Prosecuting war crimes in Ukraine will be a long-term struggle

The Economist explains why the prosecution of war crimes in Ukraine is a complex and lengthy process that requires careful prioritization and improved organization by both Ukraine and the Western nations.

Terekhivka, a sprawling farming settlement situated near Chernihiv. The village is home to a general store and a community center, and previously had a kiosk where soft drinks were sold. However, the kiosk has remained closed since February 24th, 2022, when Russian forces invaded and took control of the region for over a month. During this time, the kiosk was repurposed by the Russians as a site for imprisoning and torturing civilians. One such victim was Oleksandr Marusik, who was subjected to brutal torture for several days, with soldiers standing on his injured leg and demanding information on the location of Ukrainian troops. Mr. Marusik was unable to withstand the agony and pleaded with his captors to end his life. Eventually, he was released.

Russian forces have committed numerous atrocities in Ukraine, such as bombing and shelling civilian areas, torturing, sexually abusing, murdering non-combatants, and abducting children. In mid-April, a video surfaced showing Russian soldiers beheading living Ukrainian prisoners of war. Mr Marusik's story may seem unremarkable in comparison. However, what sets it apart is that it is one of only 30 cases that have resulted in a conviction, out of over 80,000 war-crimes cases opened by Ukrainian prosecutors since the invasion. In February, a court in Chernihiv found Russian soldier Denis Kuznetsov guilty, in absentia, of torturing Mr Marusik.

The trial in Ukraine reveals the country's efforts to prosecute war crimes, but also highlights the challenges it faces. Ukraine has not yet developed a strategy to build cases against senior Russian leaders, rather than lower-ranking soldiers, and its allies have provided little support beyond databases and training. Numerous international aid initiatives exist, but coordination between them is lacking. If Ukraine and its allies hope to hold those responsible for Russia's war crimes accountable, they have a lot of work to do.

Serhiy Khamaiko, the regional prosecutor who handled Mr Marusik's case, chose it because he had solid evidence. Ukrainian security services possessed mobile phone data that placed Mr Kuznetsov, who was 20 years old at the time, at the kiosk. Mr Marusik identified Mr Kuznetsov in a photo lineup after seeing his face without a blindfold, and recognized his voice on intercepted phone calls. The court sentenced the Russian to 12 years in prison for violating Article 438 of Ukraine's criminal code, which covers the violation of laws and customs of war.

The Ukrainian authorities are clueless about the whereabouts of Mr Kuznetsov. Despite his court-appointed defence lawyer's attempts to contact him, he remains untraceable. Furthermore, it is possible that Mr Kuznetsov is unaware of the charges against him, as prosecutors are only obligated to publish a notice in the official government courier. This leaves the meaning of his sentence in question. Nevertheless, Khamaiko believes that the verdict brings a sense of justice to the victim, and that it may hold significance in a future regime change in Russia.

In contrast to tribunals like those for the wars in Sierra Leone and the former Yugoslavia, where prosecutors slowly built cases against senior leaders who organized the violence, the same cannot be said for Ukraine, according to Wayne Jordash, an international lawyer in Kyiv who runs Global Rights Compliance, a legal practice that supports Ukrainian investigators and prosecutors. The focus in Ukraine has been on direct perpetrator cases, which resemble ordinary crimes such as torture in basements and rape. However, due to overwhelming numbers and scarce technical expertise, prosecutors are only just beginning to consider how to elevate these cases.

Some issues stem from Ukraine's legal system. The country's criminal code does not include the concept of command responsibility, which can be utilized to prosecute high-ranking officers for war crimes, even if they did not give explicit orders. Additionally, Ukrainian prosecutors lack flexibility and must initiate investigations within 24 hours of being informed of a crime, leading to a flood of minor cases.

Since prosecutors' success is determined by the number of cases they win, they are incentivized to pursue quick charges against soldiers rather than investigate their superiors thoroughly. Several Russian prisoners of war have confessed to crimes they committed only to be exchanged. Trials held in absentia carry risks; in 2015, the European Court of Human Rights invalidated a war crimes conviction in Croatia and raised questions about similar convictions because the nation's appeals process for individuals tried in absentia was deemed to be flawed.

Due to Ukrainian courts' inability to directly accept evidence from external investigators, international experts can only serve as advisors, a fact which many activists deem inadequate. According to Oleksandra Matviichuk, a human-rights lawyer and Nobel Peace Prize awardee whose Centre for Civil Liberties has championed the cause, Ukraine requires more "working hands on the ground." Several Ukrainian NGOs, including Ms. Matviichuk's group, have therefore urged the establishment of hybrid courts that could accept foreign investigators and prosecutors.

Moreover, foreign countries and courts' involvement in war-crimes efforts has become excessively complicated. According to Nadia Volkova of the Ukrainian Legal Advisory Group, Ukraine has granted jurisdiction to the International Criminal Court in The Hague. Recently, the Court issued an arrest warrant for Vladimir Putin, Russia's President, and his children's welfare minister over the country's mass abductions of children. Meanwhile, Ukraine has partnered with six other Eastern European countries, namely Estonia, Latvia, Lithuania, Poland, Romania, and Slovakia, in a Joint Investigation Team to tackle war crimes.

The EU has established a database for war-crimes evidence at Eurojust, its justice agency. Additionally, it intends to set up a new tribunal to prosecute Russia for aggression, a charge that the ICC is likely unable to pursue against countries that reject its jurisdiction. Ukraine receives forensic and legal experts periodically from America, Britain, and individual European countries, which collect testimony from Ukrainian refugees, some of whom may pursue war-crimes charges under universal-jurisdiction laws. The Atrocity Crimes Advisory Group (ACA), a joint initiative between America, Britain, and the EU, is responsible for coordinating these countries' efforts with Ukrainian prosecutors but is encountering difficulties in doing so.

While some of these issues may be initial challenges, others present tougher obstacles. Ukraine's circumstances differ from those of the Nuremberg war-crimes trials, where conquering powers imposed justice on a defeated nation. It is also distinct from Cambodia, Sierra Leone, or the former Yugoslavia, where civil wars were replaced by tribunals sponsored by the international community - a phrase that once had meaning.

Currently, the majority of war-crimes cases in Ukraine will be handled by domestic courts, rather than international ones. This means that Ukrainian courts will be responsible for judging soldiers who may have committed crimes while invading the country, even if those soldiers are in Russia and cannot be brought to justice for many years to come. Klaus Hoffmann, a German prosecutor who collaborates with the aca, points out that the London declaration on the punishment of war crimes was released in 1942, when Nazi leaders were still beyond the reach of the law. Mr. Hoffmann believes that justice will be served after the fighting is over.