Retreat from Kherson – evidence of war crimes emerges, how do we hold those responsible to account?

Over the past few months as Russian troops begin losing territory, there have been increasing reports of indiscriminate attacks on Ukrainian civilians. On 15^th November, following the withdrawal from Kherson, Russia reportedly launched 85 missiles into Ukraine targeting mainly energy infrastructure, with reports of three residential buildings being hit in Kyiv, and resulting in large energy outages across the country. Ukrainian investigators suggest that there is evidence of over 400 potential war crimes in Kherson alone, and President Zelensky states: “In the Kherson region, the Russian army left behind the same atrocities as in other regions of our country.” These patterns of war crimes have become increasingly prevalent, and this piece indicates some of the ways that we can seek to hold those responsible to account.

What are war crimes?

War crimes are ‘serious violations of international humanitarian law which is the body of law governing the conduct of war. International Humanitarian Law limits the use of violence during conflict by sparing those not actively engaged in combat and restricting force to only that which is necessary to achieve the aim of the conflict. The law requires armed forces to distinguish between civilians and combatants - limiting attacks to military objectives, whilst considering concepts such as proportionality and necessity. It covers many aspects of conflict, from the methods and means employed, such as weapons and targets, through to the treatment of Prisoners of War, and protections for medical personnel.

War crimes are therefore related to conduct during armed conflict. When considering accountability for war crimes in Ukraine, we need to consider the types of attacks, excessive loss of civilian lives, and unnecessary suffering that may have occurred rather than unlawful use of force in entering the territory.

Holding individuals accountable

Accountability for war crimes can come through individual criminal prosecutions, whether by domestic or international courts. The Geneva Conventions and customary law require states to investigate alleged grave breaches of IHL and to either prosecute or extradite those responsible. Therefore, Ukraine is legally obliged to investigate war crimes committed during the armed conflict, whether by their own or Russian nationals. Ukraine has already commenced trials for war crimes, with the first conviction on May 23^rd of a Russian squad commander charged with killing an unarmed civilian. A week later two artillerymen were convicted of the indiscriminate shelling of civilian structures in Kharkiv. Trials have continued in Ukraine, with reports that 80% of Ukrainian courts are functioning despite the ongoing conflict. However, the scale of the violence is likely to mean it would take many decades for the Ukrainian courts to process all the claims, and alone they would remain restricted in their ability to exert authority over higher-ranking officials.

In order to complement domestic efforts international tribunals can also exert jurisdiction, either by the establishment of an international tribunal, akin to those set up for the Former Yugoslavia and Rwanda, or referring the situation to the International Criminal Court (ICC). Ukraine, whilst not a party to the Rome Statute establishing the Court, has accepted the Court’s jurisdiction and on March 2^nd an investigation was initiated by the Office of the Prosecutor. Since then the ICC have received unprecedented support with 21 states committing to sending experts and a further 20 agreeing financial support. It could take several years before trials commence at the ICC, and these are more likely to be of higher-ranking officials and leaders.

Finally, each state has the right to exercise universal jurisdiction for war crimes allowing any state to prosecute war crimes even when there is no territorial or personal link. For example, Germany extended its criminal code in 2002 to exercise jurisdiction over crimes against international law and has proactively conducted trials for war crimes committed in Syria. Germany currently has over 100 active investigations into international crimes, and in March 2022 opened an investigation into war crimes and crimes against humanity committed in the Ukraine context. Additionally, there are around 136 UN states who have some form of universal jurisdiction for war crimes in their domestic code, so it is possible that other states will start proceedings.

Nevertheless, whilst there are comprehensive ways to prosecute war criminals, and considerable support for holding perpetrators to account, it can be a lengthy and difficult process. There are significant challenges facing courts as the ICC Prosecutor states: “We need everything… from lawyers to investigators, to analysts and military experts, to forensics, language experts and psycho-social support." Beyond the resource challenges, courts may also face concerns over independence and impartiality, and the question of the crime of aggression remains. If a new court is established to prosecute the unlawful invasion of Ukraine, then this could draw international focus and in turn international support. For now, all options for prosecuting war crimes are being pursued, and the message from international criminal justice is clear; anyone “...who picks up a gun, drives a tank or launches a missile should know that they can be held accountable where crimes are committed.”