The war in Ukraine is a devastating human rights and humanitarian crisis. It also serves as a gut punch to the international rule of law. The rules of war, which set out what can and cannot be done during an armed conflict, are universal but difficult to enforce. Even with Vladimir Putin’s war crimes documented through the media and numerous witnesses, holding the president of Russia (and those acting on his behalf) accountable may prove to be an arduous battle for the enforcement of international humanitarian law.
While it is important to recognize the limits of international law and acknowledge where there are gaps in its humanitarian protections that can be easily exploited, it would be counterproductive to suggest that international law leaves the international community without remedies—and aggressors like Russia without consequences. The law may not present “swift” justice, and it may lack the teeth of domestic enforcement mechanisms, but it can still be a powerful tool. Since Russia invaded Ukraine, the international community has seen its orders swatted away, but it has also responded in ways that show how far international law has come in the last century. In addition, the world has seen other ways in which lawyers can use the law to have real impact, including through an international tribunal that could lead to Putin’s demise.
On February 21, 2022, Putin announced that he recognized the eastern Ukrainian provinces of Donetsk and Luhansk as independent states. Within days of the announcement, under the guise of a “special military operation” purported to achieve the “demilitarization and denazification” of Ukraine, Russia launched a full-scale invasion of Ukraine, bombing key Ukrainian cities, indiscriminately killing civilians, and targeting hospitals and residential buildings, among other atrocities. As of the writing of this article, the bombings have not stopped and Russia’s relentless attacks have destroyed Ukrainian cities beyond recognition, killed thousands of civilians, and displaced millions of people. Despite the efforts of the international community to deter Russian aggression, the rules of war and international law did not protect the people of Ukraine.
In light of these recent events, it is easy to see how people across the globe have become disillusioned with international law. During the first few weeks of the invasion, Ukraine and the international community wasted no time exhausting all available diplomatic responses to counter Russian aggression. Unprecedented sanctions were imposed by the United States on the Russian economy, Russian oligarchs, and other powerful Russian individuals. The United Nations General Assembly adopted a resolution condemning Russian aggression with 141 votes out of the 193 member states. The European Court of Human Rights ordered interim measures to cease attacks on civilians and protected sites such as hospitals and schools. Russia’s allegations of genocide were quickly debunked as smoke and mirrors in proceedings commenced by Ukraine before the International Court of Justice (ICJ) on February 26, 2022. On March 16, 2022, the ICJ ordered provisional measures requiring Russia to “immediately suspend the military operations that it commenced on February 24, 2022 in the territory of Ukraine.”
Despite the unified response from international bodies condemning Russia’s violations of international law, the bloodshed and destruction in Ukraine have continued. Russia is not obliged to lay down its weapons just because an international body has told it to. Russia can simply shrug off the orders—and it has. Russia did not participate in the oral proceedings before the ICJ. Instead, Russia filed a letter asserting that the ICJ lacked jurisdiction over the case on the grounds that Russia’s formal justification of the attack was self-defense, not genocide. Russia then disregarded the order issued by the ICJ.
There are other institutions, however, that could serve to counter the criticisms of impotence levied at the ICJ. On February 28, 2022, four days after Russia invaded Ukraine, the prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he would open an investigation into the situation in Ukraine. Relying on the evidence collected relating to the 2014 Russia-Ukraine conflict, the prosecutor indicated that there was a “reasonable basis” to believe that both war crimes and crimes against humanity had been committed in Ukraine; and, given the invasion in February 2022, the “investigation will also encompass any new alleged crimes falling within the jurisdiction of [the] Office that are committed by any party to the conflict on any part of the territory of Ukraine.” Since this announcement, the evidence of Putin’s war crimes has only mounted.
The ICC, which is governed by an international treaty called the Rome Statute, investigates and, where warranted, tries individuals charged with genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC defines war crimes as “grave breaches” of the post–World War II Geneva Conventions, which are agreements that lay out the international humanitarian laws to be followed in war time. Breaches include deliberately targeting civilians and attacking legitimate military targets where civilian casualties would be excessive. As of today, there are 123 parties to the Rome Statute, each of which agrees to give the ICC authority to hold “individuals charged with the gravest crimes of concern to the international community” accountable for their actions in the worldwide arena. Unlike many other tribunals, the ICC focuses on holding individuals, rather than nation-states, accountable for these crimes. Individuals found guilty in the ICC face such penalties as imprisonment, fines, and forfeiture. Since the ICC’s inception in 1998, it has seen 30 cases, 10 convictions, and 4 acquittals.
In general, the ICC’s jurisdiction extends only to those countries that are party to the Rome Statute. Neither Ukraine nor Russia is a party. Notwithstanding this general approach, the ICC may exercise jurisdiction over nonparties, where the specific requirements of Article 12(3) of the Rome Statute are met, except with regard to the crime of aggression. Article 12(3) requires that a country submit a declaration to the registrar of the ICC accepting the exercise of the ICC’s jurisdiction “with respect to the crime in question,” and the case must be one that the prosecutor self-initiated or initiated at the request of a party to the Rome Statute. Here, the requirements have been satisfied. Ukraine has declared twice that it accepts the jurisdiction of the ICC for alleged crimes under the Rome Statute committed on its territory; the first declaration applied to alleged crimes committed on Ukrainian territory from November 21, 2013, to February 22, 2014; and the second declaration extended this time period on an open-ended basis to encompass ongoing alleged crimes committed throughout Ukraine from February 20, 2014, onward.
Even with ICC jurisdiction satisfied, a successful prosecution will be difficult for several reasons. First, the ICC does not try defendants in absentia, and Putin and his accomplices are not likely to comply with arrest warrants. If there is a regime change in Moscow, however, Putin could be handed over to the ICC. Second, like prosecutors in criminal cases in the United States, the ICC prosecutor bears the burden of proving anyone charged with war crimes and crimes against humanity guilty beyond a reasonable doubt using reliable, admissible evidence. Those standing trial in the ICC are also afforded the presumption of innocence. In addition to the challenges the prosecutors may face proving intent and drawing a nexus between Russian leaders and the specific attacks constituting war crimes, prosecutors may also have an uphill battle obtaining evidence from an active war zone. To bolster its cases, the ICC has already dispatched its largest team of investigators and forensics experts to Ukraine.
Despite these difficulties, there has already been one conviction of a Russian soldier for war crimes, and it may serve as the pinnacle of a successful war crime prosecution. In May 2022, 21-year-old Sgt. Vadim Shishimarin stood trial for war crimes in Ukraine. A panel of Ukrainian judges sentenced him to life in prison for killing a 62-year-old Ukrainian civilian. To secure the conviction, the ICC prosecution presented powerful evidence against Shishimarin. Specifically, the prosecution presented ballistics evidence matching his gun, as well as testimony from the victim’s friend and one of the since-captured Russian soldiers, both of whom witnessed the shooting.
Shishimarin’s case is not likely to be the last of its kind. Ukrainian officials say they have documented more than 15,000 possible Russian war crimes so far, and Ukraine is currently preparing cases against 41 Russian soldiers for such offenses as killing civilians, rape, bombing civilian infrastructure, and looting. With ICC jurisdiction and cooperation issues, Ukraine may be best equipped to prosecute these alleged war crimes. Despite the ICC’s challenges, the ICC’s mission is accountability. Right now, it represents the best opportunity to demonstrate that international law means justice and accountability. The ICC’s prosecutor has stated: “If we don’t try, we have no chance. At least if we try, maybe we can move the dial on accountability in a way that is positive and meaningful.”
