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Why war crimes trials in Ukraine could take many years

The brutalities of Russia’s war in Ukraine have fueled an enormous demand among Ukrainians and much of the Western world for investigations, indictments, arrests and trials for the invaders and their commanders, particularly Russian President Vladimir V. Putin. Some leaders, including President Biden, have even accused them of genocide.

Demands for accountability have pushed not only for prosecutions at the International Criminal Court in The Hague, which was set up precisely for this purpose, but also for other courts and even special war crimes tribunals that could be created specifically to try suspects, like this Proceedings against the Nazis judged in Nuremberg.

And yet, despite Ukraine’s rapid collection of evidence and a wealth of international cooperation to build criminal files, the likelihood of significant war crimes trials, let alone convictions, could be years away – if they ever take place – particularly for Mr Putin.

The Russian authorities have denied any responsibility for civilian killings and mistreatment, and Mr Putin has falsely presented the evidence as fabricated slanders.

“Everyone wants the war to stop, Ukraine to be spared immediate pain, and the main perpetrators to be in the dock,” said Leila Sadat, a professor of international law at Washington University in St. Louis and an adviser to the chief prosecutor at the International Criminal Court. “Unfortunately, that’s not quick.”

It is actions by antagonists in armed conflict that violate international agreements and treaties such as the 1949 Geneva Conventions, which were designed to limit the barbarity of war and protect the lives and safety of non-combatants – civilians, medics, aid workers – as well as To protect soldiers who are no longer able to fight, such as prisoners, wounded and sick. For example, it is a war crime to knowingly bomb a hospital, school or place where civilians are taking shelter, or to kill enemy soldiers who have disarmed and surrendered.

Established in 2002 under an international treaty known as the Rome Statute, the court was empowered by countries that ratified the treaty to investigate and prosecute not only war crimes, but also two arguably more sinister types of crime: genocide – Acts aimed at the annihilation of a racial, religious, ethnic or national group – and crimes against humanity – acts such as murder, enslavement, rape and other sexual abuse, torture, starvation, kidnapping and forcible displacement as part of a widespread, systematic attack.

In 2018, the court was empowered to investigate and prosecute a fourth type of crime: the crime of aggression, which involves a country’s leaders “planning, preparing, initiating, or carrying out” an attack on another country in violation of the charter of the United Nations – in other words, making it illegal to invade another country. Although major restrictions were imposed on the court, limiting its jurisdiction in aggression crime cases, legal scholars said it was the first time since the Nuremberg trials that an international tribunal had the power to try suspects for crimes against peace.

The circumstances of what constitutes a war crime can be hazy and disputed. Bombing a hospital may seem like an obvious war crime, but the attacker could argue that the bombing was unintentional, or that the building was being used by enemy troops, or that it had weapons stored there. Such claims cannot easily be refuted in court. Just because civilians are killed in an armed conflict does not necessarily mean they were targeted.

Genocide convictions are even more difficult to obtain because they require a particularly heavy burden of proof. While the evidence may be there — mass graves, villages destroyed, witness testimonies, intercepted communications — prosecutors must prove that the accused committed atrocities with intent to annihilate a particular group. This essentially requires getting into the minds of the perpetrators.

Jurisdiction is another issue. Only 126 countries have ratified the Rome Statute – meaning the International Criminal Court’s prosecuting powers are generally limited to those countries, which conspicuously do not include Russia or Ukraine (or the United States). Ukraine has given the court jurisdiction to prosecute war crimes, crimes against humanity and genocide, which can be carried out without Russia’s consent. But prosecuting the crime of aggression would require the consent of Russia, the aggressor, which legal scholars say the Kremlin would never give.

In addition, trials before the International Criminal Court require the presence of the accused. The court does not have the power to execute his arrest warrants. The likelihood that Russia would extradite anyone to face such trials is extremely slim.

Yes, and it’s easier to prove the guilt of those responsible. In the case of Ukraine, it is undisputed that Russia spent months massing troops on the Ukrainian border and invaded on February 24. It is clear that Mr. Putin and his immediate subordinates issued the orders. Many world leaders, including United Nations Secretary-General António Guterres, have said Russia violated the UN Charter.

“There is no question that an act of aggression was committed,” said Alex Whiting, Harvard visiting professor of international law and war crimes prosecutor. “And the simplest case of an aggression crime is against Putin himself.”

Nonetheless, at least for now, the prospect of Mr Putin or other Russian leaders being prosecuted in an international court over such allegations anytime soon seems unlikely.

Yes, and this prosecution lasted for years. Slobodan Milosevic, the one-time leader of Serbia and Yugoslavia who directed ethnic atrocities in the Balkan wars of the 1990s, became the first former head of state to be tried for war crimes in 2002. He died in his cell in The Hague as his four-year trial before a special court ended before a verdict was reached.

Charles G. Taylor, the former President of Liberia, was sentenced to 50 years in prison by a special court in 2012 for atrocities committed in Sierra Leone during the civil war of the 1990s. Laurent Gbagbo, the former president of Ivory Coast, was acquitted in 2019 by the International Criminal Court of crimes against humanity and other charges related to violence following the country’s 2010 presidential election.

The International Criminal Court issued an arrest warrant for former Libyan leader Colonel Muammar el-Gaddafi in 2011, charging him with crimes against humanity, but he was killed in Libya in October.

Former Sudanese President Omar Hassan al-Bashir has been wanted by the International Criminal Court for many years for genocide and war crimes in the Darfur region, but the Sudanese interim government has not extradited him.

In 2018, a UN-backed special tribunal in Cambodia found that the Khmer Rouge had committed genocide during their notorious rule four decades earlier, and the tribunal issued convictions against the regime’s two oldest surviving members, Nuon Chea and Khieu Samphan.

Yes. Ukraine’s judicial authorities have made it clear that they intend to pursue criminal cases against Russians in Ukraine and elsewhere, including countries in Europe that are committed to universal jurisdiction – the legal principle that some crimes are so heinous they harm humanity at large offend, and therefore may be tried in the courts of any nation. On Thursday, the Ukrainian Prosecutor General’s Office posted a graphic on Twitter Russia has been accused of more than 6,400 aggression and war crimes since the invasion.

There are some expectations that Ukraine and sympathetic countries at the United Nations or within the European Union could convene a special tribunal just to prosecute Russian leaders for the crime of aggression. The risks, say critics of this approach, are that such a court lacks the semblance of impartiality, that it would require enormous investment and preparation time, and that the accused would never attend.

Payam Akhavan, a law professor at the University of Toronto and a former prosecutor involved in the special tribunals for prosecuting war crimes in Rwanda and the former Yugoslavia, said a special tribunal for Ukraine was a mistake.

“This is not a Nuremberg moment,” Mr Akhavan said, arguing that efforts would be better spent strengthening the powers of the International Criminal Court. “You don’t have to reinvent the wheel.”

Victoria Kim contributed reporting.

https://www.nytimes.com/2022/04/15/world/europe/ukraine-war-crimes-trials.html Why war crimes trials in Ukraine could take many years

Mike Fahey

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