- By Chris Kremidas Courtney
Back in 1993, as Yugoslavia was collapsing and the world was gripped by the horrors of ethnic cleansing in Croatia and Bosnia and Herzegovina, the United Nations Security Council established a special International Criminal Tribunal for the former Yugoslavia. Located in The Hague, it was followed two years later by a sister tribunal in Arusha, Tanzania to judge crimes committed in the Hutu genocide against the Tutsis in Rwanda in 1994. Things were easier in those days when Russia, newly liberated from the shackles of the Soviet Union, was seeking to cooperate with the West, while China, anxious to join the global economy and attract inward investment, was happy to remain on the geopolitical sidelines.
Much scepticism greeted the establishment of the Yugoslav tribunal. It was seen as window dressing by NATO countries that had failed to foresee or prevent the violent collapse of Yugoslavia in 1991-1992, and which had subsequently refused to take military action early on to stop Belgrade from pursuing its vision of a Greater Serbia at the expense of its fellow Yugoslav republics. Few expected those responsible for war crimes, massacres, torture, sexual violence, deliberate targeting of civilians and other human rights abuses to ever face their day in court. After all, most bloodthirsty dictators and butcher military commanders in history had died comfortably in their beds and been lauded as national heroes.
The allied court established at Nuremberg in 1946 to try the Nazi leadership for its war of aggression and monumental crimes against humanity had focused on 19 leading figures, leaving the thousands of accomplices in the Nazi Party and the Wehrmacht to get on quietly with their lives. Moreover, many, and not only in Germany, felt that Soviet leaders and generals should also be in the dock for massacring thousands of Polish prisoners in the Katyn Forest or condoning mass rapes of German women as the Red Army swept across eastern Europe like a plague. Some argued that US and especially British politicians and air marshals should be held accountable too for the indiscriminate bombing of German cities in which an estimated 600,000 were killed. Nuremberg was a first experiment in trying to actually enforce the precepts of the international laws of armed conflict, The Hague and Geneva conventions, and international humanitarian law. Yet to many it came across as victors’ justice.
The increasing pace of indicted persons being rounded up and transferred manu militari to The Hague undoubtedly exerted a deterrent effect on other warlords
The Yugoslav tribunal set out to correct these failings and to give war crimes prosecutions a new credibility. Not just one national group or party to the Yugoslav conflict was more the focus of the tribunal’s attention but all were, even if they were perceived to be more the victims than the aggressors. Thus Croats, Bosnian Muslims and later Kosovar Albanians were all ensnared in the mechanisms of UN justice. Even today the Kosovo Specialist Chamber in The Hague continues to plan the trials of several former Kosovar leaders, including the ex-president and the speaker of the parliament, for acts committed during the Serb campaign of repression in Kosovo in 1998-1999. The Yugoslav tribunal laid down exacting rules for evidence and witness testimony to ensure that trials for war crimes would be fair and rigorous. Those indicted were given access to well-resourced defence teams and to the right of appeal.
Unlike at Nuremberg, where some Nazi leaders faced the death penalty, the Yugoslav tribunal handed down long prison sentences. Many appeals were held, although in some cases they simply resulted in longer prison sentences. Yet the Nuremberg principle of political responsibility for crimes committed by military officers and soldiers was upheld in The Hague. So along with generals, such as Ratko Mladić and Radislav Krstić, the civilian leaders of Serbia and the separatist Serb entity in Bosnia, Slobodan Milošević and Radovan Karadžić, went on trial in The Hague. All in all, the Yugoslav tribunal indicted 161 individuals from all the belligerent ethnic communities and the vast majority ended up in court; most to be convicted, some to be acquitted and a few, like Milošević, to die in their cells before a verdict on their cases could be reached. More importantly, the tribunal booked some notable legal breakthroughs: the first convictions for genocide and rape as war crimes and the prosecution of a head of state in the person of Milošević. The increasing pace of indicted persons being rounded up and transferred manu militari to The Hague undoubtedly exerted a deterrent effect on other warlords in the Western Balkans, notably in the ethnic conflict in North Macedonia in 2001-2002, which never degenerated into the mass violence witnessed in Bosnia and Kosovo.
The sceptics were thus confounded as the Yugoslav tribunal’s success demonstrated that war criminals could not escape with impunity, even if in the case of major figures such as the Serbs, Karadžić and Mladić, and the Croat, Ante Gotovina, it took several years before they were tracked down and arrested. Yet there were particular factors behind the tribunal’s success. One was the presence of NATO forces on the ground in Bosnia and Kosovo, which allowed military snatch operations to be carried out against indicted war criminals. Another was that countries, such as Croatia, Serbia and Bosnia, were susceptible to Western pressure and a strong link was made between Western political and economic support and their full cooperation with The Hague. It was remarkable that Gotovina, indicted for ethnic cleansing during the Croat forces’ Operation Storm in Krajina in the summer of 1995, was on the run for years, aided and abetted by the Croatian intelligence services, until Zagreb gave away his location to the Spanish police shortly before Croatia’s accession to the European Union in 2013. Finally,the Yugoslav tribunal was the child of a more promising, optimistic time. The Cold War was over and with it great power tensions and rivalries.
They are not spontaneous spasms of violence committed by small groups of rogue soldiers
Humanitarian interventions in the Western Balkans were seen as heralding a new doctrine of the Responsibility to Protect (R2P), a norm ultimately endorsed by the UN General Assembly in 2005. It stripped sovereignty away from regimes that committed gross human rights abuses against their own populations and legitimated NATO or coalitions of the willing to intervene to put a stop to the violence. R2P reached its apogee in 2011 when NATO, with the backing of the UN Security Council and the Arab League, launched an air campaign against the Gaddafi regime in Libya to stop Gaddafi’s forces carrying out massacres in Benghazi. Successful prosecutions of indicted war criminals were the essential corollary of these interventions. They served as a post facto justification for breaking with the doctrine of non-interference in the domestic affairs of sovereign states that dates back to the 1648 Treaty of Westphalia. International law seemed to be shifting from the rights of states to the rights of groups and individuals. The protection of these rights would henceforth be the responsibility of the International Criminal Court (ICC), a permanent institution established in The Hague under the Rome Statute of 2002.
The Yugoslav precedent has now encouraged many Western governments and human rights advocates to hope that Putin and his regime can also one day be brought to justice for the mounting toll of war crimes carried out by Russian forces in Ukraine. The brutality of the Russian actions against Ukrainian civilians and civilian infrastructure, the unpunished actions of Assad in Syria or the putschist generals in Myanmar demonstrate that war crimes trials up to now have regrettably not had the deterrent effect that we hoped for. However, there is still a sense that human rights abuses on this scale cannot go unanswered. After all, they are not spontaneous spasms of violence committed by small groups of rogue soldiers.
The systematic executions of civilians in towns such as Bucha, where alone over 600 corpses have been recovered thus far, the killing of pregnant women, hostage-taking of civilians, forced transfers of evacuees to Russia, attempts to hide the evidence of atrocities as in Mariupol, the deliberate targeting of residential buildings and homes, as well as the use of banned munitions such as cluster bombs in urban areas, result from the strategy and decisions of Russia’s military leadership. They demonstrate that the army of one of the world’s leading powers, and a permanent member of the UN Security Council, has degenerated into a rotten army, subject to no constraining rules of engagement and wilfully flouting the laws of armed conflict. Russian soldiers have looted the personal belongings of Ukrainian civilians, stealing jewellery, cars and domestic appliances such as washing machines and dishwashers like criminal street gangs. In a grotesque act, Putin awarded the unit involved in the Bucha atrocities, the 64th Brigade, with a decoration for ‘heroism’ on 19 April. This is an army that is increasingly dependent on mercenaries, such as the Wagner Group, often drawing on criminals and undisciplined guns for hire, and fighters from Chechnya, Syria and Libya. In Ukraine, Georgia, Moldova and Chechnya, the Russians also rely on separatist or allied militias that are not subject to centralised command and control and often follow different rules of engagement, where these exist at all. Riven by poor morale, inadequate training and weak leadership, the Russian army falls massively short of the professional standards of conduct that we would expect of a national armed force. The Prosecutor General of Ukraine, Iryna Venediktova, last week announced that she was investigating 8,600 individual cases of possible war crimes carried out by Russian forces in Ukraine. Her office is currently focusing on 500 individuals. She also announced the filing of criminal charges against 10 Russian soldiers for killings in Bucha – no doubt the first of many in coming weeks.
The European Commission has promised to strengthen Eurojust to help it to take on this task
Western countries have swung behind Ukraine in their desire to hold Putin and his regime to account. The Chief Prosecutor of the ICC, Karim Khan, has received requests from 43 countries to open an investigation. He is sending an ICC investigation team to Ukraine to gather evidence and last week announced that the ICC had signed an agreement with the team established by Poland, Lithuania and Ukraine to conduct a joint investigation, marking the first time that the ICC has formed this type of partnership. This team is supported by Eurojust, which has opened a common platform for the collection of materials, testimony and evidence. The European Commission has promised to strengthen Eurojust to help it to take on this task. So far, the United States, Canada and nine European countries have launched probes into possible Russian war crimes in Ukraine and set up national databases to collect witness testimony, photographic evidence, social media postings and intercepted communications of Russian soldiers involved in human rights abuses or seeking to hide the evidence. These materials can be passed to Eurojust for correlation and integration so that, like pieces of a jigsaw puzzle, a comprehensive and irrefutable picture of events can be formed over time.
In New York last week, the UN Security Council met informally at the request of Albania and France. It heard from Khan and Venediktova, but also from the Norwegian judge, Erik Møse, who chairs the Commission of Enquiry of the UN Human Rights Council. The UN General Assembly recently voted to suspend Russia’s membership of the Council due to its abuses in Ukraine. Judge Møse promised that his Commission would carry out a fully independent investigation. The head of the Human Rights Council, Michelle Bachelet, reported that the official statistic for civilian deaths in Ukraine thus far is 2,787; but this is manifestly a massive underestimate. The Ukrainian authorities believe that as many as 20,000 civilians may have died in the siege of Mariupol alone.
At the UN Security Council session were also the new US Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack, and the high-profile lawyer, Amal Clooney, representing the Clooney Foundation for Justice. Clooney made the forceful argument that it will be all too easy for the UN to carry out investigations and collect evidence for years but never proceed to indictments and sentences. This, she added, “must not be allowed to happen”. The UK and French representatives said that their governments would donate money to the ICC and would send expert police and forensic teams to Ukraine to help the ICC with its investigation. The Netherlands, which has considerable experience of investigating the Russian military after the shooting down of a Malaysian Airlines plane over the Donbas in July 2014, is also sending a military police team. UK Foreign Secretary Liz Truss is to travel to The Hague this week to meet with the President of the ICC, Judge Piotr Hofmanski.
There is obviously a script of master messages here that they are all constrained to follow
All this activity by the Western allies is admirable in mobilising horsepower and a sense of urgency and perseverance behind the war crimes effort. Yet the campaign is already coming up against the formidable Russian propaganda effort and its war against truth. At the same UN Security Council meeting was the Legal Adviser to the Russian UN mission, Sergy Leonidchenko; it used to be said that “a diplomat is a good man who is sent abroad to lie for his country”. Whether out of fear, cynicism or opportunism, and whether he is at heart a good man or not, Leonidchenko repeated the well-known playbook of the Kremlin’s disinformation strategy that so many other Russian diplomats have parroted word for word. There is obviously a script of master messages here that they are all constrained to follow.
Leonidchenko said that accusations of Russian war crimes were “fakes seasoned with lies, hypocrisy and pompous rhetoric”. He accused Ukraine of staging civilian casualties by using actors and fake props and settings. This goes back to the bombing of the maternity hospital in Mariupol at the end of March when Russian TV and social media propagandists produced fake witnesses, denials of Russian bombardment and pictures of another maternity hospital (Number One) elsewhere in the city to discredit the pictures on Instagram of a bloodstained pregnant Ukrainian woman, Marianna, being escorted from the hospital rubble on a stretcher. Marianna subsequently died but Russian state TV even produced a fake Marianna in their attempt to portray the hospital bombing as a hoax. Similar accusations of manufactured propaganda were made by Russia against Ukraine after numerous bodies of local civilians were discovered strewn across the streets in the town of Bucha. Moscow tried to produce its ‘evidence’ to show that the corpses were not there before Russian forces evacuated the city. Thankfully the satellite images of Maxar Technologies were once again on hand to expose Russia’s operations linked to accurate datelines. The images clearly showed the corpses in exactly the same locations with the Russian forces still occupying the city.
Yet Russia’s war against truth will only accelerate as its war against Ukraine continues and evidence of war crimes mounts. Moscow will pull out all the stops to construct its counter-narrative, attacking all those who report war crimes on Telegram and Instagram in order to undermine their credibility and intimidate them, and muddying the waters by alleging Ukrainian war crimes. At the UN Security Council meeting, Leonidchenko announced that Russia will convene an informal Council meeting on 6 May to present its own ‘facts’ and ‘evidence’. Given the forensic abilities of trained international investigators to get at the truth, Russia’s disinformation is unlikely to convince many people, but that is not the Kremlin’s target audience. At the UN Security Council, the usual fence-sitters were in evidence: China, Mexico, Ghana, Gabon, Brazil, India, Kenya and the United Arab Emirates. They all adopted a low profile and said that they would wait and see for the facts to be established before taking a position.
The democracies must not be content with condemnations, threats and noble declarations of intent
The Kremlin is even more concerned to keep tight control of its domestic public opinion. Russians recently interviewed at random by the BBC clearly had imbibed all the disinformation on state TV and could not believe that their own brave soldiers could have committed abuses. This is not to say that they accepted every distorted detail or incredulous angle of the Kremlin’s version of events at face value, but they were not willing or able to challenge the overall Kremlin line of a ‘special military operation’ directed at Ukrainian Nazis. It will obviously take a long time before Russians are willing to do what Germans – or to a lesser extent Japanese, Serbs or Turks – have been obliged to do after launching wars of aggression and and confront the realities and consequences of their own crimes against humanity.
So bringing the Putin regime to justice will no doubt be a long and winding road. Putin, like so many dictators before him, will be counting on Realpolitik and his central role as future peace negotiator to get himself and his regime off the hook. He will think that only the leaders of weak, small and divided states are vulnerable to war crimes prosecutions. He will count on the international community running out of patience or being content with some low-level prosecutions of colonels and sergeants to show some reward for all its efforts. He will present war crimes trials as a Western vendetta against him and further evidence that the West hates Russia and its people and culture – all as proof that his war in Ukraine was a defensive war against an arrogant NATO rather than a Russian violation of the UN Charter and of universal human rights and standards. So, as Amal Clooney rightly points out, the democracies must not be content with condemnations, threats and noble declarations of intent. They need a strategy to ensure that the Russians responsible do not escape justice. What should this strategy be?
In the first place, a special UN tribunal for Ukraine war crimes needs to be established as soon as possible. There is no sense in seeking a vote in the Security Council as Russia (and China) will no doubt veto any resolution in this connection. Other Security Council members may well vote against a resolution too, as their leaders will fear the creation of more specialist tribunals; one has also been established for Sierra Leone. So the best course will be to seek a majority vote in the General Assembly as part of the effort to revalue its role. Given the extent and duration of Russia’s invasion of Ukraine and the large number of crimes and implicated individuals, it makes sense to strive for a specialist chamber that will not have its cases entangled in all the others that are being processed currently by the ICC, such as those of Omar al-Bashir of Sudan, Joseph Kony of Uganda or Saif al-Islam Gaddafi of Libya. Setting up the Ukraine tribunal quickly and nominating a president, chief prosecutor, judges and a dedicated investigative team will help to establish momentum and serve as a focal point where evidence can be gathered and correlated. It will demonstrate to wannabe war criminals that the wheels of justice are turning. The sequestered funds of Russian oligarchs and the Russian Central Bank can be used to finance the tribunal’s establishment and operations. Countries can volunteer already to host those convicted in their prisons.
It will be difficult for its investigators in the near future to access those parts of Ukraine controlled by Russia and its separatist proxies
In second place, the new tribunal needs to proceed rapidly to indictments. Public opinion, outraged by frequent media reporting of atrocities, will understandably be expecting indictments against Putin, Foreign Minister Sergey Lavrov, Defence Minister Sergei Shoigu, national security adviser, Patrushev, and other leading luminaries of the Russian aggression against Ukraine. They certainly bear the political responsibility for launching this unprovoked and unjustified war. Yet tying them directly to war crimes through a single chain of command may prove difficult and protracted. So there is nothing wrong in starting with the low hanging fruit: the Russian unit commanders in Ukraine, who either directly authorised the killings in Bucha or carried out missile strikes against civilian targets, or did not take action to stop them and put the perpetrators under court martial. Going from bottom to top was what the Yugoslav Tribunal did at the beginning. It was an effective tactic as it allowed the Tribunal to get up and running by prosecuting the camp guards and the platoon sergeants while it was still gathering evidence to make a case against the big fish in the army command and the political leadership. The early cases also helped to build a more complete and accurate picture of the responsibility of the big fish as well, facilitating their indictments at a later stage.
Of course, a problem with a Ukraine tribunal is that it will be difficult for its investigators in the near future to access those parts of Ukraine controlled by Russia and its separatist proxies. This may mean that vital evidence in places like Mariupol is destroyed or left untapped. An even more significant challenge is to arrest the persons indicted for war crimes and bring them in handcuffs to The Hague. No doubt they will all take refuge back home in Russia and rely on the Putin regime to shield them, as Moscow has done for its intelligence agents sent to carry out chemical weapons attacks and targeted assassinations in Europe. A tribunal without defendants in the dock and trying indictees only in absentia could well lose political and public interest, even if the trials help to set the record straight on what incontestably happened during the Russian invasion. So Western governments and the tribunal officials need to start thinking now on how to pressure Russia to hand over its indicted war criminals.
This could be tied to the unfreezing of state financial or oligarch assets or the conditional lifting of sanctions. Russia’s re-admission to the UN Human Rights Council, the Council of Europe, the NATO-Russia Council or G8 could be linked to Moscow accepting the tribunal’s jurisdiction. The extended families of those indicted could be subject to travel bans and asset freezes, putting further pressure on the indictees to hand themselves in voluntarily to The Hague. Russia has agreed to extradite to the US cybercriminals sought by the FBI and the Department of Justice in the past. Moscow may well be more willing to hand over the Donbas separatists, Chechen or Syrian fighters and Wagner mercenaries. An international system of surveillance will need to be set up via Interpol and Europol and other police authorities to ensure that persons on the tribunal list are arrested and transferred to The Hague as soon as they leave Russia. Of course, full cooperation with the tribunal will have to await the end of the Putin regime and the advent of a more moderate Russian government, as happened with the fall of Milosšević in Serbia or of Tudjman in Croatia after the Yugoslav Wars. So we will need to be patient and play the long game. The tribunal should have no finite duration and no statute of limitation on its proceedings.
“Nothing will ever be attempted if all possible objections must first be overcome”
Third, Western politicians need to stay the course in raising the war crimes issue in public and in making it clear that they will not cave in to Russian pressures to abandon the tribunal. This will mean keeping up the fight against Russia’s disinformation campaign to discredit the tribunal, or the ICC if it continues to have responsibility for this dossier. Western negotiators must not offer Russia’s leaders immunity from prosecution in exchange for political or military concessions in Ukraine, and they should refuse to meet with Russian military and civilian leaders or officials who are indicted following a due process by an international or national court. Some countries follow the principle of universal jurisdiction. Germany is one, which has enabled it recently to prosecute a torturer serving the Assad regime in Syria. Western governments must not only support the tribunal and make sure it is adequately resourced but also take care that it does not come across as an essentially Western institution seeking revenge on Moscow. As mentioned earlier, that will only play to the Kremlin’s well–honed narrative of a struggle between Western and traditional Russian values. So appointing judges from the wider world and establishing a proper appeals procedure will help to buttress the tribunal’s credibility beyond the Euro-Atlantic community.
If Ukrainians are ever to live side by side with Russians again in any conceivable timeframe, then closure on the war crimes issue will be a political as well as moral imperative. Trials will establish the guilt of individuals and political and military hierarchies rather than entire peoples or ethnic groups. They will also test the applicability of notions such as ‘genocide’ or ‘crimes against humanity’, which are understandably evoked frequently in the sense of outrage engendered by Putin’s invasion. The Canadian parliament, for instance, has just passed a motion calling Russia’s actions ‘genocide’; this label has a precise legal meaning. The trials in establishing the exact crime can then determine the appropriate punishment, thereby reinforcing the international jurisprudence on war crimes and setting internationally consistent standards for future such trials in the ICC or specialist tribunals.
For all these reasons, the US and its allies working in a group of friends of the tribunal have to prepare for the long haul. There will be many doubts that war crimes prosecutions against a country of the size and weight of Russia can ever be realistic. Yet as the American author, Nathan Cummings, liked to point out: “Nothing will ever be attempted if all possible objections must first be overcome.” Justice postponed must not be justice deferred. That is the only way to ensure that the countless innocent victims of the Ukraine war, whose lives were either cut short or ruined due to Putin’s wicked and reckless actions, have some meaning in their sacrifice.
- By Juraj Majcin & Xavier Bento
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