Justice in the Face of War | An unprecedented international mobilization

The war on Ukraine has sparked an unprecedented number of investigations and legal processes. Are we pushing the limits of international justice?

Agnes Gruda
The Press

By withdrawing from the towns it briefly occupied in March before retreating to southern and eastern Ukraine, the Russian military left behind a trail of still-fresh evidence and testimonies that flesh out the allegations of war crimes.

The International Criminal Court (ICC) did not wait for this memory to fade: it has already dispatched 42 investigators to Ukraine. “This is the largest deployment ever undertaken by my office,” said ICC prosecutor Karim Khan in an interview with The world. To facilitate the task of the investigators, the latter even plans to open an office in Kyiv. The court in The Hague also established a cooperation agreement with the European joint investigation team, involving Poland, Lithuania and Ukraine itself.

And that is without taking into account the investigations carried out in parallel by the UN Human Rights Council, by investigators dispatched by France, the United States or Great Britain, and by numerous NGOs specializing in international humanitarian law.

These investigations, which are added to those carried out by the Ukrainian justice itself, form an extremely rare case, notes Marie Lamensch, coordinator of the Montreal Institute for the Study of Genocide and Human Rights. Usually, she points out, documenting an ongoing conflict is not easy, because the countries concerned must accept the presence of international investigators.

However, whether in international conflicts or civil wars, States do not easily open their doors. And when they do, it’s often too late, because the evidence is largely gone.

By regaining control of several towns on the outskirts of Kyiv which had just suffered a brutal occupation, Ukraine therefore opened the way to a judicial operation of unprecedented magnitude.

The easiest cases, involving ordinary soldiers, risk falling into the Ukrainian judicial system. Cases involving senior officers or politicians could end up before the ICC.

With this vast deployment, international law, often accused of being slow and ineffective, has a chance to “show its relevance”, argues Marie Lamensch.

The fact that the Ukrainian terrain is accessible, that the crimes were committed recently, that we can count on many witnesses, and that we have access to a profusion of testimonies broadcast on social networks and subsequently authenticated creates a unique situation.

The NGO Mnemonic, which collects and verifies the authenticity of material on alleged crimes in Ukraine, has already archived hundreds of thousands of publications shared on social networks, in anticipation of potential use in court.

Will this profusion of investigations and evidence push the limits of international law?

A clear message

“What is unique is the mobilization of all measures of justice during the conflict in Ukraine,” underlines Fannie Lafontaine, specialist in international humanitarian law at Laval University.

The scope of these investigations sets a precedent. “It sends a clear message that there will be accountability, that war crimes will not go unpunished,” said Fannie Lafontaine.

Despite this massive mobilization, there will be no miracles, she warns. As soon as justice targets senior officials in the conflict, the process will necessarily take time. If only because “it will be a long time before we can get our hands on them”.

The deterrent effect of these prosecutions remains unlikely, nuance the specialist. If only because Russian soldiers currently fighting in Donbass are unlikely to have access to information about these investigations and trials to adapt their own behavior accordingly.

In the meantime, there is already a lesson to be learned from this vast judicial deployment, underlines Fannie Lafontaine. “It shows that international justice can work when we put the means and the political will is there. »

Fannie Lafontaine deplores the fact that it is so difficult to find means to finance humanitarian law trials in the Central African Republic or in Darfur. “The ICC sent 42 investigators to Ukraine, there are just 2 in Darfur. »

According to her, if there is a lesson to be learned from the Ukrainian example, it is that “when we want, we can”.

Ukrainian justice overwhelmed: Too big, the bite?

Three months after the start of the Russian offensive, investigations into possible war crimes are piling up on the desk of Ukraine’s Prosecutor General Iryna Venediktova.

“Every day, we have 100, 200, 300 new cases”, for a total of 13,000 causes, she confided in an interview to the washington post last week. Passing through The Hague on Tuesday, she mentioned 15,000 war crimes and 80 suspects.

Already, around fifty defendants are being prosecuted before the Ukrainian courts, including 17 in connection with the murderous occupation of the town of Boutcha, in the suburbs of Kyiv, last March. And on May 23, a first defendant, Russian soldier Vadim Chichimarine, was sentenced to life imprisonment for a war crime, for having killed a civilian.

On May 23, a first defendant, Russian soldier Vadim Chichimarine, was sentenced to life imprisonment for killing a civilian. A week later, Ukrainian justice imposed an 11-year prison sentence on two other Russian soldiers, found guilty of having bombed villages in the Kharkiv region.

Such a flood of lawsuits after three months of an ongoing conflict is unheard of, according to experts. But isn’t the bite too big for a justice system ill-suited to this type of legal action?

This is feared by Olha Reshetylova, coordinator of the Media Initiative for Human Rights, an NGO which has closely followed the functioning of the Ukrainian justice system since the Donbass conflict broke out in the east of the country. in 2014.

There have been dozens of trials against pro-Russian fighters, and sometimes Ukrainian soldiers, over the past eight years. But between an accusation and a conviction, there is a sometimes impassable margin.

Joined in Kyiv last week, M^me Reshetylova also criticizes the general lack of transparency of the Ukrainian judicial system, while many trials, which at the time were brought under anti-terrorism laws, were held in a quasi-confidential manner. These legal actions have not even all been recorded, she laments.

An opportunity for progress?

The wave of trials that threatens to sweep through Ukrainian courts in the wake of the invasion unleashed by Moscow on February 24 is an opportunity to seize for an outdated justice system, believes M^me Reshetylova.

Especially since Ukraine, which aspires to join NATO and the European Union, has every interest in showing that it respects international law, underlines Marie Lamensch, coordinator of the Montreal Institute of study of genocides and human rights.

The trial of soldier Chichimarine, found guilty of having killed a 62-year-old man who was riding a bicycle, indicates that Ukrainian justice is capable of redressing the bar. The trial was even broadcast on the internet, unprecedented in Ukraine, according to Olha Reshetylova.

This transparency is crucial, says Fannie Lafontaine, a lawyer specializing in international criminal law, affiliated with Laval University. “Nothing indicates that this first trial had major flaws, the accused had the right to a lawyer, the proceedings were publicized”, she underlines.

But according to Fannie Lafontaine, the trial of the 21-year-old soldier who admitted his guilt was relatively simple. What will happen when cases multiply, convoluted chains of command must be established, and evidence is inaccessible on the battlefield or in Russian-occupied cities? “We have to see how far Ukrainian law will be able to reflect the complexity of the crimes. »

And it’s not won.

Need help

It may get more complicated with more complex cases, recognizes Olha Reshetylova. “We are the victims of Russian aggression, we are not neutral, we must appeal to international judges to help us win the trust of the international community and that of Ukrainian society,” she said. His NGO has also made a proposal to this effect to the Ukrainian government.

There is the quality of these trials to come. But there is also quantity.

There is also the question of the qualification of judges. With the number of prosecutions, the entire Ukrainian judicial system will be mobilized by these war crimes trials. “Our judges do not all have the necessary training in international humanitarian law, and we will not be able to train them all,” fears Ms.^me Reshetylova.

The challenge is huge, she says. But by placing Ukrainian justice at the heart of international attention, these serial trials could also bring about, by force of circumstance, a long-awaited reform.