War Crimes and Punishment

More than two years since Russia’s full-scale invasion of Ukraine, war crimes are mounting. To update its readers on the most recent developments and provide a deeper understanding into the process of holding offenders accountable, the Wilson Quarterly turns to Ambassador Clint Williamson who currently serves as the lead coordinator of the Atrocity Crimes Advisory Group for Ukraine, a joint initiative of the United States, European Union, and United Kingdom. Here, a conversation with Williamson and Kennan Institute Director William Pomeranz, who brings his own legal background to the discussion.

William Pomeranz: Nearly every family in Ukraine has been touched in some way by Russia’s full-scale invasion. In the areas of the country which has been held or occupied, there have been widespread reports of war crimes and atrocities by Russian soldiers. Efforts are underway to hold perpetrators accountable. Can you provide a brief update on the war crimes being investigated against Russia and Vladimir Putin’s regime?

Clint Williamson: From the very earliest days of Russia’s invasion in February 2022, we saw evidence of war crimes as the Russian military engaged in indiscriminate attacks on civilians, disproportionate use of force, and mistreatment and even killings of prisoners of war. When towns like Bucha and Irpin were liberated from Russian occupation in spring 2022, we already began seeing compelling evidence of crimes against humanity in the form of widespread murders, illegal detentions, torture, and sexual violence. Since then, we have seen abductions and forced deportations of children, persecution of anyone not willing to embrace Russian primacy, and forced disappearances of civilians. Charges have been filed in hundreds of cases—but unless those charged were already detained as prisoners of war, they remain out of reach for the Ukrainian authorities and international tribunals. Some may be tried in absentia (which is permitted under Ukrainian law), and for others, the arrest warrants will remain in effect should they ever travel to third countries—or in the unlikely event that a more rule of law-oriented government in Russia takes hold. In the meantime, investigations will progress, and cases will continue to be indicted.

There are concerns that crime of aggression prosecutions relative to Ukraine, might open the door for cases to be brought in other situations where countries intervene militarily for humanitarian reasons or in response to a terrorist threat.

William Pomeranz: In the early months after the invasion, there was much talk about resorting to international tribunals to hold perpetrators of war crimes accountable. What has come of that effort?

Clint Williamson: Ukraine is somewhat unique in that we have in place both a viable international mechanism for accountability through the International Criminal Court (ICC), and a domestic process through the Ukrainian national system. The more common scenario, seen in places like Syria and Myanmar, is where we have neither. Unlike those countries, Ukraine is a democratic country with a functioning justice system rooted in rule of law. So it can, and should, deal domestically with the vast majority of crimes committed on its own territory. The ICC, because it has a global mandate, will only be able to deal with a small number of very high-level cases, but we have already seen the ICC exercise its jurisdiction with arrest warrants (indictments) issued against Vladimir Putin and other senior Russian political and military figures—with more cases likely to follow. Beyond the ICC and the national courts, there has also been a concerted effort to establish a special tribunal for the crime of aggression since the ICC is precluded from prosecuting this crime and there are strict limitations on doing so in the Ukrainian domestic system.

William Pomeranz: Approximately how long will it take to have a tribunal empaneled?  What are the lessons from Nuremberg? What are the differences in today’s circumstances? 

Clint Williamson: It is not a given that this special tribunal will get off the ground. Ukraine’s rationale for creating such a court is that all other crimes committed during Russia’s invasion of Ukraine flowed from this illegal act of aggression, which is the same theory that was used at Nuremberg to prosecute Nazi leaders for crimes of aggression. So, this is a compelling argument and one with a strong historical foundation. Nevertheless, the practical challenges in creating any international tribunal can be daunting—and they have been here, particularly when it is impossible to act through the UN Security Council where Russia holds veto power. Thus, a number of alternative approaches have been suggested, such as creating a court under the auspices of the Council of Europe, or some sort of internationalized Ukrainian national court.

The ICC’s reach will be limited, and even if a new special tribunal is created, it will likely only deal with dozens of perpetrators. So, 99% of the cases will still fall to the Ukrainians to handle.

As this process is playing out, an interim prosecutor’s office has been set up to collect and preserve evidence pertaining to crime of aggression cases, with the idea that this evidence can be used if a special tribunal is established. In terms of how this differs from Nuremberg, that court was set up in the aftermath of World War II with a strong consensus between the victorious Allied powers. Even with the creation of the Yugoslavia and Rwanda tribunals in the 1990s, there was unanimity in the UN Security Council. Obviously, that international cohesion has now broken down, so we have to explore other options for accountability that depart from historical precedents.

William Pomeranz: Will other countries join in an international tribunal to investigate Russian war crimes? What countries may object to such a tribunal?  Why?

Clint Williamson: So far, this initiative to create a special tribunal has largely been a North American and European exercise, with support from a few other states such as Australia and Japan. Beyond those countries though, the idea has not gotten much traction for a variety of reasons such as tacit support for Russia, perceived double standards by Western powers in treating Israel/Palestine and the US invasion of Iraq differently from Ukraine—and views that Ukraine gets undue attention while conflicts elsewhere are ignored. Even among states that are generally supportive, including within certain quarters of the US Government, there are concerns that crime of aggression prosecutions relative to Ukraine, might open the door for cases to be brought in other situations where countries (such as the US) intervene militarily for humanitarian reasons or in response to a terrorist threat. All these sensitivities have historically factored into the difficulty in achieving a political consensus on how crimes of aggression should be addressed. It’s no different with Ukraine—even when there’s widespread recognition that Russia has engaged in a blatant act of aggression.

William Pomeranz: Does holding Russia and Putin accountable require new laws to be enacted and enforced? Why? 

Clint Williamson: The existing ICC (Rome) Statute provides a strong legal foundation for prosecuting Putin and other senior Russian officials for genocide, crimes against humanity, and war crimes. Ukrainian domestic law allows for prosecutions of war crimes but does not include provisions allowing for prosecutions of crimes against humanity. It would be helpful if Ukraine would pass legislation to include crimes against humanity and, more broadly, to incorporate the entirety of the Rome Statute in its domestic law. While prosecutions may be more challenging without these statutory reforms, they can nevertheless be pursued utilizing existing domestic laws.

William Pomeranz: Ukraine has investigated and documented more than 100,000 war crimes committed by Russians on Ukrainian territory. How can Ukraine individually pursue such crimes?

Clint Williamson: The official number now is well over 125,000. Even with a reduction in numbers that will come as duplicate reports are screened out, related incidents are consolidated into single cases, and certain acts are reclassified as common crimes rather than war crimes, Ukraine will still be dealing with tens of thousands of cases. The ICC’s reach, as mentioned, will be limited—and even if a new special tribunal is created, it will likely only deal with dozens of perpetrators. So, 99% of the cases will still fall to the Ukrainians to handle.

Because of the difficulty in connecting direct perpetrators with an individual crime, cases have to be built against those at command levels who bear responsibility for crimes committed throughout their area of control. This is done through military analysis.

To address this overwhelming caseload, they will have to institute a more effective system for prioritization that focuses resources on particularly heinous crimes—those involving death or serious injury, targeted sexual violence, crimes directed at children, and those having a significant impact in a particular community. Other crimes—such as an incident where a single artillery shell causes property damage to an apartment or a squad of Russian soldiers loots a grocery store in an occupied town—while perhaps qualifying as war crimes, would need to be deferred to a later date when resources allow them to be addressed, if ever. Ultimately, the Ukrainian authorities will have to make hard decisions about which cases to pursue and which ones to defer or drop. That is the only possible way they can deal with this overwhelming caseload.

William Pomeranz: How does your investigation into the Russia-Ukraine war compare with some of the other, large-scale war crimes you’ve investigated?

Clint Williamson: Just to clarify, we are not directly conducting investigations in Ukraine, but rather providing expertise and support to the Ukrainian authorities who are doing the actual investigations and prosecutions. That said, we certainly have broad visibility into the nature of crimes and the evidence that is there. Sadly, it is very similar to what we saw in the conflicts in the former Yugoslavia over the 1990s—but on an even larger scale. There are also some truly horrific variations on criminality, such as the abduction and forced Russification of Ukrainian children, that distinguish this conflict from those in the Balkans. As the conflict is ongoing, and as we still don’t have a full picture of what has happened in the occupied territories, there may even be worse to come.

William Pomeranz: Is there something that is generally misunderstood about the war crimes process? Is it hard to convict?

Clint Williamson: Common crime cases (such as murder, rape, robbery) that are dealt with regularly in our own judicial system and that of other peacetime countries, are generally straightforward prosecutions with a known single perpetrator and single victim, easily accessible witnesses, are of limited scale and involve a finite amount of evidence. War crimes, on the other hand, are often connected events that take place over wide swaths of territory, involve multiple victims that are otherwise unrelated, frequently require tracking down witnesses that have been displaced and dispersed to any number of third countries, and involve direct perpetrators that are impossible to identify.

So even gathering the crime base evidence (that which pertains to the event itself) is more complicated. Then, because of the difficulty in connecting direct perpetrators (what we often refer to as “trigger pullers”) with an individual crime, cases have to be built against those at command levels who bear responsibility for crimes committed throughout their area of control. This is done through military analysis that determines which unit was in a given place at a given time, the command structure, how orders were issued, and so on. Assembling the evidence for both the crime base and linkage elements of a war crimes case tends to be more complex and lengthier than for common crime cases. When you factor in other requirements, particularly for trials in an international court—such as translations, logistics of bringing witnesses to a far-away location, and so on—even more delays ensue. While the process is longer though, I’m not sure that it has been more difficult to secure convictions in war crimes cases. I understand where that perception comes from due to some prominent trials going awry, but generally speaking, the conviction rates in war crimes cases over the last 30 years are probably pretty consistent with those in common crime prosecutions. 

Ambassador Clint Williamson (Retired), currently serves as the Lead Coordinator of the Atrocity Crimes Advisory Group for Ukraine, a joint initiative of the United States, European Union, and United Kingdom. He is the Senior Director for International Justice at Georgetown University.  Williamson is also the Presiding Arbiter of the Brčko Arbitration Tribunal in Bosnia and Herzegovina, an appointment by the International Court of Justice.

William Pomeranz is the Director of the Wilson Center’s Kennan Institute and an expert on the complexities of political and economic developments in Russia, particularly through a legal lens. He leverages his extensive hands-on experience in international and Russian jurisprudence to address a wide range of legal issues—from the development of Russia’s Constitution to human rights law to foreign investment and sanctions. He is also the author of Law and the Russian State: Russia's Legal Evolution from Peter the Great to Vladimir Putin (Bloomsbury, 2018).

Cover photo: Exhumation of 450 bodies from a mass grave. Most of the victims were tortured and killed during Russian occupation. There were children among them. Izyum, Kharkiv Oblast, Ukraine. September 17, 2022. Shutterstock/podyom.