The following article is Part Two of a Two-Part series on War Crimes in Ukraine. This article contains descriptions of crimes against humanity and sexual violence. Linked sources may contain graphic accounts of human rights violations; please read with discretion. The DU Health & Counseling Center and Center for Advocacy, Prevention and Empowerment are available to provide support should this topic cause stress or anxiety.
The Geneva Convention: What is a war crime?
Initially created in 1864, the Geneva Convention was updated in 1949, 1977 and 2005 with subsequent treaties on human rights abuses. Signed by all UN member states, the Convention broadly defines ‘war crimes’ to include: Wilful killing; Torture or inhuman treatment; Wilfully causing great suffering; and intentionally directed attacks at civilian populations.
War Crimes Investigations: Legal Jurisdiction & Precedent
The process for investigating and prosecuting war crimes is incredibly complex. Explained by Professor Chen Reis, the Korbel School Director of the Humanitarian Assistance program and a specialist on gender-based violence, groups such as the International Criminal Court, the Independent International Commission of Inquiry into Ukraine, and the UN Human Rights Monitoring Mission in Ukraine (HRMMU) are responsible for war crimes investigations in this particular case.
“Each organization or entity has its own mandate and approach […so] it is important to consider what their role is in collecting and sharing information and what they plan to use the information for [such as] advocacy, public awareness raising and evidence for prosecutions.”
From a legal perspective, prosecuting war crimes requires careful consideration of jurisdiction. According to Megan Matthews, an adjunct professor at Sturm College of Law with prior professional experience in various International Criminal Tribunals, there are various ways to trigger a war crimes investigation process for both individual and state criminal responsibility.
Most war crimes are prosecuted under individual tribunals where high-ranking military and political leadership, such as the head of state, are viewed as responsible parties.
On this basis, the primary avenue is for the International Criminal Court (ICC) to receive a report of war crimes from an ICC party member. While Ukraine is an ICC member and the court technically has jurisdiction for any atrocities committed in its territory, Russia withdrew from the convention in 2016 and therefore its leadership cannot be pursued as long as they stay within Russian sovereign territory.
Another option falls under jurisdiction of the UN Security Council. In this instance, the Security Council could vote to create special tribunals. Since Russia is a permanent member of the Security Council and therefore has veto power, it is unlikely for this to occur.
The final option for prosecuting individual war crimes is under Jus Cogens or ‘customary international law’. Explained by Matthews, Jus Cogens is the “peer pressure of international law,” meaning that while certain actions may not be expressly prohibited by international law, if all other states are not doing it, then other states are also legally bound to not do so. Based on international norms, Jus Cogens allows for universal jurisdiction, meaning if someone or some state commits anything against Jus Cogens, then any state can prosecute them.
In the Ukraine War case, if Putin or any Russian leader were to visit another country which is under ICC jurisdiction, that country could arrest and prosecute them according to international customary law.
From a state-level of criminal responsibility, the court would have to prove Russia had an obligation under Jus Cogens law to not use force or commit crimes against humanity. Ukraine has already filed a claim under the International Court of Justice regarding alleged genocide in the Donbas and Donesk regions.
Gender-based violence adds an extra layer to human rights violations. The Rome Statute of the International Criminal Court, according to Reis, specifies sexual violence as crimes against humanity including rape and forced pregnancy. While clearly defined by international law, investigating sexual violence requires additional training as mandated by international guidelines to minimize added safety risks for survivors.
The complexities of international jurisdiction and avenues for prosecution make it difficult for swift legal action. On March 16, the United Nations issued an order demanding immediate suspension of Russian military operations and for both parties to refrain from engaging in antagonistic actions, according to Matthews. Realistically, there will be limited to no accountability taken on a state level, however any individual criminal legal proceedings could take upwards of two years with mixed results.
“My educated guess is that ICJ will say Russia violated international law and the genocide convention in various ways [but] the ICC probably cannot get jurisdiction over Putin or government leaders. There are political worries the court will punt it and defer,” said Matthews.
Reis maintains a similar position, explaining the ICC has limited capacities to prosecute those responsible for war crimes, so the actual perpetrators who commit the abuses are unlikely to face trial. For sexual violence crimes, Reis explains, historical precedent is limited.
“The International Criminal Court and its Prosecutors have been criticized in the past for failing to prioritize or address sexual violence adequately. This is likely improving, though these cases are hard to prosecute successfully.”
A path forward: initial UN findings
While faced with uncertainty on the ability for the International Criminal Court and International Court of Justice to prosecute those responsible, Ukraine recently received promising news.
On Sep. 23, the Independent International Commission of Inquiry on Ukraine concluded war crimes have been committed throughout the duration of the conflict. Documenting active violations of international law, the Commission outlined instances of “indiscriminate attacks, violations of personal integrity, including executions, torture and ill-treatment, and sexual and gender-based violence” against Ukranian civilans.
While not legally prosecutable, the report is a critical piece of supporting evidence for future legal processes. The Commission continues to investigate war crimes, in particular civilian executions, in 16 towns across Ukraine.
Ensuring the perpetrators of war crimes, sexual violence and crimes against humanity is a critical aspect of maintaining adherence to international law. The most important and immediate task ahead for Ukraine, however, will be to ensure victims are treated with the respect and dignity they deserve.
In an interview with NPR, Izium resident Hryhory Pruhodko, whose wife died in a Russian aerial assault, reflected on this immense responsibility for civilians and investigators alike.
“When you’re born, you’re given a name. These people need names when they die,” said Pruhodko.
