The Prosecution of Russian War Crimes in Ukraine

The Prosecution of Russian War Crimes in Ukraine

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“All right,” Svitlana said. “I’ll come back tomorrow with my son and a wheelbarrow. Please don’t shoot.”

The next day, Svitlana and Serhii retrieved Konstantin’s body and rolled it for several blocks. They took the long way, which was paved. Konstantin’s body was hard to fit in the wheelbarrow—his arm kept swinging out. Serhii had spent the previous day digging a grave, making it deep enough for the two brothers and often jumping inside of it to wait out gunfire. The brothers, who were less than two years apart, were physical opposites: Konstantin was tall and lanky, Oleksandr short and round. Svitlana worried that it would be even harder to get Oleksandr’s heavy body in the wheelbarrow. But, when they went back for him, the soldiers said that his body was mined and could not be moved.

The Russian forces occupied Bucha and Irpin for a month. Most of the dead lay wherever the killings had occurred. A resident of Yablunska Street told me that, when he stepped out of his yard on March 8th, he saw a road strewn with bodies and heard music. It was coming from cell phones ringing in the pockets of the dead. The bodies of the eight men executed near the office building remained in the courtyard. The Russians who occupied the building threw trash out the windows, which landed on top of the corpses.

Russian troops withdrew from Bucha on March 31st. Within days, as journalists gained access to the area, the town’s name became synonymous with Russian war crimes. According to Roman Avramenko, the executive director of Truth Hounds, a Ukrainian N.G.O. that documents war crimes, Russian troops have perpetrated similar atrocities, on a comparable scale, in nearly every place that his organization has visited. “I have been doing this for more than seven years, and I still am shocked by the meaningless brutality,” Avramenko said. “ ‘If you are in the range of my weapon, I will shoot at you, on no suspicion of being armed or being a spy.’ Why shoot people? Why throw hand grenades in a cellar where people are hiding? Why not let people bury their dead?”

For the survivors, the thought that the killings are entirely gratuitous is unbearable. Svitlana and Serhii, at the sanatorium, wondered if the Russian soldiers somehow had it in for Konstantin, and shot Oleksandr to eliminate a murder witness. Ludmila surmised that Valeriy, while on his phone call, had scared a Russian soldier who was looting their house. Iryna Abramova thought that the three soldiers had killed her husband to avenge the losses they had suffered on Vokzalna Street. But there is a simpler explanation: this is how Russia fights wars.

Alexander Cherkasov, the former head of the Memorial Human Rights Center, a Russian organization that since the early nineties has documented human-rights violations in conflict zones—and which was shut down by the Kremlin, in the spring—said that the atrocities in Ukraine had direct parallels to those in Chechnya and Syria. I covered the wars in Chechnya, between 1994 and 2001, and saw indiscriminate bombing and shelling of residential neighborhoods, and roads covered with the bodies of civilians. Many families told me of men who were led away by Russian soldiers and never seen again.

In theory, international bodies have the authority to prosecute war crimes wherever and whenever they occur. But Russia has not meaningfully had to account for atrocities committed during earlier conflicts. In Syria, Russian troops fought on the side of the government. Chechnya is legally a part of Russia. In neither case would senior officials be prosecuted domestically, and Russia, as a permanent member of the United Nations Security Council, could veto any attempt by the U.N. to launch a tribunal. Russia also has 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 that it was leaving the Council of Europe, which empowers the court. In 2005, the E.C.H.R. ruled, in a case brought by Memorial, that Russian troops had knowingly bombed a civilian convoy in Chechnya in 1999. The E.C.H.R., which has the power only to order governments to pay monetary damages, imposed fines totalling about seventy thousand euros. But even such minor interventions were rare. “Between three and five thousand people disappeared in Chechnya during the second war,” Cherkasov said. “There is a total of four court decisions, making for an impunity rate of 99.9 per cent.” In Ukraine, Russia is using not only 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 began a war in the Donbas region. Occupying authorities have employed forced conscription, kidnappings, detentions, and torture. But international legal bodies have been slow to get involved, and Ukraine has made little progress prosecuting crimes from the earlier phase of the war. Last year, Ukraine’s parliament voted to amend the criminal code to better define war crimes and to outline punishments for them, but the law has yet to take effect.

The modern history of prosecuting war crimes 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 known as 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. The legal scholar Lawrence Douglas has observed that the definitions of these crimes were hardly clear at the time. Some of the drafters may have intended “humanity” to mean “all of humankind,” while others may have meant “the quality of being human”—in other words, either the scale of the crime or the brutality of it. (The original charter in Russian uses the word “chelovechnost,” which means “the quality of being human,” though later documents have used the word “chelovechestvo,” which means “humankind.”)

The Nuremberg trials were based on a radical new premise: some crimes are so heinous that the international community must step in to restore justice, overruling the principles of national sovereignty. But the trials of the twentieth century—Adolf Eichmann’s, in Jerusalem, in 1961; the International Criminal Tribunal for the former Yugoslavia; and the International Criminal Tribunal for Rwanda—yielded only a few verdicts. The International Criminal Court, which came into existence twenty years ago, has issued arrest warrants for some fifty people, only ten of whom have been convicted. Four have been acquitted, and five people died before a verdict could be reached.

Never before have investigations and trials begun within weeks of the crimes, as they have in Ukraine. A unique set of circumstances has made this possible: Ukraine has an intact judicial system; investigators have had nearly immediate access to crime scenes and evidence, including copious amounts of video footage; and Ukraine is holding several hundred Russian prisoners of war, some of whom are or will be suspects in war-crime investigations.

The first trial took place in Kyiv in May. Vadim Shishimarin, a twenty-one-year-old Russian sergeant, stood 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, dressed in a hoodie, sat alone in a glass cage, his shaved head down, his hands wedged between his knees. He seemed 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 yelling,” Shishimarin explained.

An earlier version of this article misspelled Roman Avramenko’s name.

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