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The trials of advancing international criminal law

The standard being set in Ukraine to investigate mass atrocities must be built on the principle of individual trial fairness and expand beyond that conflict.

War in Eastern Ukraine

The fast-moving developments in Ukraine make it difficult to stop and contemplate events as they happen. International support for Ukraine since the invasion has been overwhelming. As Alex Neve said in an opinion piece written in March, "[t]hat the invasion of Ukraine is rooted in contempt for international law may not be unprecedented. What may be, though, is the response." But it is clear that, while there is much to applaud about the overwhelming international support for Ukraine, aspects suggest that perhaps some caution is needed.

The strong international response is likely driven by many factors, not the least of which is the potential security threat Russia’s actions demonstrate beyond Ukraine. It may also be at least partially driven by horrific stories of human rights abuses against civilians, which amount to international crimes. After the Russians retreated from Bucha, mass graves were found, with evidence that those buried were civilians, and with evidence of torture. Reports of sexual violence and forcible deportations to Russia have also emerged. The BBC obtained CCTV footage of Russian soldiers shooting two unarmed civilians in the back. One of the civilians survived long enough to make it to a phone. He called a friend and told him that the soldiers first said they did not kill civilians, and then they shot them. There can be little question that international crimes have been committed.

Somewhat unusually, the international community has been quick to use the language of international criminal law in describing events in Ukraine, in stark contrast to the tendency to avoid such language in other situations of mass atrocities. Talk of “war crimes” and “crimes against humanity” has been pervasive. In April, Canada’s House of Commons unanimously passed a non-binding declaration that Russia is committing genocide in Ukraine. Canadian Prime Minister Justin Trudeau and U.S. President Joe Biden, among other prominent politicians, have both suggested that Russia’s treatment of Ukrainian civilians is genocide.

These international narratives have been accompanied by action. The International Criminal Court (ICC) has opened an investigation relating to any potential crimes committed on the territory of Ukraine from November 21, 2013, onward. Ukraine has made requests for investigation of possible crimes by Russia on its territory during different time frames. Neither Ukraine nor Russia is a state party to the Rome statute, but at Ukraine’s request, and through Ukraine’s exercise of its prerogatives to accept ICC jurisdiction, the ICC’s prosecutor announced on March 2, 2022, that an investigation into the situation in Ukraine had been opened.

By August 2022, 43 state parties to the Rome Statute, including Canada, made requests to the ICC to investigate alleged international crimes by Russian forces in Ukraine. This is an unusual show of unity in support of Ukraine, and a rare show of solidarity with the ICC, which has experienced considerable criticism, threats from powerful nations like the U.S., and departures and/or departure threats from some state parties in relation to other situations. The ICC is currently investigating allegations of crimes by both sides, and it has sent a contingent of 42 people to Ukraine, its largest investigation team ever. The ICC prosecutor has said the ICC will open an office in Ukraine. These swift and extensive investigations allow for evidence to be preserved, as well as sending an important deterring message to those who might commit international crimes in the future.

In May, the United Nations Human Rights Council cited evidence of shootings, torture, and sexual violence against Ukrainian civilians. Horrific reports of atrocities by Russia have continued to emerge all summer. Ukraine says it is investigating thousands of allegations of war crimes. Prosecutors have said that they are currently preparing a large number of cases to be tried in domestic courts, with estimates that the prosecutor’s office receives hundreds of reports of new war crimes each day. Thousands of investigators are working nationwide to collect evidence and testimony for possible criminal prosecutions. Other European countries have joined the investigations and have suggested that they will prosecute in their domestic courts as well.

These events have recently led to optimistic speculation that this may be a rejuvenation of support for prosecution of international crimes, with an end to widespread impunity for such crimes. Specifically, this scenario is seen by some as an optimistic sign for the ICC. Ukraine has welcomed the international community's involvement, including that of the United Nations and the ICC. Ukraine’s former prosecutor general expressed hope that this “joint investigation” model will become an international norm.

While the international commitment to address these mass atrocities through prosecution is to be applauded, it stands in stark contrast to the international response in other situations involving widespread allegations of human rights abuses. The standard being set in Ukraine must expand beyond that conflict.

The jurisdiction of the ICC is one of complementarity, so the preferred forum for trials of international crimes is still within national courts. Within that realm, even during the invasion, Ukraine has moved with remarkable speed, completing the prosecution of three Russian soldiers for war crimes by early June 2022. While it is generally desirable to proceed quickly, any such trials must still comply with international standards for fair trials. War crimes trials can be complex to build and prosecute. That can be even more challenging when they are held on the territory of a sovereign nation still in a life-or-death struggle against an invasion.

Deterrence is a value underlying international criminal prosecutions, and Ukraine’s then-Prosecutor General, Iryna Venediktova, said in May that swift trials were being sought to send the message to the Russian military that its members will be held accountable for any future crimes against Ukrainian civilians. In late May, just under three months after the start of the invasion, a domestic court in Kyiv sentenced a Russian soldier, Vadim Shishimarin, aged 21, to life in prison for shooting and killing a 62-year-old civilian four days after the invasion began. Shishimarin had been charged with war crimes and pleaded guilty.

Shishimarin said, and prosecutors argued, that he was with other soldiers when they came under attack by Ukrainian forces. During their escape, they came upon Oleksandr Shelipov, who was on his bike and talking on his cell phone. Shishimarin, allegedly under orders, shot Shelipov to stop him from revealing their location to Ukrainian forces, killing him instantly. Shishimarin’s lawyers said that he had twice refused the order to shoot, and ultimately obeyed, shooting randomly, out of fear for his own safety. This factual context is not entirely clear, with some reports saying it was not an order from a superior, but pressure from a soldier with whom he was fleeing.

In sentencing Shishimarin, who expressed great remorse, to life in prison, the judge concluded that he had no choice, saying "[g]iven that the crime committed is a crime against peace, security, humanity, and the international legal order ... the court does not see the possibility of imposing a [shorter] sentence."

There is a concern, though, in the imposing of a life sentence on a low-level soldier who says he followed an order, under risk to his own safety, who expressed remorse, and who entered a guilty plea. Some legal experts have publicly raised questions about this proceeding. A life sentence for war crimes on these facts is unusual, especially on the heels of such a quickly concluded proceeding. The sentence is being appealed.

A war of narratives has emerged around the possibility of criminal trials. A Russian official made a statement that some captured Ukrainian fighters were “Nazis” and called for an international tribunal to try those accused by Russia of being “Nazis.” As cases like Shishimarin’s proceed quickly to sentencing, Russia has similarly threatened to quickly try detained Ukrainian fighters, calling for a possible death penalty in some cases. The false narrative that Russia is freeing Ukraine from “Nazi” influence has formed a basis for Russia’s claimed justification for the invasion itself. Russia appeared to have made good on its threat in mid-June 2022, as news emerged that Russia sentenced three fighters – two from the UK and one from Morocco – to death after a hasty and much-critiqued trial. The fighters were accused of being terrorists and mercenaries, although evidence suggests that all three were affiliated with the Ukrainian military. International criminal law may serve as a deterrent against future crimes, but it should not be used in a pretextual way to accomplish other ends.

A Ukrainian prosecutor made statements in Shishimarin’s case after sentencing that also raise this concern. Andriy Sunyuk said that he hoped Shishimarin’s conviction would send a larger message to Russia. He said: “This will be a good example for other occupiers who may not yet be on our territory but are planning to come … Or for those who are here now and plan to stay and fight. Or maybe they will think that it's time to leave here for their own territory.”

At the end of May, Ukraine completed a second domestic war crimes trial against two Russian soldiers, Alexander Bobikin and Alexander Ivanov, who were accused of shelling civilian sites in the Kharkiv region. Nobody was killed, but civilian structures, including an educational facility, were destroyed. Like Shishimarin, the soldiers pleaded guilty, and were found to have violated the “laws and customs of war,” with each being sentenced to over 11 years in prison. The bombing of a civilian site is not, on its own, a war crime absent other factors, and published reports have given little information as to whether those other factors were proven. Robert Goldman, a professor in the U.S., expressed concerns in an interview with the Washington Post, saying “[a]gain you’ve got in a matter of days people who are tried and convicted for a very serious crime, which is a war crime … I have very real questions about the conduct of the trial and the adequacy of the defense”.

It may well be that the required elements were present in these cases, but the surrounding context raises concerns about whether these proceedings were fair. The publicly available facts also leave unanswered questions about whether these scenarios, while obviously serious, rose to the level of war crimes.

Ukraine has begun a trial of a Russian soldier in absentia who is accused of killing an unarmed civilian and repeatedly raping his wife and threatening to kill her and her child. Again, more information is needed to know what evidence is available and what the specific charges are. Given widespread reports of sexual violence, such a prosecution has obvious importance. The fact that the defendant's whereabouts remain unknown raises questions as to why Ukrainian prosecutors sought to proceed so early with this case, especially given the large number of referrals of possible war crimes they have received. No doubt more information will be forthcoming as the case proceeds.

While potentially offering a positive step forward in justice for perpetrators of international crimes, as well as an important deterrent against future crimes, it is important that prosecutions in Ukraine and elsewhere not leave open questions about trial fairness or about whether trials are a response to actions beyond the individual culpability of the accused. This is not to say the aforementioned proceedings were unfair, but it is important that unanswered questions be addressed and that there not be even an appearance of problems with prosecutions. Both Russia and Ukraine must comply with international law in any prosecutions they pursue and must do so with objectives consistent with individual trial fairness. Absent that, the optimism about the potential advancement of international criminal law in Ukraine, justified on so many levels, could ultimately prove illusory.