How to Hold Russia Accountable for War Crimes in Ukraine

What are war crimes and crimes against humanity?

War crimes and crimes against humanity are international crimes of such magnitude that they shock the conscience of all of humanity.

Examples of war crimes include acts of violence, attacks, and reprisals against civilians and civilian infrastructure with no military objective, or where an attack may be expected to cause incidental loss of civilian life or would be excessive in relation to the concrete and direct military advantage. International law also bans the use of weapons that fail to discriminate between military objectives and civilians or civilian objects, like cluster munitions, which are indiscriminate, leaving bomblets that can explode long after the first impact, killing and maiming for years to come.

Crimes against humanity are part of customary international law and the Rome Statute of the International Criminal Court, whereas war crimes are codified in treaties including the 1949 Geneva Conventions.

What types of atrocities in Ukraine could be considered war crimes and crimes against humanity?

Some of the widespread war crimes and crimes against humanity documented in Ukraine include summary executions, torture, and the grave abuse of civilians perpetrated by the Russian military. Other actions that may amount to war crimes include strikes on houses, cultural properties, hospitals, schools, nuclear power plants, and kindergartens; and the repeated use of cluster munitions.

Even though the Ukrainian prosecutor general’s office has already opened investigations into close to 20,000 atrocities and counting, the full scale of these crimes is far from being fully known.

Who is investigating these crimes?

The International Criminal Court has been examining evidence of war crimes in Ukraine since Russia’s invasion of Crimea in 2014, and in March 2022, the International Criminal Court’s prosecutor opened an investigation into allegations of war crimes, crimes against humanity, and/or genocide in Ukraine from November 21, 2013, onwards. As the war continues, many other organizations and individuals—including thousands of Ukrainian investigators, numerous teams from other countries, and individuals from local and international nonprofit groups—are compiling evidence of war crimes and crimes against humanity at an unprecedented rate. This work can also be done in collaboration with journalists, military officials, the open-source community, and social media users.

What types of evidence are being gathered?

Some examples of evidence that could be admissible in a court include forensic and audiovisual evidence and oral testimony.

For instance, physical evidence, such as bodies, the position of bodies, and mass graves can point to atrocity crimes having been committed. Images posted on social media can be examined by investigators using a variety of digital tools to geolocate them, compare them to earlier photographs or satellite images, and confirm their veracity. Important witness testimony of first-hand evidence of crimes that happened in Bucha, Mariupol, and elsewhere might be provided by individual witnesses once they’ve reached safety. The type of evidence investigators might choose to gather can change based on context, and as they see new opportunities.

Is it possible to prosecute Putin and senior Russian officials?

Beyond cases against individuals who themselves carry out war crimes, it is possible to hold senior political or military officials like Putin accountable. To bring cases before high-ranking government officials requires evidence that links the physical harms and atrocities occurring in Ukraine to the more senior individuals in a military or political hierarchy who have the responsibility and authority to order armed forces into action.

Since the Nuremberg trials after World War II, war crime prosecutions have sought to target those in leadership positions who either order atrocities to be carried out or who fail to take action to punish perpetrators in their own ranks. While not directly involved in committing specific crimes, commanders and political leaders are responsible for the actions of their subordinates, and the policies that enable them.

Depending on the law in place, linking higher-ups to crimes committed by their subordinates means determining whether the suspect had effective control over his or her subordinates, gave relevant orders for the commission of crimes, or alternatively knew or should have known about their commission and failed to prevent or punish the acts. Called linkage evidence, examples that could incriminate more senior officials include structures of military and political authority, insider testimony, and written orders.

In addition to holding Putin and other senior leaders accountable for war crimes, many are now calling for a special court to prosecute them for the international crime of aggression that was Russia’s illegal invasion of Ukraine. Many legal experts believe that this could be a more straightforward charge than pursuing prosecutions against top officials for crimes committed during combat.

What needs to happen to reach accountability?

There is no statute of limitations on war crimes or crimes against humanity, and the process of accountability for crimes committed in the war in Ukraine is likely to take years. Any effort to bring prosecutions and trials will demand sustained political will and financial resources, many years into the future.

States must increase their financial support to the International Criminal Court across the board so that it can be as effective as possible, not only regarding the situation in Ukraine but all 17 of its active investigations around the world.

Why is investigating and prosecuting war crimes in Ukraine important for justice elsewhere?

The atrocity crimes we are witnessing in Ukraine recall previous Russian atrocities in Georgia, Chechnya, and Syria that made use of unlawful weapons and tactics, including the commission of indiscriminate strikes, the dropping of unguided bombs and cluster munitions on civilian areas, and the targeting of hospitals and health care facilities. Successful prosecutions of blatant war crimes in Ukraine and of the crime of aggression may make it harder for States to ignore appeals for accountability the next time a powerful actor such as Russia overrides international rules. The international community’s response to atrocities in Ukraine should include not only means to address justice in this instance, but rededication to the values and mechanisms of international justice that is robust, equitable, and serves those touched by atrocity crimes wherever they occur.