Artículo World Politics Review, 04.04.2022 Erica Gaston, abogada, asesora (UN University Center for Policy Research) y académica (Carnegie Endowment for International Peace-Global Public Policy institute)
Last week, United Nations human rights chief Michelle Bachelet warned that Russia may have committed war crimes in Ukraine, pointing to credible evidence that it had used cluster munitions in populated areas as well as other indiscriminate attacks. Her warning took on even more resonance over the weekend, when reports emerged of Russian forces having committed summary executions of civilian men in the Ukrainian town of Bucha.
Bachelet’s denunciation, combined with the outpouring of outrage over Bucha, is likely to renew enthusiasm for a future war crimes tribunal to hold Russia accountable. But apart from inspiring dreams of a far-off and for now unlikely formal criminal prosecution, the sort of documentation and public accountability Bachelet is engaging in has an even more important role to play in immediate conflict mitigation and, potentially, resolution.
In her report to the U.N. Human Rights Council, Bachelet said that just over 3,000 civilian casualties had already been confirmed in Ukraine in the past five weeks. The real numbers are likely much higher, she warned. Local estimates suggest as many as 5,000 civilians were killed in Mariupol alone in the past month, but these could not be confirmed by U.N. monitors due to lack of access to the besieged city.
Civilian deaths during wartime, while always tragic, are not per se a war crime. Under the Geneva Conventions and customary law, warring parties must take steps to distinguish between combatants and civilians, and take due precautions to avoid civilian harm. In cases where attacks aimed at military targets nonetheless cause civilian harm, that harm should not be excessive. Thus, disproportionate collateral damage to civilian lives or property would be considered a war crime. Hospitals, schools, places of worship, cultural sites and other infrastructure critical for civilian life support have a special protected status.
Russia’s attacks have brazenly flouted such rules, which is why Bachelet’s statement focused on allegations of Russian war crimes, while also noting concerns about Ukrainian treatment of prisoners of war. Russian aircraft and artillery have barraged civilian homes and apartment blocks. They have appeared to directly target hospitals and schools, and have decimated critical infrastructure, such as water and electricity stations. Eyewitness accounts have even described what appeared to be the deliberate targeting of civilians, including fleeing refugees.
Bachelet also singled out Russia’s repeated use of cluster munitions in populated areas—at least 24 times, by the monitoring team’s count. Cluster munitions are a type of weapon that disperses hundreds or even thousands of tiny, unguided bomblets over a wide area, typically the size of a football field. When deployed over a densely populated, civilian area, they are almost definitionally indiscriminate, and were therefore banned under the 2008 Convention on Cluster Munitions. Russia, Ukraine and also notably the United States are not party to that treaty, but it was so widely and rapidly adopted—so far by 110 states—that many now consider it part of customary international law and binding on all states.
Bachelet’s statement comes amid a flurry of documentation and condemnation of civilian harm and war crimes in Ukraine from independent monitors, state bodies and political figures, including U.S. President Joe Biden on numerous occasions. Her comments will likely fuel the ongoing fervor surrounding the creation of a special or hybrid war crimes tribunal, potential International Criminal Court prosecution and other routes for holding Russia criminally liable for its aggression in Ukraine.
But before getting carried away by the siren call of international justice, it is important to focus on the immediate role such declarations and findings play. Historically, war crimes tribunals have been slow to set up and limited in their jurisdiction and writ. Most of the time, they do not happen at all. That is the most likely outcome with regard to Russian actions in Ukraine, given the jurisdictional limitations of the current options and the Moscow’s geopolitical weight.
However, documentation and evidence have an even more critical role to play as a tool of conflict mitigation and prevention, and potentially even as a pathway to peace. So far, U.N. intervention in Ukraine has largely been sidelined. In early March, U.N. General Assembly members voted overwhelmingly in favor of a symbolic resolution calling for Russian withdrawal. U.N. Secretary-General Antonio Guterres has also become increasingly vocal about the situation, most recently denouncing the Russian campaign as “morally unacceptable, politically indefensible and militarily nonsensical.” He even used his “good offices” authority to appoint a humanitarian cease-fire negotiator this week. But the larger scope of U.N. intervention in the form of binding sanctions or assertive peacekeeping or mediation options are blocked by Russia’s Security Council veto.
That being said, while the U.N.’s peace and security mandate tends to garner the most attention, its other prevention and protection responsibilities are equally important. These are often managed through lower-level processes like on-the-ground monitoring missions ; closed-door negotiations with warring parties on avoiding harm or ensuring humanitarian space; and regular reporting and accountability cycles, such as last week’s Human Rights Council meeting. The data and information collected by these efforts may not meet the burden of proof of a formal tribunal, but they create a record of public accountability—and in real-time. Such public exercises in “naming and shaming,” as it is often termed, offer the chance of limiting future harm, and in some situations can create opportunities for conflict resolution and deescalation.
The full impact of these measures depends, of course, on whether warring parties are susceptible to such pressure tactics. How much Russian leaders and forces will be persuaded to change their indiscriminate tactics remains to be seen. Ironically, Russia could be considered among the founders of the laws of war, historically speaking. Russian military officials pushed for some of the early restrictions on inhumane and indiscriminate weapons of war and helped to craft the modern body of international humanitarian law. Yet Russia’s recent record on compliance with these laws—in Syria, in Chechnya and in other more shadowy endeavors in West Africa—has been far from sterling. Moreover, with public pressure muted by media restrictions at home and signs that even President Vladimir Putin is not getting a full picture of the war, the full effect of public condemnation and critiques may be blunted.
Yet the war of words and jockeying for control of the information space has been a substantial part of the Ukraine conflict so far. Both sides have expended energy trying to control the public narrative. As Russia moves to salvage an increasingly costly situation, it may also try to salvage its reputation on the civilian harm front. Given this, even if public critiques and evidence of war crimes do not fully shift Russian tactics, they might make Russian forces think twice before another egregious strike on a maternity ward or hospital, or make them halt the decimation of at least some residential areas in cities under siege.
Such savings, even if only in a few cities and a select number of instances, will likely be of greater value to the population of Ukraine than the findings of a panel of judges decades from now. Such subtle shifts might even begin to create a pathway for a humanitarian cease-fire that would actually stick. And that, in turn, could build trust and engender incremental progress in negotiation that might eventually lead to conflict resolution.
In an interview this week with the Economist, Ukrainian President Volodymyr Zelenskyy offered a surprising response to a question about how he defined a Ukrainian victory, which he argued was inevitable. “Victory is being able to save as many lives as possible,” he said. That is what investigations and documentation like Bachelet’s are really about. Accountability for war crimes is important, but the greater victory would be in preventing more of them from taking place.
