tag:theconversation.com,2011:/uk/topics/war-crimes-trials-71132/articlesWar crimes trials – The Conversation2024-01-04T20:03:04Ztag:theconversation.com,2011:article/2173782024-01-04T20:03:04Z2024-01-04T20:03:04ZAustralia is still reckoning with a shameful legacy: the resettlement of suspected war criminals after WWII<p>In the Canadian parliament last year, an outcry erupted after 98-year-old Ukrainian-Canadian Yaroslav Hunka was presented to Ukrainian President Volodymyr Zelensky as a hero of the second world war. </p>
<p>It turned out Hunka had fought against the Allies as a voluntary member of the Nazi German Waffen-SS Galizien division. The incident was deeply embarrassing for Canada; Prime Minister Justin Trudeau was forced to <a href="https://edition.cnn.com/2023/09/27/americas/trudeau-apology-nazi-unit-intl/index.html">publicly apologise</a>. </p>
<p>The incident also highlighted the ignorance of many Canadians when it comes to world history, as well as the makeup of their own post-war immigration schemes. </p>
<p>As I discuss in my new book, <a href="https://www.routledge.com/Fascists-in-Exile-Post-War-Displaced-Persons-in-Australia/Persian/p/book/9780367696962#:%7E:text=Description,Organisation%20between%201947%20and%201952.">Fascists in Exile</a>, Canada isn’t the only country where former Nazis fled after the second world war. And in many of these countries, families continue to grapple with the legacies of this turbulent time in history.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The author’s new book, published in December.</span>
<span class="attribution"><span class="source">Routledge</span></span>
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<p>In Australia, for instance, when a Lithuanian immigrant named Bronius “Bob” Šredersas died in 1982, he bequeathed a significant art collection to the city of Wollongong. Last year, however, his secret history was <a href="https://www.abc.net.au/news/2022-06-20/bob-sredersas-a-nazi-report-concludes/101166634">revealed</a>: he was found to be a member of Nazi intelligence in occupied Lithuania during the second world war. He was almost certainly <a href="https://www.theguardian.com/australia-news/2022/mar/21/i-am-bob-just-bob-could-a-wollongong-folk-hero-have-had-a-nazi-past">involved</a> in the persecution and murders of Jews. </p>
<p>In response to a report by Professor Konrad Kwiet of the Sydney Jewish Museum, the Wollongong City Council <a href="https://wollongong.nsw.gov.au/my-community/news-and-alerts/news/news/2022/june-2022/wollongong-art-gallery-removes-sredersas-plaque#:%7E:text=Wollongong%20City%20Council%20has%20removed,artworks%2C%20is%20a%20Nazi%20collaborator.">removed a plaque</a> acknowledging the donation and updated its website with the new information about Šredersas’ past. </p>
<p>These may seem to be isolated, rare cases. They are not. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man on a bench" src="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Bronius ‘Bob’ Šredersas photographed in 1950.</span>
<span class="attribution"><a class="source" href="https://wollongong.spydus.com/cgi-bin/spydus.exe/FULL/WPAC/BIBENQ/36933577/27943663,1?FMT=IMG&IMGNUM=3">Wollongong City Libraries</a></span>
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<h2>Denial, then investigations</h2>
<p>Around one million Central and Eastern European “displaced persons” were resettled by the United Nations after the second world war in countries such as Canada, Australia, the United Kingdom and the United States. This group included soldiers who had fought in German military units, as well as civilian collaborators. The Nazi-led Holocaust had relied on their firepower and administrative skills. </p>
<p>Many of these people should have been charged with war crimes. But their resettlement in any country that would take them was a matter of political expediency in the fraught post-war and early Cold War period.</p>
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<a href="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Arthur Calwell and Ben Chifley welcoming new migrants to Australia in 1947.</span>
<span class="attribution"><span class="source">Chifley Research Centre/flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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</figure>
<p>Some 170,000 displaced persons were resettled in Australia between 1947 and 1952. Jewish groups immediately protested that this group included Nazi collaborators. The then immigration minister, Arthur Calwell, dismissed their claims as a “farrago of nonsense”. </p>
<p>The migrants were used as labourers under a two-year indentured labour scheme and transformed into what the government called “New Australians”. </p>
<p>Australia received at least eight extradition requests between 1950 and the mid-1960s for individuals suspected of WWII-era crimes from Yugoslavia and the Soviet Union. These were all refused with the justification that the judicial systems could not be trusted. </p>
<p>In 1961, the then attorney-general, Garfield Barwick, publicly stated he was “closing the chapter” on allegations of war crimes stemming from the second world war. As a result, there would be no further official discussions about any alleged perpetrators residing in Australia. </p>
<p>Decades later, though, all four of these main resettlement countries begin judicial proceedings against the same alleged war criminals they had ignored for so long. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-long-dark-history-of-antisemitism-in-australia-217908">The long, dark history of antisemitism in Australia</a>
</strong>
</em>
</p>
<hr>
<p>Scholars have attributed this change to numerous factors, including the trial of former Nazi leader <a href="https://www.theholocaustexplained.org/survival-and-legacy/postwar-trials-and-denazification/the-trial-of-adolf-eichmann/">Adolf Eichmann</a> in 1961 and the publication of <a href="https://www.ushmm.org/information/press/in-memoriam/raul-hilberg-1926-2007">Raul Hilberg</a>’s comprehensive history of the Holocaust, as well as more generally to the cultural shift of the 1960s and generational change. </p>
<p>A <a href="https://www.smh.com.au/national/nsw/cabinet-papers-199293-hunting-war-criminals-hits-a-snag-20161216-gtd1fn.html">wide-ranging Australian investigation</a>, established by the Hawke government, was later carried out between 1987 and 1992. Among the immigrants who were investigated were 238 Lithuanians, 111 Latvians, 84 Ukrainians, 45 Hungarians and 44 Croatians. </p>
<p>Allegations against 27 men were found to be substantiated, but only three were formally charged: Ukrainians <a href="https://www.upi.com/Archives/1992/07/30/Second-Australian-war-crimes-prosecution-fails/5160754928180/">Mikolay Berezowsky</a>, <a href="https://search.library.uq.edu.au/primo-explore/fulldisplay?vid=61UQ&search_scope=61UQ_All&tab=61uq_all&docid=61UQ_ALMA2182744060003131&lang=en_US&context=L">Heinrich Wagner</a> and <a href="https://www.abc.net.au/news/2018-05-20/nazi-war-criminals-in-australia-and-the-case-of-polyukhovich/9756454">Ivan Polyukhovich</a>. None was convicted.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1707332604129894704"}"></div></p>
<h2>Family histories unearthed</h2>
<p>This was not the end of the story, though. </p>
<p>Many alleged perpetrators of crimes never appeared on any official, or unofficial, list, either before or after the Australian investigation. But stories about individuals have come out in other ways.</p>
<p>My own research, for example, has resulted in the compiling of hundreds of such names by painstakingly piecing together various archival fragments.</p>
<p>For example, a colleague and I were alerted to some suspicious phrasing when the family of Hungarian migrant Ferenc Molnar, now deceased, placed a <a href="https://immigrationplace.com.au/story/ferenc-kalman-frank-molnar-2/">commemorative biography</a> on the website Immigration Place Australia. This biography noted Molnar’s authorship of “a small book about the Holocaust”. It turned out the “small book” was a strident denial of the Holocaust, titled <a href="https://catalogue.nla.gov.au/catalog/1294393">The Big Lie: Six Million Murdered Jews</a>. Molnar himself had claimed to have visited the Dachau concentration camp during the war. </p>
<p>The SBS television show <a href="https://www.sbs.com.au/ondemand/tv-series/every-family-has-a-secret">Every Family Has a Secret</a> has been approached by at least four people who have suspected a deceased family member was a Holocaust perpetrator or collaborator. The show investigated these allegations, using overseas archival researchers. All four suspects were shown to have been allegedly complicit in crimes. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-woman-in-the-usual-sense-ilse-koch-the-bitch-of-buchenwald-was-a-holocaust-war-criminal-but-was-she-also-an-easy-target-203960">'No woman in the usual sense': Ilse Koch, the 'Bitch of Buchenwald', was a Holocaust war criminal – but was she also an easy target?</a>
</strong>
</em>
</p>
<hr>
<p>Angela Hamilton, for example, suspected her deceased Romanian father, Pál Roszy, had been “helping the Nazis” because he was a violent man and rabid anti-Semite. In fact, he had been <a href="https://www.mamamia.com.au/angela-hamilton-no-filter/">convicted</a> in absentia in post-war Romania of killing 31 elderly Jews.</p>
<p>While some families have always either known or suspected the truth, others have been shocked to find a loved one’s name in the files of the 1987-1992 Special Investigations Unit. </p>
<p>My husband’s now-deceased grandfather’s name appears in the files due to an anonymous allegation submitted after a public appeal for information. While the allegation was vague and unlikely, it was not impossible a 19-year-old Ukrainian nationalist could have participated in the wave of anti-Jewish violence that <a href="https://www.routledge.com/European-Fascist-Movements-A-Sourcebook/Clark-Grady/p/book/9780367262860">claimed the lives</a> of some 10,000 Jews in western Ukraine in 1941. </p>
<p>Australian families will continue to reckon with stories like these, perhaps for many years to come. And more than 70 years after the first displaced persons arrived from Europe and 30 years after the Australian war crimes investigations, the Australian public is perhaps finally willing to accept that, just as Holocaust survivors resettled in Australia, so did the alleged perpetrators of atrocities.</p><img src="https://counter.theconversation.com/content/217378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Jayne Persian receives funding from the Australian Research Council. </span></em></p>Official investigations of suspected Nazi collaborators have long closed. But families are still grappling with the hidden secrets of loved ones, a new book details.Jayne Persian, Associate Professor in History, University of Southern QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2160932023-10-23T16:41:14Z2023-10-23T16:41:14ZWhere the ICC stands if war crimes are committed on either side of the Israel-Hamas war<p>Since Hamas launched its offensive in Israel on October 7 2023, drawing a swift and emphatic response from the Netanyahu government, at least 1,400 people in Israel and 5,000 people in Palestine <a href="https://www.theguardian.com/world/live/2023/oct/23/israel-hamas-war-live-updates-airstrikes-gaza-aid-rafah-border-crossing-egypt-white-house-joe-biden-latest-news">have been killed</a>. Many of these have been civilians – hundreds of Israelis at a music festival near the Re'im kibbutz, close to the border of Gaza. Hundreds of Palestinians were killed by an explosion at the Al-Ahli Baptist Hospital in Gaza. </p>
<p>While the first atrocity was committed by Hamas fighters, responsibility for the hospital blast has yet to be determined. Investigators will eventually attempt to piece together the truth about both atrocities. But will anyone stand trial for war crimes?</p>
<p>The International Criminal Court has the jurisdiction to investigate potential war crimes in Israel and Palestine. Palestine <a href="https://www.bbc.co.uk/news/world-middle-east-32144186">joined the court in 2015</a>. In 2021, the then prosecutor, Fatou Bensouda, announced the opening of an <a href="https://www.icc-cpi.int/palestine">investigation into crimes</a> alleged to have been committed since June 13 2014 in the West Bank, Gaza Strip and East Jerusalem, the date when Palestine declared acceptance of ICC jurisdiction. Between then and early 2023, <a href="https://www.ochaopt.org/data/casualties">more than 3,000 people have been killed in Palestine, and more than 200 in Israel</a>.</p>
<h2>What the ICC can do</h2>
<p>Give the current situation in Israel and Gaza, the ICC could take two measures. Tirana Hasan, the director of global rights campaigner Human Rights Watch, has written to <a href="https://www.hrw.org/news/2023/10/13/israel/palestine-letter-prosecutor-international-criminal-court">Karim Khan, the ICC prosecutor</a>, calling on the ICC to explicitly warn Hamas and Israel against committing crimes. </p>
<p>Bensouda <a href="https://www.aljazeera.com/features/2023/10/18/could-a-warning-by-the-icc-chief-prosecutor-deter-war-crimes-in-gaza">did something similar in 2018</a> when she warned Israel not to forcefully evict a Palestinian community from Khan al-Ahmar, a village in the occupied West Bank. She said the eviction could constitute a war crime, as defined in article 8.2 of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">ICC Treaty</a>, which prohibits the deportation or transfer of all or parts of the population of the occupied territory.
Combined with pressure from local and international communities, a warning of this kind could have a <a href="https://www.aljazeera.com/news/2018/10/21/israel-delays-palestinian-village-khan-al-ahmar-demolition-order">temporary effect</a>, as it did in this case. But, in the event, even though <a href="https://www.gov.uk/government/news/diplomatic-missions-visit-khan-al-ahmar-palestinian-community-threatened-with-demolition">diplomats from many states</a> have tried to discourage the eviction, the Israeli government still wants to proceed.</p>
<p>Second – and more importantly – Khan told Reuters press agency on October 12 that the actions of both Hamas militants in Israel and Israeli forces in the Gaza Strip <a href="https://www.reuters.com/world/middle-east/hamas-attack-would-fall-under-jurisdiction-war-crimes-court-prosecutor-2023-10-12/">fall under the jurisdiction of the ICC</a>, even though Israel is not a member state. “It’s horrendous what’s going on, what we’re seeing on our television screens. There has to be a legal process to determine criminal responsibility,” he added.</p>
<h2>Challenges and investigations</h2>
<p>There are three issues that could hinder an ICC investigation: a lack of cooperation by Israel, a lack of financial support from member states and pressure by countries which feel a solution would be easier to achieve without the involvement of the ICC and the prospect of war crimes charges being levelled. This pressure would be dangerous for the ICC’s credibility. It is important for justice and politics to remain independent.</p>
<p>The UN’s commission of inquiry, mandated by the UN Human Rights Council, has been collecting evidence of potential war crimes committed by all sides in Israel and Occupied Palestinian Territories since October 7.</p>
<figure class="align-center ">
<img alt="A young man stands in the rubble of the Khan Yunis municipality building after an Israeli air strike, building in Gaza, October 2023." src="https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Devastation: a young man searches in the ruins of the Khan Yunis municipality building after an Israeli air strike,</span>
<span class="attribution"><span class="source">Anas-Mohammed/Shutterstock</span></span>
</figcaption>
</figure>
<p>It has already said that there is <a href="https://www.ohchr.org/en/press-releases/2023/10/commission-inquiry-collecting-evidence-war-crimes-committed-all-sides-israel">evidence that war crimes have been committed</a>, both by Palestinian militants, gunning down civilians and taking hostages in Israel, and by Israel’s response by putting Gaza in a state of siege, which it has described as appearing to be “collective punishment”.</p>
<p>Human Rights Watch <a href="https://www.hrw.org/news/2023/10/12/israel-white-phosphorus-used-gaza-lebanon">has reported</a> “multiple airbursts of artillery-fired white phosphorus over the Gaza City port and two rural locations along the Israel-Lebanon border”, which it has attributed to Israel. This could potentially be a war crime, but Israel denies the allegation. </p>
<p>On the Palestinian side, the ICC could investigate Hamas, Islamic Jihad or any of the armed militant factions for allegations of war crimes in Palestine or Israel. On the Israeli side, the ICC could investigate the leader of the government, Benjamin Netanyahu, and other officials who could have committed crimes in Palestine. Back in 2019, Netanyahu <a href="https://www.theglobeandmail.com/politics/article-netanyahu-trudeau-icc-probe-israel-alleged-war-crimes-palestinians/">argued against</a> investigating war crimes allegations against Israel, asserting that Palestine did not meet the criteria of statehood to accede to the ICC treaty.</p>
<p>States party to the ICC could call for Hamas and the Israeli government to respect international law. But this has already proved fruitless in the UN security council. The security council tried but <a href="https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2023/article/israel-gaza-france-regrets-the-failure-of-the-draft-resolution-put-forward-by">failed on October 18</a> to pass a resolution which would have enabled the the condemnation of the terrorist attacks by Hamas and made a demand for the hostages’ release. </p>
<p>It would also have called for compliance by all with international humanitarian law, humanitarian pauses would have provided for the urgent establishment of full, safe and unhindered humanitarian access for the UN, Red Cross and humanitarian organisations to Gaza to enable basic necessities to be supplied to the civilian population.</p>
<p>France and China voted in favour of this resolution, but the UK abstained with Russia, and the US <a href="https://www.reuters.com/world/us-vetoes-un-security-council-action-israel-gaza-2023-10-18/">exercised its veto</a>. However, <a href="https://legal.un.org/icc/statute/english/rome_statute(e).pdf">article 25 of the ICC treaty</a> refers to the possibility of investigating people for <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Business/Consultation2010/EarthRightsInternational.pdf">aiding and abetting</a> others to commit crimes. Any leader supporting leaders or people who commit war crimes could be held accountable too.</p>
<h2>Is the ICC gaining prominence?</h2>
<p>The ICC has 123 state signatories. It is now investigating crimes potentially committed in Ukraine by Russia, a permanent member of the security council. As a result, Vladimir Putin could not attend the 2023 Brics summit in South Africa for fear of arrest. </p>
<p>There have also been <a href="https://foreignpolicy.com/2023/04/11/russia-putin-ukraine-war-icc-united-states-crimes-arrest-warrant/">recent calls</a> for the US to ratify the ICC treaty. Armenia is the latest state about to join the ICC. International criminal law is gaining prominence, and awareness of this fact could have a <a href="https://www.tandfonline.com/doi/full/10.1080/01436597.2013.800737">deterrent effect</a> on any leader or person worldwide considering committing war crimes.</p><img src="https://counter.theconversation.com/content/216093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Gegout does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court has a range of options for both deterring and investigating war crimes in the current conflict.Catherine Gegout, Associate Professor in International Relations, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2039602023-09-05T20:06:18Z2023-09-05T20:06:18Z‘No woman in the usual sense’: Ilse Koch, the ‘Bitch of Buchenwald’, was a Holocaust war criminal – but was she also an easy target?<p>In her indictment, the prosecutor described Ilse Koch as “a sexy-looking depraved woman who beat prisoners, reported them for beatings, and trafficked human skin”. </p>
<p>Ilse’s husband, Karl Koch, had been commandant of <a href="https://www.britannica.com/summary/Buchenwald">Buchenwald</a>, one of the first and largest concentration camps within Germany’s 1937 borders, from August 1937 to October 1941. He would then briefly serve as a commander of <a href="https://encyclopedia.ushmm.org/content/en/article/lublin-majdanek-concentration-camp-conditions">Majdanek</a>, another notorious concentration camp.</p>
<p>On 11 April 1947, two years to the day after American forces liberated the camp, the <a href="https://liberation.buchenwald.de/en/otd1945/criminal-prosecution">Buchenwald trials</a> opened in a courtroom in the internment camp of Dachau, the site of the former Dachau concentration camp. The trials were run in the US-occupied zone, by American military tribunals. </p>
<p>The Kochs had initially been arrested in 1943 and tried before the SS military court. <a href="https://www.jewishvirtuallibrary.org/ilse-koch">Charged with</a> embezzlement and (in Karl’s case) the unauthorised murder of three prisoners, Karl Koch was convicted, and executed in 1945 for his crimes. </p>
<p>However, Ilse was set free due to the lack of evidence against her – and American forces later pursued her for her involvement with war crimes and crimes against humanity. </p>
<hr>
<p><em>Review: Ilse Koch on Trial: Making the Bitch of Buchenwald – Tomaz Jardim (Harvard University Press)</em></p>
<hr>
<p>Prisoners referred to Koch as the “commandeuse”, suggesting a degree of authority as wife to her commandant husband. But Koch always claimed:</p>
<blockquote>
<p>I was a housewife […] I have three children […] the operation of the camp didn’t concern me […] In [my husband’s] eyes, my primary job was to be the mother of our children. </p>
</blockquote>
<p>The press referred to Ilse as the “Witch of Buchenwald”, the “Bitch of Buchenwald”, and the “Beast of Buchenwald”: a sadist and a pervert who was morally compromised, and a nymphomaniac. </p>
<p>Tomaz Jardim’s <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674249189">Ilse Koch on Trial</a> argues the pervasive myth of Koch’s most sensationalised (yet unproven) crimes illustrates that the judgements of the public and the press were “as formative as the judgement of the courts in generating the enduring image of the ‘Bitch of Buchenwald’”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=463&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=463&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=463&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=582&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=582&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=582&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse Koch is sentenced to life in prison by a US military.</span>
<span class="attribution"><span class="source">United States Holocaust Museum</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-not-just-about-the-rise-in-anti-semitism-why-we-need-real-stories-for-better-holocaust-education-in-australia-153645">It's not just about the rise in anti-Semitism: why we need real stories for better Holocaust education in Australia</a>
</strong>
</em>
</p>
<hr>
<h2>Joined the Nazi party ‘early’</h2>
<p>Koch was born in Dresden in 1906, to a middle-class family. Her mother was a housewife, her father a labourer. </p>
<p>She had an ordinary childhood. She left school early and started working full-time when she was 15. She joined the Nazi party earlier than most of her peers, in 1932. </p>
<p>At the time, the Nazi party appealed to young people because fascism seemed a viable solution to the deep economic recession that had followed the first world war, and had impoverished many German families.</p>
<p>The idea of an Aryan master race built on anti-Semitism also appealed to Koch, who saw herself as a true representative of such a race. Her future husband, Karl Koch, shared those sentiments. </p>
<p>The couple married after Koch collected evidence of her Aryan ancestry. She was expected to breed pure-race children and, with Karl, she gave a birth to three: two daughters and one boy, whom she raised with the help of maids and camp inmates. </p>
<p>Koch lived with her family in a three-story villa on the grounds of the Buchenwald concentration camp. More than 56,000 people died there from starvation, torture, illness and executions. </p>
<p>The executions of Buchenwald prisoners, writes Jardim, occurred in multiple forms: “shooting, hanging, gassing, corporal punishment, experiments withholding food and [the] refusal of medical care”. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=472&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=472&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=472&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse and Karl Koch with family, 1940.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<h2>Tried for awareness and participation</h2>
<p>“It would have been easy for me to obtain false papers and live somewhere with a false name,” Ilse Koch wrote in 1946. “It also would have been easy for me to have disguised myself.” </p>
<p>But, she continued, “I had no reason whatsoever to disappear. I never even conceived of the possibility of being put to trial.” </p>
<p>The American prosecutor did not prosecute Koch and the other Buchenwald suspects for the “direct perpetration of war crimes”, but for “participating in a common design” to commit war crimes. </p>
<p>The officers who made up the military courts at Dachau were, writes Jardim, “honest and competent men”, but they were not lawyers or professional jurists. </p>
<p>Dressed up and with her head held high, Margarete Ilse Koch entered the courtroom. She was the only woman among 31 indicted for the war crimes and crimes against humanity committed in Buchenwald. </p>
<p>The legal doctrine of “<a href="https://eprints.whiterose.ac.uk/147726/1/Jogee.pdf">common purpose</a>”, which addresses complicity in a crime or crimes, was a useful tool for prosecution in World War II cases like Koch’s. (It has since been further developed by the International Criminal Tribunal for the Former Yugoslavia, under the different name of “<a href="https://en.wikipedia.org/wiki/Joint_criminal_enterprise">joint criminal enterprise</a>”.) </p>
<p>The relevant legal provision <a href="https://books.google.com.au/books?id=BpzGDwAAQBAJ&pg=PT313&lpg=PT313&dq=%22%5Bi%5Df+he+was+connected+with+plans+or+enterprises+involving+its+commission%22&source=bl&ots=hhov5ltW50&sig=ACfU3U20De-G6lKilx2CoCDAoNguqYyheQ&hl=en&sa=X&ved=2ahUKEwjmperjkOOAAxX5pFYBHZt0DZsQ6AF6BAgKEAM#v=onepage&q=%22%5Bi%5Df%20he%20was%20connected%20with%20plans%20or%20enterprises%20involving%20its%20commission%22&f=false">stated</a> that any person was deemed to have committed a crime if “he was connected with plans or enterprises involving its commission” or was “a member of any organization or group connected with the commission of any such crime”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=513&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=513&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=513&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=645&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=645&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=645&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse Koch on trial.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>So Koch was to stand trial not because she had status within the Nazi system or had killed someone herself, but because she knew of the coordinated criminal enterprise that was the Buchenwald concentration camp. And she was tried for her alleged awareness of the camp’s nature, and her voluntary and active participation in its enforcement. </p>
<p>Combining “sexualised imagery, gender stereotypes, and sadistic or fetishised violence”, writes Jardim, these reports created a thirst for details of her trial, with the public eagerly awaiting a guilty verdict. Her image was “monstrous and sexualised”. </p>
<h2>‘A creature from some other tortured world’</h2>
<p>Koch lived a luxurious life, built on her husband’s illegal activities, which were illegal even in the context of Nazi Germany. Ironically, the executions of 50,000 people at Buchenwald were “not wrongful according to the National Socialist system”.</p>
<p>The concentration camps became more than just death factories. They became centres where food and other valuable items could find their way onto the black market. Jardim writes that they were places of “deep corruption, grift, and embezzlement”, where Koch and his cronies pursued “an illicit trade in luxury goods produced by prisoners”.</p>
<p>Karl Koch was executed for placing himself “beyond the order of the concentration camp” and its prohibitions against illicit trade and embezzlement by Nazi officers, as well as the three unauthorised murders. </p>
<p>In the 1947 trials, American prosecutor Denson described Koch as “no woman in the usual sense but a creature from some other tortured world”, making her a powerful symbolic representation of Nazi crimes. </p>
<p>Witnesses claimed “she wore clothes which were deliberately chosen to be inciting for the prisoners”, writes Jardim, citing trial transcripts. They accused her of whipping prisoners for daring to look at her and of having “a desire to own certain objects made of human skin”, such as lampshades, a cover for a family photo album, and gloves.</p>
<p>Various objects made from human skin were found in Buchenwald when it was liberated, but no connection to Koch could be proven. Other allegations against Koch were also found to be “spurious” by judicial authorities. </p>
<p>Nevertheless, writes Jardim, the media exacerbated these allegations, which, once believed, fuelled hatred against the “bestial” Koch. Although the allegations against her were based on “a considerable degree of hearsay and conjecture”, her credibility was so undermined that no one could believe she “knew nothing” about the concentration camp and the treatment of its inmates.</p>
<p>On 14 August 1947, Koch was sentenced to life imprisonment by the US military court. At the time, she was seven months pregnant with her fourth child, Uwe, whom she conceived with an unknown father in her prison cell in Dachau. This further fuelled popular stories of her “flawed motherhood and moral character”. </p>
<p>A few months later, following various legal twists and turns, her request for clemency succeeded. The court concluded that there was no overwhelming or substantial evidence against Koch and commuted her sentence to four years imprisonment. </p>
<h2>‘Diabolical’</h2>
<p>The announcement sparked public outrage. The popular perception of the Koch case and the “diabolical image” painted by the press stood in striking contrast to “the reality that emerged from the evidentiary record and led to the commutation of her life sentence”, writes Jardim. Mounting criticisms of the court’s finding of clemency erupted into public protests. </p>
<p>Despite the uproar, her commutation remained in place and she was released in 1950. However, in the same year as her release, she was charged again – this time by the Western German authorities. </p>
<p>While Jardim cites original data from the trial, there is still some confusion about the exact numbers attached to Koch’s charges. <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1686&context=wlufac">One 2021 article</a> (which acknowledges this inconsistency) summarises them as: instigating the murder of 45 prisoners, complicity in 135 other murders, and one attempted murder.</p>
<p>In 1951, Koch was sentenced to life imprisonment once again. This time, she remained in jail until her death by suicide: she hanged herself with a bed sheet in Aichach Women’s Prison on 1 September 1967.</p>
<h2>Women and war crimes</h2>
<p>The role of women perpetrators in the Holocaust and beyond remains a growing yet under-researched topic. Studies on Ilse Koch have possibly been more common than those on other women war criminals, because the media sensationalised her story.</p>
<p>Ilse Koch on Trial reminds us that women, too, are capable of committing war crimes. It also reminds us that “such women” – who fail to conform to feminine expectations and gendered stereotypes – risk becoming cast as monsters in ways men are not. While it’s normalised that men can kill, especially in war, women are still stereotyped as peaceful and nurturing – which is reflected in the gendered reactions to women war criminals.</p>
<p>In more recent history, <a href="https://internationalcrimesdatabase.org/Case/853/Nyiramasuhuko-et-al/">Pauline Nyiramasuhuko</a>, a woman convicted of genocide in Rwanda, was called an “<a href="https://international-review.icrc.org/sites/default/files/irrc-877-hogg.pdf">evil woman</a>” and “the <a href="https://core.ac.uk/reader/10597680">mother of atrocity</a>”. Similarly, Biljana Plavšić, who was convicted of crimes against humanity in Bosnia and Herzegovina, was <a href="https://www.amazon.com.au/Mothers-Monsters-Whores-Laura-Sjoberg/dp/1842778668">described</a> as a “monster” in a female form. </p>
<p>Jardim writes that in preparation for Koch’s third and final trial, her violation of gender norms was treated as “central to her guilt and a key factor in determining her punishment”. It was stated that “[b]eing a woman made her participation more unnatural and more deliberate”. Her psychiatric assessment revealed “a level of cruelty alien to female nature”.</p>
<p>While no one denies Ilse Koch was guilty of terrible crimes, the most sensational atrocities attributed to her remain unproven. Jardim argues the widespread condemnation of Koch diverted attention from the more consequential – but less sensational – complicity in the Third Reich’s crimes, not only of high-profile Nazis, but millions of ordinary Germans who “supported, enabled, and carried out Nazi policies”. </p>
<p>Gendered perceptions of violence and culpability drove an eager support for prosecution of Koch, at a time when thousands of male Nazi perpetrators who were responsible for more significant crimes escaped punishment or received lighter sentences. </p>
<p>The “popular fascination with [Koch’s] sadistic violence and sexual domination” continues to thrive in popular culture, Jardim writes. It provides “an easy target of popular condemnation for a generation of Germans eager to distance themselves from the Nazi period”, and from “the broad complicity that brought the Third Reich to power”.</p><img src="https://counter.theconversation.com/content/203960/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Olivera Simic does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ilse Koch’s husband was commandant of Buchenwald, one of Germany’s first and largest concentration camps. As the only woman among 31 people indicted for crimes committed there, she became infamous.Olivera Simic, Associate Professor, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2043382023-05-16T12:40:00Z2023-05-16T12:40:00ZInternational Criminal Court is using digital evidence to investigate Putin – but how can it tell if a video or photo is real or fake?<figure><img src="https://images.theconversation.com/files/526317/original/file-20230515-31204-uevzio.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A satellite image shows burning homes in Chernihiv, Ukraine, in March 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239246974/photo/10-maxar-satellite-multispectral-image-view-of-burning-homes-in-residential-area-of-chernihiv.jpg?s=1024x1024&w=gi&k=20&c=_9zuz2w6eePXNPf2UVL4bt7RvCV23e_zm7gUI5WdmI4=">Satellite image (c) 2022 Maxar Technologies.</a></span></figcaption></figure><p>Russia’s invasion of Ukraine in February 2022 was reminiscent of wars long past, where a country invades another with little provocation.</p>
<p>But there are many parts of this conflict that are uniquely modern – including how ordinary Ukrainians are capturing and sharing videos and photos <a href="https://www.politico.eu/article/ukraines-sprawling-unprecedented-campaign-to-document-russian-war-crimes/">documenting the mass murder</a> of civilians, which is <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">considered a war crime</a> under international law.</p>
<p>The International Criminal Court – an international tribunal in the Hague, Netherlands, designed to investigate and <a href="https://www.icc-cpi.int/about/the-court">prosecute war crimes</a> – is trying to keep pace with this trend. </p>
<p>The ICC, a common acronym for the court, <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">issued arrest warrants</a> for Russian President Vladimir Putin and Russia’s children’s rights commissioner, Maria Lvova-Belova in March 2023. They are charged with allegedly abducting and deporting <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">Ukrainian children to Russia</a>. </p>
<p>It isn’t clear what specific evidence ICC prosecutors have gathered to support these charges, but ICC prosecutor Karim Khan has spoken about the “advanced technological tools” the court is using <a href="https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin">in its ongoing investigation</a>. This could include, for example, satellite imagery or cellphone video filmed by witnesses. </p>
<p>I am a <a href="https://ronaldniezen.ca/">scholar of international human rights</a> who has studied the ICC’s investigations into war crimes in Mali, West Africa, and how the court’s use of such digital evidence has advanced over the last decade. </p>
<p>The ICC’s current investigation in Ukraine could further cement this shift toward using digital evidence to investigate war crimes – and raises new challenges about verifying the authenticity of these photos and videos. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rows of teddy bears are spread out across the ground, with small fake candles nearby." src="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526314/original/file-20230515-24759-7g22tf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A memorial event in Brussels in February 2023 marked the abduction of Ukrainian children.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1247413127/photo/topshot-belgium-ukraine-russia-conflict.jpg?s=1024x1024&w=gi&k=20&c=2C_Bh-MvAFwOiLDugnG7qhvhf6qsmKsee0zSjw7q0P0=">Nicolas Masterlinck/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>A rise in digital forensics</h2>
<p>War crimes investigations have traditionally relied almost exclusively on witness <a href="https://www.reuters.com/article/uk-bosnia-grave/bosnia-digging-up-mass-grave-hidden-for-20-years-by-serb-silence-idUKBRE99L0XI20131022">testimony and mud and bones forensics</a> from crime scenes. </p>
<p>This began to change in 2013, when the ICC investigated Malian jihadist Ahmad Al Faqi Al Mahdi, who <a href="https://www.icc-cpi.int/mali/al-mahdi">ordered the destruction</a> of shrines and mosques in Timbuktu during an occupation of this city in Mali. </p>
<p>Video evidence documented the destruction of these holy sites, which are <a href="https://whc.unesco.org/en/canopy/timbuktu/">UNESCO heritage sites</a>. Al Mahdi’s group took some of these videos, and international media filmed others. </p>
<p>Prosecutors ultimately had such a large trove of video evidence that they organized them into a <a href="https://situ.nyc/research/projects/icc-digital-platform-timbuktu-mali">digital visual platform</a>. </p>
<p>For the first time, the <a href="https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_07244.PDF">ICC relied heavily</a> on visual digital <a href="https://library.witness.org/product/multiple-elements-crime/">evidence in a prosecution</a>.</p>
<p>The court sentenced Al Mahdi to <a href="https://www.icc-cpi.int/mali/al-mahdi">nine years in prison</a> in 2016 for destroying <a href="https://qz.com/africa/763207/destroying-history-is-now-being-charged-as-a-war-crime">Timbuktu’s history.</a> </p>
<p>Since then, other <a href="https://leiden-guidelines.com/assets/DDE%20in%20ICL.pdf">international tribunals</a> have accepted digital videos and images as legitimate evidence. <a href="https://www.politico.eu/article/ukraine-war-satellite-images-reveal-devastation-russia-invasion/">Satellite imagery</a>, mobile phone videos and other sources of <a href="https://cyberscoop.com/fbi-ukraine-cyber-war-crime/">digital data</a> can offer powerful supplements to eyewitness <a href="https://ir.lawnet.fordham.edu/ilj/vol41/iss2/1/">accounts of war crimes</a>. </p>
<h2>Is it real or fake?</h2>
<p>With the rise of advanced video editing and artificial intelligence tools, it can be challenging to tell real videos or images from fake ones. If investigators are unable to guarantee that the evidence they download is real, they are unable to proceed with their work.</p>
<p>The University of California Berkeley School of Law’s Human Rights Center raised this point in 2022, when it released a guide on digital evidence intended for international <a href="https://www.ohchr.org/sites/default/files/2022-04/OHCHR_BerkeleyProtocol.pdf">court investigators, lawyers, and judges</a>. </p>
<p>This guide, known as the Berkeley Protocol, sets standards for legal relevance, security and the handling of digital evidence. This includes guidance for investigators, such as protecting the identity of witnesses who provide digital evidence and awareness of the psychological effects of viewing disturbing content. </p>
<p>There are several stages to a digital investigation, as the guide explains.</p>
<p>The first involves getting the evidence. Investigators sometimes find themselves in a race to download and preserve digital content before a content moderator – a person or an AI-enabled tool – <a href="https://www.reuters.com/article/us-global-socialmedia-rights-trfn/lost-memories-war-crimes-evidence-threatened-by-ai-moderation-idUSKBN23Q2TO">deletes it and it disappears</a>. </p>
<p>Once a video is safely in their possession, analysts have to authenticate it. This complicated process involves establishing where the evidence came from and where else it has been, from the time and place the video was shot to the point when investigators acquired it. </p>
<p>In their analysis, investigators look for things like distinctive buildings or trees that can be easy to spot in other images. Satellite imagery can also help determine exactly where a video was filmed and what direction the camera was pointed. Investigators may also use tools like facial recognition software. </p>
<p>Video images often contain other clues about the time and location of an incident. Things like street signs or sticker graffiti on lampposts can help narrow down where and when an image was filmed and what it shows. </p>
<p>The ICC is now using the Berkeley Protocol in its investigation of Ukraine. If and when the time comes for prosecutors to present digital evidence of Russian war crimes in court, there will be little need for lawyers to argue over its validity. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands on rubble and holds up a phone, facing toward an opening in the wall and a street." src="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=361&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=361&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=361&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=454&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=454&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526318/original/file-20230515-23646-odg5cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=454&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Russian soldier patrols a Mariupol theater in Ukraine, bombed by Russian troops in March 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239934838/photo/topshot-ukraine-russia-conflict.jpg?s=1024x1024&w=gi&k=20&c=yatY8oL5OJwFUDdYl4UZMys0tsKFCkXkZJS-jHYJFUk=">Alexander Nemenov/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The digital evidence so far for Ukraine</h2>
<p>It isn’t likely that Putin or Lvova-Belova will be arrested – at least, not any time soon. For now, they are safe by staying within Russia’s borders, since Russia does not abide by the ICC’s arrest warrants or prosecutions. </p>
<p>But the court’s investigation of Russian war crimes is ongoing, and it will rely on the thick trail of digital evidence that journalists, regular citizens and even perpetrators themselves have documented over the course of the Ukraine war.</p>
<p>The Associated Press published images and video in March 2023 of Ukrainian children – who <a href="https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6">may or may not be orphans</a> – being loaded onto buses in the Donetsk region of Ukraine, and others of Ukrainian children eating together in Russia. </p>
<p>Two research agencies that previously consulted for the ICC have also released their own visual investigations of <a href="https://situ.nyc/research/projects/crime-scene-bucha">war crimes in Ukraine</a>, showing digital evidence that <a href="https://theater.spatialtech.info/">Russian artillery attacked</a> a theater in Mariupol where civilians took shelter in March 2022, for example. </p>
<p>Perpetrators, too, are posting evidence of their alleged crimes. Russian <a href="https://www.nytimes.com/2023/03/18/world/europe/putin-arrest-warrant-children.html">state media</a> has reportedly shown Russian soldiers taking Ukrainian children from a group home into Russian-held territory.</p>
<p>International tribunals are adapting to the new landscape of digital documentation. There are scenes in Ukraine that look eerily like the conflicts of the 20th century, but the current war crimes investigation is unlike anything we have seen before.</p><img src="https://counter.theconversation.com/content/204338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronald Niezen received funding from the Social Sciences and Humanities Research Council of Canada. </span></em></p>Digital evidence is becoming a routine fixture for war crimes investigations, including the one focused on Ukraine, changing the landscape for international tribunal investigations.Ronald Niezen, Professor of Practice, Departments of Sociology and of Political Science / International Relations, University of San DiegoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2022472023-03-22T16:36:55Z2023-03-22T16:36:55ZPutin and the ICC: history shows just how hard it is to bring a head of state to justice<p>The arrest warrants <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">issued recently</a> by the International Criminal Court (ICC) for the Russian president, Vladimir Putin, and his children’s commissioner, Maria Lvova-Belova, represent the first time officials of a permanent member of the United Nations security council have been indicted for a war crime.</p>
<p>The charge is that they presided over the forced deportation of Ukrainian children from areas occupied by the Russian military. “There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes,” the ICC <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">said in a statement</a> on March 17. </p>
<p>The ICC is reportedly <a href="https://eurasianet.org/the-case-against-china-at-the-icc">considering evidence</a> of alleged crimes against humanity committed by another permanent member of the security council, China. The crimes under investigation include disappearances, forced sterilisations, executions and the detention of more than a million people. </p>
<p>Lawyers working on behalf of Uyghur exiles from the Xinjiang region where the crimes have allegedly taken place have reportedly submitted new evidence. Chinese foreign ministry spokesperson Wang Wenbin <a href="https://www.dw.com/en/ukraine-updates-eu-agrees-2-billion-ammo-plan-for-kyiv/a-65045955">called on the ICC</a> to “respect the immunity of heads of state from jurisdiction under international law”. It is an indication that Beijing is at least taking the prospect of the ICC mounting a case against senior Chinese officials seriously.</p>
<p>It has been <a href="https://www.tandfonline.com/doi/full/10.1080/01436597.2013.800737">rare</a> for a head of state to face justice in the court. Laurent Gbagbo, the former president of the Ivory Coast, was charged in 2011 with crimes against humanity along with Charles Blé Goudé, but he was acquitted in 2019. The court’s judgment said the <a href="https://www.justiceinfo.net/en/42384-why-icc-acquitted-laurent-gbagbo-charles-ble-goude.html">prosecution had failed</a> to “prove the existence of a common plan and/or a policy of large-scale or systematic attack”, the burden of proof required by the charges. </p>
<p>The ICC issued an arrest warrant in 2011 for the former leader of Libya, Muammar Gaddafi, for crimes against humanity and war crimes. But he was murdered within months of the warrant being issued. At the time, ICC prosecutor Luis Moreno-Ocampo said the court had <a href="https://www.reuters.com/article/us-libya-warcrimes-idUSTRE7417VU20110502">strong evidence</a> of crimes including the shooting of civilians. </p>
<p>The case of former Sudanese president Omar al-Bashir <a href="https://www.icc-cpi.int/darfur/albashir">remains active</a>. Bashir was issued an arrest warrant in 2009 for orchestrating a campaign of mass violence including murder, torture, and rape against non-Arab ethnic groups in the Darfur region of west Sudan since 2003. At the time Sudan did not recognise the ICC, and the African Union also rejected the charge, alleging that the ICC was biased against African nations.</p>
<p>Bashir was forced from power in 2019 and jailed for two years for corruption and financial crimes. In 2021, Sudan <a href="https://www.aljazeera.com/news/2021/8/4/sudan-takes-first-step-towards-joining-international-criminal-court">voted to ratify</a> the Rome statute of the ICC, but the decision has yet to be approved by Sudan’s highest authority, the sovereign council. There is also a debate whether the conflict in Sudan – like the war in former Yugoslavia and the genocide in Rwanda – might be cause to establish a <a href="https://www.aljazeera.com/news/2021/8/12/sudan-omar-al-bashir-icc-war-crimes-darfur">special court for Darfur</a> in Sudan. </p>
<h2>A high bar</h2>
<p>As far as the charges against Putin are concerned, much may hinge on internal Russian politics. If the president is deposed, Russia could choose to ratify the Rome Statute and hand Putin over for trial. Or it could set up its own court to investigate alleged war crimes in Ukraine. </p>
<p>The European Union <a href="https://ec.europa.eu/commission/presscorner/detail/en/statement_23_1363">has also agreed</a> in 2023 to establish a new tribunal to prosecute Russian crimes of aggression committed during the war in Ukraine. In the meantime, Putin risks being handed to the ICC by any state he visits which recognises the court.</p>
<p>But for now, the warrant <a href="https://theconversation.com/ukraine-war-iccs-putin-arrest-warrant-may-be-symbolic-but-must-be-the-beginning-of-holding-the-russian-leader-accountable-201907">seems more symbolic</a>. It effectively means that for much of the world – at least the 123 countries that recognise the ICC – Putin is a <a href="https://www.atlanticcouncil.org/blogs/ukrainealert/putin-the-pariah-war-crimes-arrest-warrant-deepens-russias-isolation/">pariah</a>, and <a href="https://theconversation.com/the-icc-is-investigating-war-crimes-in-ukraine-could-putin-be-indicted-178005">isolated</a> in the international community.</p>
<p>The ICC’s charge will not necessarily be easy to prove. Investigators would <a href="https://theconversation.com/prosecuting-putin-for-abducting-ukrainian-children-will-require-a-high-bar-of-evidence-and-wont-guarantee-the-children-can-come-back-home-201833">need to show</a> that not only did the alleged abductors take the children against their will, but that they also did not intend to return the children to their legal guardians. In addition, the <a href="https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf">Rome statute</a> requires that the prosecution must prove that “the perpetrator intended to destroy, in whole or in part, that national, ethnic, racial or religious group”. </p>
<p>Other charges the ICC might attempt to bring – for example, deliberately targeting civilian infrastructure such as medical facilities – will be <a href="https://www.atlanticcouncil.org/blogs/new-atlanticist/experts-react/experts-react-the-international-criminal-court-just-issued-an-arrest-warrant-for-putin-will-he-wind-up-behind-bars/">equally difficult</a> to show intent for.</p>
<h2>Heads of state</h2>
<p>But the fact that a sitting head of state has been charged with a crime against humanity is significant. There are those who believe that <a href="https://edition.cnn.com/2013/03/19/opinion/iraq-war-bush-blair/index.html">George W. Bush and Tony Blair</a> should have been indicted with war crimes after the 2003 invasion of Iraq. Incidentally, the pair were <a href="https://www.aljazeera.com/opinions/2011/11/28/kuala-lumpur-tribunal-bush-and-blair-guilty">found guilty</a> of crimes against peace by a war crimes tribunal in Malaysia in 2011. </p>
<p>Another leader who could realistically be concerned at facing ICC charges is the ruling head of the Myanmar military or Tatmadaw, Min Aung Hlaing, for <a href="https://thediplomat.com/2021/12/rights-group-urges-icc-probe-of-myanmar-coup-leader/">his role</a> in directing alleged war crimes and crimes against humanity towards Myanmar’s Rohingya Muslim minority. Myanmar is not a party to the Rome statute, but because “an element” of the crimes was perpetrated in Bangladesh – which is under ICC jurisdiction – an <a href="https://www.icc-cpi.int/news/icc-judges-authorise-opening-investigation-situation-bangladesh/myanmar">investigation has been opened</a>.</p>
<p>Israeli prime minister Benjamin Netanyahu is also vulnerable to accusations associated with <a href="https://apnews.com/article/israel-west-bank-palestinian-territories-courts-crime-19117d4265f5d564256ea7fe75854aa6">alleged Israeli crimes in the state of Palestine</a>, which was admitted as a state party to the ICC in 2015. The ICC launched an investigation in 2021 for alleged Israeli crimes in the Palestinian territories since 2014, news which Netanyahu reacted to by <a href="https://apnews.com/article/israel-west-bank-palestinian-territories-courts-crime-19117d4265f5d564256ea7fe75854aa6">declaring</a>: “The state of Israel is under attack this evening.”</p>
<p>Israel has said it will not cooperate with the investigation. Similarly, it is hard to see Russia reacting any differently. But time and a <a href="https://www.un.org/unispal/document/israeli-settlements-should-be-classified-as-war-crimes-says-special-rapporteur-on-the-situation-of-human-rights-in-opt-press-release/">growing mountain</a> of <a href="https://apnews.com/article/russia-ukraine-war-crimes-government-international-criminal-court-a6edd7e6ed0de527b42a1790dccc33ea">evidence</a> are against them. As one Rohingya victim <a href="https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2019_06862.PDF">argued to the ICC</a>: “Even if it takes long time to resolve the victims’ case and to get justice … we want the ICC to get our justice.”</p><img src="https://counter.theconversation.com/content/202247/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Gegout receives funding from the Leverhulme Trust, the British Academy and the European Union.</span></em></p>The International Criminal Court sets a high bar for prosecuting heads of state for crimes committed while they are in power.Catherine Gegout, Associate Professor in International Relations, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1825792022-08-05T12:17:30Z2022-08-05T12:17:30ZProving war crimes isn’t simple – a forensics expert explains what’s involved with documenting human rights violations during conflicts, from Afghanistan to Ukraine<figure><img src="https://images.theconversation.com/files/477707/original/file-20220804-12-9jk3i9.jpg?ixlib=rb-1.1.0&rect=247%2C119%2C5820%2C3923&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Ukrainian war crimes investigator photographs the aftermath of a Russian missile attack in Zatoka, Ukraine, on July 26, 2022.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/war-crimes-prosecutor-and-a-woman-stand-among-the-rubble-after-a-picture-id1242137286?s=2048x2048">Nina Liashonok/Ukrinform/Future Publishing via Getty Images </a></span></figcaption></figure><p>The United Nations reports that at least <a href="https://www.ohchr.org/en/press-releases/2022/07/ukraine-civilian-casualty-update-25-july-2022">5,237 Ukrainian civilians</a> have been killed in the Ukraine war – but <a href="https://www.bbc.com/news/world-europe-61987945">other estimates</a> place this figure at more than 10,000. </p>
<p>Ukraine, meanwhile, <a href="https://www.wsj.com/articles/ukraine-struggles-to-identify-russians-suspected-of-war-crimes-11658656800">has started more</a> than 16,000 investigations into suspected war crimes committed by Russians. </p>
<p><a href="https://scholar.google.com/citations?user=fvZljS8AAAAJ&hl=en&oi=ao">For me</a> and my colleagues – who since 1998 have worked in securing forensic evidence of these types of crimes in Afghanistan, Guatemala and other places – it is apparent that identifying and collecting evidence of international crimes like killing civilians during conflict is beyond the capabilities and resources of local police crime scene teams, criminal investigators and prosecutors. </p>
<p>It’s also likely that the full extent of war crimes committed by <a href="https://www.lemonde.fr/en/international/article/2022/04/09/ukraine-s-military-accused-of-war-crimes-against-russian-troop_5980121_4.html">both Ukraine</a> <a href="https://www.bbc.com/news/world-60690688">and Russia</a> won’t be <a href="https://www.cfr.org/timeline/leaders-facing-justice">investigated and possibly prosecuted</a> until after the war finally ends. </p>
<p>This means that in the case of the Ukraine war, a new, unbiased judiciary and investigatory organization will likely need to be set up to handle the claims and questions about tens of thousands of victims on all sides. This will take decades of work and <a href="https://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-is-a-bad-idea/">cost a large amount</a> of money, requiring the support of rich countries.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands in a dirt field with 2 U.N. trucks in the background." src="https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/477711/original/file-20220804-4466-vej0r3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A mass grave in Dasht-e-Leili, Afghanistan, was investigated by Physicians for Human Rights experts, including the author, in 2002 and 2008.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/physiciansforhumanrights/albums/72157621178761239/with/3370825172/">Stefan Schmitt/Physicians for Human Rights</a></span>
</figcaption>
</figure>
<h2>Proving war crimes</h2>
<p><a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">War crimes</a>, under international law, happen when civilians, prisoners of war, hospitals or schools – essentially anyone and anything that isn’t involved in military activities – are targeted during a conflict.</p>
<p><a href="https://www.npr.org/2022/05/14/1098941080/ukraine-begins-prosecuting-russians-for-war-crimes">Both the Ukrainian government</a> and <a href="https://theconversation.com/show-trial-of-foreign-fighters-in-donetsk-breaks-with-international-law-and-could-itself-be-a-war-crime-184899">Donetsk People’s Republic</a>, a Ukrainian breakaway region occupied by Russians, have prosecuted and convicted both Russian and Ukrainian soldiers for war crimes since February 2022. </p>
<p>These prosecutions raise questions about how evidence is collected and handled to support these cases – and about credibility. Ukraine has a history of <a href="https://foreignpolicy.com/2021/12/17/ukraine-russia-corruption-putin-democracy-oligarchs/">government corruption</a>, and Donetsk is both <a href="https://press.un.org/en/2022/sgsm21153.doc.htm">not recognized internationally</a> and is backed by Russia, which has a judicial system known to <a href="https://phr.org/issues/investigating-deaths-and-mass-atrocities/death-investigations/investigations-in-russia/">tolerate torture</a>. </p>
<p>Previous recent conflicts that resulted in war crime allegations and investigations offer context for understanding the challenges in independently investigating them. </p>
<p>I investigate cases in which law enforcement, military and police are alleged to have committed crimes against civilians and are not held accountable for it. In many cases, these alleged crimes happen during a civil war, like the <a href="https://www.pbs.org/newshour/health/latin_america-jan-june11-timeline_03-07">Guatemalan civil war</a> in the late 1970s and early 1980s, or the <a href="https://www.history.com/topics/africa/rwandan-genocide">Rwandan conflict and genocide</a> in the mid-1990s. </p>
<p>This means that I often work with international organizations like the United Nations to travel to these places and document physical evidence of war crimes – take photographs, take notes, do measurements and draw sketches to illustrate a potential crime scene. The idea is that any other experts can pick up this evidence and reach their own conclusions about what happened there. </p>
<p>Crime scene investigators like me generally do not determine whether <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158">a war crime was committed</a>. That is a decision reserved for the prosecutor or a judge who is given the evidence. </p>
<figure class="align-center ">
<img alt="A trench in the ground shows stuffed white garbage bags lined up. One person is shown from the waist down observing the bags and the trench." src="https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/477708/original/file-20220804-23-wvhxdv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Dead bodies were found in a trench in Lysychansk, Ukraine, in June 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/dead-bodies-killed-by-the-continued-russian-barrage-were-found-in-a-picture-id1241410250?s=2048x2048">Madeleine Kelley/SOPA Images/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>Lessons from Afghanistan</h2>
<p>Shortly after <a href="https://www.history.com/this-day-in-history/u-s-led-attack-on-afghanistan-begins">the U.S. invaded</a> Afghanistan in 2001, about 2,000 Taliban fighters surrendered to the Northern Alliance, <a href="https://www.e-ir.info/2022/07/08/what-happened-to-the-northern-alliance-in-afghanistan/">an Afghan military coalition</a> allied with the U.S. They later went missing. </p>
<p>An investigation determined that <a href="https://phr.org/issues/investigating-deaths-and-mass-atrocities/assessments-and-documentation-of-mass-crimes/assessments-in-afghanistan/assessments-in-afghanistan-dasht-e-leili-photos/">these prisoners</a> might have suffocated or were killed in containers used to transport them. <a href="https://www.nytimes.com/2002/05/01/world/study-hints-at-mass-killing-of-the-taliban.html">It was suspected that</a> they were buried in a mass grave in Dasht-e-Leili, a desert area in northern Afghanistan.</p>
<p>In 2002, the United Nations invited a group of forensics experts from the nonprofit group <a href="https://phr.org/">Physicians for Human Rights</a> to investigate this alleged mass grave. As part of this team, I documented heavy equipment tracks, human remains and personal items in this area.</p>
<p>Physicians for Human Rights exposed over a dozen bodies in a test trench, and autopsies by one of their forensic pathologists determined the cause of death was <a href="https://phr.org/our-work/resources/a-time-for-truth-in-afghanistan/">consistent with suffocation</a>. Evidence of <a href="https://www.flickr.com/photos/physiciansforhumanrights/albums/72157621178761239">medical gloves</a> on the surface of and inside the mass grave struck me as unusual, as it indicated that logistically prepared personnel had handled the remains of the dead. At the time, Afghans barely had any medical supplies to take care of their injured. </p>
<p>To me, it was indicative of the presence of foreign troops with the necessary supplies – such as medical gloves – at this site when the bodies were buried there. Considering that in late November 2001 the U.S. and its allies were searching for al-Qaida members, this might be a reasonable explanation for their presence. </p>
<p>In 2008, in a follow-up visit to the area, I discovered two large pits in the desert, indicative of the removal of any human remains that might have been buried there. Later analysis of <a href="https://phr.org/issues/investigating-deaths-and-mass-atrocities/assessments-and-documentation-of-mass-crimes/assessments-in-afghanistan/#satellite">satellite imagery </a> provided evidence of a large-scale excavation using a backhoe and trucks, dating it to late 2006.</p>
<p>Everyone from former Afghan Vice President Rashid Dostum, <a href="https://foreignpolicy.com/2022/06/14/afghanistan-warlords-taliban-authority-comeback/">also a warlord</a>, to U.S. military and government experts offered different answers as to <a href="https://phr.org/issues/investigating-deaths-and-mass-atrocities/assessments-and-documentation-of-mass-crimes/assessments-in-afghanistan/assessments-in-afghanistan-dasht-e-leili-photos/">what happened there</a>.</p>
<p>The answer to whether <a href="https://www.salon.com/2009/07/22/mass_graves/">war crimes were committed in Dasht-e-Leili</a> remains unresolved to this day. Neither Afghanistan, <a href="https://www.salon.com/2013/06/04/obama_ignores_afghan_massacre_partner/">the U.S.</a>, nor another country or organization took on investigating these deaths. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Dirty medical gloves are seen covered in dirt and measured with a L shaped tool and an arrow." src="https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/477709/original/file-20220804-22-ito9l9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Medical gloves are measured at a mass grave in Dasht-e-Leili, Afghanistan, in 2002.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/physiciansforhumanrights/albums/72157621178761239/with/3370825172/">Stefan Schmitt/Physicians for Human Rights</a></span>
</figcaption>
</figure>
<h2>Beyond political interests</h2>
<p>Since Ukraine is fighting Russia in an active war, it will not have the independence required to fairly investigate and prosecute potential war crimes cases. </p>
<p>That will require other countries and international groups to help set up an independent, unbiased organization to investigate the fate of victims on all sides of the war. </p>
<p>In March, the human rights branch of the United Nations also launched an <a href="https://www.ohchr.org/en/hr-bodies/hrc/iicihr-ukraine/index">international commission</a> to investigate human rights violations in Ukraine. But the U.N. does not identify and return human remains to their families. </p>
<p>While the International Criminal Court <a href="https://www.iiss.org/publications/strategic-comments/2022/the-international-criminal-courts-investigation-in-ukraine">is also investigating</a> war crimes in Ukraine, this organization tends to focus on high-level cases that <a href="https://www.icc-cpi.int/cases">go after political leaders</a> and is not tasked to provide answers to families of all victims. </p>
<p>These investigations will not extend beyond justice – meaning the arrest and prosecution of soldiers or political leaders. </p>
<p>War crimes involving massive numbers of casualties leave behind a multitude of <a href="https://www.icrc.org/en/document/protected-persons/missing-persons">surviving family members, all of whom have the right to know</a> the fate of their loved ones. This goes for Ukraine as well as any other country where international crimes are committed.</p>
<p>Families also have the right to the truth about what happened. This requires an institution with the independence, staff, scientific resources, legal capabilities and money to reach this understanding.</p><img src="https://counter.theconversation.com/content/182579/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Past director of International Forensic Program at Physicians for Human Rights, a not-for-profit, nongovernmental human rights advocacy organization. I continue to consult for human rights organizations around the world.</span></em></p>Other recent conflicts that resulted in war crimes allegations help explain how complex it will be to gather evidence of war crimes in Ukraine – and provide answers for families of victims of the war.Stefan Schmitt, Project Lead - International Technical Forensic Services , Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1879872022-08-02T02:07:04Z2022-08-02T02:07:04ZAs Russia and Ukraine trade blame for prisoner-of-war deaths, what becomes of the Geneva Convention?<figure><img src="https://images.theconversation.com/files/477035/original/file-20220801-18-bqpm3p.jpg?ixlib=rb-1.1.0&rect=25%2C0%2C8402%2C5622&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Russian soldier Vadim Shishimarin at a May hearing in Kyiv where he was given a life sentence for killing a civilian.</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>The deaths of more than 50 Ukrainian prisoners of war last week is not only an <a href="https://www.theguardian.com/world/2022/jul/29/ukraine-denies-attack-on-donbas-prison-that-russia-claims-killed-40">apparent war crime</a>, but also another sign the situation is becoming a race to the bottom when it comes to international law and conventions.</p>
<p>Ukraine and Russia have blamed each other for the attack on the prison in Russian-occupied Donetsk. <a href="https://www.nytimes.com/2022/07/30/world/europe/ukraine-prison-explosion.html">Ukraine also claims</a> prisoners were being tortured and murdered there. Russia’s British embassy later <a href="https://www.bbc.com/news/world-europe-62363225">posted on Twitter</a> that Ukrainian Azov battalion soldiers deserved a “humiliating death” by hanging.</p>
<p>But amid the <a href="https://edition.cnn.com/2022/04/07/europe/ukraine-execution-russian-prisoner-intl/index.html">accusations</a> and <a href="https://theworld.org/stories/infamous-russian-rebel-admits-killing-ukrainian-pows-report">counter-accusations</a> of atrocities being committed against prisoners of war, some simple facts are easily overlooked: rules already exist to prevent such horrors, and they apply in Ukraine.</p>
<p>Prisoners of war are explicitly covered by the <a href="https://ihl-databases.icrc.org/ihl/full/GCIII-commentary">Third Geneva Convention</a>, drawn up in 1949 to replace the old Prisoners of War Convention of 1929 after the awful lessons of the second world war.</p>
<p>Both Russia and Ukraine are signatories, meaning they have <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0C2E061AA381E25AC12563CD0051AA45">promised to respect</a> it in all circumstances. It’s important to note this is not the protocol of the Geneva Conventions Russian President Vladimir Putin <a href="https://www.reuters.com/article/us-russia-warcrimes-convention-idUSKBN1WW2IN">recently quit</a>.</p>
<h2>Fog of war</h2>
<p>Restraint during a war isn’t easy, but it is essential nonetheless. As well as respecting basic humanity and honour, the rules – which have operated for over 100 years – help combatants build the confidence to eventually find peace.</p>
<p>In the sense that it helps avoid escalating revenge and reprisal for attacks against the defenceless, respect for prisoners of war is also a pragmatic act of self-interest.</p>
<p>Adherence in Ukraine to the fundamental conditions of the Geneva Convention has been hard to gauge, however. Apart from <a href="https://www.reuters.com/world/europe/ukraine-wins-release-144-soldiers-biggest-prisoner-swap-war-2022-06-29/">occasional exchanges</a> of prisoners of war, exactly how many prisoners have been taken by each side, and where they are held, <a href="https://www.theguardian.com/world/2022/may/26/russian-soldier-pow-ukraine">remains largely unknown</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/russia-says-peace-in-ukraine-will-be-on-our-terms-but-what-can-the-west-accept-and-at-what-cost-187349">Russia says peace in Ukraine will be ‘on our terms’ – but what can the West accept and at what cost?</a>
</strong>
</em>
</p>
<hr>
<p>While the Red Cross has been able to visit some POWs and other detainees, it has <a href="https://www.icrc.org/en/document/prisoners-of-war-families-desperate-for-answers">not been granted access</a> to visit them all. The problem is compounded by claims that some combatants taken on the battlefield are <a href="https://www.theguardian.com/uk-news/2022/jul/01/two-britons-captured-ukraine-mercenaries-death-penalty">mercenaries</a> and therefore do not count as prisoners of war, meaning they may be executed.</p>
<p>Further complicating things is that both sides are promising to put prisoners on trial for war crimes. With Russia holding <a href="https://www.nytimes.com/2022/06/09/world/europe/russia-trials-ukrainian-soldiers.html">over 1,100</a> Ukrainian prisoners and Ukraine making <a href="https://www.bbc.com/news/world-europe-61652467">over 15,000 allegations of war crimes</a>, both parties need to publicly re-pledge to the Geneva Convention on prisoners of war before things escalate.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1553151536032776192"}"></div></p>
<h2>Rights of the prisoner</h2>
<p>The basic rules governing the treatment of prisoners of war are simple enough to state:</p>
<ul>
<li><p>they must be taken prisoner if they <a href="https://www.cambridge.org/core/journals/israel-law-review/article/rule-of-surrender-in-international-humanitarian-law/714B1EAB954811EB2907A046EA069504">surrender unconditionally</a>, cannot be executed if they have stopped fighting, and must not be subjected to reprisals, mutilation or torture</p></li>
<li><p>they may be <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=2D8538058860C1FCC12563CD0051ABBE">questioned</a> (name, rank and serial number) but must be <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/e34cab7d3c60b986c12563cd00425c11">humanely treated</a> and protected against acts of violence or intimidation, and against insults and public curiosity </p></li>
<li><p>they must be evacuated as soon as possible after capture to a safe area <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=32634F7E53CBC9B8C12563CD0051AC03">outside the combat zone</a>, and can’t be used or positioned to deter military operations by their own side</p></li>
<li><p>the location of prisoner-of-war camps <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=9DF27C33D9C0CD43C12563CD0051AC5A">should be shared</a>, and the camps clearly marked to be visible from the air, so they are not bombed by mistake</p></li>
<li><p>prisoners’ whereabouts should be shared via a <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=7589788DC88FB8F6C12563CD0051B54B">central tracing agency</a>, and they must be allowed to send and receive letters.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-crisis-how-do-small-states-like-new-zealand-respond-in-an-increasingly-lawless-world-177919">Ukraine crisis: how do small states like New Zealand respond in an increasingly lawless world?</a>
</strong>
</em>
</p>
<hr>
<p>Beyond these rules, representatives from third-party countries or the <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule124">Red Cross</a> should be permitted to visit and interview (without witnesses) prisoners and their legal representatives. </p>
<p>And any disputes about the application of the convention rules should be resolved through an <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=DE383A11617FE6EAC12563CD0051B60C">enquiry</a> by an independent third party.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/477038/original/file-20220802-14-bqpm3p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A protest rally in Lviv, Ukraine, after the bombing of the prisoner-of-war detention centre on July 29.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
</figcaption>
</figure>
<h2>War trial risks</h2>
<p>It’s the handling of war trials in particular that requires most restraint. Although prisoners cannot be tried simply for fighting against their enemy, the Geneva Convention allows trials for <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=B0BAF7DBF7E5B3FAC1258584004494BF">grave breaches</a> of the laws of war (such as murder or torture) – and even the <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=DC4FD1618DF61FECC12563CD0051B2F2">death penalty</a> if the domestic law of the detaining power includes it.</p>
<p>And despite <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=1CAB9739A62DEA9CC12585850054ABB1">judicial safeguards</a> relating to fairness and the rights and means of <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=01C1587E1E834452C125858500417EF7">legal defence</a>, there is still the risk of a tit-for-tat process: one side finds a prisoner guilty, the other side responds in kind.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/russias-blockade-could-cause-mass-famine-beyond-ukraine-but-its-a-crime-without-a-name-183429">Russia's blockade could cause mass famine beyond Ukraine – but it’s a crime without a name</a>
</strong>
</em>
</p>
<hr>
<p>The best way through this is to allow the International Criminal Court (already <a href="https://www.icc-cpi.int/news/icc-prosecutor-karim-aa-khan-qc-announces-deployment-forensics-and-investigative-team-ukraine">pursuing its own investigations</a> into the situation in Ukraine) to take the lead, giving the process real independence and integrity.</p>
<p>Trouble is, <a href="https://www.bbc.com/news/world-europe-38005282">Russia has withdrawn</a> from the International Criminal Court – just another measure of how far the observation of the laws of war has been eroded in Ukraine.</p><img src="https://counter.theconversation.com/content/187987/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both Russia and Ukraine are signatories to the Geneva Convention on the treatment of prisoners of war – how much it is being observed is another matter.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1820292022-06-15T12:27:18Z2022-06-15T12:27:18ZInternational courts prosecuting leaders like Putin for war crimes have a mixed record – but offer clues on how to get a conviction<figure><img src="https://images.theconversation.com/files/468824/original/file-20220614-13-1ed69p.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5634%2C3736&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A sign reading 'Putin, murderer' is shown during a protest in Krakow, Poland, on May 8, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/banner-reading-putin-murderer-is-seen-during-rape-is-a-war-news-photo/1240544629">Beata Zawrzel/NurPhoto via Getty Images</a></span></figcaption></figure><p>There have been mounting calls from Ukrainian and other activists and <a href="https://www.politico.eu/article/the-eu-must-help-prosecute-putin-for-crimes-of-aggression-heres-how/">political leaders</a> to prosecute Russian President Vladimir Putin for war crimes in Ukraine, including authorizing attacks on civilians. There has also been <a href="https://foreignpolicy.com/2022/04/19/the-1-percent-chance-that-putin-will-be-prosecuted/">public skepticism</a> that this could actually happen. </p>
<p>History provides some lessons on charging political leaders with war crimes – a <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">legal term</a> that includes attacking and killing civilians during war.</p>
<p>Ukraine already <a href="https://www.washingtonpost.com/world/2022/05/31/ukraine-russian-war-crimes-second-trial-sentencing/">convicted and sentenced</a> three Russian soldiers, in May 2022, for war crimes during the ongoing Ukraine conflict, and it plans to prosecute at least 80 more soldiers. But as a <a href="https://isearch.asu.edu/profile/858959">scholar of human rights</a>, conflict and international courts, I think it is important to understand that
there has been a mixed record of arresting and prosecuting senior political and military leaders allegedly responsible for atrocities. </p>
<p>The <a href="https://academic.oup.com/jicj/article-abstract/6/2/401/858328?redirectedFrom=fulltext">international trial of Serbian leader Slobodan Misolevic</a> in the mid-2000s is one example of how international courts can prosecute war criminals.</p>
<p>Here’s the bottom line: It’s only when leaders like Milosevic fall from power that there is any chance that their governments may arrest and hand them over to international courts for prosecution. </p>
<p>But history also shows that even if Putin is overthrown or otherwise loses power, there’s no clear guarantee that he will ever stand trial before an international court.</p>
<figure class="align-center ">
<img alt="Milosevic sits in a suit, with two guards in blue shirts on either side of him." src="https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468825/original/file-20220614-14-1doh7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Serbian leader Slobodan Milosevic refused a lawyer during his hearings before the
International Criminal Tribunal for the former Yugoslavia in the early 2000s.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/slobodan-milosevic-refuses-the-presence-of-any-lawyer-news-photo/110138118">Raphael Gaillarde/Gamma-Rapho via Getty Images</a></span>
</figcaption>
</figure>
<h2>Milosevic’s fall from power</h2>
<p>There were three major wars in southeastern Europe in the 1990s. In total, approximately <a href="https://www.rferl.org/a/balkan-camp-alic-photo/31385822.html">130,000 people died</a> during the wars in Croatia, Bosnia and Kosovo. The rise of nationalism and tension between different ethnic groups triggered these conflicts.</p>
<p>The spark for these wars was kindled in 1991, when Yugoslavia, a former communist republic that once included Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia, began to <a href="https://history.state.gov/milestones/1989-1992/breakup-yugoslavia">split apart</a>.</p>
<p>Milosevic, a Serbian nationalist leader, was one of the most influential politicians in the region. He fueled the regional wars around and after the time of this dissolution. </p>
<p>In 1993, as the war in Bosnia was still being fought, the United Nations Security Council set up a special court, called the <a href="https://www.icty.org">International Criminal Tribunal for the Former Yugoslavia</a>, to address crimes committed during the wars there. </p>
<p>This court indicted Milosevic for war crimes and crimes against humanity in 1999 during the the ongoing Kosovo war in 1999. Milosevic’s alleged crimes in Kosovo included a massive ethnic cleansing campaign waged against Kosovar Albanians, the largest ethnic group there. Most of the people who died during this war were Kosovar Albanians.</p>
<p>But Milosevic was still in power when the indictment was issued, and the Serbian government shielded him from arrest. </p>
<p>Milosevic lost a presidential election in late September 2000 but initially refused to give up power. After widespread protests, Milosevic <a href="https://nvdatabase.swarthmore.edu/content/serbians-overthrow-milosevic-bulldozer-revolution-2000">stepped down</a> a week later, and a democratic government took over.</p>
<h2>Milosevic standing trial</h2>
<p>Almost two years later, Serbian police <a href="https://www.nytimes.com/2001/04/02/world/milosevic-surrender-overview-milosevic-arrest-came-with-pledge-for-fair-trial.html">arrested Milosevic</a>, though on domestic corruption and abuse of power charges. </p>
<p>The <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/">Serbian government</a> transferred <a href="https://www.icty.org/en/press/slobodan-milosevic-transferred-custody-international-criminal-tribunal-former-yugoslavia">Milosevic to the international tribunal</a> in June 2001. </p>
<p>This happened in the wake of U.S. threats to withhold much-needed loans to Serbia, unless the government turned over Milosevic. Serbia later also arrested other former leaders wanted for war crimes – following intense Western political pressure and assurances by European countries and the U.S. that <a href="https://academic.oup.com/ijtj/article-abstract/5/1/52/2356990?redirectedFrom=fulltext">the government’s cooperation</a> could result in Serbia’s gaining European Union membership. </p>
<p>The international tribunal <a href="https://www.icty.org/en/press/trial-slobodan-milosevic-will-begin-tuesday-12-february-930-am">launched its trial</a> in The Hague, Netherlands, against Milosevic in February 2002. Milosevic faced dozens of charges for alleged crimes he committed in three different wars.</p>
<p>But Milosevic <a href="https://www.theguardian.com/world/2006/mar/12/warcrimes.milosevictrial">died in prison</a> in 2006, shortly before the end of his trial. </p>
<h2>The challenge for international courts</h2>
<p>International courts set up by the U.N., like the International Criminal Tribunal for the former Yugoslavia, have a twofold problem. First, these tribunals do not have an actual international police force to carry out arrests. </p>
<p>Governments implicated in their leaders’ alleged crimes also often try to obstruct international courts by not turning over suspects.</p>
<p>The enforcement problem, <a href="https://www.cambridge.org/core/books/international-justice-in-rwanda-and-the-balkans/975BC3287F9A8262731808D09BE0B27C">as my scholarship has shown</a>, can allow a powerful country like Russia to evade arrest warrants from international courts – as long as the suspect remains within the country.</p>
<p>The International Criminal Court, for example, has not been able to persuade the Sudanese government to hand over former president Omar al-Bashir for alleged war crimes committed in Darfur in the 2000s.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A row of people wearing dark jackets walk in front of a Ukrainian church" src="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468827/original/file-20220614-13-75uv2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ukraine’s prosecutor general, Iryna Venediktova, left, walks with International Criminal Court prosecutor Karim Khan during a visit to Bucha, Ukraine, in April 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/graphic-content-ukraines-prosecutor-general-iryna-venediktova-and-of-picture-id1239959385?s=2048x2048">Fadel Senna/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>A potential playbook for Putin</h2>
<p>Milosevic escaped a final verdict and potential prison time with his death. </p>
<p>But his trial still shows that under specific circumstances, international courts can overcome their lack of enforcement powers and bring high-level suspects to trial. International political pressure and incentives often serve a role in this process. </p>
<p><a href="https://www.aljazeera.com/news/2022/5/17/icc-sends-largest-ever-investigative-team-to-war-torn-ukraine">In May 2022</a>, the International Criminal Court – the main international tribunal that prosecutes war crimes – sent its largest-ever team of experts to investigate the situation in Ukraine.</p>
<p>Karim Khan, chief prosecutor of the International Criminal Court, will need to decide whether to target lower-level or midlevel suspects in the military – or to indict top Russian leaders, including Putin. </p>
<p><a href="https://www.theguardian.com/world/2022/mar/06/karim-khan-british-barrister-icc-russia-war-crimes-inquiry">Some analysts caution</a> against Khan’s aiming too high, too soon, given the court’s poor track record of prosecuting high-level defendants, such as former Côte d'Ivoire President Laurent Gbagbo.</p>
<p>As long as Putin remains in power, it is unlikely that any amount of political pressure or promises will persuade Russia to cooperate with an international court and turn over Putin, if he is indicted. </p>
<p>That could change if Putin ever falls from power. </p>
<p>But much would still depend on the new Russian government and whether Western countries would provide the type of incentives that pushed Serbian leaders to turn against their former political leaders and military heroes.</p><img src="https://counter.theconversation.com/content/182029/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victor Peskin, as an associate professor at Arizona State University, is currently part of a U.S. State Department grant intended to support transitional justice efforts in South Sudan and Ukraine. </span></em></p>Prosecuting a leader like Vladimir Putin accused of war crimes is difficult. But the trial of Serbian leader Slobodan Milosevic in the early 2000s offers a potential playbook.Victor Peskin, Associate professor of politics and global studies, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1848992022-06-13T18:16:22Z2022-06-13T18:16:22Z‘Show’ trial of foreign fighters in Donetsk breaks with international law – and could itself be a war crime<figure><img src="https://images.theconversation.com/files/468519/original/file-20220613-14-76asy5.jpg?ixlib=rb-1.1.0&rect=0%2C53%2C6000%2C3601&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">British citizens Aiden Aslin and Shaun Pinner and Moroccan Saaudun Brahim.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PicturesoftheWeek-Global-PhotoGallery/949e456f0ae84a16a334e03adfce24e0/photo?Query=Aiden%20Aslin&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=7&currentItemNo=0">AP Photo</a></span></figcaption></figure><p>The <a href="https://www.nytimes.com/2022/06/09/world/europe/ukraine-army-death-sentence-russia.html">sentencing to death of three foreign fighters</a> captured by Russian troops and handed over to authorities in a breakaway region in Ukraine presents a serious deviation from international law – one that in itself represents a war crime.</p>
<p>Sentencing came on June 9, 2022, at the end of what has been <a href="https://www.theguardian.com/world/2022/jun/09/britons-sentenced-to-death-russian-occupied-ukraine-aiden-aslin-shaun-pinner">dismissed by observers in the West as a “show trial”</a> involving the three – two British citizens and a Moroccan national in Ukraine fighting alongside the country’s troops.</p>
<p>In many ways, proceedings like those the three were subjected to were inevitable. Indeed, in <a href="https://theconversation.com/war-crimes-trial-of-russian-soldier-was-perfectly-legal-but-that-doesnt-make-it-wise-183586">an earlier article</a> questioning the wisdom of Ukraine’s conducting its own war crimes trials of Russian prisoners of war during ongoing hostilities, I suggested that it might incentivize the Russians to do likewise. And now the Russians have responded in kind, but with a cynical twist I hadn’t then contemplated: outsourcing the dirty work.</p>
<p>Russia handed over the men captured while they were fighting in the besieged port city of Mariupol to a court of the <a href="https://www.reuters.com/world/europe/russia-backed-donetsk-republic-will-consider-joining-russia-leader-2022-03-29/">self-proclaimed Donetsk People’s Republic</a>, a part of Eastern Ukraine that Russia has effectively occupied since 2014.</p>
<p>As a <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">scholar of the law of war</a> – that is, the international legal protocols and conventions that set out the rules of what is allowed during conflicts – I know that this move does not insulate Moscow from culpability. By delivering the men to a nonstate authority, Russia committed a very serious violation of the <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">Geneva Conventions</a>, the set of treaties and additional protocols that establish accepted conduct in wars and the duties to protect civilians – and prisoners.</p>
<h2>Dodgy jurisdiction</h2>
<p>The conventions are clear on what is and is not acceptable when it comes to the treatment of captured combatants. <a href="https://ihl-databases.icrc.org/ihl/WebART/375-590016">Article 12 of the Third Convention</a> categorically states that the “detaining power” – in this case, Russia – can transfer a prisoner of war only to a another state that is a party to the convention.</p>
<p>And the Donetsk People’s Republic is not a party to the convention. The region was <a href="https://www.bbc.com/news/av/world-europe-60470900">recognized by Russia as an independent state</a> only days before its invasion of Ukraine on Feb. 24, 2022. More to the point, it has not been recognized by any other U.N. member state. Instead, it is regarded as a part of Ukraine. </p>
<p>As such, the Donetsk People’s Republic is quite simply a separatist region of Ukraine engaged in an <a href="https://www.aljazeera.com/news/2022/2/21/donetsk-and-lugansk-heres-what-we-know-about-rebel-jregions">ongoing rebellion against the government</a> in Kyiv since 2014. In that time, it has enjoyed the direct support of Russian forces.</p>
<p>But crucially, it does not qualify as a state under international law and is ineligible to be a party to the Third Geneva Convention. </p>
<h2>‘Mercenaries’ and ‘terrorists’?</h2>
<p>The three men sentenced to death were accused by prosecutors of <a href="https://finance.yahoo.com/news/no-pardon-britons-sentenced-death-140724309.html">trying to overthrow the separatist government</a> of the Donetsk People’s Republic.</p>
<p>But if these three soldiers committed war crimes, then they should have been tried by the courts of the detaining power. Russian President Vladimir Putin cannot simply wash his hands of responsibility for the trials and fate of these soldiers.</p>
<p>Having illegally transferred these soldiers to the rump courts of a breakaway Ukrainian region, Russia should have ensured that they were tried fairly. As a detaining power, it was compelled to do so not only by the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf">Third Geneva Convention</a> and an <a href="https://ihl-databases.icrc.org/ihl/INTRO/470">additional protocol agreed to in 1977</a>but also under the <a href="https://www.echr.coe.int/documents/convention_eng.pdf">European Convention on Human Rights</a> and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a>, both of which apply in the Russian-occupied Donetsk region.</p>
<p>But Russia has failed to protect its prisoners from an unfair prosecution.</p>
<p>Parroting <a href="https://www.nytimes.com/2022/05/18/world/europe/russia-ukraine-captives.html">statements from the Kremlin</a>, the Donetsk authorities accused the three foreign fighters of being “<a href="https://www.bbc.com/news/uk-61745556">terrorists” and “mercenaries</a>” – a deliberate label intended to result in the men’s being denied POW status.</p>
<p>Simply put, both charges are bogus. In armed conflicts, there are only two categories of persons: <a href="https://casebook.icrc.org/law/combatants-and-pows">civilians and combatants</a>. There is no third category of “terrorist.”</p>
<p>While treaties addressing the law of war such as the Geneva Conventions proscribe terrorism, they do not define that term.</p>
<p>However, it is understood that intentional attacks directed against legally protected individuals, such as civilians, POWS, the wounded and the sick, are forms of terrorism amounting to war crimes.</p>
<p>The Third Convention and its additional protocol make crystal clear that members of the armed forces who commit war crimes <a href="https://casebook.icrc.org/law/combatants-and-pows">do not forfeit POW status</a>. As attested to by the Ukrainian government, these three foreigners were active-duty members of Ukraine’s armed forces when captured by Russian soldiers and accordingly were unconditionally entitled to POW status. </p>
<p>In my view, charging and convicting these POWs as “terrorists” is at odds with international law.</p>
<p>Likewise there are problems with labeling the men “mercenaries.” <a href="https://ihl-databases.icrc.org/ihl/WebART/470-750057">Article 47 of the Additional Protocol</a> states that a mercenary does not have the right to be a combatant or granted POW status upon capture. But to qualify as a mercenary, a person must satisfy six very specific criteria listed in that article. For example, a person who is a member of the armed forces of a party to the conflict is not considered to be a mercenary. Such is the case with these three soldiers.</p>
<h2>Summary law</h2>
<p>The issues under international law do not end with the charges the men faced. There are also serious grounds for concerns about the conduct of the trial itself. </p>
<p>The Geneva Conventions mandate that POWs be <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule100_sectionb">tried by independent and impartial courts</a> with procedures ensuring the accused due process of law, including access to competent legal counsel.</p>
<p>Based on<a href="https://www.theguardian.com/commentisfree/2022/jun/10/trial-donetsk-precedent-conflict-21st-century"> published reports</a>, the trial seems to have woefully fallen short of these requirements. Little is known of the qualifications of the judges and defense counsel. Moreover, the trial was conducted in a summary fashion, with all three soldiers pleading guilty to all the charges less than 24 hours before they were convicted and sentenced to death.</p>
<p>It is difficult to believe that these soldiers confessed to being terrorists and mercenaries without having been coerced, which is <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=2D8538058860C1FCC12563CD0051ABBE#:%7E:text=No%20physical%20or%20mental%20torture,disadvantageous%20treatment%20of%20any%20kind.">absolutely prohibited under the Geneva Conventions</a>. </p>
<p>This, in turn, raises questions about the competence of their legal representatives, who seem not to have rebutted the charges of their being terrorists and mercenaries. It is also unclear whether counsel had access to the soldiers before they pleaded guilty or was able to call and confront witnesses.</p>
<p>The three soldiers have a month to appeal their sentences, which could result in their receiving life or a 25-year prison term instead of the death penalty.</p>
<p>But the haste and timing of the prosecutions give credence to suggestions that the trial was undertaken to humiliate Britain – which has been a <a href="https://www.nbcnews.com/news/world/britain-one-putins-fiercest-critics-politicians-still-get-millions-rus-rcna22906">very vocal critic of Russia’s invasion</a> – and force Ukraine to eventually <a href="https://www.wsws.org/en/articles/2022/06/10/kdtx-j10.html">exchange these prisoners for Russian soldiers</a> convicted of war crimes by its courts.</p>
<p>Whatever the motive for these trials, the convictions may not be the end of the matter. And it is worth noting that denying a POW the right to a fair trial is a serious war crime.</p><img src="https://counter.theconversation.com/content/184899/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The prosecution and death sentences handed out to two British and one Moroccan national fighting alongside Ukrainian troops contravenes the Geneva Conventions.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1835862022-05-23T11:40:32Z2022-05-23T11:40:32ZWar crimes trial of Russian soldier was perfectly legal – but that doesn’t make it wise<figure><img src="https://images.theconversation.com/files/464667/original/file-20220522-12-knzvfz.jpg?ixlib=rb-1.1.0&rect=47%2C89%2C3946%2C2568&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The trial of Russian soldier Vadim Shishimarin could be mirrored with similar war crimes prosecutions by Moscow.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/russian-soldier-vadim-shishimarin-suspected-of-violations-news-photo/1240787487?adppopup=true">Maxym Marusenko/NurPhoto via Getty Images</a></span></figcaption></figure><p>The <a href="https://www.reuters.com/world/europe/russian-soldier-asks-forgiveness-ukraine-war-crimes-trial-2022-05-19/">war crimes trial of a Russian soldier</a> in Ukraine – <a href="https://apnews.com/article/russia-ukraine-kyiv-kharkiv-2fb1355f5c0b5724adfc5b4367807335">which concluded on May 23, 2022 with a conviction and life sentence for the defendant</a> – was permissible under international law. And with the eyes of the world on them, Ukrainian authorities would have wanted the proceedings to be played entirely by the book.</p>
<p>But nonetheless, conducting a war crimes trial during active hostilities, and by a civilian court, is not normal. Nor may it be wise.</p>
<p>As an <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">expert on the law of war</a> – that is, the set of international legal protocols and conventions that set out the rules of what is allowed during conflicts – I am concerned that trying a prisoner of war in such circumstances is problematic for several reasons. Further, it could set a disturbing precedent. While the Ukrainian trial may well have been conducted under due process of law, the same may not be true if Russia decides to follow suit. </p>
<h2>The right time to prosecute war crimes</h2>
<p>There are, of course, advantages to holding a trial so close to an alleged crime – in this case, the shooting death of an unarmed civilian in the <a href="https://www.wsj.com/amp/articles/why-did-you-do-this-the-story-behind-ukraines-first-war-crimes-trial-11653226541">Ukrainian village of Chupakhivka on Feb. 28</a>, 2022. For example, it makes it easier to gather evidence because the crime scene is still fresh and eyewitness memories more recent. Such trials could also provide timely justice for the loved ones of civilians killed.</p>
<p>Moreover, Ukraine has the moral high ground here. The country is the victim of <a href="https://www.bbc.com/news/world-europe-56720589">clear-cut aggression from Russia</a>. And rights experts have <a href="https://www.reuters.com/world/europe/clear-patterns-found-that-russia-violated-humanitarian-law-ukraine-osce-2022-04-13/">detailed a pattern of war crimes</a> and crimes against humanity carried out by Russia since its invasion of Ukraine.</p>
<p>Rules governing war crimes trials are set out in <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">the Geneva Conventions</a> – a set of treaties and additional protocols that establish accepted conduct in wars and the duties to protect civilians. Both Russia and Ukraine are signatories to the convention, and Ukraine is also bound to its commitments to the <a href="https://www.echr.coe.int/documents/convention_eng.pdf">European Convention on Human Rights</a>.</p>
<p>There is nothing in international law prohibiting war crimes trials taking place during hostilities. Nonetheless, some commentators have expressed concerns about the practice. In one of its commentaries on the Geneva Conventions, the International Committee of the Red Cross expressly <a href="https://ihl-databases.icrc.org/ihl/COM/380-600168?OpenDocument">warned against war crimes trials proceeding during wartime</a>. The commentaries, which collectively are seen as the authorities on interpreting the conventions, note that it is difficult for an accused person “to prepare his defense during hostilities,” adding: </p>
<blockquote>
<p>“It seems to be a good rule, therefore, that the trial of a person accused of war crimes should not take place at a time when it is impossible for him to adduce proofs which could lessen his responsibility or disprove it.”</p>
</blockquote>
<p>In fact, it is very hard to think of an example in which a war crimes trial has been conducted during hostilities other than <a href="https://apnews.com/article/russia-ukraine-kyiv-war-crimes-31b1d5a9464684c2cb8386c634d8c96c">one case involving a soldier during the Bosnian war</a> in the early 1990s.</p>
<h2>‘Direct part of hostilities’</h2>
<p>The trial in Ukraine is unusual for another reason that I find concerning: It is taking place in a civilian court, not a military one.</p>
<p>The Third Geneva Convention <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf">is pretty clear on this</a> point:</p>
<blockquote>
<p>“A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war.”</p>
</blockquote>
<p>The Russian soldier was prosecuted under a part of the Ukrainian criminal code that addresses conduct during war. And the issue is muddied by the detaining power, Ukraine, having <a href="https://dcaf.ch/sites/default/files/publications/documents/Military_Justice_Guidance_Note_eng.pdf">abolished military courts</a> in 2010.</p>
<p>But the problem hinted at in the Geneva Conventions’ strong desire to have war crimes trial only in military courts is that international humanitarian law is a highly specialized area. Military court officials will have the training required to understand the nuances in a way that civilian courts will, by and large, not.</p>
<p>And an issue central to the Russian soldier’s case – whether the civilian killed could be seen as a legitimate target – is a highly technical area that only an expert of the law of war will understand.</p>
<p>Under <a href="https://ihl-databases.icrc.org/ihl/INTRO/470">protocol I of the Geneva Conventions</a>, a treaty added in 1977, a civilian loses immunity when he or she directly participate in hostilities.</p>
<p>And this is where it gets tricky. If the Russian soldier believed that the civilian he shot posed an immediate threat, say by reporting his position to Ukrainian military, then it would not be unreasonable for the defense to argue that the civilian was a legitimate target. Indeed, in the current trial, the court heard that the Russian soldier <a href="https://www.nytimes.com/2022/05/19/world/russian-soldier-trial-vadim-shishimarin.html">was ordered to shoot the man for that very reason</a> - his superior believed the civilian may have been using a cellphone to give away their location.</p>
<figure class="align-center ">
<img alt="A row of body bags are lined up in front of a graveyard next to a church." src="https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464669/original/file-20220522-31005-sywqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Officials exhume the bodies of civilians killed in a Russian attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/officials-exhume-the-bodies-of-civilians-who-died-during-news-photo/1239895652?adppopup=true">Metin Aktas/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<p>Discerning when a civilian takes a “direct part in hostilities” is highly situational; that is, it depends on the circumstances of the case. The conventions state that civilians lose immunity when they are preparing for, in the act of or returning from participation in hostilities. For example, if a civilian picks up a gun or a Molotov cocktail – and as such show intent to participate in hostilities – they lose immunity.</p>
<p>But other examples may appear less clear cut. For example, a munitions worker manufacturing weapons in Detroit for use in conflict overseas would not be seen as taking a “direct part” in hostilities. But someone in Iraq making improvised explosive devices, or IEDs, to be used by others would be.</p>
<p>It may well be the case that the court would not have accepted the argument that by simply being on a cellphone, the Ukrainian civilian was taking a “direct part” in the war. But the fact that the Ukrainian man was apparently using a cellphone opens up a line of defense that doesn’t appear to have been argued in court.</p>
<p>Bolstering the view that it should have at least been entertained as a defense is <a href="https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf">2009 guidance on the issue</a> of when a civilian becomes a “direct part of hostilities” under humanitarian law issued by the International Committee of the Red Cross. It notes that “an unarmed civilian sitting in a restaurant using a radio or mobile phone to transmit tactical targeting intelligence to an attacking air force would probably have to be regarded as directly participating in hostilities.”</p>
<p>Vadim Shishimarin, the 21-year-old Russian soldier accused in the case, <a href="https://www.nytimes.com/2022/05/19/world/russian-soldier-trial-vadim-shishimarin.html">has pleaded guilty</a>. But the optics of him being tried during wartime by a detaining authority engaged in conflict raises questions over the confession.</p>
<p>The Geneva Conventions are explicit in that <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=1CAB9739A62DEA9CC12585850054ABB1#:%7E:text=%5B32%5D%20Article%2061%20of%20the,of%20which%20they%20are%20accused.&text=3967%20Article%2099(2)%20prohibits,coercion'%20to%20induce%20a%20confession.">no form of coercion</a> can be used to extract a confession of guilt – and there is no evidence to suggest that Shishimarin was forced into confessing.</p>
<h2>Show trials and Russian justice</h2>
<p>But there is a broader concern with how this case is being presented. Even if observers accept that the soldier was given adequate counsel and the trial was conducted entirely by the book, that isn’t how it is likely to be presented to the Russian people.</p>
<p>And Russia is <a href="https://www.npr.org/2022/05/18/1099767017/russian-soldier-pleads-guilty-ukraine-war-crimes-trial">reportedly preparing war crime trials of its own</a> for Ukrainian soldiers captured in the conflict.</p>
<p>The <a href="https://www.washingtonpost.com/politics/2022/04/07/autocrats-russia-kremlin-protest-fines-jail/">treatment of dissidents and opponents</a> of President Vladimir Putin suggests that the concept of rule of law has been eroded. And with around 2,000 Ukrainian soldiers from Mariupol currently in Russian custody, there are <a href="https://www.nytimes.com/2022/05/20/world/europe/russia-azov-mariupol-trials.html">concerns that show trials</a> could be on the way.</p>
<p>Of course, there is a propaganda aspect to Ukraine’s prosecution too. Anything that underscores the view that Russian forces are engaged in war crimes will serve Ukrainian interests.</p>
<p>But there is nothing in the propaganda of the trial in itself that is unlawful. Under international law, a line is only crossed when the the detaining authority fails to meet the minimum standards of due process – say, by coercing confession, refusing the right to appeal or not providing counsel for the accused.</p>
<p>No one is suggesting that has been the case in Ukraine’s war crimes trial. But in holding the trial during hostilities, Ukraine runs the risk of Russia doing likewise – and subjecting its prisoners of war to Russian justice.</p><img src="https://counter.theconversation.com/content/183586/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman is the President of the International Commissions of Jurists.</span></em></p>Holding war crimes trials during active hostilities is rare. Proceedings in Ukraine also open the risk of Russian show trials, argues a law of war expert.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1819282022-05-19T12:21:32Z2022-05-19T12:21:32ZPutin could be charged with the crime of aggression for the Ukraine war – but it’s an expensive process with high stakes<figure><img src="https://images.theconversation.com/files/464007/original/file-20220518-16-1adbuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There have been calls to charge and prosecute Russian President Vladimir Putin for war crimes in Ukraine. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/banner-reading-wanted-dead-or-alive-vladimir-putin-for-genocide-is-picture-id1238989117?s=2048x2048">Beata Zawrzel/NurPhoto via Getty Images</a></span></figcaption></figure><p>A 21-year-old Russian soldier <a href="https://www.nytimes.com/live/2022/05/18/world/russia-ukraine-war-news/a-russian-soldier-accused-of-killing-a-civilian-pleads-guilty-in-a-kyiv-court?smid=url-share">pleaded guilty</a> in a trial in Kyiv on May 18, 2022, <a href="https://apnews.com/article/russia-ukraine-kyiv-war-crimes-31b1d5a9464684c2cb8386c634d8c96c">for shooting</a> a Ukrainian man in the head after Russia invaded Ukraine in late February 2022. </p>
<p>It marked the first trial of a Russian soldier for the war in Ukraine, as allegations mount of Russia committing <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">war crimes</a> – a broad category under international law that includes targeting civilians during conflict. </p>
<p>Ukraine <a href="https://apnews.com/article/russia-ukraine-zelenskyy-kyiv-europe-d38703c060c6b066f2bd9012d147c6e1">is investigating</a> more than 10,700 potential war crimes, involving more than 600 Russian soldiers and government officials.</p>
<p>But there is a large gap between trying an individual sergeant for war crimes and holding Russian leaders themselves accountable for crimes committed during the war. </p>
<p>A lesser-known international crime, called the crime of aggression, could provide a pathway for prosecuting Russian President Vladimir Putin. This crime punishes the illegal invasion or use of force against another country. Only the leaders of the country that started a war can be held responsible for this crime. </p>
<p>Philippe Sands, a well-known international legal expert, has called a crime of aggression case against Putin <a href="https://www.theguardian.com/law/2022/mar/30/vladimir-putin-ukraine-crime-aggression-philippe-sands">“a slam dunk.”</a>. This is because there is no legal justification for Russia invading Ukraine.</p>
<p>But this legal option is complicated and would likely require forming a new international tribunal – a court set up to specifically investigate and charge people for violating international law. </p>
<p>And as an <a href="https://udayton.edu/directory/artssciences/hrc/inglis-shelley.php">international lawyer</a>, I know the biggest challenge to holding Putin accountable is not legal, but political. Setting up a special court would require a large political commitment by countries across the globe to follow through on the charges – and it would require a lot of money. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An armed guard stands in front of several people wearing dark clothes walking on a grey day. Behind them is a church." src="https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464043/original/file-20220518-15-dczpr5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ukraine’s Prosecutor General, Iryna Venediktova, center, and the International Criminal Court’s prosecutor, Karim Khan, right, visit a mass grave in Bucha on April 13, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/graphic-content-topshot-ukraines-prosecutor-general-iryna-venediktova-picture-id1239959468?s=2048x2048">Fadel Senna/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Understanding crimes of aggression</h2>
<p>The crime of aggression, formally known as “crimes against the peace,” is generally defined as waging an aggressive war <a href="https://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression">without legal justification</a>. </p>
<p>This crime was first prosecuted at the post-World War II <a href="https://history.state.gov/milestones/1945-1952/nuremberg#:%7E:text=The%20Nuremberg%20Trial%20lasted%20from,hanging%20to%20fifteen%20years'%20imprisonment.">Nuremberg and Tokyo tribunals, which were established temporarily between 1945 and 1948</a>. Thirty-one German and Japanese political and military leaders were convicted of these crimes, including Nazi Deputy Fuhrer Rudolf Hess. </p>
<p><a href="https://www.amnesty.org.uk/press-releases/ukraine-russias-invasion-crime-aggression-under-international-law">There is little question</a> among international lawyers that Russia’s invasion of Ukraine is an ongoing crime of aggression.</p>
<p>It’s an easier charge than other war-related crimes to level at a national leader. Charging Putin with war crimes would <a href="https://www.axios.com/2022/03/22/russia-putin-war-crimes-icc-ukraine">require substantial evidence</a> – like witness testimony or intercepted communications – to prove that Putin planned, directed, knew of or should have known of specific attacks against civilians. </p>
<p>The crime of aggression, on the other hand, is intended for heads of states like Putin and their inner circle. Legal experts have drafted <a href="https://www.justsecurity.org/80669/model-indictment-of-the-crime-of-aggression-against-ukraine-vladimir-putin/">a model indictment</a> against Putin. Many <a href="https://www.justiceinitiative.org/voices/q-and-a-how-putin-could-be-put-on-trial-for-the-crime-of-aggression">legal observers</a> believe that there would be enough evidence to find Putin guilty of this crime and imprison him. </p>
<h2>Not a panacea</h2>
<p>Since the 1940s convictions, no one has been prosecuted internationally for crimes of aggression. One reason is that the International Criminal Court – an independent international court based in the Hague, Netherlands, that investigates genocide and war crimes – was not <a href="https://www.cfr.org/backgrounder/role-international-criminal-court">established until 2002</a>. Before then, there was no clear place to prosecute this crime.</p>
<p>International lawyers also <a href="https://www.asil.org/insights/volume/26/issue/2">did not agree on an exact definition of crimes of aggression for the court until 2010</a>. </p>
<p><a href="https://www.lawfareblog.com/icc-investigates-situation-ukraine-jurisdiction-and-potential-implications">Russia has not joined the court</a>. This means the court does not have legal power to independently prosecute Putin’s invasion of Ukraine.</p>
<p>The United Nations Security Council could also refer this case to the court. But as a permanent member of the Security Council with veto powers, Russia would block any attempted referral. </p>
<p>Given the limits of the International Criminal Court in this case, a number of <a href="https://sites.duke.edu/lawfire/2022/03/10/eric-chang-on-why-ukraine-is-calling-for-a-special-criminal-tribunal-to-prosecute-putin/">legal experts</a> are discussing other pathways. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Putin is seen walking through an ornate hall, with two soldiers behind him" src="https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=453&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=453&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=453&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=570&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=570&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464004/original/file-20220518-25-omwsqu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=570&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Russian President Vladimir Putin enters the Grand Kremlin Palace in Moscow on May 16, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/russian-president-vladimir-putin-enters-the-hall-during-the-summit-of-picture-id1240706827?s=2048x2048">Contributor/Getty Images</a></span>
</figcaption>
</figure>
<h2>A new court</h2>
<p>Most <a href="https://opiniojuris.org/2022/03/16/the-best-option-an-extraordinary-ukrainian-chamber-for-aggression/">international experts</a> say that the best option is <a href="https://www.chathamhouse.org/events/all/research-event/criminal-tribunal-aggression-ukraine">a new international tribunal</a>, separate from the International Criminal Court. Such tribunals are often set up with a narrow focus of war crimes from a particular conflict or atrocity. They are usually established through the United Nations. </p>
<p>That is because trials in national courts in Ukraine or <a href="https://www.lrt.lt/en/news-in-english/19/1688891/vilnius-conference-looks-at-how-to-hold-putin-personally-accountable-for-crimes-in-ukraine">another country</a> – which recognizes the crime of aggression in their national laws – face various legal and political barriers.</p>
<p>Some experts also say that a <a href="https://www.justiceinfo.net/en/90566-ukraine-momentum-tribunal-aggression.html">domestic court lacks the legitimacy</a> of an international trial. </p>
<p>Another option is a hybrid – both international and national court – stemming from an agreement between the U.N. and a country. But <a href="https://www.justsecurity.org/80958/ukraines-constitutional-constraints-how-to-achieve-accountability-for-the-crime-of-aggression/">legal restrictions</a> in Ukrainian law, for example, make this difficult because the country’s constitution has specific language that could block a hybrid or special court. </p>
<p>The Parliamentary Assembly of the Council of Europe, a human rights organization that has 47 European countries as members, has called for <a href="https://www.coe.int/en/web/portal/-/pace-calls-for-an-ad-hoc-international-criminal-tribunal-to-investigate-war-crimes-in-ukraine">a new international criminal tribunal</a>, which would be based in Strasbourg, France, and would investigate and prosecute Russian leaders for crimes of aggression. The temporary tribunal would have the power to issue an alert to police worldwide to arrest Putin or other Russian leaders whom prosecutors are charging with crimes. </p>
<p>Establishing a new court, though, would take time and a large amount of money. While there are <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1028&context=hrbrief#:%7E:text=The%20ICC's%202007%20budget%20was,Rwanda%20(ICTR)%20respectively%20in%20their">big differences in the various costs</a> of international or hybrid tribunals, prior court processes have cost between $10 million to $15 million per defendant. </p>
<p>International and hybrid courts, such as those that were set up to address conflict in <a href="http://www.rscsl.org">Sierra Leone</a>, are usually funded by wealthy countries like <a href="https://www.state.gov/2021-report-to-congress-pursuant-to-section-5-of-the-elie-wiesel-genocide-and-atrocities-prevention-act-of-2018">the United States</a> and the United Kingdom. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two rows of men are seated in a courtroom, surrounded by soldiers in white helmets." src="https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464085/original/file-20220518-17-7wnyuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Defendants at the Nuremberg trials, including Nazi leaders Hermann Goering and Rudolf Hess, in January 1946.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/the-defendants-at-the-nuremberg-nazi-trials-pictured-in-the-front-row-picture-id515586328?s=2048x2048">Bettmann/Contributor/Getty Images</a></span>
</figcaption>
</figure>
<h2>No end in sight</h2>
<p>As the Ukraine war and reports of war crimes continue to unfold, some experts warn against placing too much emphasis on <a href="https://www.usip.org/publications/2022/04/how-achieve-accountability-atrocities-ukraine">any one kind of legal process</a> for prosecuting Putin. </p>
<p>Ultimately, the barriers to arresting Putin in a foreign country and getting him into any foreign courtroom remain high. Putin is unlikely to leave Russia and risk arrest, and his tight control over Russia at this point also makes it unlikely that he would be turned in by Russian police.</p>
<p>Although it is possible to <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2176&context=ilj">hold a trial without a defendant present</a>, many human rights experts strongly object to this practice. </p>
<p>And one of the most substantial critiques of establishing a special tribunal for Russia’s aggression is <a href="http://opiniojuris.org/2022/03/07/creating-a-special-tribunal-for-aggression-against-ukraine-is-a-bad-idea/">the challenge of selectivity</a> – why this situation gets investigated and prosecuted internationally and why others, such as the U.S. invasion of Iraq, do not. But this is not a new challenge for international law and justice. </p>
<p>Once set up, an independent tribunal is beyond the political control of the countries that establish it. </p>
<p>To date, no head of a state whose country is a permanent member of the U.N. Security Council has been tried for the crime of aggression. This would open an important new chapter in modern international justice that would follow a complicated, uncertain course.</p><img src="https://counter.theconversation.com/content/181928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shelley Inglis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Countries would likely need to set up new courts to prosecute Vladimir Putin for illegally invading Ukraine – but this isn’t a sure bet he would ever be held accountable for his crimes.Shelley Inglis, Executive Director, University of Dayton Human Rights Center, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1806392022-04-04T19:06:06Z2022-04-04T19:06:06ZWhat are war crimes? 3 essential reads on atrocities in Ukraine and the likelihood of prosecuting Putin<figure><img src="https://images.theconversation.com/files/456197/original/file-20220404-22605-qie35j.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C8627%2C5742&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bodies lie on the ground after a strike in Bucha, a suburb on the outskirts of Kyiv, Ukraine, April 4, 2022. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RussiaUkraineWar/0b239a041ffa47f8a853416db6faa73f/photo?Query=Bucha&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=303&currentItemNo=15">AP Photo/Rodrigo Abd</a></span></figcaption></figure><p>Russian troops retreated from Kyiv and the nearby town of Bucha in early April 2022, and <a href="https://www.washingtonpost.com/photography/interactive/2022/photos-of-bucha-ukraine/">new horrors</a> of their occupation were revealed. </p>
<p>Ukrainian forces found the bodies of at least <a href="https://time.com/6164052/ukraine-atrocities/">410 civilians</a> – among them people who were killed with their hands and feet tied behind their backs and shot in the head. <a href="https://www.politico.com/news/2022/04/03/ukraine-accuses-russia-massacre-00022595">Reportedly there were bodies of women</a> who had been raped and burned, and <a href="https://www.cnn.com/2022/04/03/europe/bucha-ukraine-civilian-deaths-intl/index.html">bodies of children</a> who were also not spared. </p>
<p><a href="https://apnews.com/article/russia-ukraine-war-crimes-biden-putin-84767d1c3c35a7a36f2f70ceaccc3fa0">In response, President Joe Biden said</a> that Russian President Vladimir Putin should face war crimes charges over the reported mass murder. He called Putin “a war criminal,” but stopped short of calling the Bucha massacre genocide. </p>
<p>Ukrainian President Volodymyr Zelenskyy <a href="https://www.cbsnews.com/news/genocide-russia-ukraine-war-zelenskyy-face-the-nation/">said on April 3</a>, though, that the dead were indeed victims of genocide – “the elimination of the whole nation and the people.” </p>
<p>War crimes and genocide, though sometimes occurring at the same time, are distinct under international law, several scholars have recently explained in The Conversation.</p>
<p>Here are three recent articles that dive into the complex question of what constitutes war crimes – and why Putin is unlikely to face any real, imminent consequences. </p>
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<a href="https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The wrists of a dead person are shown tied together with a zip tie." src="https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/456198/original/file-20220404-23-pm7osv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A dead civilian with his hands tied behind his back lies on the ground in Bucha close to Kyiv, Ukraine, April 4, 2022.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RussiaUkraineWar/ab67038af87846baad1cc81de0fa2a60/photo?Query=Bucha&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=303&currentItemNo=12">AP Photo/Efrem Lukatsky</a></span>
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<h2>1. What are war crimes?</h2>
<p>War crimes fall under the vast umbrella of international law, which is based on agreements between countries regarding the conduct of war and peace. International law in this area is rarely easy to enforce. </p>
<p>War crimes generally refer to “excessive destruction, suffering and civilian casualties,” according to human rights and international law scholar <a href="https://udayton.edu/directory/artssciences/hrc/inglis-shelley.php">Shelley Inglis</a>.</p>
<p>“Rape, torture, forced displacement and other actions may also constitute war crimes,” <a href="https://theconversation.com/putin-puts-international-justice-on-trial-betting-that-the-age-of-impunity-will-continue-178836">Inglis writes</a>. </p>
<p>Russia has a long history of committing war crimes, Inglis says – chiefly, direct attacks on civilians during the Syrian war, as well as during conflicts in Georgia and Crimea.</p>
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Read more:
<a href="https://theconversation.com/putin-puts-international-justice-on-trial-betting-that-the-age-of-impunity-will-continue-178836">Putin puts international justice on trial – betting that the age of impunity will continue</a>
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<h2>2. Is Putin committing war crimes or genocide in Ukraine?</h2>
<p>There’s clear evidence that Russia is committing war crimes by directly attacking and killing civilians, according to human rights and genocide scholar <a href="https://sasn.rutgers.edu/about-us/faculty-staff/alex-hinton">Alexander Hinton</a>. </p>
<p>Since Russia invaded Ukraine on Feb. 24, 2022, Russian forces have killed at least 1,417 civilians and injured 2,038, according <a href="https://www.ohchr.org/en/news/2022/04/ukraine-civilian-casualty-update-3-april-2022">to United Nations estimates</a>. </p>
<p>There are warning signs that Russia is also carrying out genocide – “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” <a href="https://theconversation.com/is-russia-committing-genocide-in-ukraine-a-human-rights-expert-looks-at-the-warning-signs-180017">Hinton writes</a>. </p>
<p>One predictor for genocide is a history of committing mass human rights violations, which Russia has done. Other signs include political upheaval at home, and the use of propaganda to demonize people and justify a potential genocide. Russia also fits these criteria.</p>
<p>“Has Russia carried out genocidal acts? Russia has targeted and killed civilians and reportedly forcibly deported hundreds of thousands of Ukrainians, including children, to Russia. It has bombed a maternity hospital,” Hinton writes. </p>
<p>“There is a significant risk that Russia will commit genocide in Ukraine. It is possible that a genocide has already begun.”</p>
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Read more:
<a href="https://theconversation.com/is-russia-committing-genocide-in-ukraine-a-human-rights-expert-looks-at-the-warning-signs-180017">Is Russia committing genocide in Ukraine? A human rights expert looks at the warning signs</a>
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<a href="https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman dressed in black kneels on the ground in front of an overturned truck and weeps." src="https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/456199/original/file-20220404-13-rho4fj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Tanya Nedashkivs'ka, 57, is shown April 4, 2022, mourning the death of her husband, killed in Bucha on the outskirts of Kyiv, Ukraine.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXRussiaUkraineWar/d1922b0bc256405fb5aad912b4f5fec9/photo?Query=Bucha&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=303&currentItemNo=3">AP Photo/Rodrigo Abd</a></span>
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<h2>3. Will Putin be punished for committing war crimes?</h2>
<p>It’s unlikely that Putin will face imprisonment or be removed from power because of war crimes in Ukraine. </p>
<p>There are three main international legal bodies – the International Court of Justice, the International Criminal Court and special international war tribunals – that are designed to consider international cases of war crimes. These courts have tried and convicted political leaders as war criminals in the past, including Charles Taylor, former president of Liberia. </p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-youresmart">You can read us daily by subscribing to our newsletter</a>.]</p>
<p>“But it can be incredibly difficult and time-consuming” to actually hold people accountable through these systems, write political science scholars <a href="https://scholar.google.com/citations?user=DV5ECYgAAAAJ&hl=en">Joseph Wright</a> and <a href="https://scholar.google.com/citations?user=1-C0q3IAAAAJ&hl=en">Abel Escribà-Folch</a>. </p>
<p>“None of these three tools is likely to have much, if any, effect on Putin’s choices in Ukraine,” <a href="https://theconversation.com/calling-putin-a-war-criminal-could-spark-even-more-atrocities-in-ukraine-179737">they say</a>.</p>
<p>One important explanation for why a prosecution of Putin might not happen is that the International Court of Justice focuses on the action of states, not individual leaders like Putin. </p>
<p>Another reason is that Russia is not a member of the International Criminal Court and does not respect its jurisdiction over the country. The court also lacks a police force and relies on other countries “to arrest the accused and transfer them to The Hague for trial.” </p>
<p>“If Putin stays in power, that will most likely never happen,” Wright and Escribà-Folch write. </p>
<p>There is, though, some evidence that calling Putin a war criminal or charging him with war crimes could fail to stem attacks on civilians. </p>
<p>“Leaders who face the prospect of punishment once a conflict ends have an incentive to prolong the fighting. And a leader who presides over atrocities has a strong incentive to avoid leaving office, even if that means using increasingly brutal methods – and committing more atrocities – to remain in power,” Wright and Escribà-Folch say.</p>
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Read more:
<a href="https://theconversation.com/calling-putin-a-war-criminal-could-spark-even-more-atrocities-in-ukraine-179737">Calling Putin a 'war criminal' could spark even more atrocities in Ukraine</a>
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<img src="https://counter.theconversation.com/content/180639/count.gif" alt="The Conversation" width="1" height="1" />
President Biden said that Vladimir Putin had committed war crimes, after news emerged of mass civilian murders in Bucha, Ukraine. Three stories from our archive explain what this means.Amy Lieberman, Politics + Society Editor, The ConversationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1797372022-03-29T12:36:45Z2022-03-29T12:36:45ZCalling Putin a ‘war criminal’ could spark even more atrocities in Ukraine<figure><img src="https://images.theconversation.com/files/453873/original/file-20220323-17-130h5u7.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3196%2C1911&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Vladimir Putin celebrated Russia's annexation of Crimea on March 18, 2022, the eighth anniversary of the move.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/russian-president-vladimir-putin-attends-a-concert-marking-news-photo/1239295205">Mikhail Klimentyev/Sputnik/AFP via Getty Images</a></span></figcaption></figure><p>As the war in Ukraine continues, officials in the U.S. and <a href="https://www.pbs.org/newshour/world/european-union-accuse-russia-of-war-crimes-in-ukraine-but-unlikely-to-impose-new-sanctions">Europe</a> are sounding alarms about <a href="https://www.aljazeera.com/news/2022/3/17/explainer-who-is-a-war-criminal">alleged war crimes</a> being committed by Russian troops there. U.S. President Joe Biden has called Russian President Vladimir Putin a “<a href="https://www.cnn.com/2022/03/16/politics/biden-calls-putin-a-war-criminal/index.html">war criminal</a>,” as <a href="https://www.reuters.com/world/us/us-senate-unanimously-condemns-putin-war-criminal-2022-03-15/">has the U.S. Senate</a>, on the grounds that <a href="https://www.msn.com/en-us/news/world/us-finds-russian-troops-have-committed-war-crimes-in-ukraine/ar-AAVqb1Z">schools, hospitals and civilian shelters</a> appear to have been deliberately targeted by Russian forces. </p>
<p>If Putin is formally accused of war crimes, there are three kinds of courts that might call him to answer for them. <a href="https://scholar.google.com/citations?user=DV5ECYgAAAAJ&hl=en&oi=ao">We</a> <a href="https://scholar.google.com/citations?hl=en&user=1-C0q3IAAAAJ">are</a> scholars of dictators and conduct research on <a href="https://doi.org/10.1093/acprof:oso/9780198746997.001.0001">how they are held accountable</a> for their actions. None of the available methods are likely to punish Putin any time soon, and they may even lead to more potential war crimes.</p>
<h2>International Court of Justice</h2>
<p>The International Court of Justice was established in 1945 as part of the United Nations system. The court can settle disputes only between <a href="https://www.justia.com/international-law/the-international-court-of-justice/">countries that voluntarily ask for its rulings</a>. It cannot criminally prosecute individuals, much less people who do not consent to its jurisdiction. </p>
<p>Further, the court has no real <a href="https://theconversation.com/the-international-court-of-justice-has-ordered-russia-to-stop-the-war-what-does-this-ruling-mean-179466">enforcement power</a>. National leaders can safely ignore its judgments, though their <a href="https://theconversation.com/the-international-court-of-justice-has-ordered-russia-to-stop-the-war-what-does-this-ruling-mean-179466">reputations may suffer</a> and doing so may lead to further isolation. </p>
<h2>Special international tribunals</h2>
<p>In the past, <a href="https://www.cnn.com/2022/03/03/politics/putin-war-crimes-russia-ukraine-us-what-matters/index.html">world leaders accused of atrocities</a> – like Liberia’s <a href="https://www.aljazeera.com/opinions/2012/4/27/charles-taylor-trial-highlights-icc-concerns">Charles Taylor</a> and Serbia’s <a href="https://www.icty.org/en/case/slobodan_milosevic">Slobodan Milosevic</a> – have stood trial before special courts created by the U.N. to deal with crimes committed during particular conflicts. These courts, however, were created only after the alleged crimes had already been committed.</p>
<h2>International Criminal Court</h2>
<p>Created in 2002, the International Criminal Court can <a href="https://www.icc-cpi.int/resource-library/documents/uicceng.pdf">prosecute individuals</a> responsible for genocide, crimes against humanity, war crimes and aggression. It was created, in part, to avoid the need for ad hoc specialized tribunals for each successive conflict. The idea was that the existence of a permanent court would <a href="https://doi.org/10.1017/S0020818316000114">deter leaders from committing grave violations</a> of international law.</p>
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<a href="https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person wearing a sweater and gloves uses a tape measure on a window" src="https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453880/original/file-20220323-25-pvf0st.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Ukrainian citizens’ apartment buildings have been damaged by the Russian attack.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXRussiaUkraineWar/55c58716865e48e0bde6395658bf2f75/photo">AP Photo/Vadim Ghirda</a></span>
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<h2>Some opportunity for accountability</h2>
<p>Through these three systems, the international community has sought to hold world leaders responsible for their atrocities. But it can be incredibly difficult and time-consuming.</p>
<p>In 1999, Milosevic became the <a href="http://edition.cnn.com/WORLD/europe/9905/27/kosovo.milosevic.04/">first sitting head of state</a> to be charged with war crimes by an international tribunal, the International Criminal Tribunal for the former Yugoslavia. He was indicted for crimes committed during the Kosovo war from 1998 to 1999. But he was arrested only after he was ousted from power in 2000. </p>
<p>Even then, his extradition from Serbia was difficult because he sued to block it, and his successor as Serbia’s president, Vojislav Kostunica, and the Yugoslavian Constitutional Court <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/">refused to send him out of the country to stand trial</a>. Kostunica wanted to win over Serbian voters who were sympathetic to Milosevic.</p>
<p>In the end, <a href="https://www.nytimes.com/2001/03/10/world/us-makes-arrest-of-milosevic-a-condition-of-aid-to-belgrade.html">U.S. pressure</a> led to a trial in 2002. But <a href="https://www.theguardian.com/world/2006/mar/11/warcrimes">Milosevic died</a> in 2006 before the court could issue a sentence.</p>
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<a href="https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit and tie sits at a desk waving his hand in the air" src="https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=485&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=485&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=485&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=610&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=610&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453881/original/file-20220323-15-kbdb03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=610&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Slobodan Milosevic gestures during his 2002 trial before the International Criminal Court.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/WarCrimesTribunal/68ad2f1579dc4ddc96587d48773c8584/photo">ICTY via AP</a></span>
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<h2>Not effective deterrents or punishments</h2>
<p>None of these three tools is likely to have much, if any, effect on Putin’s choices in Ukraine.</p>
<p>The International Court of Justice has <a href="https://news.un.org/en/story/2022/03/1114052">declared Russia’s invasion of Ukraine unjustified</a> and has urged an immediate halt to Russian military operations there. But it has said nothing about Putin because the court looks at the actions of states, not specific people – not even national leaders. And one day after the court’s announcement, the Kremlin <a href="https://www.euractiv.com/section/europe-s-east/news/russia-rejects-international-court-ruling-to-stop-invasion-of-ukraine/">rejected it</a>.</p>
<p>The existence of the International Criminal Court was meant to relieve the need for special tribunals. However, Russia – <a href="http://news.bbc.co.uk/2/hi/1970312.stm">like the U.S.</a> – is <a href="https://www.ejiltalk.org/russias-withdrawal-of-signature-from-the-rome-statute-would-not-shield-its-nationals-from-potential-prosecution-at-the-icc/">not a member of the court</a> and claims the court has no jurisdiction over Russia or its officials.</p>
<p>In addition, Russia is a permanent member of the U.N. Security Council, so it can block that body’s referrals to the International Criminal Court.</p>
<p>The possibility of prosecution did not deter Putin when his security forces allegedly committed crimes in <a href="https://www.hrw.org/news/2000/02/29/war-crimes-chechnya-and-response-west">Chechnya</a> in the 1990s and <a href="https://www.jstor.org/stable/23639898?seq=1">Georgia</a> in 2008, such as indiscriminate and disproportionate bombing of civilian targets.</p>
<p>Ukraine is also <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#U">not a member of the court</a>. But in 2015 the International Criminal Court and the Ukrainian government agreed that the court could <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1146">begin an investigation</a> into alleged crimes committed by Russian-backed groups in Crimea and eastern Ukraine since February 2014, when Russia first <a href="https://www.vox.com/2014/8/15/6006281/russia-ukraine-war-what-we-know">invaded</a> that region and <a href="https://www.nytimes.com/2014/03/19/world/europe/ukraine.html">annexed Crimea</a>.</p>
<p>On March 3, 2022, the <a href="https://www.theguardian.com/world/2022/mar/03/icc-launches-war-crimes-investigation-russia-invasion-ukraine">court launched another investigation</a> into war crimes by Russian soldiers and their commanders elsewhere in Ukraine. Since then, <a href="https://edition.cnn.com/2022/03/15/europe/ukraine-mariupol-destruction-footage-intl/index.html">Russian attacks on civilians</a> in Ukraine have intensified.</p>
<p>It’s <a href="https://theconversation.com/putin-puts-international-justice-on-trial-betting-that-the-age-of-impunity-will-continue-178836">not clear whether Putin</a> might eventually be indicted by the International Criminal Court. But if he is, the chief obstacle to prosecuting him will be bringing him before the court for trial. The court <a href="https://accessaccountability.org/index.php/2019/09/26/criticisms-and-shortcomings-of-the-icc/">depends on member nations</a> to arrest the accused and transfer them to The Hague for trial. If Putin stays in power, that will most likely never happen.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man's body lies amid rubble in Kyiv, Ukraine." src="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453903/original/file-20220323-17-3ulgm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A man’s body lies amid rubble in Kyiv, Ukraine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dead-body-of-an-old-man-lying-on-the-sidewalk-in-the-rubble-news-photo/1239192887">Mykhaylo Palinchak/SOPA Images/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>International justice may backfire</h2>
<p>It is also possible that international efforts seeking to <a href="https://chicagounbound.uchicago.edu/uclrev/vol70/iss1/7/">hold leaders responsible</a> for human rights crimes <a href="https://www.jstor.org/stable/4137476">could backfire</a>. </p>
<p>Leaders who face the prospect of punishment once a conflict ends have an incentive to <a href="https://www.cornellpress.cornell.edu/book/9781501750212/the-justice-dilemma/#bookTabs=1">prolong the fighting</a>. And a leader who presides over atrocities has a strong incentive to <a href="https://doi.org/10.1017/S0020818314000484">avoid leaving office</a>, even if that means using increasingly brutal methods – and committing more atrocities – to remain in power. </p>
<p>When losing power is costly, leaders may be more likely to fight to the death, as Libyan dictator <a href="https://www.theguardian.com/world/2014/oct/28/muammar-gaddafi-death-impact-libya">Moammar Gadhafi</a> did after the ICC issued arrest warrants for him and other close relatives in 2011.</p>
<p>[<em><a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-important">Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter</a>.</em>]</p>
<p>In contrast, when <a href="https://www.cambridge.org/core/journals/international-organization/article/abs/human-rights-prosecutions-and-autocratic-survival/F54745E360BC9C9261A4B5ABC769A219">losing power</a> comes with <a href="https://doi.org/10.1177/106591298203500407">credible</a> <a href="https://doi.org/10.1177/0022002795039001005">domestic immunity from prosecution</a> for ex-rulers, international justice campaigns may <a href="https://www.cambridge.org/core/books/power-of-human-rights/3E62C6D43DE50B0F6179C2BD2B3D3EBB">help mobilize domestic opposition</a> to dictators. That can boost the chances of a peaceful transition from authoritarian rule – as was the case in some <a href="https://doi.org/10.1111/1468-2478.00083">South American</a> countries in the 1980s. However, the flip side of domestic immunity is that ex-rulers are not held accountable. </p>
<h2>Justice for Putin?</h2>
<p>An International Criminal Court indictment of Putin, or even an investigation, might backfire because of how he rules Russia. His style of government is called a “<a href="https://www.foreignaffairs.com/articles/2016-09-26/new-dictators">personalist dictatorship</a>,” in which power is <a href="https://global.oup.com/academic/product/the-new-kremlinology-9780192896193?cc=us&lang=en&">centralized in the leader</a> and a <a href="https://www.newyorker.com/news/daily-comment/putins-historic-miscalculation-may-make-him-a-war-criminal">small core of close associates</a>, rather than in a <a href="https://www.cambridge.org/core/books/how-dictatorships-work/8DC095F7A890035729BB0BB611738497">supporting political party or the military</a>. </p>
<p>Our <a href="https://doi.org/10.1080/13510347.2013.738866">research</a> <a href="https://global.oup.com/academic/product/foreign-pressure-and-the-politics-of-autocratic-survival-9780198746997?cc=es&lang=en&">shows</a> that personalist rulers are more likely than other leaders to be violently ousted from power. That increases the chances they will be punished after losing power. Strongmen typically undermine the political institutions, such as a cohesive military or strong political party, through which they or their allies could retain influence after stepping down. Unable to protect themselves at home, deposed personalist dictators often seek protection in exile.</p>
<p>However, a potential International Criminal Court prosecution makes it less likely any nation will <a href="https://doi.org/10.1086/688225">promise to protect Putin in exile</a> – so <a href="https://doi.org/10.1111/ajps.12352">that method of ending the conflict</a> may now be off the table – providing Putin with further incentives to tighten his grip on power. </p>
<p>If Putin wants to avoid consequences for his actions, his most likely approach is to prolong the conflict, strive for victory – even a limited one – and ramp up political repression at home.</p><img src="https://counter.theconversation.com/content/179737/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Wright has received funding from the U.S. National Science Foundation and the Minerva Research Initiative of the U.S. Department of Defense. </span></em></p><p class="fine-print"><em><span>Abel Escribà-Folch does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>None of the available methods for holding Russian President Vladimir Putin accountable are likely to actually punish him, and they may even make new atrocities more likely.Joseph Wright, Professor of Political Science, Penn StateAbel Escribà-Folch, Associate Professor of Political and Social Sciences, Universitat Pompeu FabraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1660012021-10-05T10:57:56Z2021-10-05T10:57:56ZTrial of 100-year-old man in Germany: why Nazi war crimes take so long to prosecute<p>A 100-year-old man is <a href="https://apnews.com/article/europe-trials-courts-c66303df37edc81f19a1ae5069789bd4">on trial in Germany</a> this month. The man, who has not been named due to German privacy laws, is charged with “knowingly and willingly” assisting in the of murder of 3,518 people as a former SS guard at Sachsenhausen concentration camp. </p>
<p>He is far from the only elderly defendant to face trial now for crimes committed during the Nazi period. The trial of Irmgard Furchner, 96, a former secretary at Stutthof concentration camp, was to begin last month, but was briefly delayed after Furchner <a href="https://www.independent.co.uk/news/world/europe/nazi-camp-secretary-juvenile-court-trial-b1929799.html">fled from her care home</a>.</p>
<p>Among other recent cases are John Demjanjuk, 89, <a href="https://www.reuters.com/article/us-germany-demjanjuk-idUKTRE5AS2D920091130">in 2009</a>; Oscar Gröning, 93, the so-called “accountant of Auschwitz”, <a href="https://www.bbc.co.uk/news/world-europe-33533264">in 2015</a>; Johann Rehbogen, 93, <a href="https://www.bbc.co.uk/news/world-europe-46108753">in 2018</a> (his case was later dropped because he was deemed “permanently <a href="https://www.thelocal.de/20190403/german-court-drops-case-against-ailing-former-nazi-camp-guard/">unfit for trial</a>”); and Bruno Dey, 93, <a href="https://www.bbc.co.uk/news/world-europe-52753507">in 2019</a>. Some, like Furchner, are tried in juvenile courts given their young age at the time of the alleged crimes.</p>
<p>The history of prosecution of Nazi crimes is long and complex. Despite the crimes having occurred decades ago, it is still important to bring these cases to trial today.</p>
<h2>1940s: Allied planning and control</h2>
<p>In their <a href="https://nla.gov.au/nla.obj-648522001/view?partId=nla.obj-648522340#page/n2/mode/1up">Declaration of St. James’s Palace</a> of January 13 1942, allied governments declared it as one of their principal war aims to punish all those guilty of or responsible for war crimes “through the channel of organised justice”. </p>
<p>The founding of the United Nations War Crimes Commission and the Moscow Declaration on German Atrocities, both in 1943, confirmed these intentions. However, they only covered crimes committed against their own nationals, and none referred to the systematic murder of the Jews.</p>
<p>After the defeat of the Nazi regime, in addition to setting up the <a href="https://www.ushmm.org/collections/bibliography/the-nuremberg-trials">International Military Tribunal</a> in Nuremberg, the allies conducted a number of trials for crimes committed against prisoners incarcerated at specific concentration camps on German soil, including Bergen-Belsen, Dachau, Ravensbrück, Sachsenhausen and others. These trials involved SS camp commandants, medical doctors, guards and other staff. Again, the emphasis was on atrocities committed against allied nationals.</p>
<p>In December 1945, the Allied Control Council gave German courts the legal authority to prosecute Nazi crimes committed against German citizens, but they had to follow allied provisions. It was only after the establishment of the two German states in 1949 that German courts were freed of allied supervision. </p>
<p>Eschewing the legal category of crimes against humanity, set by the Nuremberg Trials, they could now apply ordinary German criminal law, which was ill-equipped to deal with state-organised mass murder. </p>
<h2>1950s: halfhearted efforts</h2>
<p>In West Germany especially, the 1950s were characterised by a sharp decline in Nazi war crimes investigations and trials. Instead, there were campaigns for amnesties and reductions of earlier sentences, many led by former high-level Nazis and supported tacitly by conservative politicians.</p>
<p>Prosecutions lacked any serious or systematic effort, and in both German states the emphasis was more on integration and rehabilitation, with the aim of stabilising their war-torn societies, rather than rigorous investigation of Nazi crimes and atrocities. There was widespread silence about the involvement of “ordinary” Germans. </p>
<p>This began to change in West Germany following scandals about former Nazis in prominent positions. As the 50s wore on, several new trials spotlighted the horrors and scale of Nazi atrocities. In October 1958, the <a href="https://zentrale-stelle-ludwigsburg.justiz-bw.de/pb/,Len/Startpage/">Central Office</a> for the Investigation of National Socialist Crimes of Violence was set up by state justice ministers, leading to a rapid increase in investigations. </p>
<h2>1960s and beyond: more vigorous investigation</h2>
<p>The 1961 <a href="https://encyclopedia.ushmm.org/content/en/article/eichmann-trial">trial of Adolf Eichmann</a> in Jerusalem, which was televised and broadcast around the world, and the <a href="https://www.yadvashem.org/articles/general/auschwitz-trials.html">Auschwitz Trials</a> in Frankfurt (1963-1965) brought the Holocaust back into broad public consciousness. The rebellious young generation in West Germany began to question how Germany had dealt with its past.</p>
<p>However, under German law, even murder had a 20-year statute of limitations, meaning prosecutions could not be brought against culprits if 20 or more years had passed since their crime. This was extended to 30 years in 1969, and abolished altogether in 1979 but even then, the exemption only applied to murder, rather than any other crimes. Courts required prosecutors to present evidence that suspects were directly involved in a specific killing.</p>
<p>This meant that many “ordinary” SS guards, male and female, whose names and whereabouts were known, could not be charged because there was not sufficient evidence for their direct involvement.</p>
<p>Then, during the 2011 trial of John Demjanjuk, a former guard at Sobibór, <a href="https://www.theguardian.com/world/2011/may/12/john-demjanjuk-guilty-nazi-war-crimes">prosecutors argued</a> that working as a guard at a camp whose only purpose was the extermination of its prisoners, was sufficient for a conviction for accessory to murder.</p>
<p>To the surprise of many, the court agreed, setting an important legal precedent – now, anyone who played a part in running the machinery of murder could be put on trial. The principle, later extended to cover concentration camps as well, is much more appropriate for the way crimes were committed at Nazi death camps, where it is often all but impossible to pinpoint direct involvement in the killings to a specific person. If it had been applied earlier, many more concentration camp guards could have been prosecuted.</p>
<p>Prosecutors rushed to try and bring people to justice. However, despite the headlines that each case created, few have actually stood trial since Demjanjuk. This is not surprising, given the fact that the crimes were committed almost 80 years ago, and only very few of those involved in any way are still alive.</p>
<h2>Serving justice</h2>
<p>Lawyers for the victims and their descendants argue that justice must be served, no matter how late. But it is questionable how much justice is done when nonagenarians get prison sentences which they do not have to serve because of ill health.</p>
<p>However, these trials provide a different kind of justice, beyond attributing responsibility. As the allies hoped with Nuremburg, these trials can educate the public about the nature and reach of the Nazi regime. This is particularly important at a time when <a href="https://www.dw.com/en/anti-semitism-in-germany-sharply-rising-warns-security-agency/a-55211350">antisemitism is rising</a> and the number of Holocaust survivors is getting ever smaller.</p>
<p>For many, the atrocities the Nazis committed seem long ago and unrelated to their daily reality. The trials remind everyone that these atrocities did happen, that they happened within living memory, and not just at Auschwitz but at a multitude of locations across Europe. </p>
<p>Former concentration camp guard Bruno Dey said at his 2020 trial: </p>
<blockquote>
<p>I want to forget and not go over that again. </p>
</blockquote>
<p>This feeling is no doubt shared by many Germans. <a href="https://www.timesofisrael.com/1-in-5-germans-think-the-holocaust-gets-too-much-attention-surveys-find/">Recent surveys indicate</a> that about one in five Germans believe that the Holocaust gets too much attention, and around 75% of supporters of the right-wing populist party Alternative for Germany think Germans should stop “obsessing over Nazi crimes”.</p>
<p>These late trials force everyone, not just the actual perpetrators but also bystanders and younger generations, to “go over that again” – to listen to what victims and their descendants experienced, no matter how patchy their memories might have become. While uncomfortable, this is vital for Germany’s democratic political culture.</p>
<p>The greatest justice to all victims of Nazi persecution that these trials can provide is to trouble and disturb all of us and prevent these crimes from being denied, trivialised or fading into insignificance.</p><img src="https://counter.theconversation.com/content/166001/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rainer Schulze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The complex history of prosecuting Nazi war crimes means elderly men and women are on trial for crimes committed decades ago.Rainer Schulze, Professor Emeritus of Modern European History, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1546712021-02-09T16:46:28Z2021-02-09T16:46:28ZDominic Ongwen: ICC conviction of former child soldier establishes ‘forced pregnancy’ as a war crime<p>The <a href="https://www.bbc.co.uk/news/world-africa-55921421#:%7E:text=Ex%2DUgandan%20rebel%20commander%20Dominic,first%20in%20an%20international%20court.&text=He%20was%20convicted%20on%2061,and%20war%20crimes%20he%20faced.">conviction of Dominic Ongwen</a>, a former commander in the Ugandan rebel group the Lord’s Resistance Army (LRA), at the International Criminal Court (ICC) for an array of crimes against humanity has raised important questions about guilt and victimhood among former child soldiers. Ongwen was <a href="https://www.theguardian.com/law/2021/feb/04/uganda-ex-child-soldier-dominic-ongwen-guilty-of-war-crimes-against-humanity">found guilty</a> on February 4 of 61 of the 70 charges laid against him, including the ICC’s first-ever successful prosecution for “<a href="https://www.dw.com/en/former-ugandan-rebel-commander-dominic-ongwen-guilty-of-war-crimes-icc/a-56449103">forced pregnancy</a>”.</p>
<p>Charges against him related to attacks on civilian populations in four camps for internally displaced people in northern Uganda between 2002 and 2005 during the vicious <a href="https://theconversation.com/dominic-ongwen-surrenders-but-justice-for-lords-resistance-army-victims-will-be-hard-to-find-35966">two-decade war</a> between the LRA and the Ugandan army. Besides forced pregnancy, other charges included murder and sexual and gender-based crimes, including rape, sexual slavery and forced marriage. He was also convicted for conscripting children under the age of 15 into the LRA.</p>
<p>Ongwen’s experience as a former child soldier, having been forcibly abducted on his way to school at the age of ten by the LRA under the supreme command of Joseph Kony was a <a href="https://www.ijmonitor.org/2019/08/once-a-victim-always-a-victim-ongwens-lawyer-speaks-about-his-client/">central theme in his defence</a>.</p>
<p>But while the court was conscious of the psychological trauma suffered by child soldiers, Ongwen’s experience as a child was not a factor in the decision. In her <a href="https://www.icc-cpi.int//Pages/item.aspx?name=2016-12-06-otp-stat-ongwen">opening statement</a> when the trial began in 2016, ICC prosecutor Fatou Bensouda said:</p>
<blockquote>
<p>The evidence of many of the child victims in this case could be, in other circumstances, the story of the accused himself … But having suffered victimisation in the past is not a justification, nor an excuse to victimise others.</p>
</blockquote>
<p>Ongwen’s own abduction and the brutality and coercion he undoubtedly suffered at the hands of the LRA as a child may be considered as mitigating circumstances during the sentencing phase of the trial, expected to take place in March or April 2021.</p>
<h2>Gender crimes in war</h2>
<p>There is a developing body of case law at the ICC concerning crimes of sexual and gender-based violence (SGBV). The <a href="https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf">Statute of Rome</a> defines SGBV as those crimes committed against persons – whether male or female – because of their sex or socially constructed gender roles. These are not necessarily manifested as sexual violence, but can include rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation. </p>
<p>According <a href="https://www.coalitionfortheicc.org/sexual-and-gender-based-crimes">to the ICC</a>, the Rome Statute is “the first international treaty to establish conflict-related SGBV as crimes against humanity, war crimes and, in some instances, genocide. These groundbreaking provisions have provided a new language to describe and prosecute these heinous crimes.”</p>
<p>The first ICC trial of a militia leader for SGBV crimes was that of <a href="https://theconversation.com/iccs-bemba-ruling-is-a-landmark-but-falls-short-of-a-big-leap-56687">Jean-Pierre Bemba Gombo</a>, who was found guilty in 2016 of five counts of murder, rape and pillaging, amounting to war crimes and crimes against humanity. </p>
<p>He was also found guilty of failing to stop troops under his command of committing similar crimes, also the first time that the concept of command responsibility was used by the ICC. The unique element in Bemba’s case was the recognition by the ICC of <a href="https://news.un.org/en/story/2016/03/525132-un-welcomes-iccs-first-conviction-rape-war-crime">rape as a weapon of war</a>.</p>
<p>In 2019, <a href="https://www.washingtonpost.com/world/2019/11/07/first-time-international-criminal-court-has-sentenced-man-sexual-slavery-hell-now-be-jail-years/">Congolese warlord Bosco Ntaganda</a> was sentenced to 30 years in prison after being convicted of 18 counts of murder, rape, sexual slavery and using child soldiers. Ntaganda’s case <a href="https://www.icc-cpi.int/CourtRecords/CR2017_03920.PDF">expanded the category of victims</a> of sexual slavery to <a href="https://www.coalitionfortheicc.org/news/20170109/ntaganda-decision-will-icc-build-clarity-around-sexual-and-genderbased-crimes">include child soldiers</a>. </p>
<p>But Ongwen’s trial was the <a href="https://academic.oup.com/jicj/article/15/5/905/4683651?login=true">first time</a> the court considered the offences of forced pregnancy and marriage specifically as war crimes. Large numbers of women and girls were abducted to serve as “bush wives” of senior members of Ongwen’s Sinia Brigade. The court acknowledged the complex physical and psychological effects of such enforced sexual servitude on both the victims and their children. </p>
<h2>Looking after victims</h2>
<p>Ongwen’s lawyers plan to <a href="https://www.bbc.co.uk/news/world-africa-55921421">appeal the decision</a> on all the charges. But if the verdict is upheld at appeal, victims may receive compensation from the ICC’s <a href="https://www.trustfundforvictims.org/">Trust Fund for Victims</a>. These could include both individual compensation and collective reparations awards in the shape of rehabilitation as well as educational and housing assistance. </p>
<p>As <a href="https://asf.be/wp-content/uploads/2017/07/ASF_UG_ABeggarhasnoChoice_EN_201704.pdf">one study conducted in northern Uganda</a> reveals, reparations are doubly important because of the stigmatisation faced by the victims of sexual crimes which can affect their prospects of employment or marriage in later life.</p>
<p>It is also important that the Ugandan government, as a matter of urgency, investigates allegations of similar war crimes committed by government troops. As early as 2005, <a href="https://www.hrw.org/news/2005/09/20/uganda-army-and-rebels-commit-atrocities-north">Human Rights Watch established</a> that soldiers in Uganda’s national army had raped, beaten, arbitrarily detained and killed civilians in camps. Thus far, none have been brought to justice.</p><img src="https://counter.theconversation.com/content/154671/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sex and gender-based offences have become an increasing focus of war crimes trials at the International Criminal Court.Tonny Raymond Kirabira, PhD Candidate in Law, University of PortsmouthLeïla Choukroune, Professor of International Law and Director of the University Research and Innovation Theme in Democratic Citizenship, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1498772020-11-20T13:18:36Z2020-11-20T13:18:36ZWhy it’s important to see women as capable … of terrible atrocities<figure><img src="https://images.theconversation.com/files/370179/original/file-20201118-19-ciuxg2.jpg?ixlib=rb-1.1.0&rect=3%2C369%2C2049%2C1628&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Artemisia Gentileschi's 'Judith Beheading Holofernes.'</span> <span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/b/b7/Judit_decapitando_a_Holofernes%2C_por_Artemisia_Gentileschi.jpg">Google Art Project</a></span></figcaption></figure><p>Born in 1593, Italian painter <a href="https://www.britannica.com/biography/Artemisia-Gentileschi">Artemisia Gentileschi</a> was the first woman to establish herself as a successful artist in a profession long dominated by men.</p>
<p>One of the most striking aspects of her work is the way she paints women. Her male contemporaries tended to portray women as passive victims or tentative actors. Artemisia’s women, on the other hand, <a href="https://www.theguardian.com/artanddesign/2016/oct/05/artemisia-gentileshi-painter-beyond-caravaggio">defend themselves, scheme and relish in perpetrating violence</a>. </p>
<p>When Italian painter Caravaggio painted the biblical scene of Judith beheading Holofernes, he depicted Judith as uneasy – even squeamish – as she decapitates him.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Judith tentatively slices off Holofernes' head." src="https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=443&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=443&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=443&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370175/original/file-20201118-13-11d7xwj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Caravaggio’s ‘Judith Beheading Holofernes.’</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/7/78/Judith_Beheading_Holofernes_-_Caravaggio.jpg">Galleria Nazionale d'Arte Antica</a></span>
</figcaption>
</figure>
<p>But in Artemisia’s rendering of “<a href="https://www.uffizi.it/en/artworks/judith-beheading-holofernes">Judith Beheading Holofernes</a>,” Artemisia paints a determined Judith slaughtering the Assyrian general. The brutal and bloody act takes place with the assistance of Judith’s <a href="https://artsandculture.google.com/story/artemisia-and-sisterhood-the-national-gallery-london/JQUh8Lo-01gRIA?hl=en">female accomplice</a>, who pins Holofernes down.</p>
<p>In our new book, “<a href="https://www.sup.org/books/title/?id=32736">Women as War Criminals: Gender, Agency, and Justice</a>,” we chose Artemisia’s depiction of Judith for the cover because the painting shows that women, just like men, are capable of perpetrating violence and inciting genocidal acts.</p>
<p>Yet four centuries after <a href="https://www.artsy.net/article/artsy-editorial-judith-beheading-holofernes-art-historys-favorite-icon-female-rage">Artemisia painted Judith</a>, gender stereotypes and outdated assumptions about women <a href="https://www.routledge.com/Innocent-Women-and-Children-Gender-Norms-and-the-Protection-of-Civilians/Carpenter/p/book/9780367605773">as peaceful and innocent</a> prevent women from being seen as blameworthy.</p>
<p>This matters, because if women are treated as less capable in one regard – even one that involves horrible atrocities – it can extend to other realms, too. </p>
<h2>Women war criminals go free</h2>
<p>International courts, military trials and domestic criminal justice systems often ignore or downplay women’s <a href="http://press.georgetown.edu/book/georgetown/insurgent-women">acts of violence</a>. </p>
<p>Take the <a href="https://encyclopedia.ushmm.org/content/en/article/the-nuremberg-trials">Nuremberg trials</a>, the series of international military tribunals that prosecuted Nazi war criminals. Many <a href="https://www.amazon.com/Hitlers-Furies-German-Killing-Fields/dp/0547863381">Nazi women</a> escaped trial and punishment for their roles in the Holocaust because prosecutors focused on high-level Nazi leaders, exempting those in roles commonly held by women, such as secretaries and clerks.</p>
<p>Decades later, the United Nations international tribunals that investigated <a href="https://unictr.irmct.org/en/cases/ictr-98-42">atrocities committed in Rwanda</a> and <a href="https://www.icty.org/en/case/plavsic">Yugoslavia in the 1990s</a> brought, in each instance, only one woman to justice.</p>
<p>Women were overlooked by international tribunals despite their involvement in perpetrating violence because they were rarely in positions to command others. Nonetheless, Rwandan women participated in <a href="https://www.bbc.com/news/world-africa-52938283">murders of adults and children</a>, <a href="https://doi.org/10.1017/S1816383110000019">revealed hiding spots to killing squads and refused to feed refugees</a>. Some of the <a href="https://balkaninsight.com/2018/11/30/female-war-criminals-untold-story-of-the-1990s-conflicts-11-29-2018/">thousands of women</a> who served in military units across the former Yugoslavia participated in ethnic cleansing by committing <a href="https://www.latimes.com/nation/la-na-oregon-war-criminal-20180406-story.html">extrajudicial killings</a> and <a href="https://www.bbc.com/news/world-europe-42495423">acts of torture</a>.</p>
<p>The same double standard prevails in the 21st century. The only woman indicted in the 20-year history of the International Criminal Court is <a href="https://www.icc-cpi.int/CaseInformationSheets/SimoneGbagboEng.pdf">Simone Gbagbo</a>, the former first lady of Cote d’Ivoire.</p>
<p>Gbagbo was indicted in 2012 on four counts of crimes against humanity, sexual violence and persecution for her role in the violence that followed her husband’s loss in the <a href="https://www.bbc.com/news/world-africa-15148801">2011 elections</a>. In 2015, <a href="https://www.dw.com/en/ivorians-divided-over-simone-gbagbo-conviction/a-18305986">she was convicted</a> of undermining the security of the state and sentenced to 20 years in prison by an Ivorian court. She was later <a href="https://www.bbc.com/news/world-africa-39426160">acquitted of crimes against humanity</a> and in 2018 received a <a href="https://www.bbc.com/news/world-africa-45095830">presidential pardon</a>. She was ultimately never brought before the International Criminal Court.</p>
<figure class="align-center ">
<img alt="A close-up of Simone Gbagbo shows her scratching her face." src="https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=468&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=468&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=468&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=588&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=588&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370180/original/file-20201118-23-j3oclm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=588&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Simone Gbagbo never faced the International Criminal Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-file-photo-taken-on-october-7-2009-shows-ivorian-first-news-photo/111655515?adppopup=true">Sia Kambou/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Strategies to skirt blame</h2>
<p>When women are taken to court, some will use gender strategically in an effort to secure favorable treatment.</p>
<p>Some, for example, claim that men made them do it. Despite her political rank, <a href="https://www.icty.org/en/case/plavsic">Biljana Plavšić</a>, former co-president of Republika Srpska in Bosnia, argued during her trial that she was manipulated by men in similar leadership positions. </p>
<p>Lesser-known women have used similar arguments. </p>
<p><a href="https://www.elle.com/culture/career-politics/a28485965/samantha-elhassani-isis-sisters-part-one/">Samantha Elhassani</a>, an American <a href="https://www.chicagotribune.com/suburbs/post-tribune/ct-ptb-elhassani-sentencing-st-1111-20201110-som6amtg7ngjhbrhuvd67rou3q-story.html">sentenced to 6 ½ years</a> in prison for aiding and abetting the Islamic State, had her sentence reduced by arguing that her husband, who was killed fighting for the group, had misled and abused her. </p>
<p>Similarly, the defense team for Lynndie England, who was <a href="https://www.nbcnews.com/id/wbna9492624">court-martialed and sentenced to three years in prison</a> by the U.S. Army after she posed in the infamous <a href="https://www.nbcnews.com/id/wbna9532670">photos of abuse</a> at Abu Ghraib prison in Iraq, <a href="https://www.nytimes.com/2005/05/10/us/behind-failed-abu-ghraib-plea-a-tangle-of-bonds-and-betrayals.html">argued that she was just following the lead of her manipulative boyfriend</a>.</p>
<p>Studies have also shown that when women choose to plead guilty or show remorse, they are more likely to see <a href="https://ctc.usma.edu/treatment-terrorists-gender-affect-justice/">reduced charges and sentences</a>, especially if their behavior contrasts with <a href="https://doi.org/10.1080/00905992.2017.1354365">defiant male defendants</a>.</p>
<p>For example, after <a href="https://www.icty.org/en/content/statement-guilt-biljana-plav%C5%A1i%C4%87">Plavšić pleaded guilty</a> to one count of persecution on political, racial and religious grounds, the prosecution dropped the remaining eight charges, which included genocide. In contrast, <a href="https://www.icty.org/en/case/karadzic">Radovan Karadžić</a>, who served as co-president alongside Plavšić, pleaded not guilty to all charges against him. He received a 40-year sentence that was increased to <a href="https://www.theguardian.com/law/2019/mar/20/radovan-karadzic-faces-final-verdict-in-bosnia-war-crimes-case">life in prison</a> on appeal.</p>
<figure class="align-center ">
<img alt="A court officer stands next to Biljana Plavšić during her trial at the Hague." src="https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370184/original/file-20201118-21-6btbk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">After Biljana Plavšić pleaded guilty – while claiming she had been manipulated – she received a light sentence.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-bosnian-serb-president-biljana-plavsic-the-highest-news-photo/1689169?adppopup=true">Michel Porro/Getty Images</a></span>
</figcaption>
</figure>
<h2>Closing the gap</h2>
<p>Advocates of criminal justice reform argue that societies around the world – and the United States in particular – would <a href="https://www.bbc.com/future/article/20180514-do-long-prison-sentences-deter-crime">benefit from lighter sentences</a> and less punitive criminal justice systems. </p>
<p>Justice, then, would imply not harsher sentences for women, but rather <a href="https://fivethirtyeight.com/features/women-arent-always-sentenced-by-the-book-maybe-men-shouldnt-be-either/">fewer disparities</a> in the <a href="https://cap-press.com/books/isbn/9780890891230/Gendered-Justice">treatment of men and women</a>.</p>
<p>The fact that women can occupy the dual role of oppressor and oppressed is a reality that is still not fully understood. Yet 400 years ago, Artemisia skillfully portrayed women as victims and as victimizers. Adamant about her own capabilities, she once told one of her patrons, “<a href="https://www.artspace.com/magazine/art_101/close_look/artemisia-gentileschi-the-best-baroque-feminist-painter-55896">I’ll show you what a woman can do</a>.” </p>
<p>Centuries later, her words are just as resonant. Though Artemisia was popular in her era, art historians tended to overlook her contributions to the canon. No longer. In 2020 the National Gallery in London finally devoted <a href="https://www.nationalgallery.org.uk/exhibitions/artemisia">a full-scale exhibition</a> to this Baroque master.</p>
<p>Her works reflect that women’s agency is a double-edged sword. Women are capable of not just of achievement but also of depravity.</p><img src="https://counter.theconversation.com/content/149877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Trisko Darden is affiliated with the Program on Extremism at George Washington University.</span></em></p><p class="fine-print"><em><span>Izabela Steflja is affiliated with the Newcomb Institute at Tulane University.</span></em></p>Women continue to be stereotyped as passive and meek. For this reason, international courts often let women war criminals off the hook.Jessica Trisko Darden, Associate Professor of Political Science, Virginia Commonwealth UniversityIzabela Steflja, Professor of Practice in Political Science, Tulane UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1146552019-05-23T13:35:11Z2019-05-23T13:35:11ZRecent attempts at reparations show that World War II is not over<figure><img src="https://images.theconversation.com/files/275725/original/file-20190521-23848-16qgujk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Chen Yabian, 74, of Hainan Province, southern China, testifies during the International Symposium on Chinese 'Comfort Women' in 2000 in Shanghai that she was 14 when Japanese Imperial Army soldiers forced her to work as a sex slave during the war. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-International-News-China-CHINA-COMFORT-WOMEN/410224f891e6da11af9f0014c2589dfb/44/0">AP/Eugene Hoshiko</a></span></figcaption></figure><p>World War II ended in 1945. </p>
<p>But the world has never stopped debating its legacy and how to make restitution for the damage done to the war’s victims. Consider some recent events.</p>
<p>In February, the <a href="https://franceintheus.org/spip.php?article6343">Holocaust Deportation Claims Program</a>, which compensates Jewish survivors of Nazi death camps transported on French trains, doubled its compensation payments, from US$200,000 to nearly $400,000. This makes it the most generous of any of the recent compensatory programs worked out by U.S. and European governments. This one is paid for by the French government, but administered by the U.S. State Department.</p>
<p>In March, a <a href="https://asia.nikkei.com/Politics/International-relations/South-Korean-court-approves-seizure-of-Mitsubishi-Heavy-assets">South Korean trial court</a> ordered the seizure of property owned by the Mitsubishi Corporation in South Korea. Such efforts are apparently needed to enforce a November judgment by the <a href="https://www.nytimes.com/2018/11/29/world/asia/south-korea-wartime-compensation-japan.html">South Korean Supreme Court</a>, ordering Mitsubishi to pay $100,000 to each of five Koreans who performed forced labor during the war.</p>
<p>Whether the Koreans will ever see that money, or die before the forfeiture action is completed, remains up in the air.</p>
<p>These are among the latest manifestations of global efforts to review, revise, repair and remember the war – akin to the <a href="https://history.state.gov/milestones/1945-1952/nuremberg">Nuremberg or Tokyo War Crimes Trials</a> - but for the 21st century.</p>
<h2>Restoring human dignity</h2>
<p>In the 1990s, a renewed interest in human rights, greater access to historical materials and a less polarized international political environment converged to <a href="https://www.dw.com/cda/en/world-war-ii-reparations-germany-must-show-willingness/a-46208757">spur reflection on World War II</a>. </p>
<p>In the United States, civil lawsuits emerged as one tool, among many, to probe wartime human rights violations. </p>
<p>Federal courts in <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/67/424/2375384/">New Jersey</a>, <a href="http://www.swissbankclaims.com/Overview.aspx">New York</a> and <a href="https://www2.gwu.edu/%7Ememory/data/judicial/POWs_and_Forced_Labor_US/ClassAction/Jan212003DeutschTurnerDecision.pdf">California</a> presided over cases against Swiss banks, French insurers, German corporations and even the Austrian government. </p>
<p>Plaintiffs sought wages for unpaid labor, return of looted art, restitution of bank accounts and other assets, and the restoration of their human dignity. </p>
<p>Two cases ended up in the United States Supreme Court. <a href="https://www.law.cornell.edu/supct/html/03-13.ZO.html">One</a>, in which an elderly refugee mounted a lawsuit to recover family artwork seized by the Nazis, got a Hollywood ending. In “<a href="https://www.imdb.com/title/tt2404425/">Woman in Gold</a>,” Ryan Reynolds helps Helen Mirren sue Austria to recover a painting by Gustav Klimt.</p>
<p>Most cases did not follow the Hollywood script. Plaintiffs generally lost, either because the claims were too old or already resolved by postwar treaties.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=375&fit=crop&dpr=1 600w, https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=375&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=375&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=472&fit=crop&dpr=1 754w, https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=472&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/275731/original/file-20190521-23829-eqhan6.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=472&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Jews await deportation from French internment camp Rivesaltes to Nazi concentration camps in Poland, 1942.</span>
<span class="attribution"><a class="source" href="https://collections.ushmm.org/search/catalog/pa1109851">United States Holocaust Memorial Museum, courtesy of Friedel Bohny-Reiter</a></span>
</figcaption>
</figure>
<h2>Selective leadership</h2>
<p>But that did not dispel the pressure from Jewish organizations or human rights activists to provide reparations. </p>
<p>During President Bill Clinton’s second term (1996-2000), the U.S. government, led by Ambassador <a href="https://www.conference-board.org/bio/index.cfm?bioid=971">Stuart Eizenstat</a>, worked with European allies to craft international agreements and reparations mechanisms. </p>
<p>Germany set up <a href="https://www.chicagotribune.com/news/ct-xpm-1999-12-15-9912150077-story.html">a $5 billion fund</a> to compensate wartime forced laborers and slave laborers, and to support projects on history and human rights.</p>
<p>Later, the State Department set up additional programs, including the 2016 Holocaust Deportation Claims Program. The French government still runs the <a href="http://www.civs.gouv.fr/home/">Commission for Reparations of Victims of Spoliation</a>, established in 1999 to process claims about seized property and art.</p>
<p>In East Asia, survivors of World War II human rights abuses have had their day (decades, actually) in court. </p>
<p><a href="https://www.nytimes.com/1995/03/17/world/unmasking-horror-a-special-report-japan-confronting-gruesome-war-atrocity.html">Chinese victims of wartime medical experimentation</a>, <a href="https://www.nytimes.com/2018/10/30/world/asia/south-korea-japan-compensation-world-war-two.html">Korean forced laborers</a> and <a href="https://www.vice.com/en_us/article/mgmzea/filipina-comfort-women-demand-reparations-from-japan">Filipina “comfort women,”</a> among others, <a href="https://www.loc.gov/law/help/pow-compensation/japan.php">have sued Japan and the Japanese government</a> throughout the Asia-Pacific, including the United States. </p>
<p>But instead of using these lawsuits to reevaluate Japan’s role in World War II – as other programs did for European countries – the U.S. government has either absented itself from these discussions, or <a href="https://www.courtlistener.com/opinion/186456/hwang-geum-joo-v-japan/">challenged</a> the lawsuits on various grounds. </p>
<p>The moral leadership that yielded transatlantic solutions to war responsibility issues in Europe dissolved when the topic emerged in East Asia. </p>
<p>Whereas the Clinton administration, especially Stuart Eizenstat, worked with European officials to set up compensation mechanisms in France, Germany and Switzerland, the administration of President George W. Bush asked <a href="https://www.latimes.com/archives/la-xpm-2001-jul-31-me-28622-story.html">U.S. courts</a> to dismiss the East Asian cases.</p>
<h2>US security interests</h2>
<p>South Korea and Japan are America’s closest and most important allies in a region simmering with geopolitical tension, from trade wars with China to nuclear proliferation on the Korean peninsula. U.S. regional security interests hinge upon the successful coordination of relations among Japan, Korea and the United States.</p>
<p>As <a href="https://law.case.edu/Our-School/Faculty-Staff/Meet-Our-Faculty/Faculty-Detail/id/1020">an international legal scholar</a> with a background in Asian legal systems, international human rights and international economic law, I believe the United States ignores the Asian tensions over World War II at its peril. </p>
<p>The Obama administration understood this, and tried to persuade both Japan and South Korea to resolve their “<a href="https://www.foreign.senate.gov/imo/media/doc/030414_Testimony%20-%20Daniel%20Russel1.pdf">difficult historical issues</a>.” Chief among those issues is, of course, making reparations for <a href="https://www.reuters.com/article/us-japan-forcedlabour-southkorea/thousand-koreans-sue-government-over-wartime-labor-at-japan-firms-idUSKCN1OJ0F7">injuries</a> that Japan visited upon Koreans during the war: from the comfort women system to the forced mobilization of Korean laborers.</p>
<p>But the Trump administration seems unconcerned. It has exhibited indifference or hostility to human rights matters generally, refusing to respond to <a href="https://www.axios.com/trump-administration-stopped-responding-un-human-rights-investigators-91920a35-d1c9-4ed7-82a4-b9b451a78889.html">U.N. investigations</a> about U.S. abuses along the Mexican border, and withdrawing from the <a href="https://www.npr.org/2018/06/19/621435225/u-s-announces-its-withdrawal-from-u-n-s-human-rights-council">U.N. Human Rights Council</a>. Nor does the administration place much stock in international relations or diplomacy, with its attempts to starve the State Department of <a href="https://www.vox.com/policy-and-politics/2018/2/12/17004372/trump-budget-state-department-defense-cuts">funding</a>, and belatedly <a href="https://www.cnn.com/2018/06/28/politics/trump-harry-harris-ambassador-to-south-korea/index.html">appointing</a> an ambassador to South Korea. </p>
<p>In Asia, civil litigation has emerged as the key method to seek war reparations, though the track record is spotty. </p>
<p>Japanese courts have largely dismissed these suits, although a small handful of Japanese corporations decided to settle the cases and to pay modest amounts of compensation.</p>
<p>That state of affairs changed with recent decisions from the South Korean Supreme Court. The November judgment against Mitsubishi suggests compensation is still possible, at least in certain jurisdictions. Henceforth, Korean courts will almost certainly order other Japanese companies to pay compensation. </p>
<p>But even if plaintiffs win, they might still encounter difficulties enforcing the judgment. Losing Japanese companies may refuse to pay the Korean judgments, requiring Korean courts to seize Japanese assets located in South Korea. </p>
<h2>Transforming the tragic past</h2>
<p>The agreements reached in the 1990s and early 2000s by the United States with Germany, France, Switzerland and Austria to provide war reparations are not perfect, but each aspires to transform and repair a tragically forgotten past. </p>
<p>The United States’ failure to do the same in Asia perpetuates a pernicious double standard set after the war. </p>
<p>The United States has the experience, leverage and opportunity to resolve simmering animosities between its allies in Asia, as it did in Europe.</p>
<p>But does it have the ambition?</p><img src="https://counter.theconversation.com/content/114655/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy Webster does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>US agreements with Germany, France, Switzerland and Austria provide reparations to WWII victims. But an international law scholar writes that the US has failed to address war crimes in Asia.Timothy Webster, Associate Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.