Russia’s invasion of Ukraine has resulted in a remarkable alignment of international actors supporting accountability processes. The international community — states, regional bodies, civil society and the U.N. — has provided funding and expertise to the Ukrainian government and launched documentation and evidence collection efforts, fact-finding missions and criminal investigations into Russia’s invasion and the crimes committed against Ukrainian civilians. The progress made to date stands to advance the rights of Ukrainians and other vulnerable communities faced with aggressive state action. Moving forward, this united effort will require the coordination, creativity and sustained political will to ensure that perpetrators are held accountable, and that justice is delivered to victims.
The Russian invasion of Ukraine is perhaps the most documented conflict of the 21st century. Internet penetration in Ukraine far exceeds that of Syria during the 2011 uprising and ensuing civil conflict, and the result is that Russian attacks and their aftermath have been well documented through social and traditional media. As of April 18, the Office of the U.N. High Commissioner for Human Rights recorded 2,072 civilians killed and 2,818 injured. But anecdotal evidence — including that shared by Ukrainians through their mobile devices — suggests that number will grow as investigators collect evidence, including exhuming mass graves in conflict-ravaged cities like Bucha and Mariupol. Further, large-scale killings of civilians are far from the only crimes that Ukrainians have suffered. Reporting suggests that sexual violence and torture are widespread, and the fighting has resulted in considerable damage to civilian infrastructure.
More than 7,000 investigations have been opened by the Ukrainian Prosecutor General’s Office since the war began. Completing those investigations — during an active armed conflict that is likely to generate further crimes and more investigations — is a daunting yet critical task. Consideration of this task led the U.S. Institute of Peace and Robert F. Kennedy Human Rights to convene an expert discussion on strategies for pursuing accountability for atrocity crimes in Ukraine.
Echoing Ukrainian President Volodymyr Zelensky’s recent call, Kerry Kennedy, a USIP Board member and the president of RFK Human Rights, underscored calls from leaders around the world for a firm response to the crisis in Ukraine. Here's what the world can do.
Coordinating Investigative Efforts is Crucial to their Effectiveness
Coordination of the various investigative efforts will promote efficiency in the investigative process, widening its reach and allowing accountability mechanisms to consider crimes committed by a broader range of actors. Ukrainian Prosecutor General Irina Venediktova highlighted the importance of coordination to her office’s ability to respond to the vast investigative needs arising from the invasion. Partnerships with the United States and the European Union provide expert support to Ukrainian prosecutors conducting investigations, including field investigations in towns like Bucha. In addition, 13 state-led investigations into Russia’s conduct in Ukraine allow for evidence collection from refugees who have fled the violence.
Civilians have further supplemented the evidence collected through submissions to an online portal established through the Prosecutor General’s Office. These submissions include photos and videos taken on mobile devices. However, as Mark Ellis, the president of the International Bar Association (IBA), noted, without further processes of authentication and a secure chain of custody to dispel concerns of evidence manipulation, much of that evidence will be inadmissible in court proceedings. Ellis noted that the IBA has worked successfully to respond to this challenge through its EyeWitness to Atrocities project, which allows civilians to capture evidence on an app that collects and securely stores data relevant to its authenticity for use in future court proceedings. According to Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, improving the admissibility of evidence collected by civilians is critical to recognizing the great personal risk civilians frequently take to collect evidence.
These investigative efforts may support a range of accountability processes, including Ukrainian prosecutions, Organization for Security and Co-operation in Europe fact-finding efforts, the Independent International Commission on Inquiry on Ukraine established by the U.N. Human Rights Council, national prosecutions in states with universal jurisdiction over atrocity crimes or jurisdiction over the crime of aggression, and the International Criminal Court (ICC). Each of these accountability processes maintains different standards for evidence collection, however, which may limit how collected information is used. Former U.S. Assistant Attorney General Lanny Breuer recognized that in past instances where atrocity crimes occurred, different evidentiary standards frequently delayed proceedings. To improve the efficiency of accountability processes, Breuer recommended a meeting of international actors to coordinate the way in which evidence is collected and used by accountability mechanisms.
In Ukraine, Accountability Requires Creativity
In considering options to deliver accountability, creativity and broad thinking must drive international decision making, finding ways to address the unique nature of the crimes committed and to provide justice and reparations for Ukrainian civilians. According to Van Schaack, Russia has pursued a war of aggression with atrocities as its primary tactic. This presents a unique challenge to the international criminal justice architecture, which is fully empowered to address atrocities, but faces gaps in addressing the crime of aggression.
Creative thinking in response to this challenge is reflected in several proposals to respond to ongoing atrocities in Ukraine. In the past week, Zelensky backed a proposal to establish a special tribunal to consider the crime of aggression as it relates to Russia’s invasion of Ukraine. This special tribunal would function as an ad hoc tribunal, similar to those created to try atrocity crimes in Rwanda, Yugoslavia and Sierra Leone. It may be an international or a hybrid tribunal, with both international and domestic components. Among the proponents of such a tribunal is former U.K. Prime Minister Gordon Brown, who said he sees the tribunal as an opportunity to deliver justice to Ukrainians more quickly than they are likely to see from the ICC and other international accountability mechanisms. Brown posited a special tribunal on the crime of aggression could indict Putin within weeks given the wealth of publicly available evidence surrounding the planning and preparation for Russia’s war against Ukraine. By contrast, indicting Putin for his role in ongoing atrocity crimes will require a painstaking process of establishing command responsibility before an indictment may be issued. While the tribunal would be unlikely to try Putin until a political settlement to the conflict has been reached, issuing an indictment would be significant for demonstrating progress in the accountability process.
In addition, a broader conception of accountability could consider reparations for the damages sustained by Ukrainian civilians. The damage to Ukraine’s civilian infrastructure is considerable, and it will take years for the country to rebuild. Further, many of Ukraine’s civilians have incurred considerable losses of personal property. The international community should therefore consider how reparations may be provided, including through the establishment of a reparations fund. Former Georgian Foreign Minister Eka Tkeshelashvili suggested that the international community should establish a compensation fund for Ukrainian civilians, potentially using Russian assets and central bank reserves frozen by sanctions at the outset of the conflict. Harold Koh, a former U.S. State Department legal adviser, suggested that such reparations could be modeled after the U.N. Compensation Commission established to provide reparations to Kuwaitis affected by Iraq’s 1990 invasion of Kuwait.
While these proposals are likely to receive considerable attention in the coming weeks, experts cautioned against placing too much emphasis on the potential impact of any particular accountability mechanism. Remaining flexible will be critical to ensuring that broad range of mechanisms are able to deliver accountability and to highlighting the successes of overall accountability efforts. Koh argued that the international community should be prepared to support whichever institution is able to achieve accountability, whether it is the Ukrainian Prosecutor General, the ICC or a new tribunal established to consider the crime of aggression.
Maintaining Political Will is Essential to Delivering Justice
Finally, maintaining political will is essential to effectively delivering accountability for perpetrators and justice for victims of Russia’s crimes in Ukraine. The international community must continue to provide moral, material and financial support to not only accountability efforts but also to Ukrainian efforts to repel the Russian invasion. USIP’s Ambassador Bill Taylor recognized that for processes of accountability to be effective, particularly in holding Russian leadership accountable, Ukraine must win the war. Further, accountability must remain a focus of the international community during peace talks. It cannot be sidelined for the “convenience for political negotiations” said Tkeshelashvili, who now serves as the head of program for the Support to Anti-Corruption Champion Institutions in Ukraine. Finally, the international community must continue to provide financial and material support to accountability efforts. Latvia, for instance, has provided funding to the efforts of the ICC — other international actors should follow suit. Breuer called upon the U.S. to send Department of Justice and former war crimes prosecutors to the ICC and any special tribunals formed to respond to the conflict. Such support will ensure that the tribunals are equipped to meet the challenge of holding perpetrators accountable.
International unity on the issue of accountability sends an important message to perpetrators and would-be perpetrators of war crimes, crimes against humanity, genocide and the crime of aggression that such crimes will not be tolerated. The international community must now channel this unity into mechanisms that effectively deliver accountability for perpetrators of atrocities in Ukraine and justice for victims.