Douglas Guilfoyle on the likelihood of bringing Russian defendants to trial for war crimes in Ukraine

Since the beginning of Russia’s invasion of Ukraine, there have been calls to convene a special international tribunal to prosecute war crimes committed during the conflict. Most of those advocating for such an outcome hark back to the post-Second World War Nuremberg trials, which brought 21 Nazi leaders before an Allied court. But in the 21st century is such a tribunal possible?

Nuremberg succeeded because of four factors: the war was over, the defendants were in custody and the prosecution enjoyed territorial control and strong international support. The Allied powers – the US, UK, Soviet Union and France – used the tribunal to leave a record of Nazi crimes and, they hoped, an example for international law in the postwar order. However, despite succeeding in the former, any dream of international justice largely slumbered through the second half of the 20th century. It wasn’t until the 1990s that the UN Security Council finally convened tribunals to prosecute crimes committed during the dissolution of Yugoslavia at the start of the decade and the 1994 Rwandan genocide. While these are generally considered success stories, they relied heavily on governments to surrender suspects and permit investigations on their territory.  

No tribunal can succeed without the territorial state’s support. That means that the most important vote, both morally and practically, on what happens next goes to Ukraine. Volodymyr Zelensky has declared that he will set up a national “special mechanism” for international crimes. What might this look like? As a sovereign country, Ukraine can prosecute crimes committed on its own territory – and it has a law criminalising aggression. But its courts, especially after a devastating conflict, are unlikely to be able to do this alone. There is a role here for the International Criminal Court (icc), the body that grew out of the Yugoslavia and Rwanda tribunals, but probably a small one. The court’s resources are limited compared to its remit. Most likely, the icc will conduct only a few symbolic, high-profile cases.

Prosecuting international crimes tends to be complicated and expensive. Nuremberg was made easier by having control of all the evidence and, by modern standards, broadly defined crimes. In the current conflict there is a big difference between proving the existence of apparent war crimes and prosecuting individuals. A pattern of attacks on hospitals and residential buildings is certainly evidence. But proving who launched a mortar round and who ordered it requires painstaking evidence collection and case building. 

Perhaps the most open-and-shut prosecution would be for aggression: the leadership crime of waging illegal war, first defined at Nuremberg. The defendants here would be Vladimir Putin and his circle. Much of the evidence against Russia’s president is on public record. The difficult part is getting leaders in custody. Normally, it requires regime change but even then there are no guarantees. The former president of Sudan, Omar al-Bashir, has been wanted by the icc since 2009 for crimes in Darfur. He was deposed in 2019 but still has not faced justice before the court. 

Another complicating factor is that there have been reports of Ukrainian forces killing captured Russian soldiers. Executing prisoners is a war crime; it’s the subject, for example, of an investigation in Australia concerning its soldiers’ conduct in Afghanistan. Ukraine has obligations under the Geneva Conventions to prosecute its own soldiers as well as Russian ones. The icc has a duty to investigate both sides and the power to step in should any side be “unwilling or unable” to prosecute its own. 

Will Russian defendants ever face trial? The fight for international justice is a long game. I would expect a range of low and mid-level perpetrators to stand trial in postwar Ukraine and the icc. But the top brass will not face justice without international pressure and regime change.

Guilfoyle is professor of international law and security at the University of New South Wales in Canberra. This piece is written in a personal capacity.