Bombed out children’s hospital in the middle of a non-military occupied area of Ukraine where mothers and children died.
A children's hospital in Mariupol after a Russian airstrike (https://en.wikipedia.org/wiki/2022_Russian_invasion_of_Ukraine#/media/File:%D0%9D%D0%B0%D1%81%D0%BB%D1%96%D0%B4%D0%BA%D0%B8_%D0%BE%D0%B1%D1%81%D1%82%D1%80%D1%96%D0%BB%D1%83_%D0%B4%D0%B8%D1%82%D1%8F%D1%87%D0%BE%D1%97_%D0%BB%D1%96%D0%BA%D0%B0%D1%80%D0%BD%D1%96_%D1%82%D0%B0_%D0%BF%D0%BE%D0%BB%D0%BE%D0%B3%D0%BE%D0%B2%D0%BE%D0%B3%D0%BE_%D0%B1%D1%83%D0%B4%D0%B8%D0%BD%D0%BA%D1%83_%D0%B2_%D0%9C%D0%B0%D1%80%D1%96%D1%83%D0%BF%D0%BE%D0%BB%D1%96,_9_%D0%B1%D0%B5%D1%80%D0%B5%D0%B7%D0%BD%D1%8F_2022_%D1%80%D0%BE%D0%BA%D1%83.jpg).

Ukraine: Prosecuting War Crimes and Russian Aggression in Ukraine

This episode of Global Dispatches is a bit different than usual. Rather than the host, Mark Leon Goldberg interviewing someone, he is the one being interviewed.

Moderators at the WordNews page on Reddit invited Mark to share some of his expertise on international justice issues in the context of Russia’s invasion of Ukraine. Specifically, what are the prospects of accountability for war crimes and crimes against humanity committed in the Russian war on Ukraine.

Mark has reported on the International Criminal Court and other issues related to war crimes and crimes against humanity for nearly 20 years and took questions from moderator Akaash Maharaj, ambassador-at-large for the Global Organization of Parliamentarians against Corruption and a fellow at the Munk School at the University of Toronto.

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Transcript lightly edited for clarity 

How are War Crimes Typically Prosecuted?

Mark L. Goldberg [00:00:00] There is virtually no chance that any Russian residing in Russia will go to trial in The Hague under the International Criminal Court’s jurisdiction.

Akaash Maharaj [00:02:40] Welcome to Reddit Talk.

Mark L. Goldberg [00:02:41] Hey. Thank you for having me, Akaash. Great to be here.

Akaash Maharaj [00:02:44] So this is a large and ponderous question. Let me set the context before we immediately go into the question of the crimes have been committed in Russia and what the options are. Can you give us a sense, broadly speaking, based on past practice of how the international community has handled war crimes? The Nuremberg trials, of course, one of the high watermarks, a prosecution of crimes against humanity and war crimes. But since then, more recently, how has the United Nations, other international bodies, the international community, responded when it has had conclusive evidence of war crimes in other theaters.

Mark L. Goldberg [00:03:19] Just to maybe set the context for who I am and how I will approach these questions. I am a journalist who has covered these issues for many years, and my last job before becoming a journalist was as an intern at the International Criminal Tribunal for the former Yugoslavia that was prosecuting Slobodan Milosevic’s back in 2003. So, I’ve been covering this as a journalist for many years. I’m not a lawyer, but hopefully as a journalist, I could offer some broader context for listeners to understand these questions as we move forward. So, to answer your question most directly, you know, as you noted, the Nuremberg trials following World War Two created a sort of slow momentum that justice for war crimes is something the international community ought to focus on. And that momentum during the Cold War sort of crumbled. There was no real way to bring the international community together, to create entities to pursue war crimes and crimes against humanity. Then you saw two things happen in the 1990’s following the fall of the Berlin Wall and the dissolution of the Soviet Union. The first was the war in the Balkans, and the second was the Rwandan genocide. Both were instances in which genocide and horrible crimes against humanity occurred and in response to both of those, you saw the creation of two distinct entities. The first is called the International Criminal Tribunal for the Former Yugoslavia, which was established in the early nineties to try crimes that occurred in the context of the Balkan War. The second is the International Criminal Tribunal for Rwanda, the ICTR, it’s called, which was established to prosecute genocide and crimes against humanity that occurred in the context of the 1994 Rwanda genocide. Those are two distinct courts that actually happened to share an appeals chamber together but they’re what the international community call the ad hoc courts. They were established specifically to deal with those instances. And as these courts got off the ground in the 1990s and started getting some notches under their belt and started making an impact, there began some deeper momentum to create a permanent court, not these ad hoc courts, but a standing court to try war crimes and crimes against humanity and individual perpetrators of war crimes and crimes against humanity. And this is how you saw the advent of the International Criminal Court, which formally came to life in 2002 after several years of negotiation over its statute, over its composition, over its rules of procedure, but starting in 2002, the ICC opened its doors and began its investigations and prosecutions. And so, we now have 20 years of a track record of a standing permanent court. And this is the context in which the international community is now approaching war crimes and crimes against humanity happening in Ukraine.

Can Russians be tried for war crimes in the International Criminal Court?

Akaash Maharaj [00:06:40] Well, thank you for that. You’ve done an excellent job in setting the context for where we are now. Let me begin with the International Criminal Court. The ICC has reported that it has opened its own investigation into international crimes being committed in Ukraine, including war crimes and crimes against humanity. However, Russia itself is not a signatory to that court. Does that present an insuperable barrier to the court actually trying people who have committed war crimes in Ukraine if those people are Russian citizens?

Mark L. Goldberg [00:07:11] So the answer is no. The jurisdiction of the International Criminal Court has been extended to include crimes committed in Ukraine since 2014. Though Ukraine is not a member of the court, it has essentially voluntarily given the ICC jurisdiction to try crimes under the ICC purview on its territory and has done so retroactively to include crimes committed since 2014. There are various ways that in general the ICC can claim jurisdiction over crimes committed on its territory. The first and easiest way is if the territory itself is a signatory to the Rome Statute that underpins the ICC, the Treaty of the ICC. The second is if the country is not a member of the Rome Statute, is not a member of the ICC, the Security Council can give the ICC jurisdiction to try a case there. And this is what happened in 2005 when the Security Council gave the ICC jurisdiction to try to investigate and prosecute the genocide in Darfur. Sudan is not a member of the ICC, yet the Security Council agreed at the time, with Russia and China abstaining, to give the court jurisdiction there. So, there are other ways in which the ICC can have jurisdiction to try individuals who commit crimes in territories outside its normal jurisdiction but the most straightforward way with Ukraine is that Ukraine invited the ICC to do so. And so now it has jurisdiction and is cooperating with the ICC in that jurisdiction.

Will Russia cooperate with the International Criminal Court?

Akaash Maharaj [00:08:57] So that gives the International Criminal Court a legal basis for prosecuting crimes committed within Ukraine. As you said, the fact that Ukraine, though not a signatory itself, has as a sovereign state, granted that jurisdiction to the ICC. In your experience, as someone who has covered the ICC for many years, is there a practical probability that the court would be able to lay hands on suspects without the cooperation of Russia?

Mark L. Goldberg [00:09:23] There is virtually no chance that any Russian residing in Russia will go to trial in The Hague under the ICC’s jurisdiction. The ICC does not have a police force. It cannot invade a country to arrest an individual who is wanted for a major war crime. It depends on countries turning over wanted individuals on their territory to the ICC to stand trial in The Hague. And the ICC does not conduct trials in absentia. So, it requires that the defendant is present in court to defend him or herself. Looking at two instances in which heads of state have been wanted by the ICC, the first is in Sudan. While he was still the president of Sudan, Omar al-Bashir was indicted on genocide. There was an indictment that was unsealed, and he served as president of Sudan for a long time, thereafter, didn’t travel much internationally for fear that he might get turned over to the ICC, but he nonetheless served as president of Sudan. There was a coup in Sudan, and he is now sitting in jail, and there is hope and expectation that the current leaders of Sudan at some point might turn him over to the ICC to face trial. But until and unless that happens, the trial for genocide of Omar al-Bashir in Sudan won’t happen. Similarly, it is unlikely that so long as Vladimir Putin is president of Russia, that Vladimir Putin or any of his top lieutenants will face justice in The Hague simply because they’re not going to turn themselves in and no one’s going to come and get them. Now, the only outside chance that I see that senior leadership in Russia do indeed face justice for war crimes and crimes against humanity in The Hague are if there is some sort of change in leadership in Russia itself. And this is how the former court, the ICTY, the Yugoslav court, got Slobodan Milosevic. When Slobodan Milosevic was president of Serbia, he wasn’t going to turn himself in to the ICC. There were elections in Serbia. He lost those elections, refused to leave; there were street protests, and eventually he was arrested by local Serb authorities and then transferred to the ICC, which was a very convenient way of extricating him from Serbian politics. So that’s to the extent that you might see Vladimir Putin or any senior leadership in Russia any time in a courtroom, any time soon, it would be because there is a change of leadership in the Russian Federation.

Can Russians arrested in Ukraine be tried in the International Criminal Court?

Akaash Maharaj [00:12:09] I can certainly see that for people who are Russian citizens who are resident within Russia. What about the possibility of Russian citizens or Russian backed troops who are arrested or taken into custody in Ukraine itself? Is it possible for those people to be put on trial?

Mark L. Goldberg [00:12:27] So they have been put on trial. There are a number of ongoing cases in Ukrainian courts right now that are trying individual Russian soldiers for war crimes. Over the summer, there were two kind of high-profile convictions. There was a young Russian soldier who was given a life sentence for shooting and killing an elderly Ukrainian man on a bicycle. There was another case over the summer in which two captured Russians were found guilty of maliciously targeting some civilian infrastructure with artillery and they were given sentences. And there are hundreds and hundreds of these cases and investigations that are ongoing and that fall within the jurisdiction of Ukrainian criminal law. This is falling mostly on the burden of local Ukrainian prosecutors, however, there’s also a degree of cooperation between Ukraine and the ICC. Just two weeks ago had the chance to interview the deputy prime minister of Ukraine, and I asked her, what’s the extent that your government is cooperating with the ICC on some of these larger scale war crimes trials, and she says 24/7, we are in constant contact with them. We are sharing intelligence; they’re sharing with us. We are working hand in glove to bring perpetrators to trial, both locally and potentially internationally.

Can the United Nations create an ad hoc court for war crimes committed in Ukraine?

Akaash Maharaj [00:13:58] Shifting gears somewhat, you spoke about your experience with the ad hoc tribunal for Rwanda and the former Yugoslavia. As I understand it, those ad hoc tribunals which were created specifically for crimes committed during those conflicts, were created at the behest of the U.N. Security Council. I take it, then, that with Russia wielding a veto in the Security Council, there is no prospect, there’s no other mechanism, I should put it, for the U.N. to create an ad hoc tribunal for Ukraine.

Mark L. Goldberg [00:14:28] Not true, exactly. So fascinatingly enough, you saw just yesterday, Ursula von der Linde, the top EU foreign policy chief, raising and putting meat to the bones to a proposal that Zelensky has long advocated for a special court to try the crime of aggression, specifically Russia’s aggression against Ukraine. Aggression is the crime from which all others stem. It’s simply put, the crime of invading another country. You can’t just invade another country in the way that Russia did to Ukraine. It’s against international law.

Akaash Maharaj [00:15:14] Well, you can do it, it’s just illegal.

What is the crime of aggression in international politics?

Mark L. Goldberg [00:15:14] Yeah, you can do it, it’s just illegal. So, the International Criminal Court — I can get into like a mini history lesson here — but when the ICC statute was created in the late nineties, early 2000’s, at the behest of the United States, the crime of aggression was left out of the statutes that were included in things that the ICC could prosecute. Then sometime in the mid 2000s, there was an addendum added in which aggression could be included as a crime that the International Criminal Court could prosecute. However, due to some legal quirk that I couldn’t get too deep into the details of, but I’m sure any lawyers in the audience could, there are stipulations in which if you’re not a member of the ICC, you can’t be tried for aggression. So, in other words, because Russia is not a member of the ICC, it can’t be tried specifically for the crime of aggression. Now, this has very much irked Zelensky, who very, very much wants to see a wanted poster with Vladimir Putin’s name and face on it because aggression is a leadership crime. So, he has been pushing the international community in general and Europe in particular to devise an alternative mechanism to try and prosecute the crime of aggression against Ukraine. And it appears there is now some momentum to do just that with von der Linde’s announcement just yesterday that she is taking this to her colleagues at the European Union and other allies around the world. And interestingly, this does not require the Security Council to approve. It can be done with an act of the General Assembly in which no country has a veto. Specifically, Russia doesn’t have a veto. And there’s some precedent for this as well. There is a crimes against humanity court chambers in Cambodia that was trying Khmer Rouge crimes called the Extraordinary Chambers of Cambodia that was created by an act of the General Assembly with the approval of the secretary general. So that is likely to be a mechanism around which you will see gaining momentum in the coming weeks and months. You are likely to see debates at the General Assembly to approve the creation of a court of aggression probably located in The Hague and specifically created to try Russian leadership for their crimes.

Akaash Maharaj [00:17:41] I have to wonder, though, that as much as other major states, such as the United States might wish to see Russia put in the dock for crimes of aggression, I don’t imagine that they’re particularly enthusiastic about the prospect of themselves being put in the dock for such crimes in the future. Do you think that other major powers who might not wield a veto on the process that you’ve described, will support it in the hopes of bringing justice to Russia? Or do you think they will quietly lobby against it for fear that it might be used against them in the future?

Mark L. Goldberg [00:18:11] So specifically, this Court I foresee being an ad hoc court that’s not a permanent court to try the crime of aggression, but rather an ad hoc court to try the crime of aggression in the context of Russia’s invasion of Ukraine. But your point about the United States and its general hostility, not just towards including the crime of aggression as part of common international law that could be enforced through the International Criminal Court, but more broadly, as an opposition force against the ICC is very well taken. You know, the Rome Statute, the treaty that created the ICC, was negotiated at the very tail end of the Clinton administration. And, you know, Bill Clinton reluctantly signed the treaty in his last days in office around December of 2000, knowing full well that the Senate would never ratify the treaty, believing it to be a kangaroo court to try the U.S. troops. In one of his earliest moves in office, the incoming George W Bush administration, spurred on by then the undersecretary of state for arms control, John Bolton, unsigned the treaty and began a campaign to de-legitimize the ICC. And this campaign was so extreme. At one point I reported this out in the early 2000s that even as there are countries in Europe that were supporting the US led war in Iraq, the Bush administration was still seeking to penalize those countries by withholding military aid simply because they were members of the ICC. It was like a wild and ideological drive to undermine the legitimacy of the ICC. Eventually, the ICC, I think, sort of proved itself, and by 2005, you had the U.S. supporting extending the jurisdiction of the ICC to Sudan to try Omar al-Bashir. And more recently, you are seeing quiet efforts at this point, but I foresee that these will pick up steam in the U.S. Congress to remove certain laws on the books that are about 20 years old intending to prohibit American cooperation with the ICC. There are a number of laws, basically, that prevent the U.S. from funding the ICC or providing intelligence assets to the ICC, and I think Russia’s invasion of Ukraine has changed the politics of this profoundly, and which you’re going to see even many Republicans, I think, start to support a way to find a modus vivendi with the ICC, to let the U.S. intelligence services and other U.S. assets support the ICC investigation in Ukraine. And I think this is going to be a real sea shift in how U.S. government and Republicans in particular approach the ICC.

What is Universal Jurisdiction?

Akaash Maharaj [00:21:13] I’m conscious of the fact that one of those laws in the United States is the American Service Members Protection Act, which is colloquially known as the Hague Invasion Act, giving the US President the unrestricted right to use his powers to remove any U.S. or allied citizen who is being tried in The Hague or any other tribunal. It is a remarkable bit of political theater, but it goes to the point you were making that has historically been exceptional resistance within the United States to the International Criminal Court and international criminal tribunals, in general. Though, this may bring about a change. Let me shift gears once more, because in addition to the kinds of transnational borders that you’ve discussed, there is also in international law, the concept of universal jurisdiction for certain crimes, that there are some crimes so serious it becomes not merely the right but indeed the responsibility of individual states to prosecute them if they are able to lay hands on the perpetrators. I think that there are about 80 countries in the world that recognize universal jurisdiction in their domestic laws, but only about 15 who have ever made any real attempt to exercise those laws. Do you think that the very strong consensus within the international community against Russia’s actions in Ukraine is strong enough that we might see individual nation states in addition to Ukraine, using the concept of universal jurisdiction to prosecute Russian citizens who might find themselves within those other states?

Mark L. Goldberg [00:22:42] Almost certainly I think that will be the case. You know, as you noted, a number of countries, many in Europe, claim universal jurisdiction for the worst kinds of crimes that there are. And you are going to see a lot of these kinds of efforts, I think, unfold in the coming years. Now, I think this is going to be particularly the case in Europe, where you have a large Ukrainian diaspora and refugee population who will be demanding it in places like Germany, which also claims universal jurisdiction. Germany tried a Syrian for torture two years ago and convicted this Syrian for torture in Syria. So, you will almost certainly see national courts claims of universal jurisdiction as part of this broader mix that is seeking to hold Russians accountable for war crimes and crimes against humanity in Ukraine. The U.S. also claims universal jurisdiction in certain cases of torture as well, which is interesting and that’s only been exercised a couple of times — actually one of the cases is ongoing here in Denver, where I am, where there’s a Gambian who is accused of torturing other Gambians in Gambia and is now facing federal torture prosecution. So, a lot of countries claim this.

What are some criticisms against the International Criminal Court?

Akaash Maharaj [00:24:06] That does bring us on to a question about the reaction of the rest of the world, though one of the common criticisms one hears of the International Criminal Court, or indeed of international tribunals in general, especially from the political leaders in Asia and in Africa, is that those courts find their courage only when they’re prosecuting Asians and Africans. That is to say they seem to be particularly keen to exercise their powers over those nations, but suddenly lose their courage when they are faced with people who have committed crimes in Europe, North America, or sometimes South America. Do you have a sense, as an observer of the UN system, of what countries in Africa and Asia are likely to think, if there are not concerted efforts to bring Russia to justice, is that likely to undermine the legitimacy of the International Criminal Court among people who are already saying it isn’t really an international criminal court, it’s a court to prosecute Africans and Asians?

Mark L. Goldberg [00:25:03] So really, for most of the ICC history, it was only a court to prosecute Africans, and this was a profound knock on it. For a long time, the only cases that the ICC had ongoing were in Congo, were in Kenya, were in Uganda, were in Sudan or in Cote d’Ivoire. This is for most of the ICC’s history, it exclusively focused on Africa. Now, ICC defenders will say, it did focus on Africa because that’s where the crimes were, and also, it’s important to remember that the ICC considers itself and is statutorily obligated to be a court of last resort. If there are competent local courts that are able and willing to prosecute these crimes, the ICC does not claim jurisdiction and it was the case in many African cases that there just wasn’t that domestic ability or in many of the African cases, the African governments themselves invited the ICC on to their territory to give them jurisdiction. But your point is very well taken. I do, however, see that the ICC’s investigation of crimes in Ukraine committed by Russians and potentially even crimes in Ukraine committed by Ukrainians to be like a watershed moment in this perception that the ICC only targets the Global South. This prosecution, this investigation in Ukraine is the single largest in the ICC history, and it’s being led by Karem Khan, who’s a British barrister who cut his teeth in the UN system most previously as a person seeking to gather evidence to try ISIS for genocide against the Yazidi population in Syria. That was his previous job before he became chief prosecutor of the ICC. So, I think with this ICC investigation, the reputation of the ICC number one, is very much on the line, that they are going to need to demonstrate that they are able to bring evidence and bring the charges against Russians eventually. I think it’s unrealistic to expect any time soon that Russians will appear in The Hague, though, you know, you never know. The ICC also can put indictments under seal in an effort to try to trap Russians who might be traveling abroad and who might be culpable. So, we’ll see, to answer your question, but I do think that this moment in the ICC’s history is profound and very much a turning point in global perceptions of the International Criminal Court.

Akaash Maharaj [00:27:44] Mark, thank you very much for taking the time to speak with us. You gave us a whistle stop tour throughout, not just the way in which international law is currently applied to crimes against humanity and international crime, but a very strong historical context for the way this has developed since the Second World War. And I would say a sense of the political dynamics and diplomatic dynamics there unlikely to take us forward from this point into the future. So, we’re very grateful to you.

Mark L. Goldberg [00:28:11] Well, thanks so much. It’s awkward for me to be answering so many questions when it is my day job to be asking the questions. So, I do appreciate the time.

Akaash Maharaj [00:28:20] Thank you so much.

Mark L. Goldberg [00:28:28] Thank you for listening to Global Dispatches. Our show is produced by me, Mark Leon Goldberg, and edited and mixed by Levi Sharp.