Evidence of war crimes in Ukraine abounds. Abandoned bodies, hands tied behind their backs, were found on the streets of Bucha. Hundreds of dead children, flattened hospitals, schools and crowded railway stations bombed, women raped – all are testimony to a systematic use of illegal methods to cow a population. New evidence of a mass grave in Mariupol to hide thousands of civilian dead has added to international calls for justice.
The Geneva Convention, guaranteeing the protection of civilians, medical facilities and the wounded, has been flouted brazenly. As have conventions prohibiting the use of indiscriminate weapons such as anti-personnel landmines, cluster bombs and thermobaric and massive bombs – the latter not banned, but their deliberate use near civilians almost certainly illegal.
World leaders, including president Volodymyr Zelenskiy, have also accused Russia of genocide, defined legally as the deliberate killing of people from a particular national, ethnic, racial or religious group, with the intention of destroying the group entirely or in part. Forty states, including Ireland, have called on the International Criminal Court to investigate Russian atrocities. Its investigators, Ukrainian prosecutors, UN teams, and NGOs are scouring the country for evidence. Local prosecutors have already opened 5,000 cases. While Russia and Ukraine are not ICC signatories, the latter signed up in 2015 to its jurisdiction giving it a remit in its territory.
The standards for proving massive, complex international crimes are daunting. The challenge with war crimes is to prove the chain of direct responsibility and knowledge up to and including Vladimir Putin. That was possible in successful cases against Slobodan Milosevic of Serbia and Charles Taylor of Liberia, but only after both had lost office and were surrendered to the court by successor regimes.
Ukraine has begun a case against Russia for the crime of aggression at the UN's International Court of Justice, responsible for adjudicating inter-state cases. If it rules against Russia, the Security Council, of which the latter is a veto-wielding member, would be responsible for enforcement. Some , including Poland and France, have also begun legal action under the principle of universal jurisdiction, in which a grave crime committed in one country can be tried elsewhere.
One option under active discussion – apparently endorsed by Zelenskiy last week – is that Ukraine pursues a prosecution of aggression under its own law but with international support, perhaps from the Council of Europe. Such a hybrid tribunal might then begin its work outside Ukraine. Success in this quest for justice is far from guaranteed. But, ultimately, if even the limited prospect of international justice gives a dictator pause for thought, it must be seen through.