Why War Crimes Charges Over Ukraine Face High Hurdles

Evidence of apparent atrocities in Ukraine, with civilians executed in the kyiv suburbs, brings to mind another European horror: the bloody Balkan wars of the 1990s and the sometimes tense, years-long effort to bring those responsible to justice.

In 1999, Slobodan Milosevic, former president of Yugoslavia and architect of a decade of war that claimed more than 200,000 lives and tore the country apart, became the first sitting head of state to be charged with war crimes. Three years later, he became the first former head of state to stand trial for genocide for the war in Bosnia and Herzegovina, as well as for crimes against humanity and violations of the Geneva Conventions for the wars in Croatia and Kosovo.

Recalling the importance of the trial, Human Rights Watch, the advocacy group, noted in a 2006 report that bringing the former president before an international criminal court “marked the end of the era when being head of state meant immunity from prosecution.”

Since then, he noted, other former heads of state, including former Liberian Prime Minister Charles Taylor and Iraqi leader Saddam Hussein, have been brought to justice.

Mr. Taylor was sentenced to 50 years in prison for his role in the atrocities committed during Sierra Leone’s civil war in the 1990s. Hussein was convicted in 2006 by a special Iraqi court of crimes against humanity for the brutal crackdown from a Shiite village in the 1980s and sentenced to death by hanging.

Mr. Milosevic died in his prison cell in The Hague in 2006, denying his victims the closure of a final judgment, but the public disclosure of his heinous crimes was nonetheless an important moral and legal reckoning.

While the circumstances in the Ukraine and the Balkan wars differ in fundamental ways, including the scope and scale of bloodshed, some parallels stand out, most notably Russia’s obfuscation and denial. Faced with graphic evidence that Ukrainian civilians in the Bucha suburb, some with their hands tied, were killed by Russian soldiers, Moscow has claimed that it is all a “hoax”.

Milosevic also responded with a fanciful conspiracy theory when he was accused of complicity in the 1995 massacre in Srebrenica, Bosnia, during which some 8,000 Muslim men and boys were killed, many with their hands tied behind their backs. He said the people really responsible for Europe’s worst bloodbath since World War II were French intelligence agents, Bosnian Muslim officials and mercenaries.

The massacre of civilians during the war in a Sarajevo market was not carried out by Serbs but by Muslims with bodies from a morgue, he claimed.

“It’s all lies,” he said, as his trial began.

Whatever the echoes, legal experts say holding the Kremlin to account would be far more difficult than it was under Milosevic.

First of all, no sitting president has ever been handed over to an international court. Although President Vladimir V. Putin has significant public support and leads a nuclear power, Milosevic had already been ousted from power when he was sent to The Hague in June 2001.

And Russia is not Serbia.

Putin is an authoritarian leader with vociferous antagonism towards the West and its legal structures.

The Serbian prime minister in power when Milosevic was handed over to trial, Zoran Djindjic, was eager for a rapprochement with the West, while $30 billion in foreign aid to rebuild Serbia’s devastated economy was at stake.

Furthermore, the burden of proof for war crimes is very high.

Even with reluctant cooperation from the Serbian government after Djindjic’s assassination in 2003, the task was made difficult by Milosevic’s obstructionism. A defiant Mr. Milosevic refused to recognize the UN war crimes tribunal, lied, dissembled and called in sick when internal witnesses materialized.

War crimes prosecutors are sometimes lucky enough to have real-time evidence of atrocities at their disposal, but they still face daunting challenges. Many points must be connected.

In Putin’s case, prosecutors would have to show that he issued specific orders that led to specific atrocities or that he knew about the crimes or did nothing to prevent them. Prosecutors would also have to show that Russian commanders had intentionally targeted or targeted civilian structures during strikes that did not discriminate between civilian and military targets.

Experts say that the International Criminal Court in The Hague offers the best opportunity for Russia to be truly held accountable. It was established in 1998 after separate United Nations tribunals that tried mass atrocities in Rwanda and the former Yugoslavia demonstrated the need for a permanent judicial body to handle such cases.

The United States is not among the 123 member nations of the Hague court, and Putin recently ordered his government to withdraw from the treaty that created the court. His government attacked the court as “ineffective and one-sided.”

Rather, the court that tried Mr. Milosevic was created by the United Nations Security Council in 1993 to track down and punish those responsible for the horrific violence against civilians during the breakup of Yugoslavia. As such, it had some political force behind it.

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