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The long road to prosecuting war crimes

Calling for the investigation of war crimes is one thing. Actually prosecuting war criminals is another.

By Emily Tamkin

As Russia’s war in Ukraine continues and the world sees images from Bucha — the town where hundreds of Ukrainian civilians appear to have been massacred — there are increasing calls, from Ukraine and elsewhere, to investigate and prosecute war crimes.

Investigations have been opened by the International Criminal Court (ICC), Ukrainian prosecutors and prosecutors in Poland, Germany, Lithuania, Latvia, Estonia, France, Slovakia, Sweden, Norway and Switzerland. Joe Biden, the US president, called Vladimir Putin, his Russian counterpart, a “war criminal” on Monday, adding: “But we have to gather the information. We have to continue to provide Ukraine with the weapons they need to continue the fight and we have to get all the details so this can be an actual — have a war crime trial.”

Calling for the investigation of war crimes is one thing. Actually investigating them and prosecuting war criminals is another.

For one thing, evidence needs to be gathered, which can take years to do well. “This is especially so where there are many victims, or where a complex crime has many different elements to prove,” Sarah Knuckey, director of the Human Rights Clinic at Columbia Law School, said. “In war zones, physical evidence can also be lost or destroyed, or its integrity questioned.”

For example, in Mariupol, according to the city council, Russians are using mobile crematoria to destroy traces of the army’s crimes. Because the city is besieged by Russian forces, there is a risk that evidence of crimes committed there will be lost.

And there may be a gap between the willingness to make a political proclamation and the eagerness or ability to allocate resources to the investigations, said Jamil Dakwar, director of the Human Rights Programme at the American Civil Liberties Union (ACLU). Dakwar also noted that countries are not prosecuted for war crimes — individuals are. This brings with it a host of other challenges.

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“It can also be challenging to gather the necessary evidence to successfully prosecute higher-level commanders or officials,” Knuckey explained. “It might be difficult to determine who gave what orders, or which officials knew what about the crimes.” Even if a solid case can be built against a perpetrator, that person needs to be arrested to face trial. Many are able to evade arrest, and with it, prosecution. Some people who carried out war crimes following the dissolution of Yugoslavia in the 1990s were only convicted last year, and that there was closure at all makes them the exception, not the rule. Building a case that shows that the most powerful people were themselves responsible for war crimes carried out on the ground is especially difficult.

There is another issue, too, which is that the ICC, one body that might prosecute apparent war crimes, has been undermined for years — not by Russia but by the United States. The US is not a state party to the ICC. What’s more, under the Trump administration, the US sanctioned the ICC’s chief prosecutor, Fatou Bensouda, over investigations into alleged war crimes carried out by Americans in Afghanistan, as well as by Israelis in Palestinian territories. Those sanctions were lifted under Biden last April, but even then Antony Blinken, the secretary of state, said that the administration “disagreed strongly” with the investigation and objected to “efforts to assert jurisdiction over personnel of non-states parties such as the United States and Israel”. Afghanistan, however, is a state party of the ICC.

Russia is not a state party, either, and neither is Ukraine, though the latter has declared that it accepts the court’s jurisdiction for crimes within its territory. That a country is not a state party to the ICC does not mean, in the eyes of the court, that its citizens are free to carry out war crimes against others.

The situation, according to Dakwar, highlights American hypocrisy: “The US [is] demanding other superpowers be held to international criminal law while not accepting it for itself.” The Biden administration and the US have the opportunity, he said, “to be on the side of international justice, [and] to start removing the legal and the political impediments… to war crimes prosecutions” of Americans and those in American-allied countries.

All of this — the practical challenges and the geopolitical ones — means that there is a long road ahead. That doesn’t mean investigation and prosecution aren’t possible. “The challenges to accountability for war crimes are not insurmountable, as numerous successful prosecutions of war crimes around the world show,” said Knuckey. “But they do require significant expertise, time, resources, co-operation and, often, political will.”

In the meantime, those engaged in the work of trying to collect evidence will continue to do so. “The evidence is building,” said Hugh Williamson, director of the Europe and Central Asia division at Human Rights Watch. “The war is still going on.”

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