06 Jun Can War Crimes Trials in Ukraine Convince Russians to Stop Supporting the War?
[Lyal S. Sunga, Affiliated Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Sweden), has conducted monitoring, investigation, technical cooperation, education and training in 55 countries over the last 30 years, including in Russia and other former Soviet republics, for the United Nations and many other partners.]
On 19 May 2022, 21-year-old Russian tank commander Vadim Shishimarin pled guilty to shooting dead Oleksandr Shelipovan, an unarmed 62-year-old civilian who was riding his bike in Ukraine’s northeastern Sumy region. In Ukraine’s first trial for war crimes relating to the ongoing war Russia launched on 24 February, the District Court in Kyiv sentenced Shishimarin to life in prison.
The day after the sentencing of Shishimarin, Ukrainian officials announced they had registered more than 14,000 war crimes. Ukraine’s prosecutor general Iryna Venediktova said her office was preparing more cases. Foreign media and NGOs have documented indiscriminate attacks, intentional targeting of civilians including in Kyiv, Kharkiv, Mariupol and other civilian centers, systematic execution of men, for example in Bucha,as well as torture, rape, forced deportation and a whole gamut of apparent war crimes committed by Russian forces in Ukraine. The EU called the atrocities ‘war crimes’, President Joe Biden said Putin was ‘a war criminal’, and Estonia’s parliament accused Russia of committing genocide. However Putin denied Russia’s responsibility for war crimes in Ukraine in his face-to-face meeting with UN Secretary-General Antonio Guterres on 26 April. The Secretary-General commented after his meeting with Putin that there were clearly ‘two different positions on what is happening in Ukraine’ and that any war crimes required independent investigation. Earlier, Kremlin press secretary Dmitry Peskov told Reuters: “Many of the cases that Ukraine is talking about are obvious fakes, and the most egregious ones are staged, as has been convincingly proved by our experts.”
A draft UN Security Council resolution tabled on 25 February condemned Russian’s invasion of the day before, and demanded full compliance with international humanitarian law, but Russia vetoed this resolution which would have been legally binding on all UN member States. On 2 March however, the General Assembly adopted a resolution, albeit non-binding, with the support of 141 states, reiterating condemnation of Russia’s aggression and the demand that Russia abide by its humanitarian law obligations. Despite international denunciation of Russia’s aggression and a barrage of EU and U.S. sanctions, 57% of Russians blamed NATO for the death and destruction in Ukraine, 17% blamed Ukraine itself, and only 7% blamed Russia, according to Levada. Levada also found Putin’s approval rating rose from 61% in August 2021 to 83% in March 2022.
That Russian public opinion is so much at odds with the way much of the rest of the world views the war in Ukraine (with notable exceptions China, India and certain Gulf States) suggests that no one should underestimate the dangerous influence of propaganda. Before sentencing chief Nazi propagandist Julius Streicher to death, the Nuremberg Tribunal underlined how his relentless persecution of Jews with lies and hate speech had spurred on atrocities. Hate speech was a precursor to genocide in former Yugoslavia. I personally witnessed the shocking aftermath of incitement-fueled mass slaughter in Rwanda in 1994. The Kremlin’s tight restrictions on Russia’s information space and its long propaganda campaign against Ukraine serve to rally public support in Russia for Putin’s ‘special military operation’. It could also embolden soldiers on the battlefield to commit atrocities with impunity. Putin’s 12 July 2021 article “On the Historical Unity of Russians and Ukrainians” imagines Ukraine as an inferior vassal of Russia. Putin branded Ukraine’s leadership as ‘neo-Nazis and drug addicts’ responsible for perpetrating ‘genocide’ against Donbas ethnic Russians. Sustained Kremlin rhetoric against Ukraine long predates the 24 February invasion and it helps explain the serious discrepancy between public opinion inside and outside Russia. The Kremlin’s rhetoric is dangerous for two interrelated reasons. First, it tries to legitimate aggression with general historical arguments about Russian, Ukrainian and EU geopolitical security, even though international law makes clear that the Russian Federation was the aggressor on 24 February 2022 and in 2014. Second, international law also makes crystal clear that the issue as to which side is responsible for starting the war is entirely irrelevant to the universal and absolute prohibition on war crimes. Mixing all this up risks allowing commanders and soldiers to justify or ignore atrocities on grounds that they somehow serve a just cause.
People in Russia, like citizens in every other country, have a moral responsibility to understand and assess for themselves facts and responsibilities relating to apparent war crimes in Ukraine, and to hold their political leaders to account if they allow armed forces to behave like rampaging terrorists instead of abiding by the Geneva Conventions. All sides to a conflict are legally obliged to follow the Hague and Geneva conventions regardless as to who started the war or why and who may be right and who may be wrong. International humanitarian law establishes that the right of belligerents to injure the enemy is not unlimited. Wanton destruction of undefended towns and villages is prohibited. Commanders and subordinates have to distinguish between military and civilian objects. Deliberately bombing hospitals, schools and kindergartens is not allowed. Soldiers must refrain from targeting civilians, from attacking anyone not engaged in combat, and from inflicting unnecessary suffering. They must follow the principles of proportionality and humanity throughout the conduct of hostilities. International criminal law makes very clear what constitutes aggression, war crimes, crimes against humanity and genocide. The Nuremberg Principles affirmed that ‘I was just following orders’ is no excuse. That principle applies to everyone regardless of rank or official capacity, whether it is Adolph Eichmann who organized the Final Solution, or Vadim Shishimarin who used his AK-47 to gun down a harmless cyclist on the village streets of Chupakhivka.
Will trials that prove war crimes by Russian soldiers against harmless Ukrainian civilians sway many Russian minds?
I wouldn’t bet my bottom ruble on it for several reasons. First, many Russians will doubt whether Ukrainian war crimes trials of Russian soldiers can possibly be fair, even if these trials scrupulously follow international fair trial standards, including presumption of innocence and proof beyond reasonable doubt. Second, Russia itself could start putting Ukrainian soldiers on trial for war crimes against Russian soldiers. Even if far fewer Ukrainians than Russians appear to have perpetrated war crimes, there appear to have been some by Ukrainian soldiers. The Geneva Conventions require belligerents either to try war crimes suspects or extradite them for prosecution, but preferably, this should be done after the war has ended when conditions could allow for justice to be better served. Where war crimes trials are used for propaganda purposes, this could discredit them generally with the public. Third, war crimes trials whether by national courts, the International Criminal Court (ICC) or some other ad hoc, special or hybrid jurisdiction, take considerable time to prepare and carry out, and until verdicts are rendered, ongoing trial processes may do little to sway Russian public opinion.
While justice systems do their work, where can we find information that has the best chance of being recognized by both Russians and Ukrainians as authoritative, accurate, credible and reliable?
The warring parties themselves are closest to physical evidence, witnesses, communications intercepts and crime scenes, but ‘the first casualty when war comes is truth’. Belligerents use disinformation to deceive, distract and dislodge an enemy, buck up combatant and civilian morale, and to solidify public support. That said, the credibility and reliability of the two belligerents differ from one another. Russia invaded Ukraine not the other way round, and almost all military operations have taken place in Ukrainian territory, mainly harming Ukrainians. Many different sources have shown Russian armed forces targeting Ukrainian civilian centers including apartment blocks, hospitals and schools, apparently repeatedly and with deliberation. Russia has not convincingly explained any of these incidents away. Whereas Ukraine has welcomed independent media, foreign government representatives, international humanitarian organizations and ICC Prosecutor Karim Khan to see, record and report the evidence for themselves, the Russian Duma has criminalized anyone questioning Kremlin war policy or referring to the ‘special military operation’ as a ‘war’, punishable by 15 years’ imprisonment. Russia has also jailed thousands of its own citizens including some high profile opponents of the Kremlin for protesting or speaking out against the war. Ukraine’s credibility is therefore much higher than Russia’s because Ukraine has opened up its information space and has encouraged independent corroboration of allegations in Ukrainian territory whereas Russia has done the opposite. However, many Russians are likely to discount information from Ukrainian sources which they may view as biased. Many Russians may also distrust reports from western media for the same reasons, or indeed from any internet source, as survey research showed years prior to Russia’s 24 February invasion of Ukraine.
For anyone in Russia and Ukraine interested to learn the facts, law and apparent responsibilities concerning atrocities in Ukraine, the UN and OSCE provide credible and reliable information that may have the best chance of being trusted by people in both countries while the world awaits more definitive war crimes trials judgements and verdicts. The EU and Council of Europe provide excellent information on Russia’s aggression and atrocities in Ukraine. However, many Russians may believe Russian Federation Foreign Minister Sergey Lavrov’s statements that the EU has become ‘aggressive and bellicose’ since the EU has taken a clear position on the conflict by supplying weapons to Ukraine and enforcing sanctions against Russia. Russia quit the Council of Europe just hours before the Council’s meeting on 15 March to expel Russia. However, both Russia and Ukraine remain important and active members of the UN and OSCE. Admittedly, the UN’s credibility has suffered serious damage from Russia’s veto that completely blocks UN collective security action under UN Charter Chapter VII on Ukraine – veto power that has been liberally employed by each of the Security Council permanent members. Despite this major flaw and many other shortcomings, the UN’s unique status as the world’s premier intergovernmental forum, positions it well to receive, collect, analyze, and corroborate information relating to atrocities, to monitor the situation on an ongoing basis and to report on possible war crimes, crimes against humanity, and genocide. Both Russia and Ukraine need these organizations for a range of activities, not least of which is to pursue diplomatic solutions to the conflict. Neither country can easily afford to dismiss their findings. The UN Human Rights Monitoring Mission in Ukraine has documented civilian casualties since 2014. It interviews victims and survivors, analyzes corroborating material and reviews official records, drawing from open sources including media outlets, photos, videos, criminal investigation materials, court documents, NGO reports, reports from law enforcement and armed forces, as well as data from hospitals and other local public authorities. It checks information relevance, reliability, credibility and the degree of corroboration with other trustworthy information. The OSCE’s ‘Moscow Mechanism’ has assessed atrocities in Ukraine on a preliminary basis using similar methodology. The UN has a range of additional fact-finding mechanisms, such as Human Rights Council commissions of inquiry, UN human rights special procedures mandates as well as UN human rights treaty bodies and working groups. The UN can also draw upon the good offices of the Secretary-General, President of the General Assembly, and Office of the High Commissioner for Human Rights and its human rights field presences. These can provide rigorously independent and objective fact-finding capabilities to monitor, identify, assess and report on violations of human rights, humanitarian law and international criminal law.
While the world awaits further war crimes trials verdicts, more Russians hopefully will use UN, OSCE and other credible and reliable multilateral sources to find out what is really going on in Ukraine. Of course, it would be naïve to expect such information to cause any sort of overnight epiphany in Russian public opinion. Yet, at least one can hope that reports from the UN, OSCE and other multilateral organizations could move some intellectuals, politicians, policy makers, journalists and other opinion leaders in Russia, to think more critically about facts and responsibilities for the atrocities in Russia’s war against Ukraine.