kraine’s recent victories in Eastern Ukraine have Russian forces on the move. Behind them, they leave gas masks, mass graves, and boxes of gold dental crowns—haunting evidence of their war crimes. After Ukraine successfully drives Russian forces from their borders, they will face the daunting legal task of prosecuting Russia for these atrocities.
Preserving and collecting evidence will be an enormous challenge, but establishing jurisdiction may be a more formidable obstacle. While the International Criminal Court (ICC) has jurisdiction to prosecute war crimes, crimes against humanity, and genocide, they cannot prosecute Russian leaders for crimes of aggression, a charge that holds accountable those who plan, initiate, and wage aggressive wars.
In seeking justice for its citizens, Ukraine could look to the prosecutorial precedent worked out in the aftermath of the Bosnian genocide.
To understand how Ukraine might use this model, I spoke with David Schwendiman, the Deputy Chief Prosecutor and Head of the Special Department for War Crimes of the Prosecutor’s Office of Bosnia and Herzegovina. Schwendiman worked in Bosnia and Herzegovina (B&H) from 2007 to 2009 developing legal policy and managing the prosecution of cases the International Criminal Tribunal for Yugoslavia (ICTY) transferred to local courts in B&H.
Schwendiman explained that the ICTY began prosecuting cases in 1993 and over the next eleven years developed an “extraordinary jurisprudence” for war crimes and genocide. By 2004, however, the court had completely adjudicated so few cases that the UN could no longer justify its expensive operations. Still, both the international community and the ICTY recognized the risk of transferring hundreds of unfinished cases back to B&H. ICTY judges devised a completion strategy to ensure the work could continue.
The UN Security Council knew they needed to “provide some means with assistance to the domestic prosecutors to get [the remaining cases] done,” Schwendiman said. This is how the Special Department for War Crimes came about. The ICTY transferred unfinished cases back to B&H, and the UN provided funding and expertise to help. The goal, as Schwendiman described it, was to “build up a more robust judiciary, a more robust system for dealing with this.”
B&H’s solution—and similar tribunals in Lebanon, Cambodia, and Sierra Leone—is considered a “hybrid” tribunal. These hybrid—sometimes called special—tribunals are often established between the UN and national governments. They typically feature a judicial staff made up of both national and international persons.
Schwendiman warns that Ukraine might resist this model. “There won't be, unless something really dramatic changes, the kind of international involvement on the ground, in the court or on the bench (in Ukraine), as there was in Bosnia and Herzegovina,” he asserts. “And I understand why. (Ukrainians) don’t want anyone to think that there’s anything wrong with their system.” Accepting a special tribunal would require Ukraine to adjust their public relations strategies, which have prioritized communicating their equal status with the nations that have supported them throughout the war. They want the world to see that “they’re perfectly capable as a state of managing their own affairs, they just need some help.” Still, there are other options.
In his address to the UN on 21 September 2022, Ukranian President Volodymyr Zelensky called for a different kind of special tribunal, separate from the ICC but operated by the international community specifically for prosecuting crimes of aggression. In a recent series of articles, Just Security outlined what such a special tribunal for crimes of aggression (STCoA) might look like. Even if Ukraine and the international community establish a STCoA to complement the ICC’s prosecution, it may be wishful thinking to assume that even these two tribunals could successfully prosecute all the crimes Russia has committed in Ukraine.
Schwendiman is skeptical of the STCoA proposal, saying that it “will do nothing to alleviate the enormous task the domestic investigators, prosecutors, and courts are facing in Ukraine. If anything, an STCoA will likely make [Ukraine’s] jobs tougher simply because, among other things, Ukraine will be competing for resources against an STCoA that will attract the attention of the world and as a result will likely get the bigger portion of the available funding and political support.”
“No matter what happens on the international stage, the bulk of what's going to be done needs to happen in Ukraine,” Schwendiman confidently states. International enthusiasm and funding for any project will fade over the years, and Ukraine will be left with any remaining cases.
Although Schwendiman worries that Ukraine will be loath to welcome foreign prosecutors, Schwendiman believes the model is worth pursuing: “I think there is real merit in finding a way to get international prosecutors and judges on the ground doing the work alongside Ukrainian colleagues and keeping them there until their value no longer supports it.”
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Ukraine’s Options for Prosecuting Russia
Photo by Tingey Injury Law Firm via Unsplash.
December 6, 2022
After Ukraine drives Russian forces from their borders, they will face the legal task of prosecuting Russia for these atrocities. In seeking justice for its citizens, Ukraine could look to the prosecutorial precedent worked out in the aftermath of the Bosnian genocide, writes CSPC's Sophie Williams.
U
kraine’s recent victories in Eastern Ukraine have Russian forces on the move. Behind them, they leave gas masks, mass graves, and boxes of gold dental crowns—haunting evidence of their war crimes. After Ukraine successfully drives Russian forces from their borders, they will face the daunting legal task of prosecuting Russia for these atrocities.
Preserving and collecting evidence will be an enormous challenge, but establishing jurisdiction may be a more formidable obstacle. While the International Criminal Court (ICC) has jurisdiction to prosecute war crimes, crimes against humanity, and genocide, they cannot prosecute Russian leaders for crimes of aggression, a charge that holds accountable those who plan, initiate, and wage aggressive wars.
In seeking justice for its citizens, Ukraine could look to the prosecutorial precedent worked out in the aftermath of the Bosnian genocide.
To understand how Ukraine might use this model, I spoke with David Schwendiman, the Deputy Chief Prosecutor and Head of the Special Department for War Crimes of the Prosecutor’s Office of Bosnia and Herzegovina. Schwendiman worked in Bosnia and Herzegovina (B&H) from 2007 to 2009 developing legal policy and managing the prosecution of cases the International Criminal Tribunal for Yugoslavia (ICTY) transferred to local courts in B&H.
Schwendiman explained that the ICTY began prosecuting cases in 1993 and over the next eleven years developed an “extraordinary jurisprudence” for war crimes and genocide. By 2004, however, the court had completely adjudicated so few cases that the UN could no longer justify its expensive operations. Still, both the international community and the ICTY recognized the risk of transferring hundreds of unfinished cases back to B&H. ICTY judges devised a completion strategy to ensure the work could continue.
The UN Security Council knew they needed to “provide some means with assistance to the domestic prosecutors to get [the remaining cases] done,” Schwendiman said. This is how the Special Department for War Crimes came about. The ICTY transferred unfinished cases back to B&H, and the UN provided funding and expertise to help. The goal, as Schwendiman described it, was to “build up a more robust judiciary, a more robust system for dealing with this.”
B&H’s solution—and similar tribunals in Lebanon, Cambodia, and Sierra Leone—is considered a “hybrid” tribunal. These hybrid—sometimes called special—tribunals are often established between the UN and national governments. They typically feature a judicial staff made up of both national and international persons.
Schwendiman warns that Ukraine might resist this model. “There won't be, unless something really dramatic changes, the kind of international involvement on the ground, in the court or on the bench (in Ukraine), as there was in Bosnia and Herzegovina,” he asserts. “And I understand why. (Ukrainians) don’t want anyone to think that there’s anything wrong with their system.” Accepting a special tribunal would require Ukraine to adjust their public relations strategies, which have prioritized communicating their equal status with the nations that have supported them throughout the war. They want the world to see that “they’re perfectly capable as a state of managing their own affairs, they just need some help.” Still, there are other options.
In his address to the UN on 21 September 2022, Ukranian President Volodymyr Zelensky called for a different kind of special tribunal, separate from the ICC but operated by the international community specifically for prosecuting crimes of aggression. In a recent series of articles, Just Security outlined what such a special tribunal for crimes of aggression (STCoA) might look like. Even if Ukraine and the international community establish a STCoA to complement the ICC’s prosecution, it may be wishful thinking to assume that even these two tribunals could successfully prosecute all the crimes Russia has committed in Ukraine.
Schwendiman is skeptical of the STCoA proposal, saying that it “will do nothing to alleviate the enormous task the domestic investigators, prosecutors, and courts are facing in Ukraine. If anything, an STCoA will likely make [Ukraine’s] jobs tougher simply because, among other things, Ukraine will be competing for resources against an STCoA that will attract the attention of the world and as a result will likely get the bigger portion of the available funding and political support.”
“No matter what happens on the international stage, the bulk of what's going to be done needs to happen in Ukraine,” Schwendiman confidently states. International enthusiasm and funding for any project will fade over the years, and Ukraine will be left with any remaining cases.
Although Schwendiman worries that Ukraine will be loath to welcome foreign prosecutors, Schwendiman believes the model is worth pursuing: “I think there is real merit in finding a way to get international prosecutors and judges on the ground doing the work alongside Ukrainian colleagues and keeping them there until their value no longer supports it.”
