By William Tucker
Immediately after Russian troops withdrew from the regions surrounding the Ukrainian capital of Kyiv, the horrors of the Russian occupation came to light. Journalists entering the town of Bucha reported evidence of forced deportations, torture, rape and the deliberate execution of civilians.
There is little doubt that war crimes and crimes against humanity have occurred. National leaders across the globe have condemned these alleged war crimes and supported calls for an investigation and eventual prosecution.
However, dealing with the perpetrators of these crimes in the middle of an ongoing war is a difficult task that is as much a matter of politics as it is a matter of justice. These allegations will be pursued, but they will not bring an end to the horrors of Russia’s war on Ukraine.
The ICC Has Launched an Investigation into Russian War Crimes in Ukraine
Before evidence of the Bucha massacre came to light, Russia violated the United Nations charter by waging an unprovoked war – a war crime subject to prosecution under international criminal law. As a result, the International Court of Justice has called on Russia to cease and desist, and the chief prosecutor of the International Criminal Court (ICC) has opened an investigation into war crimes and crimes against humanity in Ukraine.
The Threat of Prosecution Isn’t Stopping Russian War Crimes in Ukraine
It is possible that the newly defined crime of aggression may be prosecuted in national courts under the doctrine of universal jurisdiction, yet formal indictments for Russia await the gathering of evidence. Unfortunately, the threat of prosecution does not dissuade nations or individuals from engaging in war crimes or crimes against humanity. Justice is a concept that occurs after the fact and does not typically protect civilians who are in the line of fire.
In some cases, indictments may prolong a conflict by convincing the perpetrators that they have nothing left to lose, so changing their behavior gains them nothing. Investigators and prosecutors of war crimes have long grappled with this issue, since pursuing justice should not exacerbate the suffering of the victims.
Permitting immunity or similar “off ramps” for aggressors like Russia may help end the conflict, but it denies justice to the victims of war crimes. Furthermore, criminal tribunals cannot substitute for diplomacy to end conflicts. Past cases, such as the war in Yugoslavia, show that the process of prosecuting war crimes and crimes against humanity does indeed work, but it was coupled with the use of military force that brought wartime horrors to an end.
Using Military Force to End the Conflict in Ukraine Is Problematic
While the use of force is an attractive option to end the Russian war on Ukraine, it is a double- edged sword because military intervention may hurt the Ukrainian people it is trying to protect. However, there are alternate options for intervention, such as continuing to provide a supply of humanitarian aid and weapons to the Ukrainian people.
With Russian forces either moving or getting ejected from certain regions of Ukraine, NATO and EU member-states should reconsider intervention approaches that were dismissed earlier in the Ukraine conflict because those actions may now be viable. Under the Geneva Convention, there is legal cover for more aggressive action considering the reality of the war crimes uncovered across Ukraine. If world leaders are serious in their condemnation of Russian actions in Ukraine, then they must look for ways to end the fighting in conjunction with future prosecution of the horrible crimes committed against the Ukrainian people.