Earlier this week, Russia launched a new drone bombing spree in the Ukrainian capital of Kyiv. This followed last week’s attack, when Russian missiles struck the capital and other parts of the country. This week on Intercepted: Reporter Alice Speri breaks down the different international investigations into Russia’s crimes in Ukraine and explains why none include the crime of aggression. She speaks with human rights investigators and international humanitarian law experts, who break down what they think needs to happen to achieve justice for the victims of Russia’s crimes and set a precedent to prevent future acts of aggression. But prosecuting Russian leaders for the invasion of Ukraine may be a challenge, for fear it may boomerang back on Western aggressors.

 

Alice Speri: In 2014, Russian forces seized Crimea, paving the way for President Vladimir Putin’s annexation of the Ukrainian peninsula.

ABC News: Russian Troops spreading out throughout the strategic Crimean Peninsula.

Diane Sawyer [for ABC News]: And next we turn tonight to the tension rising around the world as Russian President Vladimir Putin casts his shadow across the boundary of Europe and Russia. Tonight his troops are holding firm in a corner of Ukraine known as Crimea.

AS: A large number of world leaders and international organizations condemned the invasion as illegal.

Al Jazeera English: President Obama strongly condemned Moscow’s incursion into the Crimea, and said that steps to isolate Russia diplomatically and economically will be examined if there is no change in policy.

AFP News Agency: As EU leaders prepare for an emergency summit on Ukraine, akey question remains: Should Russia be punished for its incursions into Crimea, and if so, how?

AS: 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.

NBC News: This is what Russian President Vladimir Putin unleashed on Ukraine [sound of a bomb dropping], as the sun came up this morning. 

ABC News: Overnight, in the capital of Ukraine, the sound of missile strikes and air sirens. [Sound of air sirens.] Explosions rocking several cities, including the capital of Kyiv, targeting military installations, including air bases housing fighter jets.

AS: Two weeks ago, Putin declared the annexation of four regions of Ukraine the Russian forces occupy. The invasion and the recent annexation are illegal under international law, as was the invasion and annexation of Crimea in 2014. 

Yet other countries, including the U.S., may resist prosecuting pushing for the crime of aggression, fearing setting a precedent that could boomerang against them.

[Intercepted theme music.]

Alice Speri: This is Intercepted. 

I’m Alice Speri, a reporter with The Intercept. 

For years I’ve been covering national security, human rights, and conflicts around the world.

[Foreboding, droning music begins.]

AS: When Russia began invading Ukraine… world leaders quickly denounced the aggression. Russia’s actions threatened 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. 

Rather, Russia’s highest ranking military and political officials could be prosecuted — 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 a “genocide” — a claim some experts have disputed.

Investigations into the 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.

Nathaniel Raymond: The question you just asked is a question on everyone’s mind, and there’s not one answer to it.

AS: That’s 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.

NR: What is more important, right? Is it catching the colonel-level in charge of the artillery assault on Mariupol, or is it Putin?

Philippe Sands: None of this would be happening if Russia had not invaded. 

AS: And that’s Philippe Sands, a prominent international law specialist at the University College London.

PS: Crimes against humanity are as terrible as genocide. I don’t believe in a hierarchy of horrors. But I think the moment you use genocide is when everyone pays attention because people think it’s the worst of all the crimes. It’s not, actually, I don’t think. I think in this case, the worst of all crimes is the crime of aggression.

We wouldn’t have any of these other crimes unless the war had been initiated. And the danger that we face is that in five years time we will have three or four trials of low-grade, useless sort of characters that are totally irrelevant and the top people just get off scot-free. 

And I put the finger of blame on this, on the big countries. They’ve done nothing. 

AS: 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 of the ICC.

Dozens of countries have pledged support and roughly 20 million dollars 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 it cannot prosecute the crime of aggression against nationals of a non-member state or without a referral from the United Nations Security Council.

Russia, which holds veto power on the security council, would certainly stand in the way.

But other countries, including the U.S., may 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.

PS: They don’t want to deal with the crime of aggression and they don’t wanna 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. 

And the big elephant in the room is Iraq — which was also a manifestly illegal war. And produced a very different response in Britain and the United States. So there’s just basically a total double standard in terms of the whole thing.

AS: So in practice, that renders the ICC powerless to prosecute the crime that many Ukrainians and observers argue has enabled all others.

Tetiana Pechonchyk: The crime of aggression is the mother crime. And if there is no unprovoked war and aggression, there would be no further crimes — no war crimes, or crimes against humanity. 

AS: Tetiana Pechonchyk heads the Ukrainian human rights group Zmina.

TP: In the existing framework of the international accountability mechanisms, there is no accountability for the crime of aggression. 

AS: Currently, there is no international body with the authority to hold individuals 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.

Euronews: A standing ovation for Ukraine’s Volodymyr Zelenskyy at the U.N. General Assembly in New York.

Volodymyr Zelenskyy: A special tribunal should be created to punish Russia for the crime of aggression against our state. This would become a signal to all who would be aggressors, that they must value peace, or be brought to responsibility by the world.

AS: These calls 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. 

I spoke with Wayne Jordash, an international humanitarian law attorney, with years of experience in international courts and tribunals.

Wayne Jordash: In order to do that properly, we need to have a real focus on individuals at the higher military and political echelons. And so you’ve got a similar problem, which is a lot of focus is on the lower perpetrators, not the higher ones. 

AS: 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.

WJ: And obviously, Ukraine and various international lawyers and European actors support the idea of a new tribunal, at least that there would be then this additional focus on what would end up being a handful of political and military actors who, are alleged, suspected of being involved in the planning and implementation of the invasion itself.

AS: The body could be established through the U.N. — with a vote in the General Assembly, authorizing the secretary-general to work with Ukrainian authorities to set up a special tribunal.

United Nations official: The General Assembly is now working on draft resolution A/ES-11/L —

AS: In March, 140 nations voted in favor of a resolution denouncing Russian “aggression,” theoretically paving the way for more concrete action. 

United Nations official: The voting has been completed, please lock the machine.

United Nations official: The result of the vote is as follows [clapping] —

AS: The tribunal could also 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.

The prosecution of war crimes and crimes against humanity is based on the review of expansive amounts of evidence and witness testimony, and can take years to complete. But to build a case for the crime of aggression, it’s a relatively quick process.

Here is Pechonchyk, again, the Ukrainian human rights activist:

TP: The tribunal for the crime of aggression has to be set up. It would not take a very long time because the crime of aggression is obvious. The evidence are on the surface, and the process should be quick. 

AS: But Pechonchyk says, they would need consensus and 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, there’s been no attempt by an international body to prosecute it. There have, of course, been instances of aggression.

[Sinister music begins.]

AS: As the United States and its allies prepared to invade Iraq in 2003, a number of international bodies denounced the invasion.

France 24 English: French President Jacques Chirac let no one be in any doubt: France could see no reason in March 2003 for going to war with Iraq. The U.N. weapons inspection regime was working and the threat posed by Saddam Hussein had been significantly degraded.

AS: 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.” 

Later, the U.N. Secretary-General Kofi Annan called the invasion “illegal” and a violation of the U.N. charter.

Kofi Annan: I have indicated that it will be unwise to attack Iraq now, and it will raise international tensions.

AS: But, there were no international mechanisms in place with the authority to prosecute the leaders of that invasion. And even less political appetite to make that happen.

The war in Iraq continued, leading to widespread allegations of abuse:

ABC News: Civilian casualties: 100,000 according to one tabulation, greater than numbers previously made public. Many killed by American troops, but most of them by other Iraqis.

Amy Goodman [for Democracy Now!]: Cole spent more than two years investigating accounts of ghastly atrocities committed by members of the unit, including mutilating corpses, skinnings, and attempted beheadings. 

Scott Pelley [for CBS News]: A U.S. Marine went on trial today at Camp Pendleton in California in the killing of 24 unarmed civilians in Iraq. It happened in 2005, and it’s been described as an atrocity by U.S. troops there.

AS: 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 non-prosecution is more important than ever, to set a precedent that could help deter future aggression.

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.

I reached out to the State Department, and a spokesperson told me that the administration is, “carefully reviewing a proposal for a special tribunal.” They then 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 me to a statement made by the British Foreign Secretary James Cleverly at a recent meeting of the U.N. Security Council.

James Cleverly: 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.” 

AS: The prospect of a special tribunal has raised the concern of the ICC prosecutor general, Karim Khan, who has been struggling to restore the court’s legitimacy after years of criticism. Notably, criticism that the court, for a long time, has only prosecuted Africans.

Mehdi Hassan: But critics say it’s obsessed with targeting only African leaders, and several member nations of the African Union are threatening to pull out. So is the ICC selectively biased against Africa and giving Western governments a pass or would shutting the whole thing down be a blessing for war criminals and human rights’ violators across the globe?

Al Jazeera: Several African states have accused the ICC of unfairly targeting the continent. Uganda’s president went so far as to call it “useless.”

AS: In recent years, the court has launched a number of new inquiries, including into alleged Israeli crimes in Palestine. It also opened — and then closed — preliminary probes into alleged British crimes in Iraq. 

Since the U.K. is a founding member of the ICC, this gave the court jurisdiction in this case. But because neither Iraq nor the U.S. are members, the court couldn’t investigate U.S. crimes there.

The investigations into Israeli crimes in Palestine and British crimes in Iraq have faced fierce opposition, contributing to a perception that the ICC cannot take on the world’s most powerful countries.

Al Jazeera English: The United States is facing criticism around the world for its latest threats against the International Criminal Court. President Donald Trump has signed an executive order sanctioning the ICC staff and their families. The U.S., which is not a member of the Hague-based tribunal, is angry at investigations into suspected war crimes in Afghanistan that could implicate its soldiers.

President Donald J. Trump: As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.

AS: Last year, I reported about how the U.S. went to great lengths to derail an ICC investigation into its own crimes and those committed by allies in Afghanistan. This led to the ICC deprioritizing the probe into the U.S.’s actions — further contributing to the criticism. 

Here’s Jordash again – the humanitarian law attorney:

WJ: The ICC prosecutor is fighting a battle to be relevant, and effective, and show that the ICC prosecution is a viable investigative, prosecutorial mode of operating, in light of its long history of not being those things. 

AS: Jordash added that regional tribunals tend to redirect resources from other accountability processes, including local prosecutions and truth and reconciliation initiatives.

WJ: Obviously a lot of what any new tribunal would do would be to [look] at the precise relationship between higher political and military leaders in the Kremlin or around the Kremlin and their role in the war. And obviously that would overlap with any investigations by the ICC prosecutor into the culpability of individuals for the crimes that have been committed, and the violations of international humanitarian law in Ukraine. So they won’t be doing the same thing, but there’ll be a public perception, if not properly, that they are doing the same or similar things. 

AS: A new tribunal could distract other efforts of accountability and deplete resources that the ICC prosecutor needs. A spokesperson for the ICC prosecutor did not respond to a request for comment.

[Low, meditative music.]

AS: The ICC first opened an inquiry in Ukraine in 2014, after receiving permission from Ukrainian authorities to do so.This year, the ICC formally launched an expanded investigation.

So far, little detail is available about the focus of their work in Ukraine. Others engaged in similar efforts, like a multi-country, joint investigation team, have also revealed little about their investigations.

WJ: There’s a lot of noise, and not that much has yet translated into discernible action on the ground in Ukraine, or translated into real support for the Ukrainian prosecution.

AS: That’s Jordash, again.

WJ: I think, despite a lot of the rhetoric that we hear from both international actors and also some national actors, they are at their very beginning. I would say building viable cases against those who are further from the ground and up the chain of command in the political and military sphere really hasn’t begun in earnest yet. And frankly, I think there’s a sort of lack of understanding as to the need, and how to do that.

AS: 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.

NR: And so we are in a very difficult — very, very — position. In terms of six months ago, they hadn’t had mass grave forensic teams stood up. They hadn’t had the type of line prosecutors stood up to do these, and the type of survivor-assistance resources needed. 

AS: That’s Raymond, the human rights investigator. 

NR: And so, we’re looking at a retrofit in the middle of a war, of an entire law enforcement community.

AS: And 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. Here’s Jordash:

WJ: Instead of this frenzied documentation, which is what we see now, what we need is to see more collaboration, and more openness, and more cooperation between these three principle components of effective investigations. That’s local prosecutors, civil society, and international experts.

AS: When Ukrainian soldiers wrestled back control of the eastern city of Izyum in September, they found a devastated city and hundreds of dead bodies, including more than 440 in a mass grave.

Sky News: The scale of the suffering here is only starting to emerge, as police return to the streets now Russia’s occupation has ended.

DW News: Investigators searching through a mass grave in Ukraine say they’ve found evidence that some of the dead were tortured. The site near Izyum recently liberated from Russian forces appears to be one of the largest discovered in Ukraine yet, but Ukrainian authorities warned that their investigation was just beginning.

AS: 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. 

Anton Gerashchenko, an adviser to Ukraine’s minister of internal affairs said, “This tragedy is even worse than the tragedy in Bucha.” He was referring to the city near Kyiv, that up until the Izyum 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. Dozens of Ukrainian investigators, dressed in hospital gowns and carrying shovels — have begun to exhume the desiccated bodies in Izyum.

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 Izyum 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 of those crimes may meet the legal definition of war crime, they recognize that the scale of the evidence is staggering.

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 could turn 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.

TP: So that’s true that we have very many different actors, but also from the other point of view, we have a tremendous scale of, uh, disaster — thousands of war crimes, which have been committed in Ukraine.

AS: Pechonchyk, the Ukrainian human rights activist, added setting a precedent is just as vital. 

TP: This is important only to convince other nations, other countries, that something terrible is happening in Ukraine. It’s important only to build up the solidarity and consensus to withstand the Russian armed aggression, to form a support to Ukraine, just to show other people, some non-biased, non-partial information not from Ukrainians, but from some intergovernmental institution, what has happened. 

But that’s all. It’s important to keep up others with informing and being united, but not to stop Russia directly. 

AS: 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.

TP: From the first days and months of the occupation of Crimea and war in Donbas, we were calling to impose very strict sanctions on the Russian Federation, on its economy. We were calling to switch off the Swift, so the bank system of the Russian Federation cannot exchange with other countries. And no one was listening to us seriously. And if sanctions were imposed, these were sanctions, focusing on some individuals, without the hitting sectors of the Russian economy. And democratic countries continued to have trade with the Russian Federation to buy oil, gas, et cetera, et cetera. So, Russia used these eight years to pump up its war machine and they prepared this new aggression. 

So now we are paying with many lives of our people. And now it looks like some things that we were calling and saying these eight years, they became more clear for other democratic governments. But unfortunately, for us it’s too late because we are already paying an ultimate price.

AS: 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 for international support of Ukraine’s military.

TP: As human rights defenders, as lawyers, many people who believed in these principles, that means that this is useless. This means that only guns have power. And we, as human rights defenders from Ukraine, already know. There is only a language of force and economic sanctions that can be used when you deal with Russia.

And that’s why, we were criticized, especially in the first months of the war, of this new wave of aggression, when we were calling and supporting these human rights defenders to provide weapons to Ukraine. Nothing else is working. 

AS: Pechonchyk is not the only human rights activist calling for weapons.

Oleksandra Matviichuk: I spent 20 years defending human rights and freedom, and now I have no legal instrument which is working in this situation. The whole U.N. system couldn’t stop the Russian atrocity.

AS: That’s Oleksandra Matviichuka a Ukrainian human rights attorney and head of the Center for Civil Liberties, a prominent human rights group which this month was awarded the Nobel Peace Prize. 

OM: And first of all, we need to survive. And to survive we need weapons, and especially long-range distance weapons in efficient amount[s], because we need to stop Russian troops where the horror against civilians is still going on. 

But what we need today, we need weapons. And maybe it’s very weird to hear from a human rights lawyer. 

AS: When Russia launched its invasion, the Center for Civil Liberties, 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. They said they have documented more than 18,000 alleged crimes.

AS: Are you doing this with an eye toward, like, a legal process? Or is it more of just collecting a public record of what happened?

OM: It’s a very good question, and I ask this question to myself for whom we documented all these war crimes, because we are not historians; we don’t do it for national archives. We do it for future justice. And I see the clear gap of accountability. We couldn’t rely upon the International Criminal Court in this regard, because the ICC will limit itself only to several selected cases. So the question is who will deliver justice for hundreds and thousands of victims of war crimes? 

AS: Widely available technology has made gathering documentation more accessible, but what to do with that vast amount of evidence remains less clear. 

OM: Now each people can be a documentator [sic], because some photos and videos, which people do on their own telephone, is very crucial, essential in [the] future. So the now we have in [the] 21[st] century because of technology, a lot of ways how to document war crimes. 

What is still lacking in [the] 21[st] century is [an] effective mechanism of how to bring perpetrators to justice. 

AS: The failure to bring perpetrators to justice emboldens them to carry out greater abuses.

OM: All this hell, which we’ve observed in Ukraine, is a result of total impunity, which Russia endured for decades. Because the Russian army committed the same war crimes in Chechnya, in Moldova, in Georgia, in Mali, in Libya, in Syria. And they have never [been] punished. 

AS: Human Rights Watch noted that some of the same tactics Russia deployed in Syria — like the indiscriminate use of airstrikes, targeting of medical facilities, and use of weapons like 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. That’s why those seeking accountability for the crimes committed in Ukraine should also focus on another fundamental question.

Here’s Raymond again:

NR: How do we make Ukraine a precedent setter that can help other places where accountability is needed and not a one-off? That, for me, is the big question. Is this a one-off or is this a precedent?

AS: He and others caution that the international legal system is only one avenue towards 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.

NR: Justice matters even when you don’t know whether it’s gonna succeed. You have to do it. It’s a practice. Justice is a practice. 

[End credits music.]

AS: And that’s it for this episode of Intercepted. Follow us on Twitter @Intercepted. I . Intercepted is a production of First Look Media and The Intercept. Jose Olivares is Lead Producer. Supervising Producer is Laura Flynn. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. Our theme music, as always, was composed by DJ Spooky.

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If you haven’t already, please subscribe to Intercepted. And definitely do leave us a rating or review — it helps people find us. If you enjoy this podcast, be sure to also check out Deconstructed, as well as Murderville, which is now in its second season.

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Thanks so much.

Until next time, I’m Alice Speri.