determined to be incompetent to stand trial and another committed suicide before trial).

After the IMT, Britain, France, the then-Soviet Union, and the United States all conducted their own tribunals. Czechoslovakia, Hungary, Poland, and Romania, among others, also held criminal proceedings. Following Germany’s split into East and West Germany in 1949, West Germany held over 900 prosecutions. Ultimately, while the IMT prosecuted twenty-two individuals, the non-IMT prosecutions from various nations totaled in the tens of thousands.

In the 1990s, the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to prosecute those responsible for, among other offenses, serious LOAC violations.

For the ICTY those violations occurred chiefly during civil wars which came to define modern ethnic cleansing and which killed approximately 100,000, saw tens of thousands of women raped, and over two million displaced. Between 1993 and 2017, the ICTY indicted 161 individuals. Meanwhile, Bosnia, Croatia, and Serbia created national war crimes chambers, each of which prosecuted significantly more offenders than the ICTY.

For the ICTR the violations occurred during a genocide which killed over 800,000 and saw 250,00 women raped. Between 1994 and 2015, the ICTR held criminal proceedings for 82 accused. But several million people were alleged to have participated in the killings and sexual assaults. Conventional Rwandan courts prosecuted over 10,000 people for genocide-related crimes while community-based Gacaca courts prosecuted just under two million.

The preceding recitation is not intended as a critique of international criminal law but as a factual expression of its inherent limits. That regional or international criminal tribunals can play several important roles and directly prosecute a small number of offenders is not in doubt. But more importantly, those tribunals facilitate and enable a range of national efforts. Ideally, the accountability stool has three legs.

The Missing Line of Effort

This symposium has already indicated (here and here) that while every State has legal obligations under the Geneva Conventions grave breach regime, very few are in compliance.

The grave breaches regime requires all High Contracting Parties (i.e., every country in the world) to enact all legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches and to either prosecute them or allow another State to do so. Additionally, the international community agreed to take necessary measures for the suppression of other violations of the Conventions.

There is no point in disputing the obvious—that the vast majority of States (including the United States) do not care about this obligation, or at least don’t care enough to actually take the action they agreed to take. This collective apathy applies not only to the grave breach regime from the Geneva Conventions, but also to the Genocide Convention under which the world agreed to prevent and punish genocide but which the world has largely failed to do even when faced with glaring cases of genocide.

But the grave breach regime was to be the foundation on which contemporary international criminal was to be built. That the foundation doesn’t actually exist partially explains why the accountability focus in terms of Russia and Ukraine is on regional or international criminal tribunals.

States are not positioned to remind Russia and Ukraine of their LOAC accountability obligations under the grave breach regime without exposing hypocrisy. And States remain unwilling or unable to meet their own obligations. Accordingly, and no doubt to the delight of international criminal law experts, States are going “all in” on the regional and international criminal tribunal line of effort.

Conclusion

So, while history showcases the need for a third accountability line of effort between the efforts by parties to the conflict and regional and international criminal tribunals, until now that effort is not being discussed. As noted in the introduction, a two-legged stool can work if there is balance and coordination. Perhaps that coordination will come in the future and provide that balance.

But focusing exclusively on regional and international criminal tribunals troublingly suggests that stool leg can bear most of the accountability weight. It can’t and won’t.

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Chris Jenks is a Professor of Law at the SMU Dedman School of Law in Dallas, Texas.

Photo credit: State Emergency Service of Ukraine