Can There Be Real Justice in Ukraine?

Almost three months after Russia invaded Ukraine, the first trial related to war crimes wrapped up. Vadim Shishimarin, a 21-year-old Russian soldier, was sentenced to life in prison for murdering an unarmed Ukrainian civilian, Oleksandr Shelipov. Since then, two other war criminals, both Russian foot soldiers, have been tried and sentenced. They were only small fry—but perhaps the start of something bigger.

“Prosecuting low-level perpetrators not only allows justice to be delivered for the victims who have suffered directly from their crimes but can also be a part of the long game of building cases upward to reach those higher in the chain of command,” Sergey Vasiliev, an international criminal law expert, wrote in Foreign Policy last month.

But what does that long game look like? According to Sviatoslav Yurash, Ukraine’s youngest parliamentarian, the country’s future should include trials “to try and punish all those for the gross destruction of our country.” This includes accusations of rape, torture, summary executions, deliberate targeting of civilians and civilian infrastructure, the use of human shields and cluster munitions, and forced deportations, among others, according to a report by the Organization for Security and Cooperation in Europe (OSCE) released in April.

However, when looking at the history of international tribunals, their effectiveness and efficiency—as well as applicability to the current conflict—come into question.

How do victims get their day in court?

When people think of formal global justice mechanisms, the most obvious example is the International Military Tribunal in Nuremberg, Germany. The trials, which began just months after the United Nations Charter was signed, sought to prosecute the highest-ranking Nazi officers for war crimes and crimes against humanity. Although genocide was discussed, it was not a legal term at the time.

In the early 1990s, the world responded to the genocides in Yugoslavia and Rwanda with international criminal tribunals. Those also targeted senior officers, with one going so far as to indict former Serbian President Slobodan Milosevic with 66 counts of genocide in 2001. However, it was only after Milosevic’s trial that today’s modern international criminal justice system—the Rome Statute, which created the International Criminal Court (ICC)—was established.

Today, scholars question the suitability of this format for Ukraine. Neither Russia nor Ukraine is a member of the ICC. Although Ukraine has accepted the court’s jurisdiction over crimes committed in the country, it’s exceedingly doubtful that Russia will do so as well, which effectively means impunity for the war’s architects since the ICC won’t have jurisdiction over Russian war criminals.

 “As long as [the Russian commanders are] in Moscow and the current regime is in power, they’re not going to be handing anyone over,” said Kyle Reed, an international studies expert.

If not the ICC, what about a different court?

Some experts are turning to domestic trials, such as Shishimarin’s. The Ukrainian justice system, established after the country declared its independence from the Soviet Union in August 1991, continues to be robust despite the challenges inherent in fending off Russia’s assault, including one effort to seize the capital of Kyiv. However, like what Rwanda experienced by trying to charge all low- and middle-ranking officials in its gacaca courts after the 1994 genocide, the Ukrainian government does not have the bandwidth to charge every foot soldier and middle-tier Russian officer, as so many have have been accused of committing war crimes.

This leads to two other options: either a Truth and Reconciliation Commission like the one used in South Africa to address its history of apartheid or a system of hybrid courts run by third parties. Whereas the former focuses primarily on conflict resolution, the latter can try officials through universal jurisdiction, the idea that some crimes (such as piracy) are a crime against all of humanity, so the right and obligation to prosecute transcend national borders. 

This strategy of law has been upheld by countries around the world. Argentina is currently investigating war crimes against the Rohingya in Myanmar under universal jurisdiction. Germany convicted a Syrian intelligence officer of crimes against humanity in January, and in April, it began a trial against an alleged member of the Junglers paramilitary unit for crimes committed in Gambia—also by establishing universal jurisdiction.

Why is justice important? 

Formal justice mechanisms can provide many benefits besides putting perpetrators behind bars. According to Reed, half of a trial’s significance is documenting the crime itself. By creating an honest historical record, the Ukrainian public can not only seek accountability but also counter Putin’s narrative of falsehoods, specifically the Russian propaganda machine’s claims of growing Nazi power in its neighbor or baseless allegations that Ukrainian forces themselves have committed many of the atrocities attributed to Russian attacks.

In March, the OSCE announced it was launching a fact-finding mission to investigate possible war crimes in the Russia-Ukraine war. “We don’t want to wait [to investigate],” Michael Carpenter, the U.S. envoy to the OSCE, told FP’s Robbie Gramer at the time. “What we’re seeing on the ground is horrific. And we want to telegraph that there will be accountability in one way, shape, or form.” 

Since then, the OSCE has released a report documenting “clear patterns of [international humanitarian law] violations by the Russian forces in their conduct of hostilities,” despite the fact that OSCE officials and partnered nongovernmental organizations were unable to safely enter Ukrainian territory. “Russia is the aggressor and therefore responsible for all human suffering in Ukraine,” it concluded.

Actively seeking legal justice could also discourage other nations from committing atrocities, whereas impunity breeds imitators. “We find if there is a successful example of a [U.N. Security Council Permanent Five] member launching an illegal war to acquire territory permanently, you will find that others will follow suit,” said Diane Desierto, a professor of law and global affairs at Notre Dame Law School.

Even a lack of accountability can encourage countries that have committed atrocities to keep going. In Myanmar, the military has spread its violent crackdown against the country’s Rohingya minority in the west to the east, largely due to the international community’s relative silence on the ongoing genocide there. The same can be seen in Syria, where international leaders, including past and current U.S. presidents, have limited intervention despite Syrian President Bashar al-Assad crossing the “red line” of chemical weapons use against Syrian civilians. 

What are the biggest obstacles facing formal justice in Ukraine?

International criminal law was not meant to address the criminal behavior of states but rather of individuals, Desierto explained. This means it’s easier to block efforts to prosecute state violence. That makes political will—or the lack thereof—one of the biggest challenges to bringing justice. Desierto noted that the Armenian genocide, carried out by the then-Ottoman Empire in 1915, has never gone to a tribunal not because of a lack of evidence but because other states never felt compelled to do so. Even the United States has refused to recognize the authority of the ICC to exercise oversight over any alleged crimes committed by its service members overseas.

The United Nations isn’t the answer either. As a veto-wielding, permanent member of the U.N. Security Council, Russia can block any formal U.N. investigations into its actions—and has the political influence to ensure other countries prioritize stable relations over seeking justice. In a U.N. vote to suspend Russia from the Human Rights Council in April, 24 countries voted against and 58 countries abstained from the decision; more than two-thirds of the world’s population lives in countries that did not even symbolically punish Putin’s invasion. 

Without formal investigations, the international community faces a lengthy process of trying to get records and witness testimony out of Russia as well as Ukraine. And even if a formal investigation is authorized, Ukraine still finds itself in an active war, one that is having a particularly dire effect on the country’s most vulnerable populations: women, children, older adults, and people with disabilities.

The longer a war continues, Desierto said, the possibilities for international justice dim due to destroyed evidence and changing priorities. “The collective, sociological trauma of a people all sets in, and political priorities of what to address first become very, very messy within the international political system,” she said. “Do we deal with the humanitarian crisis first? Do we try to stabilize the territorial situation? What do we do about a nuclear power, like Russia, that has already openly signaled it will not hesitate to use its nuclear capabilities to prosecute this war if necessary?”

Whatever course is eventually taken—international tribunals, domestic courts, or universal jurisdiction—it must be Ukraine’s choice, Desierto said.

“It cannot be imposed. It is a matter that affects the Ukrainian people the most,” she said.

Correction, July 11, 2022: A previous version of this piece said head of state immunity is protected under the International Criminal Court, which it is not.