The Gender Security Project
New Approach to Atrocities Needed, Say Ukraine War Crimes Investigators
By Ed Holt
War damage at a children’s facility in Ivanivka, Kherson. Investigators want changes in the way war crimes are investigated and prosecuted. Credit: Nychka Lishchynska
As plans are announced to set up an international centre in The Hague to prosecute war crimes committed in Ukraine, groups involved in documenting them say there must be a fundamental change in how the world reacts to war atrocities.
Since Russia’s full-scale invasion of Ukraine almost one year ago, there have been allegations of tens of thousands of war crimes committed by invading forces.
But while there has been unprecedented support internationally for efforts to bring those behind these alleged crimes to justice, the scores of civil society organisations working to document them say this war, more than any other, has underlined the need to overhaul global bodies and individual states’ approach to war crimes.
“The entire world and all its nations [must] realise that there needs to be a rapid global response to atrocities, that all nations have to establish ways of documenting war crimes and bringing them and those who committed them to light,” said Roman Avramenko, CEO of Ukrainian NGO Truth Hounds which is documenting war crimes in Ukraine.
“What we are now seeing is the result of inactivity. We have been talking about war crimes here for eight years, this started long ago. When there is no investigation of crimes, and no accountability for them, this leads to even greater atrocities and violence,” he told IPS.
Since the start of the full-scale invasion of Ukraine there has been a relentless stream of allegations of war crimes committed by Russian troops – earlier this month Ukrainian officials said more than 65,000 Russian war crimes had been registered since the beginning of the invasion.
Among the alleged crimes are rape, mass murder, torture, abduction, forced deportations, as well as indiscriminate attacks on civilians and civilian infrastructure, among others.
Ukrainian officials say 65,000 war crimes have been registered since the war began nearly a year ago on February 24, 2022. This picture shows some of the damage in the Novopetrivka, Kherson region. Credit: Nychka Lishchynska
Condemnation of these crimes has been widespread, as has the support for their investigation.
In March and April last year, more than 40 states referred Russia to the International Criminal Court (ICC), while a few months later, many of these declared their support for Ukraine in its proceedings against Russia at the International Court of Justice.
“There has been an absolutely unprecedented mobilisation among countries demanding justice for Ukraine,” Rachel Denber, Deputy Director of the Europe and Central Asia Division at Human Rights Watch, told IPS.
However, while this support has been welcomed in Ukraine, groups like Truth Hounds and others want to see it turned into effective prosecutions which will act as a deterrent to future aggression from Russia, or any other state.
“Russia was not punished for previous human rights violations and war crimes, and this has driven them to continue an aggressive foreign policy all over the world,” said Roman Nekoliak, International Relations Coordinator at the Nobel Peace Prize-winning Ukrainian NGO Centre for Civil Liberties (CCL).
“The UN and participating states must solve the problem of a ‘responsibility gap’ and provide a chance for justice for hundreds of thousands of victims of war crimes. Without this, sustainable peace in our region is impossible. An international tribunal must be set up and [Russian president Vladimir] Putin, [Belarussian president Alexander] Lukashenko, and other war criminals brought to justice,” he told IPS.
International leaders and war crimes experts have highlighted the specific need to prosecute senior Russian officials for the crime of aggression. This crime is often referred to as the “mother of all crimes” because all other war crimes follow from it.
But it is difficult to bring the people behind such a crime to justice – the Rome Statute on which the ICC is established defines the crime as the “planning, preparation, initiation or execution” by a military or political leader of an act of aggression, such as an invasion of another country.
Ukrainian and European prosecutors are working together to investigate war crimes, but they cannot move against senior foreign figures, such as heads of government and state, because of international laws giving them immunity.
Meanwhile, the ICC cannot prosecute Russian leaders because neither Russia nor Ukraine has ratified the Rome Statute, and although a case could be brought if referred by the UN Security Council, as a permanent member of the UN Security Council with a veto over any such resolutions, Russia would simply block such a referral.
Indeed, in 2014, Russia and China vetoed a UN Security Council resolution that would have referred the situation in Syria – where Russian troops were later alleged to have committed war crimes – to the ICC.
“It would be wrong to say that the West did not react to [Russian war crimes in Syria], but what they are seeing now is that what happened there is happening again in Ukraine, and that it will continue elsewhere if Russian aggression is not stopped now, said Olga Ajvazovska of the Ukrainian civil society network Opora which is documenting war crimes.
“International societies also now understand that we need to develop stable international bodies which will have a way of stopping systematic Russian aggression,” she added.
Various solutions to the problem of bringing senior Russian figures to justice have been mooted.
Ukraine wants a special tribunal similar to courts established for war crimes in Rwanda and the former Yugoslavia set up, and in early February, Ukrainian prosecutors said they believed they were close to winning US support to establish a special tribunal to prosecute Russia’s crimes of aggression.
Separately, the European Commission announced this month that an international centre for the prosecution of the crime of aggression in Ukraine would be set up in The Hague.
But ICC officials are against the creation of a special tribunal, fearing it could fragment efforts to investigate war crimes in Ukraine, and have urged governments to support their continuing efforts.
In the meantime, the documenting and investigation of war crimes is continuing, and those involved are convinced that their work will help see justice served eventually.
They point out that they are working very closely with local and international prosecutors, as well as the ICC, and that experience gained in documenting war crimes in Ukraine prior to last year’s invasion – Truth Hounds was created just after Russia’s illegal annexation of Crimea in 2014 and the start of the conflict in the country’s Donbas region – and learning from investigations into war crimes in other countries, has proved invaluable in ensuring the effectiveness of their work.
“In the 2008 Georgia war, both sides reported violations of humanitarian law and war crimes. Nevertheless, research into them was conducted with limited support from international partners, and it was only in 2016 that the ICC got involved. Over eight years, significant information can get lost, and this is exactly why war crimes in Ukraine need to be documented constantly, as we, and several other organisations and international partners, are doing,” said Nekoliak.
So far, the ICC has issued only three arrest warrants charging men with war crimes related to the Georgia conflict.
The nature of the war itself is also helping them gather compelling evidence in a way that has perhaps not been possible in any conflict before.
“We are in a digital age and cyberspace is much more developed than 20 years ago. You can see in real-time, every day, the crimes being committed, the bombings, the people dying under the destroyed buildings, you can hear their screams.
“Today, it is much easier to find someone through technology, for instance, satellite pictures or other data can help identify which soldiers were at a certain location at a certain time when a war crime allegedly took place,” said Ajvazovska.
They believe these, along with a continued international focus on the conflict, and a strong desire among Ukrainians themselves to see accountability for the crimes committed against them, will help bring even those at the highest levels of Russian leadership to court at some point.
“The trials [of people involved in] the former Yugoslavia wars, the 2012 war crime conviction of former Liberian President Charles Taylor, Félicien Kabuga last year being put on trial over the 1994 Rwandan genocide, show that no matter how much time has passed the inevitability of punishment remains,” said Nekoliak.
“And Russian war criminals will face the same fate.”
This post first appeared on IPS News.