Accountability for Ukrainian War Crimes Ought to include Ukrainian War Crimes

Posted in: International Law

Ukrainian President Volodymyr Zelensky has recently emphasized that justice for war crimes victims is as important a battle as the one for the Ukrainian homeland. Ukraine has already convicted 25 Russians of war crimes. It promises to address over 66,000 additional alleged crimes. The International Criminal Court is actively investigating, and Vice President Kamala Harris insists Russia face accountability for its crimes against humanity. Ukraine’s request for a special international tribunal for Russia’s crime of aggression is garnering significant support. But even if all these efforts come to pass, this still leaves a potential accountability gap.

Justice needs to be justice for all, and that means accountability for war crimes by Ukrainians, as well. Despite promises by the Ukrainian government, no reports of state investigations into credible allegations of Ukrainian war crimes have been made. Similarly, while the International Criminal Court has been investigating war crimes in Ukraine, no evidence currently shows that the ICC has looked into or that Ukraine has facilitated investigation of possible Ukrainian crimes.

Of course, both known and alleged Russian wrongdoing during the conflict massively dwarfs the accusations against Ukrainian forces. Russians’ unrelenting brutality seems to be a feature rather than a bug of its warfighting strategy.

But that can’t take Ukraine off the hook for its own possible dirty deeds. Human rights group Amnesty International documented numerous possible Ukrainian violations of international law that placed innocent civilians at risk. Russians have also accused the Azov Regiment, a far-right Ukrainian paramilitary unit, of targeting civilians fleeing Mariupol. An April 2022 video seems to show Ukrainian soldiers kill a wounded and captured Russian soldier as well as document multiple other possible violations with an apparent Russian soldier, with a head wound, and his hands tied dead nearby. In October 22, 2022, the Independent International Commission of Inquiry on Ukraine concluded that Ukraine committed a war crime in this video as well as in another similar incident.

Most recently, videos on social media may have documented the aftermath of an unlawful attack on captured Russian soldiers. Ukraine maintains that the Russian soldiers engaged in perfidy by pretending to surrender and then opening fire. If true, that pretense would be an unlawful act by the Russians and would allow Ukraine the ability to respond, though it would raise complicated questions about the death of any potentially unarmed and non-perfidious soldiers. In contrast, Russia maintains that Ukrainians shot eleven unarmed prisoners of war in clear violation of the Geneva Conventions. The UN Human Rights Office promised to investigate this last incident.

To be just, Ukrainian offenders need accountability, too. Violations by one side do not excuse violations by the other. The laws of war apply equally to aggressor and victim for good reason. The international community deliberately chose to make protections unconditional to reduce the staggering toll of armed conflict. They forbid reprisals – the laws of war rejects tit-for-tat retaliation. Civilians deserve protections by simple virtue of their status as noncombatants. Similarly, surrendered soldiers deserve protection by the simple virtue of their status as POWs. Given these basic principles, Ukraine must allow both examination of its own possible violations and punishment as appropriate.

Somewhat unsurprisingly, neither the Biden administration nor its allies are calling for even application of the laws of war. The Biden administration is still grappling with how much of an active role it wants the ICC to play with regards to Russian crimes, so it’s no surprise there hasn’t been any push for them to deal with Ukrainian crimes. EU allies are similarly unified on the need for Russian accountability but divided on how to seek it. Whereas the only investigation the West and its allies seem to care about in regard to possible Ukrainian perpetrators is who sabotaged the Nord-Stream pipeline project carrying Russian gas to European countries and whether those actors acted at the behest of a state.

Justice needs to be justice for all. That means accountability for Ukrainian war crimes committed against Russian troops. Of course, it is possible that is happening – just quietly. The Office of the General Prosecutor of Ukraine told the UN’s Independent International Commission of Inquiry on Ukraine that it had opened criminal proceedings regarding the two early 2022 POW incidents. It also promised to investigate the more recent video but does not appear to be doing so.

This need for legal compliance is particularly important as Zelensky has cast this conflict as one in which “the fate of the world order, which is based on rules, on humanity, on predictability, is being decided.” To vindicate that world order, Ukraine must embrace those rules and that humanity. Zelensky has already undertaken some initial painful action to shore up the legality of the Ukrainian state in forcefully addressing corruption. He needs to do the same when it comes to the legality of the Ukrainian combatants.

Accountability for Ukraine’s crimes also improves the credibility of Russian war crime trials. For many, the Nuremberg and Tokyo trials after World War II lacked legitimacy because no one held the Allied Powers accountable for their own serious crimes. The International Criminal Tribunal on Yugoslavia and the International Criminal Tribunal on Rwanda made tremendous legitimacy gains by trying crimes committed by victors as well as losers.

A transparent investigation of alleged Ukrainian misdeeds could also produce an important historical record and undermine Russian propaganda. Evidence and expert examination can address actual crimes while disproving Russia’s exaggerated claims of Ukrainian wrongdoing.

In addition, when democratic nations allow for trials of their own, they can be part of a larger effort to improve compliance going forward. Even the very limited Vietnam-era trials helped create the conditions for U.S. military reform and provided a touchstone for future generations. For instance, while Lieutenant Calley’s trial for the atrocities at My Lai was deeply unpopular, it still facilitated changes in military training, improved recruitment procedures, and reinforced the civilian protecting norms of the military profession.

To be sure, U.S. and allied support for Ukraine must remain steadfast. To me, encouraging Ukraine to make sure that all potential war crimes are investigated strengthens rather than weakens Ukraine. Russia is already exploiting the alleged misdeeds as proof of Ukraine’s impunity and as motivation for Russian troops. Transparent Ukrainian investigations with the possibility of domestic trials based on their findings both undercuts Russian propaganda and reinforces Ukraine as a country committed to international legal principles.

Of course, the specter of trials—whether for Ukrainian or for Russian troops—will not meaningfully change Russia’s behavior. Ukraine’s willingness to address its own misdeeds will not stop future Russian troops from mistreating captured Ukrainian POWs; from targeting Ukrainian civilians; from attacking vital domestic infrastructure. But the best justifications for trials, both of Russians and Ukrainians, do not rest on altering Russian domestic politics or military practices. Rather, the best justification is that a state waging a war for democracy needs to uphold the accountability principles lest it turn into what it is fighting against. Justice for war crimes victims must mean justice for all war crimes victims.

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