Holding Russia Accountable for War Crimes Is Harder Than It Looks

Ukraine and its Western allies are trying something that is largely without precedent in modern warfare: holding war criminals to account in a systematic way while that war is still raging.

As evidence of new atrocities and alleged war crimes by Russian forces pile up in Ukraine, every Western leader has broadly agreed that they must find a way to hold Russia accountable. But the question of how exactly to do that is an entirely different matter. Top U.S. officials, along with their Western and Ukrainian counterparts, have been mired for months in a fierce debate over what justice and accountability will look like for Ukraine, a debate that has only heated up across European capitals in recent weeks.

“We can’t have any stable peace without accountability,” Estonian President Kaja Kallas said at the Lennart Meri Conference, a top trans-Atlantic security conference, in Tallinn last week. “When aggression pays off, it happens elsewhere.”

How that debate plays out could have significant implications for future wars. Get it right, these officials and experts argue, and Ukraine will have set up a powerful new global precedent for prosecuting war criminals in future conflicts, as well as potentially deterring Russian commanders and ground soldiers from perpetrating additional war crimes in Ukraine today. Get it wrong, they argue, and it could embolden Russian President Vladimir Putin in future wars against Moscow’s neighbors, while leaving Ukrainian victims bereft of justice.

“There is a point and value in letting people know there are serious international consequences for what they’re doing,” said Akila Radhakrishnan, a human rights lawyer and the president of the Global Justice Center, a nonprofit advocacy group. “Yes, you’re sending a message to Putin, but you’re also sending a message to those Russian line officers deployed to Ukraine carrying out this war.”

As the debate plays out in Washington, Brussels, Kyiv, and elsewhere in Europe, more evidence of war crimes by Russian soldiers is emerging from the battlefields and cities of Ukraine that were under Russian occupation. This includes evidence of mass executions of civilians and mass graves, rape, torture, the forcible deportation of children, and even what appears to be Russian soldiers caught on video beheading a Ukrainian prisoner of war. All of these crimes are being investigated by a complex and overlapping thicket of national and international justice initiatives without any clear overarching way to coordinate investigations.

Andriy Kostin, Ukraine’s prosecutor general, has said the country has opened up more than 80,000 war crimes cases so far. The EU has created a database to collect evidence of war crimes in Ukraine, and a coalition of six Eastern European countries—Romania, Slovakia, Poland, Estonia, Latvia, and Lithuania—combined their resources into a single coordinated “joint investigation team” to help Ukraine gather evidence of crimes committed during the war to help tackle this problem.

Ukrainian civil society activists say the legal battle in Ukraine will have broad implications for how Russia can be held to account in other war zones where its forces have been accused of war crimes and other atrocities. “We are fighting for justice not only for Ukrainians not only for Ukrainians, we are fighting for justice to prevent atrocities in the future,” said Oleksandra Matviichuk, head of the Centre for Civil Liberties, a Ukraine-based nongovernmental organization that won the Nobel Peace Prize in 2022. She cited past Russian crimes in Chechnya, Georgia, Mali, Syria, and Libya. “Russia has never been punished,” she said, speaking at the Copenhagen Democracy Summit this week.

Ukraine has already made headway in prosecuting some Russian foot soldiers. But holding Russian leaders, from Putin and his coterie of top aides in Moscow to senior- and mid-level military officers, may prove to be an entirely new hurdle, with open ended questions on whether Ukraine or an international court could ever actually get its hands on any of these officials. Still, Ukraine and its allies say prosecuting these officials, even in absentia, sends an important signal about justice and accountability globally.

There are, broadly speaking, three ways that Western officials are considering holding Russia accountable for atrocities carried out in Ukraine, each with specific advantages and setbacks.

The first is through the International Criminal Court (ICC), the world’s top international court. This option is seen as having the most widely recognized international mandate, but there’s one major hitch: The ICC currently doesn’t have authority to investigate Russia for the crime of aggression, viewed as the best legal path (in theory) to hold Putin directly to account for ordering the launch of the war. Expanding the ICC’s jurisdiction would require amending the founding treaty of the ICC, the so-called Rome Statute, a messy and extremely complex process. Diplomats in Europe aren’t sure whether they could pull it off. Another complicating factor: Ukraine has yet to ratify the Rome Statute and join the ICC as a member, although it recognizes the ICC’s jurisdiction to investigate war crimes on its territory through a special legal procedure.

The ICC already issued an arrest warrant for Putin and Russia’s children’s rights commissioner, Maria Lvova-Belova, in March, over allegations that Russia kidnapped and deported Ukrainian children as it carried out its war. Forcibly transporting children from one group to another group is considered an act of genocide under international law. Daria Zarivna, an advisor in the Ukrainian president’s office, said that an estimated 20,000 Ukrainian children have been “illegally deported” to Russia. So far, she said, Ukraine has been able to return only 364 of them. Ukraine and its Western backers say the ICC’s arrest warrant is a start, but Putin needs to face other charges as well, including for the crime of aggression.

The second option is to build an entirely new special tribunal, possibly with its own founding treaty separate from the ICC. This option avoids the thorny issue of trying to amend the ICC’s founding treaty, and could be modeled after the Nuremberg trials that held Nazi leaders to account after the end of World War II, including for the crime of aggression. But it poses all sorts of new practical challenges: How many states will sign on to the trial? Will states outside just North America and Europe sign on, to lend the tribunal more international legitimacy? Who will fund the tribunal, build its court, and select the prosecutors, staff, and judges? Setting up this system in a country that’s still an active war zone makes the answers to these questions all the more complicated.

The third option is a “hybrid court” by which the United States and other backers of Ukraine would assist Ukrainian prosecutors with carrying out trials against Russian officials and soldiers in Ukrainian courts, potentially with foreign judges and prosecutors shipped in to help. Washington is pushing for this as the option of first resort (though it hasn’t ruled out the other two ideas), arguing it is the most expeditious way to hold alleged Russian war criminals to account while sidestepping more complicated legal hurdles to amending the ICC or establishing an entirely new tribunal.

“We believe an internationalized court that is rooted in Ukraine’s judicial system, but that also includes international elements, will provide the clearest path to establishing a new tribunal and maximizing our chances of achieving meaningful accountability,” the top U.S. envoy for global criminal justice, Beth Van Schaack, said during a speech at the Catholic University of America in March.

However, this option could potentially shield Putin himself from being held to account, as Ukraine, like most other countries around the world, grants heads of state immunity from prosecution. Ukraine’s parliament carved out an exception to go after Putin, but that may not square with current international law.

In short, it’s a tricky legal conundrum. The quickest path to justice for Ukraine may not have the widest international support, or the best way to go after Putin himself. And the path with the most global support and best chance of nabbing Putin will take the longest.

“We have to try to have the most efficient solution, but also with the most broad support,” said Didier Reynders, the European Union’s justice commissioner. Reynders said the EU is working to engage countries in Latin America, Africa, and Asia to marshall more backing for a clear-cut path to accountability for war crimes in Ukraine.

“There’s a gold medal with the ICC option, a silver one with the special tribunal, maybe a bronze medal with the hybrid court,” he said. “We are still in discussions about that.”

Solomiya Borshosh, executive director of the Ukrainian Institute, a cultural diplomacy organization, told an audience at the Copenhagen Democracy Summit that Ukraine will only find justice when every perpetrator is held to account—a tall order for a conflict that has killed more than 350,000 so far and continues to rage.

“Talks about justice are not talks about statistics” she said. “Every single life matters to us.”