Calls are mounting for Russia to face a legal reckoning for atrocities its forces are allegedly committing in Ukraine. Many activists are looking toward the Hague-based International Criminal Court, which last month opened a Ukraine war crimes investigation. But experts warn delivering justice will be slow, difficult and, in some cases, impossible.
ICC prosecutor Karim Khan visited the Ukrainian town of Bucha Wednesday, as workers dug up bodies in black plastic bags from the earth. Russian soldiers are blamed for horrific rights violations there, including raping and executing Bucha residents.
Khan called Ukraine a “crime scene.”
“Every individual, particularly civilians, they have certain rights,” he said. “We must speak for them and we must insist that we get to the truth of what's taken place, and judges will decide if there is responsibility."
International outrage is growing over Russia’s actions in Ukraine. On Wednesday, the Vienna-based Organization for Security and Cooperation in Europe accused Moscow of committing war crimes in some places — like deliberately attacking a maternity hospital and theater in the southeastern Ukrainian port city of Mariupol.
It also found Ukraine committed lesser violations. The OSCE’s investigation ended in early March, so does not cover more recent cases like Bucha.
U.S. President Joe Biden has called Russian leader Vladimir Putin a war criminal, and Russian actions in Ukraine a “genocide” — although others dispute that description.
The U.S. is not part of the ICC, and the Trump administration sanctioned some court members for probing alleged war crimes by U.S. soldiers in Afghanistan. Now, Washington is reportedly looking at how it can help the court on Ukraine.
So far, dozens of countries have referred the Ukraine war to the ICC. France sent experts to help Kyiv investigate possible war crimes. The European Union is increasing funding and other support to the Hague-based court for probing Ukraine atrocities.
Experts say prosecuting suspects and delivering justice won’t be easy. Neither Ukraine nor Russia are members of the ICC. As a permanent member of the United Nations Security Council, Russia could hamper the U.N. court’s ability to hold it to account.
Still, Ukraine recognizes the ICC’s jurisdiction for crimes committed on its territory since 2014.
“I think there’s absolutely the possibility that war crimes will be prosecuted by the ICC. The … question will be who will be prosecuted by who,” said Carsten Stahn, a professor of international criminal law and global justice at Leiden University in the Netherlands and Queen's University in Belfast, Northern Ireland.
Like some other experts, Stahn believes the ICC doesn't have to shoulder the whole legal burden. Some alleged Ukraine war crimes cases could be handled by courts in countries like Germany, which have universal jurisdiction.
Another option, analysts say, is creating a special tribunal for Ukraine, like the ones created to judge the Rwandan genocide and the 1990s conflicts in the former Yugoslavia.
But while Russia’s lower ranking military officers may one day be held accountable for their alleged actions, experts say that's unlikely to happen for top leadership — like President Vladimir Putin, barring a change in government.
“We’ve seen from the practice of the tribunals, the Yugoslavia tribunal, that as a regime is in power, it is very difficult to proceed with crimes, ongoing investigations,” Stahn said. “Because you will simply not be able to get hold of the perpetrators.”
Still, analysts say the ICC can help broader efforts to deliver justice and will create one more headache for the Kremlin.