Hi Rob, Russian war crimes in Ukraine, did they come as a surprise?
‘Yes. That war is being waged is accepted in international law as a fait accompli. But violence against civilians is a so-called ‘war crime’: unacceptable. The Russians have been accused of atrocities more often, but last weekend when journalists entered Bucha, a suburb of Kyiv where the Russians had left, we saw what that looks like.
‘I was especially touched by the nonchalance of the atrocities. You see a body here and there, on the side of the road. They are holding a shopping bag or lying next to a bicycle. As if people were shot randomly. In one of the photos you see a lifeless woman’s hand with painted nails. You can see at a glance: this was a burger. That the Russians do things like this in front of the world is insane.’
Ukraine’s attorney general urges to document the atrocities “so that the beasts who created it are punished.” How does that work?
“Just like any other lawsuit, you need legal and convincing evidence. Since the invasion, Ukraine has set up several investigative teams to map war crimes, including together with Poland and Lithuania. The International Criminal Court in The Hague has also launched a criminal investigation. That can just coexist. The researchers will try to collect evidence in Butsha: record eyewitness statements, secure footage. They can also use documentation from third parties: research by human rights organizations and journalistic productions.’
What is the chance that the perpetrators will end up in jail?
‘The good thing is that Boetsja is now accessible to researchers. That was different in previous conflicts, for example because a dictator is still in power. The Ukrainians also have a professional intelligence apparatus. Perhaps they already know which Russian battalion has wreaked havoc in Butsha.
The question is whether the perpetrators will be punished. The responsible soldiers will be in Russia in no time. It then becomes very difficult to prosecute them. It is not common for countries to extradite nationals. Moreover, Russia is not affiliated with the court.
Strangely enough, it is the peace negotiations that can ultimately frustrate the trial. I spoke to a number of experts who predict that Ukrainian negotiators may soon have to choose between peace and justice. This also played a role during the war in Yugoslavia. The Russians may want to talk at the negotiating table about giving up the Donbas, but on the condition: we don’t want to be prosecuted. That can be an official requirement, or play in the background. And then there’s the question of what Ukraine prefers: peace or trial.’
If Ukraine waives prosecution, what about the ICC?
“The ICC can certainly strike. Milosevic, Mladic and Karadzic (war criminals from Serbia, red.), they all ended up in a cell in The Hague. That could happen to Putin. It all depends on prosecutor Karim Khan. Khan will always say that he is completely independent. But I have the impression that he is also sensitive to political pressure. That is not crazy. To indict Putin as a permanent member of the UN Security Council is quite something.
Rob Vreeken spoke with Cedric Ryngaert (professor of international law, Utrecht University), Alette Smeulers (professor of criminal law and criminology of international crimes, University of Groningen) and Sergey Vasiliev (hassociate professor of international criminal law, University of Amsterdam†