As Russia’s war against Ukraine drags on into a second month, the world watches in horror while Putin’s forces deliberately target Ukrainian civilians. At this point, there is little doubt that Russian troops have committed an array of atrocities which could 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 himself and possibly some of his colleagues to stand trial at the International Criminal Court (ICC) in The Hague.
Many actors are gearing up to make this happen. At the request of over forty countries, the ICC has opened an investigation into alleged atrocities in Ukraine, while the UN’s Human Rights Council (UNHRC) and the Organization for Security and Cooperation in Europe (OSCE) have both established missions to collect evidence. Eurojust, Europe’s agency for criminal justice cooperation, has announced its support for a joint Lithuanian-Polish-Ukrainian investigation team, which may be expanded to include other countries. In addition, members of the US House Permanent Select Committee on Intelligence have asked the Director of National Intelligence to prioritize documentation of Russian atrocities.
There is also a massive and increasingly formalized grassroots effort underway. Unprecedented media coverage of the war has made the issue of proof something of a moot point, since there has been extensive reporting on the conduct of Russian troops in Ukraine. As the war escalates, coordination is increasing. For example, the Associated Press and Frontline recently established a War Crimes Watch service with the explicit goal of “gathering, verifying and documenting evidence of potential war crimes in Ukraine.”
Social media is playing a critical role in bringing to light and archiving evidence, while Ukrainian NGO groups like Truth Hounds, who have been conducting fact-finding missions in eastern Ukraine since 2014, are ramping up their efforts.
These initiatives are critical, because without such documentation there can be no legal accountability. International war crimes trials matter because the guilty deserve to be punished and victims deserve to see this happen. They show would-be perpetrators that the world will not tolerate impunity. By recording exactly what happened, they also build a historical record that the international community can learn from. Finally, 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.
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There is an important caveat to the current discussions surrounding justice for Ukraine. Thus far, they have focused far too narrowly on criminal accountability for atrocity crimes. Victims strive for justice when they have been made to feel powerless. And so the question must be asked: what kind of justice will restore their sense of agency? Retribution through the punishment of perpetrators cannot fully give Ukrainians back a sense of justice. In order for Ukrainians to truly come to terms with what has happened, it is crucial to consider how to give them real recognition.
One concern is that criminal trials have important limitations. Trials in The Hague tend to be lengthy and complex, and are often quite controversial. Survivors can be left disenchanted by plea bargains along with 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. For those who are called to testify, it can be extremely challenging to recount their horrific experiences in a very 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 while it was meaningful for ordinary people to see perpetrators punished through the International Criminal Tribunal for the former Yugoslavia (ICTY), in other ways the institution fell far short. Perhaps most glaringly, despite being established in 1993, it failed to deter the July 1995 Srebrenica genocide. Nor did the court’s “historical record” succeed in undermining denialism and revisionism about such crimes, which persist in the Balkans today.
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These limitations may not matter much given that Putin is unlikely to physically appear in The Hague. Although the Soviet Union played an important role in the organization of the Nuremberg tribunals and prosecuting crimes of aggression in the aftermath of WWII, today’s Kremlin has shown little interest in holding the Russian military accountable for its conduct in other countries. It is wishful thinking to believe Moscow will cooperate in any way with the ICC. Given Russia’s nuclear status, the West lacks the kind of leverage it had in the former Yugoslavia to achieve the extradition of suspects.
Acknowledging these limitations at the outset is important in order to strategize how to make the justice process more robust and serve the needs of victims. Ukrainians deserve more than what The Hague alone can do, especially if they do not get to see Putin himself in the dock.
The current war has destroyed millions of lives and many people have lost everything. The ICC, for all its important work, cannot replace what has been lost and cannot heal collective trauma on this scale. Instead, the international community must push for a broader range of efforts. This should include reparations and apologies, special provisions for victims of gender-based violence and displaced persons, adequate and sustainable humanitarian assistance, and psychosocial support.
The role of civil society is crucial here and the international community must work hard to support Ukrainian “bottom-up” efforts even while institutions like the ICC work to impose justice from the top down. In other victimized communities around the world, survivors have done extraordinary work to exhume mass graves, determine the whereabouts of the disappeared, claim reparations, and share their stories of violence. The potential for ordinary Ukrainians to engage in these kinds of civil society efforts may ultimately be more empowering than watching proceedings in The Hague from afar, although both are, of course, complementary.
In order to ensure real justice for Ukraine, we must stretch the boundaries of how we think about justice itself. We must include a strong bottom-up component to any measure of justice and look beyond criminal accountability to the true reaffirmation of Ukrainians’ humanity.
Danielle Johnson holds a PhD in Politics from Oxford University and specializes in Russian and Ukrainian affairs.
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The views expressed in UkraineAlert are solely those of the authors and do not necessarily reflect the views of the Atlantic Council, its staff, or its supporters.
The Eurasia Center’s mission is to enhance transatlantic cooperation in promoting stability, democratic values and prosperity in Eurasia, from Eastern Europe and Turkey in the West to the Caucasus, Russia and Central Asia in the East.
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Image: Russian troops in Mariupol, Ukraine. March 31, 2022. REUTERS/Alexander Ermochenko