Will There Be Accountability for Russian Abuses in Ukraine?

Within hours of Russia’s invasion of Ukraine, reports began to emerge of serious harm to civilians and civilian infrastructure, including apartment buildings and hospitals damaged by Russian forces, and even a preschool being hit by cluster munitions. Reports from Kharkiv on February 28 indicated large-scale attacks on the commercial district of that city. As of February 27, at least 350 civilians had been killed and more than 1,600 injured. As horrific as these early reports are, they likely pale in comparison to the human rights abuses likely to occur if the Russian military enters and attempts to occupy Kyiv and other large cities in Ukraine. In recent decades in Chechnya and Georgia, Russian military and paramilitary or aligned forces carried out the destruction of cities, massacres of civilians, burials in mass graves, and attacks on fleeing refugees. Since the 2014 invasion of Crimea, Russian occupiers have been responsible for forced disappearances and torture, among other serious abuses.

The irony of Vladimir Putin’s flimsy and transparently false excuse for invading Ukraine—allegations of genocide—is that based on this history, it is Russian forces that are likely to be responsible for serious international crimes against civilians in Ukraine. Holding political leaders and military officers accountable for those crimes will be challenging, though not impossible, and accountability should be broadly defined, with steps taken now to help facilitate it later.

The invasion of Ukraine by Russia is of course itself a blatant violation of the UN Charter, which states plainly that “Members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state.” Enforcing this prohibition, however, is notoriously difficult. The International Court of Justice (ICJ), which is responsible for resolving international law disputes between states, has jurisdiction in contentious cases only when both parties decide to grant it, or when the dispute concerns a treaty both parties have ratified. That is why, after the Russian occupation of Crimea, Ukraine used Russia’s ratification of two relatively obscure treaties—the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination, to complain about specific Russian activities in eastern Ukraine, rather than bring a case against Russia’s violations of Ukrainian sovereignty directly (Georgia brought an ICJ case on similar grounds in 2008). On February 27, Ukraine filed a new complaint at the ICJ regarding Russia’s current actions, on the basis of Russia’s (mis)use of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) to justify the invasion; this creative application turns Putin’s genocide argument on its head and may well provide a foundation for ICJ jurisdiction over a “dispute” regarding the correct interpretation of the Genocide Convention. Ukraine may also bring a new case against Russia in the European Court of Human Rights, where it has lodged nine cases since 2014.

All of these state-to-state legal cases take years to resolve—a case brought by the Democratic Republic of the Congo against Uganda for violation of its sovereignty in 1999 only reached final resolution last month—and their outcomes often have little practical impact. They are nevertheless symbolically important in order to maintain the international legal prohibition on acquisition of territory by force—if not to deter Russian action in this case or future cases, then at least to deter other countries who may otherwise feel empowered by Russian action.

As of 2018, the crime of aggression is also an individual crime prosecutable by the International Criminal Court (ICC). However, neither Russia nor Ukraine is a party to the Rome Statute giving the court jurisdiction over that crime, and there is no chance the UN Security Council will itself refer the case to the ICC, given the Russian veto. However, the ICC does have jurisdiction to investigate and prosecute other crimes committed in Ukraine that fall under its normal jurisdiction, as a result of a 2015 decision by the Ukrainian government to subject certain crimes committed on its territory to ICC jurisdiction following the Russian invasion of Crimea. In particular, Ukraine, while not fully adopting the Rome Statute, granted the ICC prosecutor jurisdiction to investigate “crimes against humanity and war crimes committed by senior officials of the Russian Federation” in Ukraine after February 20, 2014. In 2020, the former ICC prosecutor found sufficient grounds to request authorization for a formal investigation of the situation in eastern Ukraine; the current ICC prosecutor has indicated he is watching this new situation closely as well.

While other individual legal accountability approaches are possible, particularly if Ukraine is able to stave off Russian occupation, or in countries with universal jurisdiction statutes, it is likely that senior Russian political and military officials would be careful not to travel to countries where they face legal jeopardy going forward. This constraint, previously limited to a handful of international pariahs, could itself be seen as some measure of consequences for Russian action.

In fact, it is most likely that justice for abuses in Ukraine will come in these more subtle, non-litigious ways, especially in the short term. That does not mean they are not consequential. Just as civil liability can be an equally powerful remedy as criminal punishment—and sometimes more accessible—individual sanctions, asset forfeitures, and travel bans can send a clear message that there are consequences for ordering or carrying out human rights abuses. Moves being taken now to identify and seize assets of senior Russian officials, close airspace to Russian-owned and -registered aircraft, and impose travel bans, while unlikely to serve as a short-term deterrent, do provide some consequences that will be felt by the most powerful Russians. Broader consequences, like banning Russian teams from sporting events and cultural performances and preventing Russia itself from hosting them, also have a symbolic and a financial impact.

In the meantime, even absent a clear path to short-term legal accountability, it is nevertheless critically important to document and widely share information about abuses as they occur, both to enable potential future accountability and to continue to mobilize and sustain public opinion against the war in allied countries, as well as among the Russian public. Although the OSCE Special Monitoring Mission has withdrawn, hundreds of journalists and human rights activists are still on the ground in Ukraine documenting abuses; they must not become targets nor be prevented from doing their work. The United States, European partners, and international nongovernmental organizations should support efforts to collect and preserve evidence, including a digital archive of the thousands of tweets, Facebook posts, and other information being shared by Ukrainians in real time. They should also share resources to support accurate and safe collection of this information, such as apps that facilitate the use of amateur video footage in court by embedding metadata and establishing a chain of custody, as called for by nearly 100 Ukrainian civil society organizations.

Ultimately, Putin and those around him will make the decision about when to withdraw from Ukraine—not based on any principle of international law or fundamental respect for human rights, but based on a cost-benefit calculation that includes their own risk of accountability and punishment. Legal and financial accountability is a critical component of that calculation.

Marti Flacks is director of the Human Rights Initiative and Khosravi Chair in Principled Internationalism at the Center for Strategic and International Studies in Washington, D.C.

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