Why Ukraine War Crimes Trials Could Take Many Years

The brutalities of Russia’s war in Ukraine have stoked a huge demand among Ukrainians and much of the Western world for investigations, indictments, arrests, and trials for the invaders and their commanders, particularly President Vladimir V. Putin of Russia. Some leaders, including President Biden, have even accused them of genocide.

Calls for accountability have pushed for prosecutions not only at the International Criminal Court in The Hague, which was established precisely for that purpose, but at other tribunals and even special war crimes tribunals that could be created specifically to prosecute suspicious, such as the proceedings against the Nazis who were tried at Nuremberg.

And yet, despite rapid evidence gathering in Ukraine and a great deal of international cooperation to create criminal case files, the likelihood of major war crimes trials, let alone convictions, could be years away. , if they ever happen, especially for mr. putin

Russian authorities have denied any responsibility for the killings and abuses of civilians, and Putin has misrepresented the trove of evidence as fabricated libels.

“Everyone wants the war to stop, and to save Ukraine from immediate pain, and to see the main perpetrators in the dock,” said Leila Sadat, a professor of international law at Washington University in St. Louis and an adviser Chief Prosecutor of the International Criminal Court. “Unfortunately, that’s not going to be quick.”

They are actions of antagonists in armed conflicts that violate international agreements and treaties such as the 1949 Geneva Conventions, which were designed to limit the barbarities of war and protect the lives and safety of non-combatants (civilians, doctors, humanitarian workers) as well as the soldiers. who can no longer fight, like the prisoners, the wounded and the sick. It is a war crime, for example, to knowingly bomb a hospital, school or civilian shelter, or to kill enemy soldiers who have disarmed and surrendered.

The court, established in 2002 under an international treaty known as the Rome Statute, was empowered by the countries that ratified the agreement to investigate and prosecute not only war crimes, but also two arguably more sinister types of crimes: genocide. , acts intended to destroy a racial community. , religious, ethnic or national group, and crimes against humanity, acts including murder, slavery, rape and other sexual abuse, torture, starvation, kidnapping and forced displacement as part of a widespread and systematic attack.

In 2018, the court was empowered to investigate and prosecute a fourth type of crime: the crime of aggression, which prohibits the leadership of any country from “planning, preparing, initiating or executing” an attack against another country in violation of the United Nations Charter, in other words, make it illegal to invade another country. Although significant restrictions were placed on the court that restricted its jurisdiction in cases of crimes of aggression, jurists said it was the first time since the Nuremberg trials that an international court had the power to try suspected crimes against peace.

The circumstances of what constitutes a war crime can be confusing and controversial. Bombing a hospital may seem like an obvious war crime, but the attacker could argue that the bombing was unintentional, or that the building had been used by enemy troops, or that it had been storing weapons. Such claims cannot be easily refuted in court. The fact that civilians are killed in an armed conflict does not necessarily mean that they have been deliberately targeted.

Genocide convictions are even more difficult to achieve because they require an especially high burden of proof. While the evidence may be there — mass graves, razed villages, witness testimony, intercepted communications — prosecutors must show that the defendants were committing atrocities with the intent to destroy a particular group. That essentially requires getting into the minds of the perpetrators.

Jurisdiction is another matter. Only 126 countries have ratified the Rome Statute, which means that the ICC’s authority to prosecute is generally limited to those countries, which conspicuously does not include Russia or Ukraine (or the United States). Ukraine has given the court jurisdiction to try war crimes, crimes against humanity and genocide, which can proceed without Russian consent. But prosecuting the crime of aggression would require the consent of Russia, the aggressor, which jurists say the Kremlin would never provide.

In addition, trials at the International Criminal Court require the presence of the accused. The court has no power to enforce your arrest warrants. The likelihood of Russia extraditing anyone to face such trials is extremely remote.

Yes, and it is easier to prove the guilt of those responsible. In the case of Ukraine, there is no doubt that Russia gathered forces on the Ukrainian border for months and invaded it on February 24. It is clear that Putin and his immediate subordinates gave the orders. Many world leaders, including United Nations Secretary-General António Guterres, have said that Russia violated the UN Charter.

“There is no doubt that an act of aggression was carried out,” said Alex Whiting, a visiting professor of international law at Harvard and a war crimes prosecutor. “And the simplest case, in a crime of aggression, is against Putin himself.”

Still, at least for now, the possibility that Putin or other Russian leaders will soon face criminal prosecution in an international court on such charges seems remote.

Yes, and those prosecutions took years. Slobodan Milosevic, the former leader of Serbia and Yugoslavia who presided over ethnic atrocities in the Balkan wars in the 1990s, was the first former head of state to stand trial for war crimes in 2002. He died in his cell in The Hague. as his four-year trial in a special court came to an end, before a verdict was reached.

Charles G. Taylor, former president of Liberia, was sentenced to 50 years in 2012 by a special court for atrocities committed in Sierra Leone during the civil war of the 1990s. Laurent Gbagbo, former president of Côte d’Ivoire, was acquitted in the International Criminal Court in 2019 of crimes against humanity and other charges related to the violence that followed the country’s presidential elections in 2010.

The International Criminal Court issued an arrest warrant for Libya’s former leader, Colonel Muammar el-Qaddafi, in 2011 charging him with crimes against humanity, but he was assassinated that October in Libya.

Former President Omar Hassan al-Bashir of Sudan has been wanted by the International Criminal Court for many years on charges of genocide and war crimes in the Darfur region, but Sudan’s transitional government has not extradited him.

In 2018, a UN-backed special court in Cambodia concluded that the Khmer Rouge had committed genocide during their notorious rule four decades earlier, and the court returned guilty verdicts against the two most senior surviving members of the regime, Nuon Chea and Khieu Samphan. .

Yes. Ukraine’s judicial authorities have made it clear that they intend to prosecute criminal cases against Russians in Ukraine and elsewhere, including countries in Europe that have adopted universal jurisdiction, the legal principle that some crimes are so heinous that they are an affront to humanity in general and therefore can be tried by the judicial system of any nation. On Thursday, the Ukrainian prosecutor’s office posted a graphic on Twitter accusing Russia of more than 6,400 crimes of aggression and war crimes since the invasion.

There are some expectations that Ukraine and sympathetic countries in the United Nations or within the European Union may organize a special court solely for the purpose of trying Russian leaders for the crime of aggression. The risks, critics of that approach say, are that such a court lacks the appearance of impartiality, that it would take huge investment and preparation time, and that defendants would never participate.

Payam Akhavan, a law professor at the University of Toronto and a former prosecutor who served on special tribunals set up to prosecute war crimes in Rwanda and the former Yugoslavia, said a special tribunal for Ukraine would be a mistake.

“This is not a Nuremberg moment,” Akhavan said, arguing that efforts would be better spent on strengthening the powers of the International Criminal Court. “There is no need to reinvent the wheel.”

Kim Victory contributed report.

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