Why prosecuting Russian war crimes in Ukraine could be complicated

The Russian military, in retreat after defeat in the cities around Ukraine’s capital, left behind such horror that war crimes investigators are likely to be kept busy for months, if not years.

Bodies were strewn across the northern countryside, including Bucha, where city officials said at least 400 civilians were killed, with more than 260 buried in mass graves. Dozens were found on the streets outside their homes, their hands bound, with some shot in the head. In Mariupol, Russian forces allegedly fired indiscriminately and used bombs to level an art school where some 400 civilians were sheltering. WHO has verified 64 attacks on health facilities.

War is cruel, but international humanitarian law experts say the atrocities emerging from Ukraine are not how modern conflict is supposed to look. The International Criminal Court prosecutor has already started an investigation and the French Interior Ministry of Justice has sent doctors and more than a dozen crime scene investigators to Ukraine to collect evidence for possible war crimes charges.

Ukrainian President Volodymyr Zelenskyy, German Chancellor Olaf Scholz and other leaders have said what the Russians are doing in Ukraine amounts to war crimes. Last month, the U.S. embassy in Kyiv called it a war crime to attack a nuclear plant.

Now, the United States, Ukraine and the United Kingdom are investigating reports of alleged chemical attacks in Mariupol, bolstering evidence of possible war crimes if confirmed.

“What is happening in Bucha is outrageous and everyone sees it,” President Joe Biden said last week amid the Bucha revelations. “It is a war crime.”

But war crimes cases are notoriously difficult to prove and prosecute. Even with the right evidence and eyewitness accounts, the murder of civilians by Russian forces may not present a clear cut case. The international legal basis for prosecution is not universally accepted, and context, intent and often geopolitics matter. War crimes have often been too slippery to stick, with obvious offenders sometimes escaping conviction. And because of these complications, the accused can wait decades to face any form of justice. Here’s a look at the challenges facing prosecutors in search of justice in Ukraine.

What exactly are war crimes?

To understand what makes a war crime, it’s important to know the laws of war. Those rules, collectively known as international humanitarian law, stem from international treaties that have aimed to find the balance between military necessity and the protection of human life.

Our general understanding of what makes a war crime is essentially whether there have been “grave” breaches of the Geneva Conventions, which were established in the aftermath of World War II to ensure that civilians caught in the midst of war and combatants who could no longer fight were protected. A grave breach would include wilful killing, serious injury and torture, as well as legal and humanitarian failings, such as depriving a prisoner of war to a fair trial, excessive demolition to populated urban centers and taking hostages.

And while a war crime is an egregious violation that goes against the agreed upon principles of warfare, experts note the legal definition has been elusive in prosecution. While targeting civilians in a conflict zone would constitute a war crime, civilians dying as part of an armed conflict may fall short of that bar.

Legal scholars note proportionality also falls into war crimes consideration: that while civilian casualties can and do happen in conflict, there is an obligation by combatants to ensure the toll is not excessive in relation to the military advantage anticipated.

“Very often, militaries will make arguments that they were primarily going against military targets, that they didn't expect that the incidental loss of civilian life would be so high, there was an intelligence error or technical mistake, or that there was information on combatants and fighters being present,” said Ioannis Kalpouzos, a Harvard law professor and co-founder of the Global Legal Action Network. “This information is not necessarily easy to disprove and has led to significant difficulties in bringing such cases [to the courts].”

A case that’s been elevated could land at the ICC, which examines allegations in three core areas: genocide, crimes against humanity and war crimes. What separates a war crime from these other gross violations is that the offense has to have happened during an armed conflict — not its causes or post-war fallout — and that the acts in question are directly correlated to the war.

So is it context that makes something a war crime?

You’re getting warmer. Let’s say a fighter pilot is flying a mission over Ukraine. If they are shot out of the sky and killed in combat, then it is an unfortunate but legal consequence of war. But if that pilot survives the crash and is killed while surrendering as they leave the disabled aircraft, that could be considered a war crime.

“There’s a whole concept of whether persons or individuals are actively participating in hostilities, which is used to determine whether they may be lawfully targeted in certain conflicts. In international armed conflict, fighters cannot be prosecuted for participating in hostilities, that’s called ‘combatants’ privilege,’” said Susana SáCouto, director of the War Crimes Research Office at American University Washington College of Law. “But if you target either a civilian, a POW or a wounded soldier then that is considered a war crime.”

Still, what makes a violation a war crime in one international treaty or convention may not make it a war crime in another.

Take a look at the hallmark for humanitarian treatment in conflict that is often cited in war crime charges. Since being drafted and updated in 1949, the Geneva Conventions have been ratified by 196 states, including all member states of the United Nations — but it doesn’t have a specified definition of war crimes. Instead, it focuses on protecting people who are no longer in conflict.

On the other hand, the Rome Statute — the defining treaty for the ICC’s prosecution — does include war crimes in its charter but only counts 139 signatories, with 123 ratified states. The U.S. has signed but not ratified the Rome Statute, along with Russia and Ukraine.

But the ICC can exercise its jurisdiction in non-member states so long as those parties consent or are referred to the court by the U.N. Security Council. Since Russia has veto power at the Security Council it will be completely unlikely that an investigation will be approved through those chambers. Therefore the road to war crimes prosecutions in The Hague, the Dutch city where the ICC is headquartered, is rooted in Ukraine offering the ICC jurisdiction on its land.

What complicates achieving a guilty war crimes verdict further is that some countries, which in this case would include Russia, may choose not to abide by the ICC’s treaty. The United States, which is not a ratified member of the ICC, has chosen to use its own rulebook to combat claims of war crimes by its citizens.

“The U.S. military does not charge its own service members with war crimes, instead the U.S. military finds an article of Uniform Code of Military Justice,” said Chris Jenks, a former army officer and now law professor at Southern Methodist University. “So it further confuses it from the American perspective when the U.S. does not apply the term war crimes internally, but externally.”

Could what’s happening in Ukraine be considered a war crime?

After receiving 39 referrals from member states by March 2, ICC prosecutor Karim Khan was authorized to open an investigation into the situation in Ukraine. Since then, the number of referrals has risen to 41 states.

While the ultimate decision falls on a judicial body, there are apparent war crimes and clear violations of international humanitarian law occurring in the war in Ukraine, according to Amnesty International.

“Many Ukrainian civilians are losing their lives from strikes that are emanating from the Russian military, from very conventional weapons that are simply used in an unacceptable way,” said Daniel Balson, advocacy director for Europe and Central Asia at Amnesty International USA. “There's no way to conduct non-precision guided munition strikes in heavily urbanized areas. We're talking about weapons that have a wide blast radius, that are fundamentally indiscriminate that they cannot be steered to a particular target and they're being used in areas that are very built up and very populated; this in and of itself is a human rights violation.”

Balson also points to the recent discovery of civilian deaths in Bucha and the use of Russian cluster bombs that the organization has documented striking near a hospital in Ukraine.

While neither Ukraine nor Russia are signatories to the Convention on Cluster Munitions treaty meant to prohibit all use, transfer, production and stockpiling of cluster bombs, Balson notes that since there are 110 countries that have signed onto the agreement it is now considered part of customary international law.

What does punishing a war criminal actually look like?

Legal scholars say that we should expect a number of different entities — including the ICC, special tribunals, courts in the United States and other international and state bodies — to investigate war crime allegations in Ukraine. Eventually, there might be trials in Ukrainian courts, with the most grave cases prosecuted at the ICC.

But don’t expect the convictions from the ICC to come anytime soon. Consider the example of Ali Muhammad Ali Abd-Al-Rahman, a former senior militia commander in Darfur, who has been accused of war crimes in Sudan between August 2003 and April 2004. Nearly two decades after the atrocities in Darfur left 300,000 people dead and displaced millions, his war crimes trial only began in The Hague last week.

The delay is rooted in the ICC’s judicial structure, which only allows for a trial if an individual is physically present in the courtroom. The likelihood that Moscow will refuse to extradite Russian troops or generals accused of crimes in Ukraine means that these cases may take decades to prosecute. But when an individual in ICC custody is found guilty, lengthy sentences usually follow.

Bosco Ntaganda, former chief of staff of a Congolese armed militia group, had his 30-year sentence confirmed in 2021 after he was found guilty of 13 counts of war crimes and five counts of crimes against humanity that occurred between 2002 to 2003.

Former Yugoslav President Slobodan Milošević was the last to face war crimes charges for atrocities committed in Europe, as he presided over the Bosnian War, the Croatian War of Independence and the Kosovo War in which at least 130,000 people were slaughtered in the 1990s. After five years of trials that began in 2001, Milošević was found dead in his cell of an apparent heart attack. No posthumous verdict was issued.

Are there possible war crimes happening in other parts of the world right now?

Yes. The ICC alone has 17 investigations ongoing across the world, the majority on war crime charges. It has eight defendants in ICC custody on war crimes charges, with five trials ongoing. There are 11 defendants still at-large or in pretrial.