26 - Atrocities and Accountability: Russian War Crimes
When Russian war crimes in Ukraine are enumerated and perpetrators are eventually brought before judges in The Hague, the recently uncovered and thoroughly documented outrages in Bucha, Borodyanka, Yahidne, and other towns near Kyiv will be listed, one after another, on the charge sheet of our era. Photographs will depict civilians, their hands bound tightly behind them, shot with Russian bullets – some even from behind. Survivors, even children, will recount being raped by Russian soldiers vicariously. Other citizens will recall for the prosecutors how Russian soldiers shot indiscriminately into houses, how they bombed apartment blocks and playgrounds without excuse, and how the Russians took delight in strafing small gatherings of unarmed Ukrainians. The interceptions by Der Spiegel of Russians discussing exactly how they would kill civilians randomly constitute further evidence of war crimes.
On March 10, in the fourth post to this Newsletter, I wrote about “Putin, the War Criminal.” By launching “an all-out war against civilians,” I said, he and his army were engaged in a “devastating assault on humanity” that is explicitly prohibited by a series of century old international legal agreements and by their upgrading and adoption when the Rome Statute of 1998 established the International Criminal Court (ICC).
“The accepted definition of a war crime or a crime against humanity,” I wrote then, “includes the deliberate targeting for destruction of civilian populations, the willful killing of non-combatants, the causing of suffering among the same population, the destruction and seizure of property,” and so on. When the ICC started investigating Putin’s annexation of Crimea in 2014, its chief prosecutor said that torture, rape, and the illegal targeting of civilians had occurred back then, so Russian methods have not changed. The enormity of their barbarity has merely been displayed on a larger and more alarming canvas. And the stakes are much higher.
It is obvious to everyone on the ground in Ukraine, to President Biden and U.S. Secretary of State Antony Blinken, to French President Emmanuel Macron, to German Chancellor Olaf Sholz, to British Prime Minister Boris Johnson, to UN Secretary General Antonio Guterres, and to a host of other global leaders that Putin’s Russian marauders are war criminals. “The revulsion against what the Russian government is doing is palpable,” declared Blinken yesterday. The United Nations General Assembly ousted Russia from membership on the UN Human Rights Council by a vote of 93 to 24, with 58 countries (including Brazil, India, Mexico, and South Africa) abstaining.
But what kinds and how much evidence does the world need successfully to prosecute Putin and his Russian war commanders for such war crimes? What would the judges of the ICC, or a putative post-war new Nuremberg trial demand to declare the perpetrators guilty?
In order to secure an authoritative answer to those questions (admittedly well before the offenders are captured and brought before the bar of justice), I consulted Justice Richard Goldstone, chief prosecutor of the Serbians Radovan Karadzic and Ratko Mladic before the International Criminal Tribunal for the Former Yugoslavia, chief prosecutor of the International Criminal Tribunal for Rwanda, and former Justice of the Constitutional Court of South Africa. (His words are included here with his permission.)
“In the case of all war crimes (like others),” he wrote to me, “the issue is proving facts beyond a reasonable doubt. In the case of crimes against humanity one has to prove the intent to commit war crimes on a systematic basis against a civilian population. Thus the commission of crimes against Ukrainian civilians in a number of cities and regions is strong evidence of the systematic nature of the crimes and the likelihood that the criminal conduct follows from a policy set from above. That was the basis on which we successfully charged Karadzic and Mladic with crimes against humanity in 1995. With regard to genocide, as you know, there must proven the specific and special intent to destroy a people or part thereof. I doubt whether the facts thus far justify reaching that conclusion.”
A key word is obviously “systematic.” The more accumulated evidence there is of civilians having been violated, injured, and killed repeatedly, the easier it should be to prove systematic commission of crimes against humanity and intent (as Der Spiegel has now documented).
Since the signing of The Hague Convention of 1907, the deliberations of the Nuremberg jurists in 1948, and the founding of the ICC in 1998, those who are responsible for causing war crimes may be held responsible. “Willful killings…willfully causing great suffering” are prosecutable acts.
Justice Goldstone doubts, however, whether Putin and his generals could at this point be prosecuted successfully for offenses specified in the 1948 UN Convention on the Prevention and Punishment of Genocide. Intent to destroy a nation or an ethnic group must be demonstrated (as I wrote on March 10), and there must be the “deliberate” physical destruction of a nation or an ethnic group must have occurred. If the war in Ukraine’s east, and the obliteration of Kharkiv and Mariupol is completed, then Putin’s genocidal intent and results could be demonstrable. President Biden and others have already accused the Russians of genocide and of ethnic cleansing (which has no official legal definition). But, as Justice Goldstone says, in Ukraine war crimes are almost self-evident.
In order to investigate thoroughly and then to prosecute perpetrators of egregious war crimes we need to catch the culprits. How Putin and his chief collaborators are ever to be arrayed in that manner is obviously a major constraint. For twelve years the ICC has been trying to bring former President Omar al-Bashir of Sudan before it answer charges of genocide and other crimes in 2003-2008. The current military rulers of Sudan, some of whom were his accomplices, have jailed him themselves but refuse to send Bashir to The Hague. Many other tyrants and presumed war criminals are also loose or on the run; the ICC has only succeeded so far in imprisoning a smattering of mostly lower level offenders. A Sudanese is on trial now in The Hague, accused of mass killings in Darfur.
That there have been hideous war crimes committed in Ukraine is now obvious. That there will be many more indiscriminant Russian assaults on Ukrainians is likely. But how we are ultimately able hold Putin and his ilk to account for what they have done and what they will do, remains an answer for the future. A Damoclean sword now hangs over the heads of the Russian generals and their supreme leader. They should beware of a future accounting of every odious misdeed. And account we must, to ensure that malevolent autocrats can no longer pillage, kill, and run amok.
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PS: The inescapable irony is that Rafael Lemkin originated the term “genocide,” gave it meaning, shepherded and wrote the UN Convention, and studied law in what is now Lviv before emigrating to the U.S. He was born north of Lviv, in what became Belarus.
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