THE LAND: Since Russia invaded Ukraine, over 70,000 alleged war crimes have been reported, but bringing them to trial is difficult.
There is evidence, according to Western and Ukrainian authorities, of murders and executions, shelling of civilian infrastructure, forced deportations, child abduction, sexual violence, torture, and illegal detention.
However, Russia has consistently denied that its forces have attacked civilians or committed atrocities in Ukraine. In a setting where national and international courts share jurisdiction and where access to suspects and crime scenes is frequently restricted, a high standard of proof is necessary for a successful war crime prosecution.
Who is looking into alleged war crimes?
With the assistance of international forensic teams and legal experts, mobile justice teams are supporting Ukrainian war crimes prosecutors. Since February 24, 2022, they have been looking into alleged violations of international law, mostly in the south and east, where Russian forces have reclaimed land.
Domestic courts are focusing on crimes committed by "direct perpetrators," and 26 suspects of war crimes have been found guilty of raping and killing people, shelling residential infrastructure, cruel treatment, and pillaging. There have been charges brought against 276 individuals for war crimes.
However, it will likely take years to attempt to hold Russian leaders accountable for their orders.
"The more difficult job of trying to build complex aggregate cases that establish the responsibility of those in the higher political and military leadership is a task that still remains to be done," stated Wayne Jordash, the head of the mobile justice teams that were sent to support Ukraine's investigations.
However, evidence is being gathered.
Jordash stated, "What's clear from the prosecution's investigations over the last year is that there is a criminal plan and the Russian military operation is inherently criminal, in the sense that you cannot seek to extinguish Ukrainian identity without the massive commission of war crimes, crimes against humanity, and possibly genocide." This is in line with the fact that the Russian military operation is inherently criminal.
The International Criminal Court can do what?
According to "universal jurisdiction" laws, war crimes could be prosecuted by Ukrainian courts, international tribunals, or a few national authorities.
In addition to more general crimes against humanity and genocide, the International Criminal Court (ICC) in The Hague is looking into war crimes and is likely to focus on prominent suspects.
Karim Khan, the ICC prosecutor, has made three trips to Ukraine since he started his investigation a year ago. He has been to the Kyiv region, where civilians in Bucha were murdered, and the Kharkiv region, where residential neighborhoods in the shelled-out town of Borodianka are located.
The first step toward a possible trial is that the court has not yet made any arrest warrants public.
Previous ICC cases have demonstrated that senior officials can be difficult to convict even if they are caught and tried. The court has only convicted five people for core crimes in more than two decades, none of whom were high-ranking officials.
Which additional options are available?
The European Union recently announced the establishment of an international center in The Hague for the prosecution of "aggression" in Ukraine. This center will be run by Eurojust, the European prosecuting authority. Eventually, this could serve as the foundation for a new tribunal; see below.
Customary international law or national law can define war crimes. For instance, the ICC's definitions of war crimes are broader than Ukraine's.
The prosecution of Ukrainian war crimes is made possible by universal jurisdiction laws in a number of mostly European states.
To support potential trials within or outside of Ukraine, the ICC has joined forces with Lithuania, Poland, Estonia, Latvia, Slovakia, Romania, and Ukraine itself to form a Joint Investigative Team.
In addition, violations of international humanitarian law are being gathered and documented by a United Nations Independent International Commission of Inquiry for Ukraine in order to contribute to the evidence that is being gathered and shared at Eurojust. This could also help cases that the ICC takes on.
The invasion of or attempt to gain political and military control over another sovereign state is broadly referred to as the crime of aggression. Although it is the permanent international court for war crimes, the ICC cannot prosecute aggression.
Astrid Reisiger Coracini, an expert on the crime of aggression and international law lecturer at the University of Vienna, stated, "War is a crime, but not a war crime."
An ad hoc tribunal for aggression is being proposed by Ukraine and a number of backers, including the United States and the European Union, to close this "impunity gap."
Reisiger Coracini stated that, according to customary international law, heads of state, heads of government, and foreign ministers are immune from prosecution in national courts.
Therefore, a new international tribunal based on a multilateral treaty would need to be established in order to prosecute Russian President Vladimir Putin for aggression.