Bucha in Ukraine after the Russian invasion, April 2022. Credit: Oleksandr Ratushniak

On April 3, more than a month into the war, Volodymyr Zelensky addressed the citizens of Ukraine from his office in Kyiv. “Concentrated evil has come to our land,” Ukraine’s president began. “I want every mother of every Russian soldier to see the bodies of people killed in Bucha, and Irpin,” Zelensky continued. “Why were ordinary civilians tortured to death? How could women be raped and killed in front of children? How could their corpses be desecrated even after death?”

The Ukrainian state is currently investigating thousands of war crimes that are said to have occurred on its territory since Russia launched its so-called “special military operation” on February 24. The volume of cases is increasing each day and contains accusations of torture, rape, execution-style killings, as well as the deportation of hundreds of thousands of Ukrainians to Russia.

While the Ukrainian courts have already handed down six guilty verdicts to Russian soldiers, the current figure of alleged war crimes committed in the country stands at approximately 22,000. It’s a mammoth task Ukraine faces, however. Especially since the war is still ongoing. Outside assistance is coming from Ukraine’s international allies and partners. But will it be enough to ensure the country can accumulate the required evidence needed to prosecute senior political and military leaders in the Russian Federation for war crimes?

Bringing war criminals to justice: an international effort

In spring, in the same week that President Zelensky made his speech to the nation on the “evil” of the invasion, two harrowing images went viral across the world. The first was taken by a French photojournalist in Irpin: a small leafy suburban town located 26 kilometres from Kyiv. It showed a dead woman’s outstretched hand. Black and burnt, it lay amidst bits of broken sticks, stones, and debris. Next to it was a random set of keys, with a visible EU flag on the keychain.

The second photo was taken by Reuters, in Bucha another sleepy satellite commuter town, located close to Ukraine’s capital. It too portrayed a dead hand. The fingernails were painted with red polish and one finger displayed a visible heart motif. The victim was later identified as Iryna Filkina. The 52-year-old woman was allegedly shot dead by occupying Russian troops, while riding her bicycle. An estimated 300 other civilians in Bucha are said to been brutally murdered in similar circumstances, before the town was taken back by Ukrainian resistance at the beginning April. Under international law, these inhumane, barbarous acts are defined as war crimes.

The most competent and up to date definition of war crimes is laid out in article 8 of an international treaty called the Rome Statute. Adopted at a diplomatic conference in Rome, Italy, in July 1998, the treaty established the International Criminal Court (ICC) in The Hague, in the Netherlands. Often called the court of last resort, the ICC’s raison d'être is to use international law to prosecute those responsible for genocide, crimes against humanity, and war crimes, during military-political conflicts. According to the Rome Statute, many acts constitute as a war crime. Here are the two perhaps most relevant to the Russia-Ukraine war

  • Intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians.
  • Committing rape, sexual slavery, enforced prostitution, or forced pregnancy, [or] any other form of sexual violence also constituting a grave breach of the Geneva Conventions.

The team of the Prosecutor's Office of the ICC is presently conducting a full-fledged independent investigation in Ukraine. The ICC has sent a team of investigators and forensics experts to the country. If there is sufficient evidence, the prosecutor will ask ICC judges to issue arrest warrants to bring individuals to trial in The Hague. However, the court doesn't have its own police force so relies on individual states to arrest suspects. The ICC at present has 123 countries as members. If an arrest warrant is issued by the ICC against a range of officials, any country that is part of the court has a duty to arrest that individual, if that person comes on their territory. Generally, though, the ICC only tries a limited number of cases. Mostly it concentrates on prosecting high ranking political and military leaders. This means ICC cases take a great deal of time, money, and must go through a long and complex legal process.

In the meantime, the Ukrainian courts have been carrying out their own arrests and prosecutions. They delivered their first sentence for war crimes in late May, when Sgt Vadim Shishimarin was jailed for life in a Ukrainian court. The 21-year-old captured Russian soldier was convicted of killing Oleksandr Shelipov, 62, in the north-eastern village of Chupakhivka on 28 February. Since then, five more Russian combatants have been sentenced for war crimes.

In addition to Ukraine, several countries have already launched their own criminal proceedings pertaining to war crimes committed by the Russian Federation. In late May, Estonia, Latvia and Slovakia signed an agreement during a two-day coordination meeting in The Hague to join Lithuania, Poland and Ukraine in the Joint Investigation Team that will help coordinate the sharing of evidence of atrocities in Ukraine, through European Union judicial cooperation agency Eurojust. Olena Ostapensko, who is Head of the Ukrainian government’s Information Policy and Communications Department, said the help that has arrived so far from Ukraine’s international political allies and partners has brought practical as well as legal assistance. This includes, she points out, the help of police, forensic experts and anthropologists from Slovakia. It also includes French scientists with DNA laboratory equipment, who arrived in recent months at a morgue in Bucha to carry out technical examinations. Ostapensko said that while Ukraine doesn’t expect quick verdicts for all cases awaiting investigation, she is confident that justice will eventually be served.

“The ICC’s Prosecutor's Office has joined Ukraine, Lithuania and Poland in their combined international effort to investigate Russian war crimes,” she said, “We are firmly convinced … that every guilty Russian war criminal who has committed war crimes in Ukraine will be prosecuted in either a Ukrainian court, a special tribunal, or the ICC”.

These efforts can also be supported by ordinary citizens. Ostapenko pointed to warcrimes.gov.ua. Set up at the request of Ukraine’s prosecutor general, Iryna Venediktova, the website invites users to send evidence documenting “the war crimes of the Russian Federation in Ukraine.” “This website is an evidence hub that unites the efforts of law enforcement officers, experts, representatives of public and international organizations, journalists, and all those who want to help and record the brutal killings of civilians and other crimes of the Russian Federation on Ukrainian soil,” Ostapenko said.

Sexual violence, genocide, and the burden of proof

The rape of women and girls by the Russian military has become a contentious topic in Ukraine. Mainly because the sexual violence the Russians are said to have engaged in, since the war began, comes under the definition of genocide, as it is laid out in international law. After the alleged massacre said to have occurred in Bucha last April, many stories surfaced in the world’s media about women, some of them minors, claiming to have been raped by Russian soldiers. These victims said their sexual predators told them they would never be able to bear Ukrainian children. Such stories point to the possibility that Russian combatants may be engaging in systematic rape, with genocidal intent.

Ostapenko said criminal proceeding relating to the rape of women and girls by the Russian military have already begun in numerous regions in Ukraine, including Kyiv, Donetsk, Kharkiv, Kherson and Luhansk. “Cases of sexual violence related to the conflict are registered under Article 438 of the Criminal Code of Ukraine,” she said. “Many Russian servicemen who committed genocide in Bucha and Irpin have already been identified, and Ukraine will do everything in its power to hold all who are guilty of such crimes accountable.”

Yet, a month after the alleged Bucha massacre, Ukrainian lawmakers dismissed the country’s ombudsman for human rights, Lyudmyla Denisova, over claims that the alleged rape of children in the occupied territories could not be confirmed, or verified, by substantial evidence.

According to UN Action Against Sexual Violence in Conflict, the majority of casualties in most wars are among civilians, typically women and children, who face devastating forms of sexual violence, which are sometimes deployed systematically to achieve military or political objectives.

Valerie Oosterveld, an associate professor in the Faculty of Law at the University of Western Ontario, Canada, believes some of the evidence that has emerged so far regarding sexual violence in Bucha “appears to point towards genocide.” The Canadian academic, who specializes in sexual and gender-based crimes within the international criminal justice system, continued, “Genocide of course, being the intent to destroy in whole, or in part, a national, ethnic, racial, or religious group through certain actions”.

Oosterveld said that identifying those criminally liable for war crimes, especially senior military and political figures, requires what investigators call “linkage evidence.” This is a complex legal term that refers to information connecting an act of atrocity to specific perpetrators. Investigators then work backwards by stitching together a chain of evidence.

“You have to show that there's an unbroken chain of evidence, from the foot soldiers who committed the crimes, all the way up every single step, in the chain of command,” Oosterveld explained. This is an extremely difficult process to prove in court, however, because linkage evidence is essentially trying to pin responsibility on more senior military and political figures. A chain, for instance, that could reach from a rape in Bucha, or the shelling of a Ukrainian town by Russian tanks or jetfighters, all the way to the Kremlin, and President Vladimir Putin himself.

“Accumulating linkage evidence, which proves the intent to destroy, is not easy,” Oosterveld said. In fact, “linkage evidence” is what makes genocide the hardest of all the international crimes to prove. “There is already statements President Putin [made] denying that there is a Ukrainian national identity, or a proper Ukrainian state,” Oosterveld added. “But in the absence of the linkage evidence, all the way down, then a case could fail, in either an international prosecution or a domestic prosecution.”

“There is an ongoing debate as to whether there may be a genocide happening in Ukraine,” said Sir Howard Morrison. The experienced British lawyer was appointed in late March by the UK's attorney general as an independent adviser to Ukraine's prosecutor general. “But there is very strong evidence suggesting that rape, murder and forcible removal of people, and torture is happening in this war, which would qualify as war crimes, and probably crimes against humanity too,” he said.

Morrison – who has also served as a judge at the International Criminal Tribunal for the former Yugoslavia, the Special Tribunal for Lebanon, and the ICC – also spoke about the importance of strong evidence, when trying to match potential perpetrators for alleged war crimes committed on Ukrainian territory. “If you find a corpse with their hands tied behind their back, and a bullet hole in the back of the head, that is 99 percent evidence indicating that a homicide has been committed,” Morrison said. “But you then need to look for sources of evidence. Like, for instance, finding out through your intelligence sources, who was in a certain group in the area where the crime was allegedly committed, and seeing if soldiers who committed the offences left videos or photos of themselves on their mobile phones.”

For any war crime investigators who are trying to build a credible case, having physical control of the crime scene in question is also crucially important. Take, for example, Mariupol. In late May, Russia announced it had taken control of the port city on the Sea of Azov. After a nearly three-month siege, most of Mariupol has been reduced to rubble from ruthless Russian military aggression. According to a recent report published by the UK-based Centre for Information Resilience (CIR) new satellite images show that approximately 1,400 new graves were added at the Mariupol Starokrymske cemetery between 12 May and 29 June.

“Any town or city in Ukraine that is being held by Russian forces means there is a high likelihood that all the evidence of potential war crimes committed in these places could have already been removed or destroyed,” said Morrison. However, he is positive about the efforts currently taking place. “The large number of expert investigators who have gone into Ukraine are engaged in helping the Ukrainian prosecutors, who are frankly, doing a good job in any case. The investigations are being carried out with proper analysis and proper preservation of the evidence, which is extremely important.”

Political and legal hurdles

There are other challenges to bear in mind. On July 14, 45 countries attending the Ukraine Accountability Conference, held at the headquarters of the ICC, in The Hague, signed a political declaration which agreed to cooperate on investigations into war crimes in Ukraine. In theory, this sounds like a promising road map for Ukrainian justice. But there are many practical legal constraints to consider. Although Ukraine has granted the ICC jurisdiction to investigate alleged crimes committed within the country, Ukraine and Russia are not ICC members.

Ukraine, has however, adopted the jurisdiction of the ICC, since 2014, after Russia annexed Crimea. “Ukraine is not a full member of the court, but that doesn't affect the ICC’s ability to have jurisdiction over war crimes committed on the territory of Ukraine,” said Morrison. “Also, the fact that Russia isn't a member of the court, and never has been, doesn't prevent the ICC having jurisdiction. If it's shown that Russian troops committed international crimes on the territory of Ukraine. That is sufficient.”

However, Olena Ostapenko said that initiating criminal proceedings directly against, say, the Minister of Foreign Affairs of the Russian Federation, or against President Vlamidir Putin himself, would “prove difficult due to their functional immunity.”

“It becomes much harder for Ukraine, and the ICC, given that Russia is unlikely to cooperate and hand over individuals who are indicted at the very highest levels,” said Valerie Oosterveld.

Morrison shared that view. “The truth and realpolitik of this matter is that it is very unlikely that high ranking Russian officials, whether military or political, would voluntarily attend the court, if there was an arrest warrant issue from the ICC,” he said. “And it's very unlikely that they would be extraditable either.”

The British lawyer and former judge said political circumstances would need to drastically change in Russia for those complex legal hurdles to alter any time soon. That sounds like wishful thinking. Russia’s president, after all, has been in power since 2000. And there is no guarantee that, after President Putin, Russia would become a transparent democracy willing to engage in such a legal process.

Still, Morrison points to a historical example that could offer some glimmer of hope: the International Criminal Tribunal for the former Yugoslavia. This dealt with war crimes that took place during the conflicts in the Balkans in the 1990s. While the ICT encountered its own challenges, the court did eventually indict 161 individuals for serious violations of international humanitarian law committed in the territory of the former Yugoslavia. It successfully tried two Bosnian Serb leaders, Radovan Karadžić and Ratko Mladić, and former president of Serbia, Slobodan Milošević, for war crimes.

Morrison sat as a trial judge in the case “The Prosecutor v. Radovan Karadžić”. “What we learned in the former Yugoslavia is that the political circumstances do change over time,” Morrison said. “Many people believed that it would be impossible to bring Karadžić, Mladić, and Milošević, before the International Criminal Tribunal for the former Yugoslavia. But as the political situation changed, all three were, in fact, arrested and sent to the court and tried. Milošević, of course died, before final judgment.”

Putin in the docks?

Could Russian president, Vladimir Putin, be brought before The Hague for war crimes? It might sound like sweet justice to many. But the chances of it happening any time soon are extremely slim. “It would be a very difficult process, but not impossible,” Morrison said. “The higher you go up in a command chain, the more difficult it gets, especially if those who are being accused of war crimes are removed from the scene, because you then have to prove their responsibility on the basis of criminal joint enterprise, or superior responsibility.”

As nobody needs reminding, Ukraine is still fighting a war. The ongoing conflict poses serious challenges when it comes to using the long arm of international law to hold the Russian Federation legally and morally accountable. “Most war crimes trials, or crimes against humanity trials, tend to happen post conflict, when everything is a bit calmer and easier,” Morrison said. “But the corresponding advantage for the Ukrainians [acting now] is that everything is very fresh.”

On April 5, in an emotive speech to the United Nations (UN) Security Council, Volodymyr Zelensky accused Russia of committing the “most terrible war crimes” since the Second World War. Ukraine’s president then called for Russian war criminals to “brought to justice” in a tribunal akin to the Nuremberg trials, which were held by the Allied powers, after the defeat of the Nazis. As the first international war crimes tribunal in history, they revealed the true extent of German atrocities and held some of the most prominent Nazis accountable for their crimes.

“I would love to see that happen, but realistically, a Nuremberg-like trial can only happen if Russia loses the war, and there is a regime change in Moscow,” said Lviv-born political scientist, Eugene Finkel. I just don't see how a trial like that might happen otherwise,” said Finkel, who is currently an associate professor of international affairs at Johns Hopkins University in Baltimore, in the United States. “Another prospect would be to have an international committee that is led by Ukraine, but which also includes people from the outside. Especially scholars, filmmakers, photographers and other experts. Essentially those who are not beholden to the Ukrainian state, and those who care about truth.”

Morrison said a Nuremberg-like trial was a possibility “but it certainly won’t happen through the UN Security Council, because China and Russia have a veto.” He also cited practical political problems presenting other tricky obstacles. It took a lot of international cooperation to set up the Nuremberg trials immediately after the Second World War concluded. But getting several states to agree to various terms and conditions of such a tribunal today, might prove to be even more difficult. We now live in a complex unilateral geopolitical world, where not everybody is an enemy of Russia. “Also don’t underestimate the expense of doing this. It would probably run upwards to a 100 million [dollars],” Morrison concluded. “I'm not ruling out a Nuremberg-like trial altogether. But there would need to be a lot of political engagement and will, as well as money and patience needed for it to happen. So the practical problems it poses are immense.”