Ukraine is a Turning Point for International Justice

Sir Geoffrey Nice

Barrister

Tuesday, 16 August, 2022

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The issue of war crimes in Ukraine is of the gravest importance.
 
Not only is this the biggest conflict in Europe since WWII, with extraordinary suffering broadcast daily on our television screens for the past six months.
 
But the conflict will also have long-reaching implications depending on its resolution.

We may map a way forward whereby we will stop people like Russian President Vladimir Putin doing the same thing again. Or if we fail, this could be a major milestone on a road to further disaster.
 
The people of Ukraine, for what they have and are enduring, may wish for revenge. But that not just unlikely to be achievable, but also a deviation from the peaceful and democratic pathway the country wants and needs.
 
Ensuring long-term justice is essential. But, of course, the perception of what this may entail varies widely.
 
International justice is a work in progress, thus far realised only recently, selectively and it has to be said, unsatisfactorily. So realism, here too, is advised.
 
The concept of international humanitarian law emerged in the last quarter of the nineteenth century, with the Geneva and Hague Conventions. There were a few war crimes trials after the WWI, and then most successfully perhaps after WWII at Nuremberg.
 
Since then, we have had the Yugoslav court, started in 1993, and Rwanda in 1994, which were regarded as experimental. The International Criminal Court (ICC), intended as the permanent court for war crimes, was created in 2002. But it is a complementary not comprehensive court, and not all states have signed up, including Russia, the US and as it happens – despite enabling jurisdiction – still not Ukraine.
 
Even what people want by justice remains itself in the process of exploration. Traumatised victims may want everyone tried and possibly executed. But what is correct and what is achievable should be our starting point.
 
The main lesson I have taken away from my extensive involvement in the former Yugoslavia, including heading up the prosecution against ex-Serbian President Slobodan Milosevic, is the importance of focusing on the leadership.

If you ask most people what they mean by justice – in a situation where soldiers are led into doing terrible things by the authorities – they will say that the most important aspect is to bring that leadership to account.
 
It is a huge challenge, but it is vital that emphasis is given to recording accountability against the leadership. If that happens, I believe it will be easier, on the basis of experience of other countries, for a nation to discuss, investigate, prosecute and move forward satisfactorily. 
 
Speed is also of the essence. It is a fact that justice is slow, expensive and frustrating. But in a digital age, it is time to not waste endless time – and lawyer’s fees – litigating plain facts which are already exceptionally well documented.
 
It is essential to ensure that evidence is gathered and properly recorded so that it can withstand scrutiny if produced in court. IWPR, with many other groups, are working on just this. But when a citizen has clear evidence – including mobile phone footage – it should be accepted. We have to avoid procedural rules that destroy the confidence of evidence beyond what is reasonable.
 
This brings us to the role of journalists, which is critical. They have an extremely important part to play in two areas. The first is in collecting information about war crimes and in seeking to link those crimes up the chain of command. This is a difficult but key task.
 
Superb reporting by The New York Times in the days after the 1995 massacre at Srebrenica substantially got the story right, so was there really a need for a court to expend two decades of such effort, essentially only to confirm the same facts?
 
The second is in focused reporting on court and justice processes. The devil is in the detail, however drawn out and arcane, so consistently pursuing an extended trial is important to facilitate public understanding of its result. But the media also has the essential role of holding courts and other processes to account. Justice itself deserves to be tested and questioned – appropriately and legally – and media’s role is essential here.
 
Another lesson is that the process must be largely driven by the country impacted. This is not one-sided or biased justice. It is simply justice. Ukraine is a sovereign state and - with the appropriate assistance it has called for – has every right to hold people to account for crimes carried out on its territory.
  
As for any potential case against Putin, the evidence is overwhelming. In terms of command responsibility, from the second day of the war onwards he cannot deny knowledge of the targeting of civilian locations, due to the simple fact that he has access to a television. He has done nothing to stop, indeed has only encouraged, continuing violations of international law right across the territory of Ukraine.
 
Whether this reaches the level of genocide is an important but challenging question. I would be inclined to pursue crimes against humanity as a more than adequate charge and one more readily provable without having to reach to the complex issue and requirement for further proof of intent.
 
Finally, reparations may be possible and buildings rebuilt, but nothing can bring back the dead. Sadly, the real value of justice is not just closure but the future. After such tragedy, accountably for the leadership of the current war is our best chance of avoiding the next one.

British barrister and former part-time judge Sir Geoffrey Nice QC was the lead prosecutor in the trial of Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia. He has also participated in numerous civil society justice initiatives around the world. He is visiting Ukraine as part of IWPR's Ukraine Voices project, supported by the UK's Foreign, Commonwealth and Development Office.