War Crimes In Ukraine: In Search Of A Response – Analysis

By Egle Murauskaite*

(FPRI) — In the spring of 2022, the horrors of Russian war crimes in Bucha shook the world, revealing systematic rape, torture, and executions. As the war in Ukraine continues, there is little doubt that such practices are commonplace, although they hardly make the news anymore as issue-fatigue sets in outside Ukraine. Indeed, the International Criminal Court (ICC) Office of the Prosecutor concluded that there is reasonable basis to believe crimes against humanity and war crimes have been committed in Ukraine since 2014 — not just in this latest phase of the war. In turn, the public discourse in the West — as well as in Ukraine — has regularly and casually started veering towards half-jokingly endorsing all sorts of brutalities against Russia’s leadership, fighters, and even civilians. These shifts also pose a not-insignificant concern in the Baltic states, which are among the most ardent advocates for Ukraine. For instance, in Lithuania social media posts that veritably amount to hate speech against anything Russian have become increasingly commonplace.

In a somewhat more constructive form of venting, Western European societies have shown more support for lethal action in war in the form of sending lethal aid and/or foreign fighters. For instance, according to an April 2022 Eurobarometer survey, 33% of EU citizens support providing military aid to Ukraine; in Germany — 31%, and in France — 30%. In some of the Baltic states that number is twice as high: 66% in Estonia, 60% in Lithuania, and 48% in Latvia. Some societies — like Lithuanians, Latvians and Norwegians — have even shown willingness to get more directly involved in lethal action through popular crowdfunding projects for Bayraktar attack drones for Ukraine. While the overwhelming sense of injury, injustice, and helplessness in witnessing the brutalities continue is undeniable, it is important to start to consider more consciously our responses to them, as they tend to shape us in turn — no less than the horrendous crimes they are meant to avenge.

Current Prosecutions

Ukraine’s Prosecutor General’s office has responded to the reports of war crimes by initiating prosecutions with surprising expedience. The international community has also dedicated expertise and financial resources to support these efforts. By early July 2022, there were reports of 200-300 war crimes being committed every day, with 21,000 investigations launched, 600 suspects identified, and 80 prosecutions initiated. 

However, the two cases prosecuted to conclusion thus far seem to have raised considerable legal questions — from the fairness of conducting trial while the conflict continues, to prosecuting war crimes in civilian, as opposed to military, court. The first such case concerned 21-year-old Russian soldier Sgt. Vadim Shishimarin, sentenced to life in prison in May 2022 for shooting an elderly Ukrainian civilian under orders from his superior. The swift trial and harsh sentence left many questioning the use of legal proceedings as a way to vent against the occupying forces, singling out Shishimarin as a scapegoat. The second case, also concluded in May 2022, involved Alexander Bobikin and Alexander Ivanov, who were tried for shelling civilian sites, including a school. Although there were no casualties as a result, the men were sentencedto 15 years in prison.

While Western observers have questioned the speediness of prosecutions and the proportionality of punishments, in mid-July 2022 Ukraine’s president Volodymyr Zelensky fired Prosecutor General Iryna Venediktova — quite likely out of frustration with the incremental progress of the war crimes’ prosecutions process as a whole. This politicized move, while putting undue pressure on legal proceedings, nevertheless reflected the popular mood of frustration and seeming helplessness in the face of continuing atrocities —      in Ukraine, as well as its allies.

There seems to be a lot of goodwill and a shared understanding about the importance of assisting Ukraine, and yet many international gestures end up being somewhat symbolic. For instance, in April and May, the parliaments of Estonia, Latviaand Lithuania — some of Ukraine’s most ardent allies — recognized Russia’s actions in Ukraine as genocide, and in late June 2022, the US Congress started working on a draft resolution to do so as well. (While the latter was certainly a welcome gesture, the US itself has not ratified the Rome Statute of the ICC, not least due to alleged abuses committed by US forces in the Middle East.)         

Historical Perspectives

The last time Europe chose to handle war crimes by legally prosecuting the perpetrators was in response to violence in the wars that followed the break-up of Yugoslavia. The lengthy, and unsurprisingly frustrating, investigations and ICC hearings in The Hague (known as the International Criminal Tribunal for the former Yugoslavia or ICTY) have been vividly illustrated in numerous films and books. More than 20 years later, the process continues. I personally listened to some of the proceedings when visiting The Hague in 2008, and witnessed a ceremonial repatriation and burial of victims’ remains in Kosovo in 2010. The trials of the chief culprits have been highly publicized, but their outcomes were hardly considered satisfying: Yugoslav leader Slobodan Milošević, accused of complicity in dozens of counts of genocide, died during trial (thus avoiding a sentence), while Radovan      Karadžić (president of the self-declared autonomous Republika Srpska and most known for ordering the Srebrenica massacre), and Ratko Mladić (leader of the Republika Srpska’s army)  received life sentences in 2019 and 2021, respectively.

Most accounts give a clear impression that war crimes tribunals tend to leave victims with a sense that this process delivers too little too late to make a difference in the face of what they have endured, while perpetrators are chomping at the bit for a chance to re-settle the score. The latest burst of tensions at the Kosovo-Serbian border in early August 2022 is but an illustration of the old animosities that continue to simmer under the surface. Further reflections from the Balkans include critiques to the legal route in a post-war society — such as the multiple vantage points in assessing the value of pinning responsibility with individuals vs. institutions, and near-fetishizing of the culprits through public proceedings.

These Hague prosecutions were building on the precedents set after World War II in the trials in Nuremberg and Tokyo. Both have been widely criticized, including for persecuting actions that were not criminalized by law at the time they were committed. Moreover, they were seen as a selective application of justice, since Allied forces were not held similarly accountable. Indeed, the mass-raping of German women by the conquering Russian forces had been hushed up until recently, while the collective trauma continued.

While legal prosecution for war crimes may seem like the high-road approach characteristic of Western democratic principles, the case of Iraqi leader Suddam Hussein paints a different picture. Captured by invading US forces, proceedings against Hussein started in 2004, and were condemned by various human rights advocates as a show trial. The ultimate death sentence by hanging in 2006 was further seen as a disgrace. While public execution of a notorious leader responsible for the suffering of many may have seemed momentarily gratifying, with the trial lending it legitimacy, ultimately this symbolic act did little to help reconcile Iraqi society or recompense victims. Indeed, the de-Baathificationthat followed created institutional deficits from which Iraq is reeling to this day.

A somewhat comparable case concerns the drastic end met by Libya’s leader Muammar Ghaddafi. In a swoop of swift justice by an angry mob, unclouded by any legal considerations, the toppled leader was dragged out of his palace and publicly murdered in 2011. Avoiding any pretense of civilized treatment and instead serving the dictator some of his own medicine may have momentarily satisfied the crowd amidst an Arab Spring revolution, but, again, it had little to do with the capacity to either account for the painful past of Ghaddafi’s regime or constructively move forward towards a better, safer mode of existence.

Looking for the least-bad options

It is important to keep these gruesome historical examples, and particularly their aftermath, in mind next time we come across a casual slogan to hang Vladimir Putin. Unfortunately, as the world collectively grasps for suitable responses, history seems to offer little comfort, when it comes to balancing democratic values, justice and revenge.

Making Russia pay, literally, in a manner akin to post-World War I Germany’s reparations, also seems to be high on the list of preferred courses of action. Yet, the links between Germany’s political and moral humiliation and financial exhaustion, and a subsequently strong sense of injustice to be avenged, is something many of us likely learned when studying the lead up to World War II. The European Council on Foreign Relations public opinion poll of 10 countries published in mid-June 2022 revealed the growing split in Europe between those inclined to pursue some form of punishment for Russia (notably Poland) versus those inclined to push for a peace deal, even if that meant territorial losses for Ukraine (most prominently Italy and Germany). Notably, leaders of all three Baltic states leadership have been loudly and unequivocally against any pressure for Ukraine to enter into a peace agreement that might result in the loss of its territories, emphasizing what these countries endured under Soviet occupation, which much of the rest of the world saw as a stable peace after World War II.

Meanwhile, there have been reports that Russia’s approach to dealing with servicemen potentially involved in war crimes in Ukraine has been to single their units out to be sent to the front lines, to increase their chances of perishing in battle instead of facing any legal charges.

It is also worth recalling that legal or physical retribution have not been the only routes attempted in the aftermath of horrendous collective trauma. Countries like South Africa, Argentina, and South Korea, among others, have chosen to establish Truth and Reconciliation Commissions (TRC) as a way to arrive at a collective recognition of suffering and closure — with admittedly varying degrees of success. While it seemed somewhat more successful as a tool for bringing society together and helping it move forward, by design TRC was not intended to deliver any retributive measures, leaving some with a sense of injustice — not too dissimilar to the aftermath of the lengthy and sometimes inconclusive war crimes’ prosecutions.

The key in advocating and pursuing specific measures is to set goals and manage expectations accordingly. It is important to recognize that a legal process, widely supported and currently broadly implemented, is by design neither fast, nor likely gratifying. If venting frustration is a priority, then legal proceedings are certainly the wrong tool. Moreover, proceeding with prosecutions right now is likely to close the doors for alternative processes, such as a post-war reconciliation, before it has been given any due consideration.

Overall, it is important to start setting longer-term goals beyond warfighting (which, unfortunately, is likely to continue for months, if not years) and to start looking for measures that could eventually help put Ukraine back together again as a country. Indeed, Russia will likely require some post-war reconstructive assistance as well — while that might be too much to stomach for the West, China is the most likely candidate to step forward, but the profound effects of such collaboration on the global power balance ought not be underestimated. Whatever the war outcome, the people and lands will remain, as will their wounds and scars, and the immense internal challenges that plagued them before the atrocities started. The question remains: What can we do today to help them move past this?

The views expressed in this article are those of the author alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.

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Source: This article was published by FPRI