Ukraine: the Quest for Justice

Anya Neistat

Contributor

Tuesday, 20 December, 2022

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The year 2022 will go down in history as a year of outrageous crimes, immense human suffering, and – paradoxically - hope.

Ukraine’s unbending resistance in the face of Russian aggression has shown the world that Russia’s political and military might, which it has used for decades to secure its place at the big powers’ table, is nothing but a soap bubble. The war also triggered long overdue efforts aimed at holding Russia accountable through sanctions, freezing of assets and criminal investigations.

Unprecedentedly, from the first days of the war the military support and demands to stop the violence have been matched with practical steps to bring the perpetrators to account. Ukraine itself has started tens of thousands of criminal cases; the International Criminal Court (ICC) opened its investigation just two weeks after the start of the war; and more than a dozen countries launched their own investigations into crimes committed in Ukraine. There is also growing support for a special tribunal which could prosecute Russia for the crime of aggression. 

After seeing Russian crimes go unnoticed and unpunished for two decades, it is inspiring to witness such an awakening. The outrage over Russia’s actions – which we did not see when it carpet-bombed entire villages in Chechnya, invaded Georgia, supported Assad’s attacks on Syrian civilians or occupied Crimea – is finally there. 

But the power of outrage is an imperfect ally for justice. As the stories from Ukraine fade from the front pages and from the minds of everyone but those dealing first hand with the devastating impact of war, there is a risk that the appetite for accountability would start fading too. Survivors from Syria and Yemen would be the first to remind us how fickle the global spotlight may be and how long the road to justice can take.

Historically, efforts to establish accountability for large-scale international crimes have been a mixed success. Over the past three decades, international or hybrid tribunals investigated thousands of crimes committed in the former Yugoslavia, Rwanda, Liberia, Sierra Leone, Cambodia and East Timor. Collectively, they have indicted more than 700 people and obtained more than 250 convictions. These tribunals also set a number of key precedents – such as recognition of rape as a form of torture and a weapon of war, establishing responsibility of a superior officer for crimes committed by his subordinates, delivering verdicts to those responsible for genocide and recognising the role of the media in the incitement of genocide.

At the same time, many of these proceedings have been criticised for their length, cost, lack of impartiality, susceptibility to political influence and insufficient professionalism.

The ICC – the first permanent court set up to try those accused of “the most serious crimes of concern to the international community”, is yet to deliver on its promise. In its 20 years of operation, with a total budget of nearly 1.5 billion euros, it has made just ten convictions and four acquittals. It has also been criticised for its disproportionate focus on African investigations and undermined by the lack of support from the major world powers such as the US.

Another mechanism – holding perpetrators accountable under the doctrine of universal jurisdiction, which allows states to investigate international crimes committed abroad – has been gaining momentum in recent years, with 125 international criminal charges brought last year alone. Yet so far, only a handful of countries have the resources, professionals and political will to make use of the universal jurisdiction laws.

What can be done to ensure that the variety of national and international mechanisms which pledged their commitment to ensuring justice for crimes committed in Ukraine do not become yet another disappointment?  Equally, how can this increased commitment to justice be used to ensure that international crimes committed elsewhere also don’t go unpunished?

It will require significant financial resources: ongoing support of the ICC’s investigation, assistance to Ukraine’s national efforts, dedicating resources to specialised units for prosecution of international crimes elsewhere and the special tribunal, if it takes place. Alongside military and humanitarian support to Ukraine, large and timely investment in justice processes will be critical.

"All those involved must keep survivors the focus of their attention."

Given the extent of the crimes committed, and the number of Ukrainians currently residing abroad, resorting to universal jurisdiction proceedings is essential if justice is to be delivered at scale. National authorities, with the support of international institutions if necessary, must urgently establish or expand dedicated units for such investigations and prosecutions, and ensure that they have adequate training, resources and expertise.  

Harnessing the power of civil society could significantly enhance the ability of international and state bodies to investigate and prosecute international crimes. With their unrestricted access and extensive local networks, NGOs and in some cases journalists could be instrumental in both collecting and analysing evidence. They can also play a key role in identifying witnesses and supporting survivors throughout the process. For civil society actors, participation in justice processes would require adjusting their methodology to ensure that information is gathered and processed in accordance with law-enforcement standards. In turn, official investigative bodies would need to develop sufficient confidence and trust to accept much-needed assistance.

Another factor that will contribute to the success of justice processes is public outreach through traditional and social media around the ongoing efforts aimed at establishing accountability. It is necessary to maintain public attention, keep the faith of survivors and increase the deterrent effect of the proceedings on current and future perpetrators.

Most importantly, all those involved in the efforts to establish accountability must keep the survivors the focus of their attention. It means not only ensuring legal representation and assistance, but also providing psychological, medical, social and any other necessary support—and being prepared to do so in the long term. 

Finally, we will need patience and perseverance. It is reasonable to hope that the blatancy of Russian crimes, the abundance of evidence, the determination of survivors and the broad political support for Ukraine will allow the first international indictments and arrest warrants to be issued without significant delay. Yet it may be years before those responsible, especially high-level officials, face trial. And once the guns fall silent and the cameras move elsewhere, the tedious, inconspicuous process of building criminal cases and chasing suspects will need to continue. History has shown that the survivors of mass atrocities are determined to take this journey, no matter how long it takes. We just need to match their determination with our collective commitment.

Anna Neistat is legal director of the Docket Initiative at the Clooney Foundation for Justice.