— How was international humanitarian law first created?
— Anti-war law developed towards the end of the nineteenth century. It began with calls for a more humane treatment of the wounded and prisoners of war. Surprising as it may be, it was Tsar Nicholas II who was among the initiators of the earliest peace conferences. He and his cousin Wilhelmina agreed to gather various monarchs for a conference on international law. It must be said that many people mocked them at the time, and satirical pamphlets were published in the press. The first conference of this kind was held in 1899, a little more than a century ago, at a time when it had never occurred to anyone that the right to war could be legally limited by something or someone. Before that, “woe to the vanquished” had been the unquestioned principle. If someone lost in a war, the victors could do whatever they wanted, up to dismantlement of statehood. Although the idea was widely mocked at first, heads of state nevertheless gathered, and eventually even built a peace palace in The Hague.
The peace movement itself is widely believed to have emerged with the invention of photography and film. After that, for ordinary people, war no longer was just a heroic victory parade. Those who were not directly involved in war could see war atrocities in newsreel footage and realize what war really was. That was when people began to think seriously about the need to unite for peace — which, however, did not prevent either the first or the second world wars. And other wars that you and I know less about. For example, the Great African War (1998–2003), in which some seven million people died. It involved the whole region of Central Africa.
— War crimes are a vast topic. Let us try to understand its basics: what is called a war crime in general terms?
— The term “war crimes” has a narrow and a broader meaning, and there are also crimes against humanity that can be committed outside the context of an armed conflict. Presently, the codified source of information on war crimes is the Rome Statute: the treaty that established the International Criminal Court (ICC). Parts of it mirror the Geneva Conventions, concluded in the aftermath of the Second World War. The conventions detailed the treatment of prisoners of war as well as of civilian population in occupied territories.
The Rome Statute divides war-related crimes into four types. One, crimes of aggression: launching a war of aggression. Two, war crimes committed during a military conflict. Three, crimes against humanity, which can be committed both in time of war and in times of peace. Finally, the fourth type: crimes of genocide. Also, it is possible for the same act to be recognized as a war crime, a crime against humanity and genocide at the same time. There is no hierarchy or gradation of severity of these crimes, with the exception of aggression.
However, there is one commonly overlooked aspect. An important source of law in international practice is custom. For example, by the time of the Nuremberg trials, there was no convention that forbade ethnic cleansing. This, incidentally, was the basis of the line of defense: they argued that people may not be put on trial in the absence of an established, codified law. However, the judges then decided that what happened in World War II was so horrible that it wasn’t necessary to have a specific set of laws to try individuals for these crimes.
We are now facing a somewhat similar situation with the blowing up the dam of the Kakhovka hydroelectric power plant. Attack on critically dangerous objects is a recognized crime, and it is possible to qualify the destruction of the dam as that. But it is more than an attack on a dangerous object: it is also destruction of an ecosystem, an act that is now called ecocide. The crime of ecocide has not yet been conventionally defined in any treaty, but I am convinced that any court would agree that this is an unprecedented attack on the environment and the civilian population!
“This, incidentally, was the basis of the line of defense: they argued that people may not be put on trial in the absence of an established, codified law. However, the judges then decided that what happened in World War II was so horrible that it wasn’t necessary to have a specific set of laws to try individuals for these crimes.”
— What are the tools to investigate such crimes and collect evidence?
— The number of such tools is growing. As recently as during the war in Syria, evidence was not collected as massively as it is today. Many organizations now are gathering information and investigating, making use of new applications specially developed to collect and attribute data. There are, for example, apps that use photos or videos to determine the position of an event and geo-tag it. So you can create an archive of events automatically. In addition to that, many scholars who work in international humanitarian law have their own research teams.
Former ICC prosecutor Tomoko Akane is writing an indictment of Putin. She will have no shortage of evidence. But the court will have to face two other problems. The first is assembling the defendants for the trial. The second problem is that resources and professional staff are insufficient. The International Criminal Court is, alas, exorbitantly expensive to maintain and very, very slow. Fortunately, some crimes fall under universal jurisdiction: the Convention against Torture and the Convention against Genocide. By the way, they have been signed by almost every country in the world, which happened partly due to post-war enthusiasm: finally a firm peace will be established!
— Is the International Criminal Court in The Hague the only way to hold war criminals accountable?
— The beauty of international law is that the system constantly changes and new tools are found. The International Criminal Tribunal for the former Yugoslavia was created by the UN Security Council. Historically, there have been a number of other hybrid solutions, when special national courts were created. In East Timor, where Indonesia committed war crimes, a special court chamber was established, which the UN supported in terms of management and staff. So an international court is not the only option. Nothing prevents individual countries from forming a coalition (for example, Poland, the Baltic States and the Czech Republic) and creating their own tribunal. They could create a database of criminals and control who enters the countries, so that eventually someone will be caught, especially since such crimes have no statute of limitations. In fact, I would not count on the ICC, given how slow and costly it is. The optimal mechanism now is a special tribunal similar to the Nuremberg trials. And it is important that it takes place in Ukraine.
— You said that the main difficulty is to deliver the accused. History knows the case of Eichmann, who was kidnapped by the Mossad in Argentina. What are some other examples of bringing criminals to trial?
— Oh, there are many examples. A Syrian refugee living in Sweden befriended on Facebook one of the men who had actively participated in his torture. He created a patriotic profile for himself in order to gain the trust of his former torturer. Eventually, he invited this Syrian military man to Sweden for a yacht ride with women and alcohol. Sweden had already proceeded with the case, so the perpetrator was arrested immediately upon arrival.
Here’s another one. Journalists accidentally got a hold of a video that showed a military man forcing civilians to run down the street and shooting them in the back. The problem was that the man could not be seen in the video. But an activist figured out who it might be and entered into correspondence with the man she suspected. Eventually he himself confessed to her that he had conducted this execution.
Or there was a man who ended up abroad as the Central African Republic’s sports minister years after he had participated in crimes. Specifically, he was accused of recruiting child soldiers. A common phenomenon: children are kidnapped, boys become soldiers and girls become so-called “bushwives”.
It needs to be noted that it isn’t mandatory to make arrest warrants public. What I want to say is that besides the two high-profile warrants [for Putin and Maria Lvova-Belova] that everyone has heard about, there can be others. They could have been issued by the ICC or by national courts. For people who are involved in war crimes in Russia — military commanders, private military companies — it is unsafe to go anywhere.
— Russian propaganda constantly abuses grave-sounding language, eroding the meaning of words in doing so. One such term is “genocide of Russians in Donbas”. What is genocide according to international law?
— The intention to wipe out a group on ethnic, national, religious or racial grounds. There are two aspects of this question. One is objective: what exactly happened. The other is subjective: the intention, what the person wanted to do, what was the purpose. Two similar actions may amount to a crime or not. For example, a soldier was dusting and accidentally hit a button, which caused casualties. Or a soldier was sure that he was aiming at a military plant, but the coordinates he was given were false and civilians were there.
There was one such case with a NATO pilot over Serbia. He saw a train coming onto a bridge and circled over it to wait for the train to pass. The train seemed to disappear in the smoke, and the soldier bombed the bridge. But it turned out that the train had not yet passed by then, and civilians were killed by the bombing. There was no trial: it was found that the soldier did not intend to bomb the train, so there was no motive. In regard to genocide, it is not always easy to prove the motive of the crime. Sometimes, of course, a person can confess: I hate this group of people, I want them all to die — then the motive is obvious. It was also obvious in the case of military orders in Germany, where everything was documented, so it was quite easy to convict the Nazis for the targeted extermination of Jews and Roma.
If we are talking about “genocide of Russians in Donbas,” there was no genocide. But here’s what’s important. Did Russia raise grievances against Ukraine? It did. What did Ukraine do? Even before the full-scale invasion began, Ukraine filed a lawsuit with the International Court of Justice, the international court that handles conflicts between countries, to have the court determine that there was no genocide. The process has not yet been finalized, but it is an example of how to proceed. Ukraine has appealed to the authorized court, which must make a ruling. Russia, by the way, could also present its evidence at this court — only we do not see it for some reason!
— Then how does Russia prove anything? Does it just make loud statements on TV?
— Let’s look at the case of the downed Malaysian Airlines Flight 17 in the Donetsk region. The Russian authorities’ strategy in the aftermath of this tragedy was to throw in contradictory versions. They obscure the issue at hand, which they are also doing with the war, in order to create a sense of ambiguity. The trial [in the MH17 case] ended last year, but none of the accused were present. The Russian authorities managed to pull off their usual routine. For each hearing, the Russian Federation asked for another new version to be investigated. The court replied that it had already been done. Meticulous rebuttals of each version are all there in the documents; all materials of the case were published in English and are available for everyone to read. But what did the Russian media say? The District Court of The Hague allegedly refused to consider alternative versions. But these were the versions that had already been considered. The Russian people, of course, were not informed about this.
— Returning to genocide: what about Russia’s genocide against Ukraine?
— We cannot talk about genocide in the absence of the accused, because there must be specifics about who committed genocide and why. But the very way Russia is waging war is beyond all limits. Blowing up a dam! Such crimes haven’t happened since World War II, and neither has the feeling that an aggressor country comes and kills so many civilians every day. Or the displacement of Ukrainian children, the Russification of these children, adoption. Information that people who didn’t have Russian passports were not rescued from the [Dnipro River’s flooded] left bank.
It’s as if the actions themselves confirm the intentions. Yes, I think there are elements of genocide. Putin and other “eminent statesmen” themselves have repeatedly said that Ukraine does not exist, that it was artificially created. On the other hand, all these subtleties of criminal law do not play a decisive role. War crimes and crimes against humanity, in fact, are not too different: think of the targeted shelling of civilian objects. Think of Mariupol! The Russian bombardment of the city was so heavy that it evolve killing up to a third of the population there. Mariupol before the start of the war had half a million people, that is, we are dealing with a planned killing of 150 thousand. And the worst thing is that Russia does not try to prevent any crimes, and the criminals are still being handed out medals and called heroes.
— Let us talk about the displacement of children from Ukrainian territory. It may still be unclear to some people what the essence of the crime is, if Russia is taking children to territories where there are no hostilities yet. Yes, according to the Geneva Conventions, the status quo in the occupied territories must not be changed. But the logic of “children are dying there” is too often used by the concerned supporters of “the special military operation.”
— When the situation with the removal of children began, I started watching old interviews of the infamous Dr. Liza [Elizaveta Glinka], who took children out of Donbas before the full-scale invasion. In these interviews, she emphasized that, first, all children were counted, and second, that the children left either with parents/guardians or with an institution. And then they were all brought back. That is, in 2014, she understood that you can’t just take three buses of children from Donbas and move them out. Do the Russian authorities understand this? I have my doubts.
To concerned citizens, I would say the following: if not for the shelling of Mariupol, none of this would have happened! Secondly, it was necessary to set up green corridors to evacuate civilian residents. Children with their parents and guardians would decide which way to go. It was possible to organize safe zones. It is a concept from the Geneva Conventions: the parties can agree on a certain territory as demilitarized. They could count all the children, record their names, take them to a safe place on the border with Ukraine and offer Ukraine to take them away. Lots of options!
I propose a thought experiment to answer these questions. Let’s suppose we have suffering children in need of organ transplants, with sobbing parents beside them. Putin comes to them and brings a bag of human organs he has chopped up. It seems like the organs could be transplanted to children in need. But these organs are only there because some people were killed! This practice of “saving” children should not be supported. Primitive utilitarianism doesn’t work here. And it is important that the same Dr. Liza, who was rescuing children with state assistance since 2014, was forgetting why and from what they had to be rescued: from Russia’s invading the territory of a sovereign state in 2014.
— After World War II, it was agreed that land mustn’t be captured by military means. This creates big problems with unrecognized territories. What can be done?
— Hence a huge range of crimes concerning situations when a country acts on someone else’s territory as if it were its own. It has no right to do so. Even during a temporary occupation, everything should be left as it was: property, civil registry, population. The logic here is simple. You seize a population and throw them into the furnace of war against their homeland: from the point of view of international law in its modern form, this is a taboo. It is unclear what Russia’s goals are: the territories it has seized, if for some reason they remain under its control, will never be recognized!
“Primitive utilitarianism doesn’t work here. And it is important that the same Dr. Liza, who was rescuing children with state assistance since 2014, was forgetting why and from what they had to be rescued: from Russia’s invading the territory of a sovereign state in 2014.”
The main thing is that people in such territories suffer a lot: they do not have full-fledged passports, they are unable to freely move. As in Abkhazia now: they open borders specially on important holidays so that people could visit their family graves! The international community is responsible here: it has been turning a blind eye to such situations [existence of unrecognized territories]. It created an illusion that Russia, acting in this way, could achieve something, that there was a positive outcome for this scenario. There is not.
— And how is the question of responsibility in war crimes resolved? We often hear: “I was just following orders.”
— There is the person who fired the shot, there is the person who gave the order, there is the person who brought him that gun, there is the person who praised “our boys” for their courage, and there is also the person who made the socks that were on the killer’s feet. So the responsibility for that shot is diluted ad infinitum. After all, there was also someone who sheared the sheep, from which socks were then made for the soldier who fired the shot. Let me cite a few illustrative cases.
In the International Criminal Tribunal for the former Yugoslavia one of the accused was a young guy named Erdemovic. He joined the Serbian army to work as a driver. Then the massacre in Srebrenica happened. At some point the exhausted soldiers told this Erdemovic, the driver: here’s a machine gun, you either shoot them or be shot with them. He killed about 120 people. He was convicted, albeit with leniency. He literally had an assault rifle held to his head, it was proven: yes, the threat was serious, he took it seriously. And yet “I was just following orders” doesn’t work, and hasn’t for a long time. Following orders does not absolve you of responsibility.
Another case occurred in the Vietnamese village of Songmi, where American troops were regularly hit by sniper attacks. The commander gave an order: infants, small children and the elderly were all shot. To defend himself in court, one of the soldiers said that he had an IQ of 80. Like “I’m dumb, I did what I was told, what else could I do?” At the trial he was given the answer: first you have to ask if your commander is in his right mind, if he actually meant what he said. If the answer is yes, tell him it’s a crime.
— How do we support victims who will wait for justice for an unknown period of time? And will they?
— You know, I’ve talked to lawyers who deal with crimes of sexual violence against women in the occupied territories. Monstrous crimes that have a terrible, unbearable impact on the victim’s entire life. All the lawyers say one thing: women instantly lose interest in investigation, documentation and interrogation when they realize that it will lead to nothing. When they realize that all of it will become a cold case gathering dust on a shelf, that much of it will never be investigated and the criminals will never be punished. But be that as it may, these are actions that need to be taken. It needs to be done no matter what! However slowly, however difficult, expensive and often ineffective. Doing nothing is even worse.