When Russian forces seized Crimea in 2014, paving the way for President Vladimir Putin’s annexation of the Ukrainian peninsula, a large number of world leaders and international organizations condemned the invasion as illegal. But Putin and other senior Russian officials were never prosecuted in any court of international law for the crime of aggression: the use of armed force against another country without defensive necessity.
Eight years later, Russia did it again, invading mainland Ukraine in February. Last week, Putin declared the annexation of four regions over which his forces have partial control. The invasion and the recent annexation are illegal under international law — as was the invasion and annexation of Crimea in 2014. These actions threaten not only Ukraine but also the principles of sovereignty and territorial integrity that form the basis for the peaceful coexistence of nations. Yet whether these acts of aggression will be prosecuted this time around remains in question. That’s because prosecuting the crime of aggression would not put a lowly soldier or mid-level officer on the stand, but Russia’s highest ranking military and political officials, all the way to Putin himself.
Over the last eight months, evidence of war crimes and crimes against humanity by Russian forces has piled up. Some officials, including U.S. President Joe Biden, have gone as far as to call Russia’s actions in Ukraine “genocide” — a claim some experts have disputed. Investigations into these alleged crimes are well underway, by Ukrainian prosecutors, foreign countries, international organizations, and the International Criminal Court, among others. But whether anyone will prosecute those chiefly responsible for the aggression itself, and under which jurisdiction, is still unclear.
“It’s a question on everyone’s mind,” said Nathaniel Raymond, a human rights investigator who is analyzing evidence of Russian atrocities in Ukraine as part of a Yale School of Public Health initiative supported by the U.S. State Department. “What is more important? Is it catching the colonel-level in charge of the artillery assault on Mariupol, or is it Putin?”
“None of this would be happening if Russia had not invaded,” echoed Philippe Sands, a prominent international law specialist. “The danger that we face is that in five years’ time, we will have three or four trials of low-grade, useless sorts of characters that are totally irrelevant, and the top people just get off scot-free.”
The International Criminal Court’s involvement in Ukraine has garnered the support of countries long hostile to the court, including the United States, which — like Russia and Ukraine — is not a member party of the ICC. Dozens of countries have pledged support and some $20 million for the court’s effort in Ukraine. While little is known about the scope of the ICC’s investigation, the court has jurisdiction over war crimes and crimes against humanity but cannot prosecute the crime of aggression against nationals of a nonmember state or without a referral from the United Nations Security Council. Russia, which holds veto power on the council, would certainly stand in the way.
But other countries, including the U.S., may also not look favorably on the prospect of prosecuting Putin for the crime of aggression, for fear of setting a precedent that could boomerang against them.
“The big elephant in the room in Ukraine is Iraq.”
“They don’t want to deal with the crime of aggression because they know that if it’s used against Russia, a permanent member of the Security Council, today, it might be used against them tomorrow,” said Sands. “The big elephant in the room in Ukraine is Iraq, which was also a manifestly illegal war and produced a very different response in Britain and in the United States.”
In practice, that renders the ICC powerless to prosecute the crime that many Ukrainians and observers argue has enabled all others. “The crime of aggression is the mother crime. If there wasn’t this unprovoked war and aggression, there would be no further crimes, no war crimes, or crimes against humanity,” Tetiana Pechonchyk, head of the Ukrainian human rights group Zmina, told The Intercept. “But in the existing framework of the international accountability mechanism, there is no accountability for the crime of aggression.”
A Leadership Crime
In the current context, there is no international body with the authority to hold individual perpetrators criminally responsible for the crime of aggression in Ukraine. The International Court of Justice, the official court of the U.N., handles disputes between states, rather than individuals, and Russia has ignored the court’s rulings in the past. That’s why Ukrainian authorities have intensified calls for a special tribunal to prosecute Russian aggression. They have long been supported by dozens of Ukrainian civil society groups, and by a growing chorus of international experts, who have drafted proposals outlining what that tribunal might look like.
“We need to have a real focus on individuals at the higher military and political echelons,” Wayne Jordash, an international humanitarian law attorney with years of experience in international courts and tribunals, told The Intercept.
The crime of aggression is a “leadership crime,” Sands agreed. “It’s the only crime that takes us straight to the top table: the decision-makers, the people who participated in the decision to launch the war. We’re talking about 20 people max, and the proof is very straightforward.”
A handful of countries have so far voiced their support for such a tribunal, and Ukrainian officials have been lobbying to get more on board. The body could be established through the U.N. — with a vote in the General Assembly, which consists of all members of the U.N., authorizing the secretary-general to work with Ukrainian authorities to set up a special tribunal. In March, 140 nations voted in favor of a resolution denouncing Russian “aggression,” theoretically paving the way for more concrete action. Or the tribunal could be established through a regional framework at the European level. So far, a number of resolutions, including from the European Parliament and the Council of Europe, have backed the establishment of a special tribunal, but broader political consensus is needed to translate those statements into action.
Unlike the prosecution of war crimes and crimes against humanity, which is based on the review of expansive amounts of evidence and witness testimony and can take years to complete, the crime of aggression is, technically speaking, a relatively quick one for building a case. “The crime of aggression is obvious; the evidence is on the surface,” said Pechonchyk, the Ukrainian human rights activist. “The process would be quick, but we need the consensus, and we need the resources.”
Still, prosecuting the crime of aggression is an untested endeavor — as well as potentially a politically unpopular one. Since the time of the Nuremberg Trials and Tokyo War Crimes Trial after World War II, when aggression was known as “crimes against peace,” there’s been no attempt by an international body to prosecute it.
There have, of course, been instances of aggression. As the United States and its allies prepared to invade Iraq in 2003, a number of international bodies denounced them. The International Commission of Jurists expressed “its deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression,” and U.N. Secretary-General Kofi Annan later called the invasion “illegal” and a violation of the U.N. charter.
But there were no international mechanisms in place with the jurisdiction to prosecute the leaders of that invasion — and even less political appetite for attempting to create them. As the war in Iraq continued, leading to widespread abuses and killings that had the hallmarks of war crimes, calls to hold accountable those responsible, including President George W. Bush and British Prime Minister Tony Blair, were mostly relegated to activist and anti-war circles. Prosecuting some prominent figures today over the crime of aggression when others were not prosecuted in the past would inevitably raise legitimate questions of consistency and bias. But experts argue that reversing the pattern of nonprosecution is more important than ever, to set a precedent that could help deter future aggression.
“It’s a crime invented in ’45 that has had a long shelf life. … My feeling is that if this is not prosecuted as a crime of aggression, then the crime of aggression is basically dead,” said Sands. “I don’t for a moment want to understate the horrors of Bucha and Mariupol. Of course they must be investigated, and the people who perpetrated them must be found and subjected to some form of justice, absolutely. But that’s a sideshow. There’s only one real issue, and that is the small cast of characters and the finances that supported this war.”
A Special Tribunal?
Details about what a special tribunal would look like, under whose mandate it would operate, and which other crimes it would tackle are unclear at the moment. It’s also unclear whether the tribunal would replace ongoing local and international investigations, or work alongside them.
Some experts have argued that existing courts and mechanisms should be fully supported before new ones are set up. The U.S. and its key Western allies have hesitated to take a position.
A spokesperson for the State Department wrote in an email to The Intercept that the administration is “carefully reviewing a proposal for a special tribunal.” The spokesperson added, “We are absolutely committed to bringing those who are responsible to justice.”
A spokesperson for the U.K. Foreign Office did not address questions about British support for a special tribunal, emphasizing instead support for war crimes investigations. The spokesperson referred The Intercept to a statement made by Foreign Secretary James Cleverly at a recent meeting of the U.N. Security Council. “We must make clear to President Putin that his attack on the Ukrainian people must stop, that there can be no impunity for those perpetrating atrocities and that he must withdraw from Ukraine and restore regional and global stability,” Cleverly said then.
A spokesperson for the French Embassy in Washington, responding to questions about the potential of a special tribunal, referred The Intercept to a recent statement of support for the ICC, “the only permanent criminal court that is universal in scope.” The statement noted that support for the ICC came in addition to support for “Ukrainian courts.” And a spokesperson for the German Embassy in Washington wrote to The Intercept, “We support the investigations of the ICC chief investigator politically, financially and with experts.”
The prospect of a special tribunal has particularly raised the concern of the ICC’s prosecutor general, Karim Khan, who has been struggling to restore the court’s legitimacy after years of criticism — most notably, that the court for a long time only prosecuted Africans. In more recent years, the court has launched a number of new inquiries, including into alleged Israeli crimes in Palestine and British crimes in Iraq. (The U.K. is a founding member of the ICC, which gave the court jurisdictions in this case, but because neither Iraq nor the U.S. are members, the court couldn’t investigate U.S. crimes there.) Both those investigations have faced fierce opposition, contributing to a perception that the ICC cannot take on the world’s most powerful countries. As The Intercept previously reported, the U.S. also went to great lengths to derail an ICC investigation of its crimes and those committed by its allies in Afghanistan, further contributing to that view.
“The ICC prosecutor is fighting a battle to be relevant and effective and show that ICC prosecution is a viable investigative and prosecutorial model of operating in light of its long history of not being those things,” said Jordash, the humanitarian law attorney, adding that regional tribunals tend to redirect resources from other accountability processes, including local prosecutions and truth and reconciliation initiatives. “A new tribunal obviously would overlap with any investigations by the ICC prosecutor. … There’s a risk that if that’s not explained properly, that funding will suddenly float to the new court, and the energy that the ICC prosecutor needs will be sort of depleted.” As Sands noted, “He’s worried it will distract and take attention away and take money away.”
A spokesperson for the ICC prosecutor did not respond to a request for comment.
Photos: NurPhoto via Getty Images
A Lot of Noise
The ICC first opened an inquiry in Ukraine in 2014, after receiving permission from Ukrainian authorities to do so. It formally launched an expanded investigation this year. So far, little detail is available about the focus of the court’s work in Ukraine, and others engaged in similar efforts, like a multicountry, joint investigation team, have also revealed little about their investigations.
“I think there’s a lot of noise, and not that much has been translated yet into discernible action on the ground in Ukraine, or translated into real support for the Ukrainian prosecution,” said Jordash. “Despite a lot of the rhetoric that we hear from both international actors and also some national actors, they’re at the very beginning. Building viable cases against those further from the ground and up the chain of command in the political and military sphere really hasn’t begun in earnest yet. … Frankly, I think there’s a sort of lack of understanding as to the need, and how to do that.”
Regional prosecutors in Ukraine have struggled to tackle the overwhelming amount of evidence they and others are gathering. In Bucha, when Russian forces first retreated, local police found themselves handling evidence of mass torture and killings. Six months ago, Ukraine had no forensic teams specialized in mass graves, said Raymond, the human rights investigator. “We are looking at a retrofit, in the middle of a war, of an entire law enforcement community.”
That’s where the international community comes in. The investigation and prosecution of war crimes is a highly specialized area of expertise. Successful documentation and prosecution is a complex endeavor that requires the coordination of a number of players, noted Jordash. “You need the effective collaboration of civil society, professional investigators at the local level, and international experts. … Instead of the frenzied documentation, which is what we have now, what we need is to see more collaboration and more openness and more cooperation.”
Horror in Izium
When Ukrainian soldiers wrestled back control of the eastern city of Izium in September, they found a devastated city and hundreds of dead bodies, including more than 440 in a mass grave.
The scale of the horror was even greater than already shocking evidence that had emerged when Russian troops retreated from other parts of the country months earlier. “This tragedy is even worse than the tragedy in Bucha,” said Anton Gerashchenko, an adviser to Ukraine’s minister of internal affairs, referring to the city near Kyiv that up until the Izium discovery was the emblem for atrocities perpetrated by Russian forces. Many quickly pointed to more horrors likely to remain undiscovered, in cities and villages that are still under Russian control.
As dozens of Ukrainian investigators, dressed in hospital gowns and carrying shovels, began to exhume the desiccated bodies, questions that for months had preoccupied Ukrainian and foreign officials, as well as local and international human rights groups, came to the forefront once again: What would justice for the dead in Izium and their loved ones look like? How would both those materially responsible and those who gave them orders be held accountable? And whose job was it to deliver that justice?
Ukraine’s prosecutor general, faced with the enormous task of documenting the abuses in the midst of an active conflict, said last month that his office had gathered evidence of more than 34,000 potential war crimes — a colossal figure no law enforcement authority can realistically be expected to fully investigate, let alone prosecute. While some experts caution that not all those crimes may meet the legal definition of war crime, they recognized the scale of the evidence is staggering.
Alongside Ukrainian officials, the gathering of evidence and testimony has been conducted by several local civil society groups, international human rights organizations with teams on the ground, and a growing number of open source intelligence groups documenting the abuses remotely. Several countries have launched their own investigations, primarily relying on interviews with Ukrainian refugees within their borders. Additionally, monitors with the Organization for Security and Co-operation in Europe, or OSCE, have documented abuses in Ukraine since 2014. There is a U.N.-led Independent International Commission of Inquiry on Ukraine and a U.N. Human Rights Monitoring Mission.
Some of the people working on documentation efforts in Ukraine have referred to the ever-growing list of groups and institutions involved as a bit of a “circus.” Others cautioned that the effort risked turning into an unhelpful competition for funding and access. But there is plenty of work to be done, they also pointed out, and many groups have begun to tackle issues of cooperation, transparency, and burden-sharing. “We have many different actors, but on the other hand, we have a tremendous scale of disaster,” said Pechonchyk. Still, she added, “All of this is important only to convince other nations that something terrible is happening in Ukraine, but that’s all that it is. It won’t stop Russia.”
The Cost of Impunity
While the most recent invasion has brought scores of foreign investigators to Ukraine, civil society groups there had been engaged in the same documentation effort since 2014, with far less international interest and support.
“No one was listening to us seriously,” said Pechonchyk, “so Russia used these years to pump up its war machine and prepare this new aggression, and now we are paying with the lives of our people. Now some of the things we have been saying all these years have become more clear for other democratic governments, but unfortunately, for us it’s too late.”
What’s at stake in Ukraine, she added, is not only justice for Ukrainians but also the credibility of the very apparatus of international accountability. The failure of existing mechanisms to stop the war is the reason why she and other human rights activists have joined Ukrainian authorities in calling on the international community to support Ukraine’s military. “As human rights defenders, as lawyers, and people who believed in these principles, that means that justice is useless,” she said.
“What we need today is weapons,” echoed Oleksandra Matviichuk, a Ukrainian human rights attorney and head of the Center for Civil Liberties, a prominent human rights group which on Friday was awarded the Nobel Peace Prize. “Maybe it’s weird to hear that from a human rights lawyer, but I’ll be very honest with you: I have spent 20 years defending human rights, and now I have no legal instrument which has worked in this situation.”
When Russia launched its invasion, Matviichuk’s group, which had been monitoring Russian offenses since the invasion of Crimea, relied on volunteers across the country to document abuses, including some operating underground from areas under Russian control. The volunteers used a simple questionnaire to gather information, and recorded video or audio testimonies of victims and witnesses, with contact information for trained investigators to follow up. “We received a lot of stories, very quickly,” said Matviichuk. “We have documented more than 18,000 crimes — and this is just the tip of the iceberg because Russia uses war crimes as a method of war.”
But while her group is assembling an ambitious record, she often interrogates herself about the purpose of it all.
“We’re not historians, we’re not doing this for the national archives. We do it for future justice,” she said. “The question is, who will deliver justice for hundreds of thousands of victims?” Widely available technology had made gathering documentation more accessible, but what to do with that vast amount of evidence remained less clear. “In the 21st century, because of technology, we have a lot of ways to document war crimes,” she said. “What is still lacking in the 21st century is an effective mechanism to bring perpetrators to justice.”
The failure to bring perpetrators to justice emboldens them to carry out greater abuses, she and others noted. “All this which we have observed in Ukraine is the result of total impunity,” she said, listing a number of countries in which Russian forces have been accused of widespread abuses. “In Chechnya, in Moldova, in Georgia, in Mali, in Libya, in Syria — and they have never been punished.”
In Syria, in particular, Russian forces were repeatedly accused of war crimes, including over their role in the monthlong bombing of Aleppo in 2016, which killed more than 440 civilians. Russia supported the violent regime of Syrian President Bashar al-Assad throughout Syria’s decadelong war, at first with military aid and later through direct military intervention, including the deployment of hundreds of mercenaries. Human Rights Watch noted that some of the same tactics Russia deployed in Syria — like the indiscriminate use of airstrikes, deliberate targeting of medical facilities, and use of weapons such as cluster munitions — offered a “playbook” for its subsequent actions in Ukraine. Russian crimes in Syria received far less attention and calls for accountability than similar crimes in Ukraine are now prompting. But accountability matters precisely because its absence inevitably yields more abuses, rights observers stress.
Ibrahim Olabi, a human rights attorney with the group Guernica 37 whose advocacy has focused on Syria and who is now advising Ukrainian groups doing similar work, noted that the abuses Russia committed in Ukraine have reminded the world of those it also committed in Syria.
“While some called out double standards, I personally am happy with how the world responded to Ukraine for a number of reasons, including that it has exposed a big perpetrator that we have a problem with in Syria,” he told The Intercept. “Syria keeps getting mentioned by Ukrainians. They’ll say, ‘You let Russia off the hook in Syria, and now look what they did to us.’”
While the scale and horror of the abuses in Ukraine have plenty of precedent in other conflicts, the amount of evidence rapidly emerging from there — and the level of international insistence on accountability — mark a significant departure from the ways the world has responded to other conflicts.
“The amount of digital, remotely collectible evidence of alleged gross violations in Ukraine is unheralded in terms of its volume, its temporal cadence. How often it’s available — and the diversity of sources, ranging from commercial UAVs, to call detail record data, to unencrypted communications, to imagery — we’ve never had this much, this often,” said Raymond, the human rights investigator. “The second thing is, we’ve never had this much focus in terms of resources, support from donor governments and the private sector, multiple types of institutions, to collect it and act on it.”
For those like him, who have been documenting war crimes in conflicts that have received far less sympathy than Ukraine, the sudden influx of support has been poignant. “I have this sort of whiplash on a daily basis,” he said. “You can’t tell the story of Ukraine without talking about the fundamental disparity in political will and in resources.”
That disparity comes from the fact that the conflict in Ukraine has been highly televised, he suggested, that there is a more clearly identified adversary, and that the narrative of the conflict speaks to European and American audiences more directly. “There’s this broader narrative, ‘Syria, that’s not about the future of NATO and American freedom, it’s people killing each other,’” he said. “This relates to American interests in a way that’s constantly reinforced. If you talk to someone on the street and ask them in a double-blind survey, ‘How much do you care about Syria going to an international tribunal?’ They’ll say, ‘Maybe, I guess so, I don’t really know.’ If you ask them about Ukraine, you will overwhelmingly get, ‘Oh yeah, let’s get Putin.’”
That’s why those seeking accountability for the crimes committed in Ukraine should also focus on another fundamental question, Raymond stressed: “How do we make Ukraine a precedent that can apply to other places where accountability is needed, so it’s not just a one-off?”
“How do we make Ukraine a precedent that can apply to other places where accountability is needed, so it’s not just a one-off?”
He and others caution that the international legal system is only one avenue toward justice. Even with large amounts of evidence, prosecutions are no guarantee of a conviction, and there are risks to investing in trials as the only way to achieve accountability. “Justice matters even when you don’t know whether it’s going to succeed. You just have to do it. It’s a practice,” said Raymond.
“Courts are one element of the fight against impunity; the fight against impunity is an ongoing process involving many forums and activities,” echoed Olabi, who also cautioned that in the context of a prosecution, the accused would have legal arguments in their defense. “If you notice Putin’s speech when he first announced the invasion, he referred to Article 51 of the U.N. Charter, the right to self-defense. That’s his argument: that what he’s doing is not aggression, it’s collective self-defense. It’s a super weak argument, but it shows you the importance of law as a tool, that even a lawless actor is willing to refer to it.”
Delivering justice through a framework — whether the ICC’s or a special tribunal’s — whose authority is not recognized by all implicated parties would also raise a new set of questions, including about the viability of international enforcement mechanisms. But prosecuting the crime of aggression, regardless of the outcome in court, and even though Russia is not the first country to have been accused of it, would set a precedent the international community has not yet attempted.
“Ukraine is a chance,” said Matviichuk. “Ukraine’s lessons can save people’s lives in other countries.”
Correction: October 9, 2022
A quote about the Iraq invasion from the International Commission of Jurists was incorrectly attributed to the International Court of Justice and has been changed.