Delivering justice …

… for the war crimes in Ukraine

Text Tirana Hassan

Russia’s war against Ukraine has shattered millions of lives, wrecked Ukraine’s civilian infrastructure, and brought Europe back to the days of trench warfare and major battles not seen on the continent since World War II. Russia launched its full-scale invasion having already breached Ukraine sovereignty in occupying Crimea in 2014 and operating pro-Kremlin armed groups in eastern Ukraine. That the international community finally issued a firm response to the mounting atrocities that unfolded in Ukraine after the escalation is a positive precedent, paving a path to justice.

The question is whether we can make sure this will make a difference?

As part of the response to Russia’s invasion of Ukraine, multilateral organizations and many Western governments swiftly and exceptionally engaged a range of accountability mechanisms and tools, underscoring the importance of criminal justice for serious crimes committed there.

On March 2, 2022, the International Criminal Court (ICC) prosecutor opened an investigation into alleged serious crimes in Ukraine following a request by an unprecedent number of ICC member countries. Judicial officials in several countries have also opened criminal investigations using their national laws to examine serious crimes committed in Ukraine. On March 4, the United Nations Human Rights Council established an Independent International Commission of Inquiry to collect, analyze and consolidate evidence of violations, identifying those responsible where possible with a view to ensuring accountability.

Ukrainian authorities are also conducting their own criminal investigations. To support these efforts, many governments have offered Ukraine evidentiary, technical, and operational assistance to bolster its judicial capacity.

Meanwhile, journalists have been reporting on the war in Ukraine, showing the immense civilian suffering and the gratuitous cruelty of Russian forces. Ukrainian and international non-governmental organizations, including Human Rights Watch, have also been documenting abuses as they occur with a view to helping inform and in some cases support the accountability efforts to ensure justice for the crimes being committed in Ukraine.

From the earliest days of the full-scale invasion, Russian forces have showed unconscionable disregard for civilian life. They pummeled densely populated cities. They killed or injured hundreds of civilians in Kharkiv, Ukraine’s second-largest city, in the first 11 days of the invasion alone, indiscriminately bombing and shelling heavily populated areas with cluster munitions and explosive weapons with wide-area effect. They laid siege to Mariupol, turning this port city into a veritable hellscape.

A number of Russia’s violations have been emblematic of the conflict. Among them is the widespread and repeated targeting of Ukraine’s energy infrastructure, which Human Rights Watch and other groups documented.

This tactic, apparently designed to instill terror among civilians in violation of the laws of war, has deprived millions of Ukrainians of regular access to electricity, water and heat in the dead of winter – cruelty that Russian policymakers and state media commentators applauded.

Russian attacks have also led to heavy civilian casualties. One such strike was the April 8 cluster munition attack on the Kramatorsk train station, a major evacuation hub for civilians fleeing the fighting in eastern Ukraine, killing at least 58 civilians and injuring more than 100 others. A 10-month intensive investigation led Human Rights Watch to conclude that Russia launched this attack with disregard for the lives of the hundreds of civilians at the station that morning, making it an apparent war crime.

Another high-civilian casualty Russian attack, and one that should be investigated by judicial officials as a potential war crime, was the June 27 missile strike that hit a busy shopping center in Kremenchuk, in central Ukraine, killing at least 21 people and wounding dozens of others. Human Rights Watch, in an intensive investigation found no evidence of military targets in the vicinity, contrary to the Russian government’s claims that the Ukrainian government stored weapons in the adjacent industrial complex and that the mall was empty.

Prosecutor of the International Criminal Court, Britain’s Karim Khan (3rd L), visits a mass grave in Bucha, on the outskirts of Kyiv.

Media and human rights groups, including Human Rights Watch, have also documented Russian forces’ summary executions and other killings of dozens of civilians, conflict-related sexual violence, enforced disappearances, and torture all war crimes in areas Russian-occupied areas. The city of Bucha, in Kyivska region, has become a symbol for Russian forces’ atrocities as an occupier, but evidence of the same types of abuses is plentiful elsewhere.

In Izium, which Russian forces occupied for six months, almost all of more than 100 people Human Rights Watch interviewed said that they had a family member or friend who had been tortured. In Kherson region, researchers came across at least 52 cases in which Russian occupation forces either forcibly disappeared civilians or otherwise held them arbitrarily, many of whom were tortured.

Russia’s response to all allegations of abuse is a predictable wall of lies and denial. In some cases, though, comments by officials help implicate Russia in potential war crimes.

One example concerns Russia’s forcible transfer, or deportation to Russia or occupied territories, of Ukrainian children displaced by the war, a war crime. Much of what we know about this comes from top Russian officials, including President Vladimir Putin’s children’s rights commissioner and others who have staged photo-ops with these Ukrainian children.

Russia’s efforts to destroy Ukrainian culture is among its litany of crimes. Russian forces have systematically pillaged valuable artifacts and artworks, imposed Russian-language school curriculums in places they occupied, and used beatings and torture for forced “russification” in occupied areas.

Accurate and thorough documentation of these atrocities now, while memories are fresh and physical evidence is available, is crucial to ensure justice in courts of law. What is clear given the scale of the violations, is that a multitiered, cross-cutting approach is needed, which will require sustained resources and effective coordination by a range of actors, primarily the Ukrainian authorities, but involving the ICC, judicial officials in third countries, and others. This goodwill needs to be translated into political stamina and strategy to ensure the breadth of abuses are addressed effectively, credibly and comprehensively.

Russian forces are responsible for the overwhelming majority of abuses. Still, allegations of abuse by Ukrainian forces should be duly investigated, with those responsible be held to account in a fair trial. Measures should also be put in place to protect lawyers representing them. Effective justice, after all, means impartial justice.

The substantial global response to crimes in Ukraine showed what’s possible when governments come together, but the absence of a similar response to address grave crimes elsewhere like Afghanistan, Ethiopia and Palestine brought into sharp relief the international community’s double standards. This inconsistency risks eroding the credibility of the entire international justice system.

The challenge is to leverage the world’s response to the war in Ukraine to deliver impartial, comprehensive justice wherever it is needed by ensuring consistent financial, political, and practical support for credible accountability efforts. The international community can and should strengthen the justice response worldwide and replicate this principled support in other contexts where civilians pay the highest price for unbridled impunity.