In recent days, there has been increasing evidence of a wide range of war crimes committed by the Russian military in Ukraine, including the execution of bound civilians, torture, rape, looting, and widespread destruction. The difficult pictures from the city of Bucha near Kyiv drew condemnation across the board, including from Israel, and prompted agreement that these were war crimes that must be investigated. The broad global condemnation is itself important, both for the intention to prosecute the perpetrators of the crimes, and for the message that emerges on ascribing responsibility to those who violate fundamental principles of international law, while strengthening and maintaining the world order founded after World War II.
However, harsh scenes alone are not sufficient to meet the high standard required for a conviction in criminal proceedings, beyond a reasonable doubt. Moreover, to the extent of wishing to prosecute the political and military leadership, it will be a challenge to prove their responsibility for the acts committed by soldiers on the ground. In addition, in light of the widespread mobilization of Ukrainian citizens to halt the Russian army and despite the illegality of the invasion, it is important to note that a civilian can lose his or her immunity and become a legitimate target for attack when taking part in hostilities.
Another issue arises regarding the court where proceedings could take place, and it seems there are a number of principal options: in the courts of Ukraine; in the International Criminal Court (ICC) as part of the investigation opened on March 2; or in courts in various countries whose domestic legislation includes the possibility of prosecution for the execution of war crimes, by virtue of universal jurisdiction. In all instances, there is a major difficulty in reaching the suspects and actually arresting them. In some courts, such as the ICC, as long as the suspect is not present before the Court, the proceedings against him are frozen. Furthermore, even if proceedings are held in the absence of the suspect leading to a conviction, the feasibility of enforcing the judgment poses a significant challenge.
In recent days, there has been increasing evidence of a wide range of war crimes committed by the Russian military in Ukraine, including the execution of bound civilians, torture, rape, looting, and widespread destruction. The difficult pictures from the city of Bucha near Kyiv drew condemnation across the board, including from Israel, and prompted agreement that these were war crimes that must be investigated. The broad global condemnation is itself important, both for the intention to prosecute the perpetrators of the crimes, and for the message that emerges on ascribing responsibility to those who violate fundamental principles of international law, while strengthening and maintaining the world order founded after World War II.
However, harsh scenes alone are not sufficient to meet the high standard required for a conviction in criminal proceedings, beyond a reasonable doubt. Moreover, to the extent of wishing to prosecute the political and military leadership, it will be a challenge to prove their responsibility for the acts committed by soldiers on the ground. In addition, in light of the widespread mobilization of Ukrainian citizens to halt the Russian army and despite the illegality of the invasion, it is important to note that a civilian can lose his or her immunity and become a legitimate target for attack when taking part in hostilities.
Another issue arises regarding the court where proceedings could take place, and it seems there are a number of principal options: in the courts of Ukraine; in the International Criminal Court (ICC) as part of the investigation opened on March 2; or in courts in various countries whose domestic legislation includes the possibility of prosecution for the execution of war crimes, by virtue of universal jurisdiction. In all instances, there is a major difficulty in reaching the suspects and actually arresting them. In some courts, such as the ICC, as long as the suspect is not present before the Court, the proceedings against him are frozen. Furthermore, even if proceedings are held in the absence of the suspect leading to a conviction, the feasibility of enforcing the judgment poses a significant challenge.