Is it wise for Ukrainian civil courts to try Russian soldiers for war crimes? In mid-May, a sergeant from a tank division, Vadim Shishimarin, admitted killing a retired tractor driver, 62- year old Oleksandr Shelipov, outside his house in the small village of Chupakhivka. In his defence Shishimarin alleged that he was obeying an order to shoot Shelipov who was using a mobile phone and assumed to be transmitting to Ukrainian forces the location of the car in which the Russians were fleeing. If true, some might feel that his defence had some strength. The judge sentenced him to life imprisonment.
Television footage of the convicted Russian sergeant in a glass cage and confronted by his victim’s widow, left little doubt that the purpose of this trial was to serve as a warning that the invading Russian troops could not act with impunity. More recently, Aleksandr Ivanov and Alekandr Bobykin were given an eleven years six months sentence for shelling with a Grad multiple-launcher system ‘civilian infrastructure’, hitting notably residential tower blocks and a secondary school, near Ukraine’s second city, Kharkiv. The first rape trial of a Russian soldier is pending.
Prosecution of enemy military crimes in civilian courts during hostilities is unusual though not illegal. Guilty verdicts were not in doubt but the location, timing and impartiality of the Ukrainian court’s judgements all are. Another serious problem is that such trials offer Putin an excuse for show-trials of Ukrainian prisoners, including foreign volunteers, in Russian courts. The Ukrainians themselves are systematically gathering evidence of war crimes. At the time of writing, the office of the Ukrainian Prosecutor-General has over 14,000 instances of alleged war crimes on its books. But, under the circumstances, wouldn’t it be better if an independent international body were to be the prosecutor? In fact, there is one at hand, the International Criminal Court (ICC).
Ukraine, though, has had complex legal wrangles in its Constitutional Court over ratifying the Statute of Rome, the 1998 treaty that brought the ICC into being. President Zelensky claims that he intends to ratify the Statute but this has yet to happen.
From 2014, in the context of the annexation of Crimea and the first - covert - Russian invasion of the Donbas region, Ukraine recognised the ad hoc jurisdiction of the ICC for “identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Ukraine”. In December 2017, State Parties to the ICC – members with obligations to arrest and transfer or provide access to evidence, witnesses and legal support for prosecutions - activated its jurisdiction over the crime of aggression, "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”. This would be the only possible approach to prosecuting Putin himself likely to gain traction.
By April 2022, 41 State Parties led by Lithuania had referred the situation after the massive Russian second invasion of Ukraine to the ICC. Currently there is an exceptionally large ICC team in the country coordinating investigations with the Ukrainian government. Britain is supporting their work financially and with legal advice.
But there are longstanding problems with ICC jurisdiction. Both the US and Russia signed the July 1998 Rome Statute in 2000 but neither became a member of the court thereby adopting its moral and legal obligations and providing it political and technical support. Russia pulled out in 2016 shortly after the ICC published a "damning verdict" on Russia's 2014 occupation of Crimea and Sevastopol. The USA is one of seven countries that initially refused to sign alongside such uncomfortable bedfellows as China and Iraq. President Bill Clinton having signed did not allow the treaty to be ratified in the Senate. Obama made some supportive moves and sent observers to the annual meeting of the governing Assembly of States Parties in The Hague. But the Trump administration told the ICC that it would revoke visas for any ICC staff seeking to investigate Americans for war crimes. Secretary of State Mike Pompeo added that the same would apply to any staff involved in investigating war crimes committed by Israel or other allied nations.
The ICC currently has 123 Members. Britain is one. No thanks to the USA. I remember a fraught moment in Autumn 1998 when, at a Foreign Office reception, I found myself amongst a small group clustered deferentially around a senior civil servant. In rushed a white-faced - lowlier – official. In the heat of the moment he blurted out that Bill Clinton had just been on the line to Tony Blair trying to talk him out of signing the Rome Statute. Special relationship or not, the Prime Minister held his ground.
The exceptionalism manifested in this US position has damaging implications for future prosecution of war crimes which Fintan O’Toole, discusses with his usual caustic panache in ‘Our Hypocrisy on War Crimes’, 26 May 2022 New York Review of Books. He considers the political background to US conduct during the Vietnam War comparing it with that of the Russian Federation in Ukraine whilst acknowledging the lack of equivalence. But this doesn’t soften his conclusion. “The brutal truth is that the US abandoned its commitment to the ICC not for reasons of legal principle but from the same motive that animated Putin”. In short, neither State wanted to have its military or political leaders prosecuted for war crimes by an international institution. There is a “yawning gap”, he writes, between “Biden’s grandiloquent rhetoric about Putin’s criminality” and US reluctance to give its support to the ICC, the body created by the international community to deal with such criminality.
The Shishimarin trial’s real importance is as testimony that Oleksandr Shepilov matters as an individual and that his right to life shall not be violated with impunity. Prosecuting his killer is not Victor’s Justice, the criticism leveled against the Nuremberg Tribunals: the war in Ukraine continues with no victors. But the trial is open to the challenge that this is not impartial justice. It would have carried greater weight had it been undertaken by the ICC or by another international tribunal such as those created after the Rwandan genocide and the Balkan wars. Future trials of war crimes committed in Ukraine should not be simply exercises in exposing Putin’s brutality or part of the propaganda war fought alongside the bloody armed conflict. They need to show, despite the horror and destruction of war, that the law stands firm as the scaffolding around collapsing civilization.
See TheArticle 09/06/2022