Will Russians ever be punished for war crimes against Ukrainians?

Ukraine has already launched court cases against captured Russian soldiers—and others will likely be tried in absentia

July 13, 2022
Ukraine’s prosecutor general Iryna Venediktova. REUTERS / Alamy Stock Photo
Ukraine’s prosecutor general Iryna Venediktova. REUTERS / Alamy Stock Photo

This week has seen even more horrifying pictures of Russian atrocities in Ukraine: this time of a row of Ukrainian civilians apparently being led away to be shot. It comes after previous reports of mass graves, rapes and deportations as well as the deliberate bombing of residential areas and the targeting of civilians. The Russian army has history in this field: in Chechnya and Syria, and above all in the Second World War.

That war was brutal and the German armed forces were complicit in both the Holocaust itself and in the mistreatment and murder of civilians generally. But the behaviour of the Russian authorities and of the Red Army was also horrendous. The Katyn massacre of 1940, which involved the murder by the NKVD (the Soviet secret police) of nearly 22,000 Polish officers and intellectuals, happened during the period of Soviet collaboration with Nazi Germany. But the depredations of the Red Army at the end of the war were on an even bigger scale.

Estimates vary, but it is generally thought that over two million women in Europe were raped by Soviet soldiers. In Berlin, around 100,000 German women were raped in the months after the city’s capture, 10,000 of whom died from subsequent botched abortions. In Germany as a whole, 240,000 died as a result of rape. Neither young girls nor old women were spared. For many of the victims the pain lasted all their lives. Helmut Kohl’s wife, Hannelore, who committed suicide in 2001, was widely reported to have been raped by Soviet soldiers in Berlin at the age of 12. 

But the Second World War also marked the first occasion on which at least some of those responsible for the crimes committed were brought to account. The Nuremberg war trials, and their equivalent in the far east, were, in the eyes of some Germans, “Siegerjustiz” (the justice of the victors), in that they were conducted by the allies themselves and not by any independent authority. But the sight of so many former Nazi leaders standing in a courtroom and having to listen to the charges and evidence against them was unique.

The Nuremberg Tribunal was a one-off, set up specifically to investigate crimes committed by Germany. Fifty years or so later two further tribunals were established: the International Criminal Tribunal for the Former Yugoslavia (FCTY) in 1993 and the International Criminal Tribunal for Rwanda in 1994. Both followed well documented evidence of atrocities: ethnic cleansing, mainly by Serbs, in the former Yugoslavia and the genocide committed against the Tutsis in Rwanda.

Both tribunals have achieved impressive results. The FCTY has been able to indict those responsible for, amongst other crimes, the massacre of 8,000 Muslim men in Srebrenica. Senior politicians and senior military commanders have been prosecuted, found guilty and sentenced to long terms of imprisonment. They include the self-styled president of the Bosnian Serb republic, Radovan Karadzic, and the chief of his armed forces, General Mladic. Slobodan Milosevic, the former president of Serbia, was undergoing trial when he died in prison.

The experiences of Bosnia and Rwanda led also to the establishment of a court with a general mandate to investigate such crimes. The International Criminal Court was set up in 2002 under an intergovernmental treaty, with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Its authority is, however, limited. It can exercise its jurisdiction only when national courts are unwilling or unable to take action themselves. More crucially, it can only prosecute crimes committed by nationals of its signatory states; and these exclude Russia (as well as the United States and Israel). 

So does this mean that those responsible for war crimes in Ukraine will escape prosecution and punishment? Punishment perhaps, but not prosecution. Russia is a permanent member of the UN Security Council and will veto any proposal to set up a special tribunal to investigate war crimes in Ukraine. Nor, so long as President Putin is in power, will Russia acknowledge any guilt for anything its armed forces have done in Ukraine.  

But the Ukrainian legal authorities have already begun court cases against captured Russian soldiers and one has pleaded guilty to murdering a civilian. Ukraine’s prosecutor general, Iryna Venediktova, has launched 80 additional prosecutions. She is receiving help, including technical forensic assistance, from the International Criminal Court. It is probable that in due course there will be trials, probably mostly in absentia, of named Russian military and political leaders. Whether they will include Putin himself is yet to be seen.

Attempts to extradite any of the accused from Russia will no doubt fail. But those who are convicted will have their names publicised and will be unable to travel internationally. And who knows, maybe one day there will be a different government in Russia. The criminals may be safe for the time being. But they will not necessarily sleep soundly forever in their beds.