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Ukraine: ordinary Russian soldiers face war crimes charges but the big fish are likely to avoid punishment – here's why

Solon Ukraine 920x540

Dr Solon Solomon is a Lecturer in the Division of Public and International Law and co-Director of the Brunel University London International Law Group

Ukraine’s chief prosecutor has announced plans to hold the first war crimes trial over Russia’s invasion. Ukraine’s prosecutor general, Iryna Venediktova, said more than 10,700 war crimes had been lodged by investigators and 600 suspects had been identified. Venediktova said a 21-year-old Russian sergeant had been charged with the murder of an elderly civilian in the village of Chupakhivka in the north-east of the country.

Two other low-ranking Russian soldiers are also expected to be charged for deliberately targeting civilian buildings and a fourth, who is believed to have committed rape and murder, has been identified but remains at large.

As investigations continue in areas of Ukraine that had previously been occupied by Russian troops, evidence of crimes committed against civilian populations continues to mount. An Amnesty International report released on May 6 documents what it says is a range of crimes, from extrajudicial executions to the use of banned weapons in Russia’s unsuccessful assault on towns and cities in the Kyiv region.

In mid-April, Ukrainian president Volodymyr Zelensky announced he had approved a decision to create a “special mechanism of justice in Ukraine” to investigate Russian “crimes” in Ukraine. This would run alongside any international war crimes investigations and follows Ukraine’s adoption of a new law to create the mechanism to investigate and prosecute war crimes committed in the east of the country, where conflict has been ongoing since 2014.

So far, only low-ranking military personnel have been charged. Whether the people directing the war, including Vladimir Putin and his defence minister Sergei Shoigu, will be brought to justice is another matter.

History is replete with massacres and barbaric acts in warfare, but it took until the second part of the 19th century for a body of law to be developed to punish these crimes. It wasn’t until the Nuremberg trials after the second world war for a prosecution of such crimes to take place. The Geneva Conventions of 1949 subsequently incorporated grave breaches of international humanitarian law as war crimes and linked these violations of the laws of war with criminal liability.

A turning point in the accountability for war crimes came with the institution by the UN Security Council of two ad hoc international war crimes tribunals: one to try offences committed in the war in the former Yugoslavia in the mid-1990s, the other for crimes against humanity during the conflict in Rwanda in 1994. This showed the need for a permanent international mechanism for trying and punishing war crimes and other crimes against humanity. Accordingly, in 1998, the International Criminal Court (ICC) was established.

ICC investigation

The ICC chief prosecutor, Karim Khan, has already opened an investigation into reports of crimes committed in Ukraine since the invasion. Given the amount of digital evidence available, such as satellite and video images, it must be plausible to assume that this investigation will result in arrest warrants being issued. Yet, once arrest warrants are issued, it is more doubtful if they will be ever executed.

The International Criminal Court has currently 123 members (not including the US, Russia and China, which have not recognised the court). Under the Rome Statute, member states are obliged to arrest and extradite to The Hague any people against which the court has issued an arrest warrant. But, in practice, this rarely happens.

In the case of Sudan’s former president Omar al-Bashir, for example, the court issued an arrest warrant in 2009 for Bashir’s role in the Darfur genocide in the early years of the 21st century, yet Bashir managed to continue visiting countries in Africa, countries – even states that are members of the court, including Kenya and South Africa.

The two countries argued that, as Sudan’s head of state, Bashir enjoyed immunity from ICC prosecution. This prompted debate among legal scholars about exactly who might be subject to the ICC’s jurisdiction. Meanwhile, Bashir remained at large despite the arrest warrants.

And here’s the rub, as it stands, any acting government officials can argue immunity under international law. But this immunity does not extend to covering army officers. Generals involved in planning the operations in Ukraine could indeed find themselves in a situation where their possible arrest will always hover above their heads like a Damocles sword should they decide to travel, particularly in western countries.

Convictions could be difficult

Even if arrests can be made for war crimes in Ukraine, it’s far from certain they will lead to convictions. For example, while article 28 of the ICC Statute holds that military commanders are accountable for events about which they should have been aware, both sides are using de facto mercenaries – so Russian and Ukrainian senior officers could argue that not only did they not order certain atrocities, but they could not be expected to be aware that they were taking place.

Operational arguments can also render any convictions more difficult. According to the laws of war, states have the right to target combatants, but civilians are protected. They cannot be targeted and any applied force must not lead to excessive civilian harm vis-a-vis the expected military advantage. But when wars are being fought in urban areas where combatants fight from street to street, this can provide the attacking force an opportunity to argue that any civilian casualties constituted “collateral damage” and could not be avoided.

This adds up to a bleak picture of the prospect of being able to prosecute war crimes as a result of Russia’s invasion and war in Ukraine. It doesn’t mean that nobody will be tried or convicted, but it’s unlikely to be the “big fish” who end up in the dock. Instead of seeing Vladimir Putin or his defence minister Sergei Shoigu facing prosecution, it’s more likely that field commanders associated with the ordering of certain operations resulting in heavy civilian casualties – as in Bucha or Mariupol – will be brought before the ICC.

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