Prosecution of Russian war crimes in Ukraine
“Okay,” Svitlana said. “I’ll be back tomorrow with my son and a wheelbarrow. Please don’t shoot.
The next day, Svitlana and Serhii picked up Konstantin’s body and rolled it over several blocks. They took the long way, which was paved. Konstantin’s body struggled to fit in the wheelbarrow – his arm kept swinging. Serhii had spent the previous day digging a grave, making it deep enough for the two brothers and often jumping inside to wait for gunfire. The brothers, who were less than two years apart, were physical opposites: Konstantin was tall and lanky, Oleksandr short and plump. Svitlana feared that it would be even more difficult to put Oleksandr’s heavy body in the wheelbarrow. But, when they came back for him, the soldiers said his body was mined and could not be moved.
Russian forces occupied Bucha and Irpin for a month. Most of the dead lay where the murders had taken place. A resident of Yablunska Street told me that when he came out of his yard on March 8, he saw a road strewn with corpses and heard music. It came from cell phones ringing in the pockets of the dead. The bodies of the eight men executed near the office building remained in the yard. The Russians occupying the building threw rubbish out of the windows, which landed on the corpses.
Russian troops withdrew from Bucha on March 31. Within days, as journalists accessed the area, the town’s name became synonymous with Russian war crimes. According to Roman Abramenko, executive director of Truth Hounds, a Ukrainian NGO that documents war crimes, Russian troops have carried out similar atrocities, on a comparable scale, in nearly every location visited by his organization. “I’ve been doing this for over seven years and I’m still shocked by the meaningless brutality,” Abramenko said. “’If you are within range of my weapon, I will shoot you, without being suspected of being armed or of being a spy.’ Why shoot people? Why throw hand grenades into a cave where people are hiding? Why not let people bury their dead?
For the survivors, the idea that the killings are completely gratuitous is unbearable. Svitlana and Serhii at the sanatorium wondered if the Russian soldiers had a grudge against Konstantin and shot Oleksandr to eliminate a murder witness. Ludmila assumed that Valeriy, during her phone call, scared off a Russian soldier who was looting their house. Iryna Abramova believed that the three soldiers killed her husband to avenge the losses they suffered on Vokzalna Street. But there is a simpler explanation: this is how Russia fights wars.
Alexander Cherkasov, the former director of the Memorial Human Rights Center, a Russian organization which since the early 1990s has documented human rights abuses in conflict zones – and which was shut down by the Kremlin in the spring – said the atrocities in Ukraine had direct parallels with those in Chechnya and Syria. I covered the wars in Chechnya, between 1994 and 2001, and saw indiscriminate shelling and shelling of residential neighborhoods, and roads covered in civilian bodies. Many families have told me of men who were taken away by Russian soldiers and never seen again.
In theory, international bodies have the power to prosecute war crimes where and when they occur. But Russia hasn’t really been held accountable for atrocities committed in past conflicts. In Syria, Russian troops fought alongside the government. Chechnya is legally part of Russia. In neither case would senior officials be prosecuted domestically, and Russia, as a permanent member of the UN Security Council, could veto any attempt by the UN to establish a tribunal. Russia has also not ratified the Rome Statute, which gives the International Criminal Court in The Hague jurisdiction over its signatory states.
Until recently, Russia was under the jurisdiction of the European Court of Human Rights, but in March it announced it was leaving the Council of Europe, which empowers the court. In 2005, the ECHR ruled, in a case brought by Memorial, that Russian troops knowingly bombed a civilian convoy in Chechnya in 1999. The ECHR, which has the power only to order governments to pay damages- interest, imposed fines totaling approximately seventy thousand euros. But even these minor interventions were rare. “Between three and five thousand people disappeared in Chechnya during the second war,” Cherkasov said. “There are a total of four court decisions, giving an impunity rate of 99.9 percent.” In Ukraine, Russia is not only using the same tactics as in past conflicts but, in many cases, the same people: a number of senior officers commanding the war in Ukraine fought in Chechnya.
Parts of Ukraine have been under occupation since 2014, when Russia annexed Crimea and started a war in the Donbass region. The occupying authorities resorted to forced conscription, abductions, detentions and torture. But international legal bodies have been slow to get involved, and Ukraine has made little progress in prosecuting crimes from the first phase of the war. Last year, Ukraine’s parliament voted to amend the criminal code to better define war crimes and set penalties for them, but the law has yet to come into force.
The modern history of war crimes prosecution dates back to the Nuremberg trials, which were established by the charter of the International Military Tribunal, signed by the Allies in 1945. The charter codified three types of crimes: aggression (also called crimes against peace); violations of the laws and customs of war (such as murder, “wanton destruction” and “devastation not justified by military necessity”); and crimes against humanity. Legal scholar Lawrence Douglas observed that definitions of these crimes were unclear at the time. Some of the writers may have meant “humanity” to mean “all mankind”, while others may have meant “the quality of being human” – in other words, either the magnitude of the crime, i.e. its brutality. (The original charter in Russian uses the word “chelovechnostwhich means “the quality of being human”, although later documents have used the word “chelovechestvowhich means “humanity”.)
The Nuremberg trials were based on a radical new premise: some crimes are so heinous that the international community must intervene to restore justice, overriding the principles of national sovereignty. But the trials of the 20th century—that of Adolf Eichmann, in Jerusalem, in 1961; the International Criminal Tribunal for the former Yugoslavia; and the International Criminal Tribunal for Rwanda – have rendered only a few verdicts. The International Criminal Court, which was created 20 years ago, has issued arrest warrants against around 50 people, only 10 of whom have been convicted. Four were acquitted and five people died before a verdict could be reached.
Never before have investigations and trials started within weeks of the crimes, as they did in Ukraine. A unique set of circumstances made this possible: Ukraine has an intact judicial system; investigators had almost immediate access to crime scenes and evidence, including large amounts of video footage; and Ukraine holds several hundred Russian prisoners of war, some of whom are or will be suspects in war crimes investigations.
The first trial took place in Kyiv in May. Vadim Shishimarin, a 21-year-old Russian sergeant, was accused of violating the rules and customs of war by killing a civilian in the Sumy region. Shishimarin and several other soldiers had lost their vehicles in battle and commandeered a car from a local resident. Almost as soon as they started driving, Shishimarin shot a sixty-two-year-old man pushing a bicycle. In court, Shishimarin, wearing a hoodie, sat alone in a glass cage, his shaved head bent down, his hands wedged between his knees. He looked younger than his age, tiny and ordinary. According to his testimony, two officers had separately ordered him to shoot the man. Shishimarin disobeyed the first officer’s order but then complied with the second. “It was a stressful situation and he was screaming,” Shishimarin explained.