Empower Ukrainian people with a role in the prosecution of war crimes.
Author: Guido Baratta | Image: Humankind
As Russia's aggression against Ukraine carries into a second month, the world watches in horror while Putin's forces deliberately target Ukrainian civilians. There is little doubt that Russian troops have committed many atrocities that could easily result in legal charges of genocide, war crimes, and crimes against humanity. Unsurprisingly, some leading voices in the international community have already called for Putin and his colleagues to stand trial at the Hague tribunal.
At the request of over 40 countries, ICC has opened an investigation into alleged atrocities in Ukraine. Many organizations around the world are gearing up to make this happen. The UN's Human Rights Council (UNHRC) and Organization for Security and Cooperation in Europe (OSCE) have established missions to collect evidence. Eurojust is also on-board with a joint Lithuanian-Polish Ukrainian team that may be expanded if need be.
The unprecedented media coverage has made it clear that there's been extensive reporting about how Russian troops in Ukraine have behaved since the war broke out. There is also a massive and increasingly formalized grassroots effort underway. Additionally, members of the US House Permanent Select Committee on Intelligence have asked the Director of National Intelligence to prioritize documentation of Russian atrocities. Social media has been playing an essential role in archiving this evidence. With the escalation of the war, those coordinations are increasing. For example, Associated Press and Frontline recently established a War Crimes Watch service to gather and verify the evidence of potential war crimes in Ukraine. The NGO groups that have been conducting fact-finding missions in Eastern Ukraine since 2014 are also increasing their efforts in the same direction as well.
These initiatives are critical because there can be no legal accountability without such documentation. Victims deserve to see this happen sooner as they show would-be perpetrators that the world will not tolerate impunity and will continue to find new ways to collect the necessary data. In addition to that, since Putin himself appropriated the language of atrocities to justify his invasion, shining a light on these lies in an international courtroom helps combat Russian misinformation.
However, one concern is that criminal trials have significant limitations. Trials in The Hague tend to be lengthy and complex and are often quite controversial. Survivors can be left disenchanted by plea bargains and sentences that seem too short. Perpetrators often seek to use the world stage for self-aggrandizement. There is also the potential for re-traumatization of survivors as they watch images of the war splashed again across the international media. It can be highly challenging for those called to testify to recount their horrific experiences in a public courtroom.
Furthermore, such trials are not always effective in reaching the goals they set out to achieve. For example, research from Serbia, Kosovo, Croatia, and Bosnia-Herzegovina has suggested that the institution fell far short of seeing perpetrators punished through the International Criminal Tribunal, Nor did the court's "historical record" succeed in undermining denialism and revisionism about such crimes, which persist in the Balkans today. The limitations of prosecuting crimes against humanity in the international criminal court may not matter much, given that it is unlikely for Vladimir Putin to physically appear in The Hague. Even though the Soviet Union was essential for organizing Nuremberg tribunals and prosecuting crimes of aggression after World War II, today's Kremlin has shown very little interest in holding its military accountable for their conduct abroad.
The current war has destroyed millions of lives, and many people have lost everything. The ICC cannot replace what has been lost and cannot heal collective trauma on this scale for all its critical work. Instead, the international community must push for a broader range of efforts that include reparations, apologies to victims displaced by violence or refugees (providing provisions for those subject to gender-based violence), adequate humanitarian assistance with sustainability in mind, and psychosocial support.
Civil society is an essential element in this process, and the international community must work hard to support Ukrainian efforts even while institutions like the ICC work to impose justice from the top down. In other victimized communities worldwide, survivors have done an extraordinary job to exhume mass graves, determine where they go missing children whereabouts, claiming reparations, and sharing their stories of violence. The potential for ordinary Ukrainians to engage in civil society efforts may ultimately be more empowering than watching proceedings at The Hague from afar, although both are complementary.
In conclusion, in order to ensure true justice for Ukraine, we must stretch the boundaries of how we define it. We should include a robust bottom-up component in any measure of justice and look beyond criminal accountability to reaffirm Ukrainians' humanity.
