Russia was recently suspended from the United Nations human rights body as evidence emerged of war crimes perpetrated by Russian forces in Ukraine. The United Nations Human Rights Council’s decision was based on what it called “gross and systematic violations and abuses of human rights” in Russia’s war of aggression.
The resolution to suspend Russia received 93 votes in favour, 24 against, and 58 abstentions, including one from India.
Indisputable proof of Russian atrocities during the ongoing invasion of Ukraine, which is in its second month, emerged as Russian forces retreated from the city of Bucha.
As Ukrainian forces, first responders and international journalists moved into the city, they were greeted with throngs of the dead with their hands tied behind their backs, crudely dug and covered mass graves, and many dead hung from trees. Ukrainian ombudsman stated that other crimes like gang rape of a 14-year old girl and the rape of an 11-year boy, whose own mother was forced to watch the act, also occurred in the city.
As Ukrainian funeral services exhumed bodies, carefully collecting them for analysis and future prosecution, they stated that many of the bodies bore signs of torture and were shot in the head.
International media organisations like the Economist, Agence France Presse, CBS, Associated Press and others were first-hand witnesses to the atrocities left behind.
“Yesterday I returned from our city of Bucha, recently liberated from Russian troops not far from Kyiv. There is not a single crime that they would not commit there. The Russian military searched for and purposefully killed anyone who served our country,” said Ukrainian President Volodymyr Zelenskyy in his address to the UN Security Council after visiting Bucha.
“Women were raped and killed in front of their children. Their tongues were pulled out,” Zelenskyy said.
Over 400 dead civilians have been found in the region around Kyiv, which includes cities like Hostomel, Irpin and Bucha. Bucha’s mayor has said that 300 civilians were killed in Bucha alone.
Similar scenes were observed in the city of Borodyanka.
While Ukrainian citizens, authorities and spokespeople have highlighted the growing number of atrocities like the killing of civilians, mass rape, torture and abductions conducted by Russian forces, evidence had proven hard to collect due to the ongoing fighting in the cities.
The unearthing of the evidence prompted US President Joe Biden to state that Russian President Vladimir Putin should face war crime trials over his actions. “You may remember I got criticized for calling Putin a war criminal,” President Biden told reporters at the White House on Monday. “Well, the truth of the matter is, you saw what happened in Bucha. This warrants him — he is a war criminal. But we have to gather the information.”
“He (Putin) should be held accountable,” said President Biden.
What is a war crime and international crime?
A war crime trial is an international judicial proceeding against a person or multiple people, who have been accused of violating the international customs and laws surrounding the engagement of war or any conflict.
While it was generally understood that the atrocities committed by soldiers, officers and nations when at war were part and parcel of what constitutes a conflict, the only justice meted out was that by the victor.
Summary execution or imprisonment was often the choice of punishment. Over the course of the conflicts in the 19th and 20th centuries, the need for more formal mechanisms of determining what is and what is not morally acceptable during conflict was needed.
The Hague Conventions and the Geneva Conventions that were adopted through the late parts of the 19th century and the early parts of the 20th century formalised some of the very first important laws and customs surrounding war.
After WWII, the setting up of the Nuremberg Trials to prosecute the leaders of Nazi Germany and the International Military Tribunal for the Far East (IMTFE) to prosecute the leaders of Imperial Japan were established. The trials for the first time in recent history placed the onus of war and the atrocities on individuals instead of nation-states as a whole, and while criticized at the time, they were responsible for creating the sphere of international criminal law.
The crimes under international criminal law include genocide, war crimes, crimes against humanity, and the crime of aggression.
War crimes are defined based on certain principles of international humanitarian law – military necessity, distinction, proportionality, humanity, and honour. These principles along with the previous conventions, customs and laws like the Geneva Conventions were used to define what constitutes as war crimes in the Rome Statute of the International Criminal Court, the international treaty that established the permanent International Court of Justice.
The statute was ratified in 1998 and the ICC was established in 2002. Even though countries like India and China never ratified or signed the agreement, and countries like the US and Russia withdrew their participation later, the ICC has a wide jurisdiction for investigating and prosecuting war crimes, along with other international crimes.
Some war crimes include wilful killing, or causing great suffering or serious injury to body or health, torture or inhumane treatment, unlawful wanton destruction or appropriation of property, taking hostages, directing attacks against civilians, murder, cruel or degrading treatment and torture, rape, sexual slavery, forced prostitution or forced pregnancy.
Though Ukraine is not a state party to the Rome Statutes, it has accepted the jurisdiction of the ICC to conduct investigations into international crimes including war crimes on its soil. After receiving referrals from 39 state parties, ICC Prosecutor, Karim AA Khan QC had stated just days after the invasion of Ukraine began, that the office of the prosecution would begin investigating the situation in Ukraine.
While the ICC has the authority to persecute any individual, including a head of state, getting Putin, or even any other Russian who has been responsible for the atrocities to take the stand would be next to impossible. As the ICC cannot try anyone in absentia, a special tribunal made up of a select group of countries under a UN mandate may take the job of persecuting those responsible. But that too would face the added hurdle of Russia being a United Nations Security Council permanent member with a veto.
Is the war crime trial in Ukraine a farce?
While a war crime trial into the actions of Russian forces in Ukraine may not seem to amount to much, the investigation is critical to delegitimize the stand taken by Russia in this conflict. Additionally, the trial can serve as a crucial educational exercise to reveal to the world what truly is happening in Ukraine.
A successful trial may also drive away whatever allies Russia has, though a trial itself would take many years to resolve. Further investigation may also make Europe, and the countries trying to take advantage of cheap Russian oil, finally stop dealing with the country. A trial would also set the stage for a future Russian government to accept the blame of its soldiers and leaders if convicted.
But without the hammer of making Russia come to take the stand, the anvil of persecution means very little.
Especially for those millions of Ukrainians for whom the war crimes are not an intellectual debate but lived experiences for the past six weeks, and even the past 8 years. For them, a war crime trial may just be a validation of what they have gone through.