What It Takes to Carry Out a War Crimes Trial Today

When Ukrainian forces regained power in Bucha, as well as other towns across the country, they discovered streets littered with the bodies of civilians who had been bound and executed, along with mass graves, rapes, tortures, forced starvation, and bombings of locations that were occupied by civilians.

Bombing included a theater marked “children” and a train station packed with families fleeing Ukraine, prompting increased calls for Russian President Vladimir Putin to be charged with war crimes.

Investigators comb the country for evidence that can be used to bring charges. Yet members of the military and their sitting governments are very rarely made to face international prosecution for their conduct during war.

The foundations of war crime trials were laid at the end of World War II. There have been many successful prosecutions of crimes since; a closer look shows a pattern not encouraging to anyone who hopes that the perpetrators of war crimes in Ukraine will be held to account.

Justice for war crimes has historically been applied by conquering forces, as happened in American-occupied Iraq, postwar Germany, the victors of the civil wars in the Ivory Coast and Rwanda, or by the new government after the former government was overthrown, as was the case in Sierra Leone and Serbia.

So, what can be expected about possible war crimes against Putin and his forces?

Justice for some, not all

The limits of international justice can be seen back in the Nuremberg tribunals.

The tribunals, established after the defeat of Germany after World War II, became the basis for the international rules of war. Since then, a body of international law and global treaties have forbidden intentional attacks on population centers and civilians and genocide, torture, and other acts.

However, as in the Nuremberg tribunal, only atrocities by the defeated Nazis could be tried, leaving any conduct by the allies to be investigated and prosecuted by their countries’ judicial systems.

That model is still used today.

Past efforts to bring war crime charges have been met with struggles. International law is ultimately at the whim of national governments. The world’s major powers have regularly resisted the ability of international courts to hold allies or themselves accountable, even if only symbolically.

Russia, China, India, and the United States, for instance, all reject the jurisdiction of the International Criminal Court (ICC).

In recent years, international justice officials have sought to investigate governments still in power. For example, the ICC investigated possible war crimes committed when Russia invaded Georgia in 2008.

The investigation has been hampered by the inability to access territory that Russia continues to occupy. Although prosecutors have been investigating the invasion since 2016, they only recently requested the first arrest warrant when naming three individuals in territory currently held by Russia.

However, none of the individuals are expected to face arrest.

Justice often symbolic

International courts can still play an important role when perpetrators are beyond reach. Under an independent legal process framework, crimes in absentia can help establish what happened.

For example, following the downing of a commercial airliner over separatist-held eastern Ukraine in 2014, an international investigation accused four individuals of responsibility, including three with ties to Russian intelligence.

Many legal scholars have suggested a similar approach to the current war. The word of a trusted international court or proof of responsibility can be valuable tools for prosecution.

Similar cases can prove cathartic as victims experience acknowledgment of suffering.

The Georgia ICC investigation collected testimony from over 6,000 witnesses, many of who felt forgotten by the world. The investigation led to the creation of a fund financed by foreign government donations that provides counseling, financial support, and medical support for families who the war has displaced.

However, with no power to punish Russian perpetrators and only a few hundred thousand euros for distributing among thousands of victims, visions of a Nuremberg-style justice may not be achievable, despite pleas for justice some Ukrainian President Volodymyr Zelenskyy.