As atrocious images and news concerning mass graves and signs of civilian torture circulated the globe, efforts to document and prosecute war crimes in Ukraine reached a new level of urgency.
President Joe Biden began his week by calling for a war crimes trial against Russian President Vladimir Putin, though he stopped short of using the term “genocide.” That’s the appropriate take at this point, argues international law professor Mark Berlin.
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“It seems almost indisputably to be a war crime,” said Berlin of Marquette University. “The citizens who were bound are not a threat to military forces. Detaining them in the first place is unlawful, and once they’re detained, they aren’t a threat, so there’s no basis to commit violence against them. Killing civilians is a war crime.”
Images of mass civilian casualties have emerged from Bucha, a city outside the Ukrainian capital of Kyiv, sparking outrage across the world. The White House says it will announce a new round of Russian sanctions later this week, and the European Union will send investigators into Ukraine in order to help document potential war crimes there.
A man in a bright blue fleece was found hunched over the steering wheel of a crushed car at an intersection in the center of town, the New York Times reported. Another was found on his back on the side of the road with a single bullet through his head. His mangled green bicycle lay beside him. Several civilians had been stuffed into sewers, while others were found in mass graves.
Renewed allegations of war crimes came after multiple corpses were found with their wrists bound behind them and other signs of torture.
The evidence points to a number of crimes that could be prosecuted before the International Criminal Court, such as crimes against humanity. Proving that a genocide has taken place, on the other hand, is extremely difficult.
“What’s particularly special about genocide as a crime is that it requires a special kind of intent,” Berlin said. “It’s not enough to kill a lot of members of a minority group, there also has to be intent to destroy that group as a whole or part. There has to be intent to bring about the destruction of a group.”
White House national security adviser Jake Sullivan said Monday that the threshold has not yet been reached.
“Based on what we have seen before, we have seen atrocities, and we have seen war crimes,” he said. “We have not yet seen a level of systematic deprivation of life from the Ukrainian people to rise to the level of genocide.”
The federal government has set up a war crimes investigation unit, Sullivan added, and he named several other groups collecting evidence, including nongovernmental organizations and journalists that can counter any “relentless disinformation” emanating from Russia.
Berlin said the Biden administration is using reasonable caution in avoiding the term genocide so far due to the unique stigma and high legal threshold that must be crossed for it to come into play.
“Biden may have access to intelligence that we don’t have, but I don’t think it’s possible, based on what’s been reported publicly, to make a legal determination at this point,” he said. “I think caution is prudent in this scenario.”
The White House first began accusing Russia of committing war crimes in mid-March and has done so more frequently and in greater detail since.
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The process of prosecuting those crimes can happen in a few different ways but is most commonly handled via the International Criminal Court, headquartered in the Netherlands and operating under international law. It may be years before Russian commanders and generals face prosecution, much less Putin.
For example, the ICC only recently announced it was seeking arrest warrants related to Russia’s 2008 war against Georgia.
