The need for realistic expectations for justice in Ukraine
Ukraine has filed more than 80,000 cases of alleged war crimes since the Russian invasion. Yet, Iva Vukušić stresses the importance of realistic expectations, as only a minority of these cases will ever reach a courtroom.
Since the start of the full-scale Russian invasion on 24 February 2022, it has been truly remarkable to witness the passion and determination with which the Ukrainian authorities and civil society have been advocating for justice. It is a fitting, forceful response to the illegal act of aggression and the brutality of the litany of crimes perpetrated against Ukrainian citizens, civilian infrastructure, cultural heritage, and the environment. To date, Ukraine has registered over 80,000 cases of alleged war crimes,1 leaving no doubt that the path to justice will be long, winding, expensive and deeply frustrating.
With over a quarter of a century of experience in a situation quite akin to Ukraine’s, we have concrete lessons to learn from
We know from other contexts what justice for genocide, war crimes and crimes against humanity can achieve and which challenges emerge. One such example is the former Yugoslavia, where the war lasted for much of the 1990s and resulted in over 130,000 dead and missing. Much like in Ukraine today, murder, rape, arbitrary arrests, torture, and indiscriminate shelling of cities and towns were widespread. Those acts were not spontaneous incidents. For the most part, they were policy. Now, with over a quarter of a century of experience in a situation quite akin to Ukraine’s, we have concrete lessons to learn from.2
Not all cases will reach a courtroom
The main lesson for the pursuit of justice is to have realistic expectations. Not all 80,000 cases of the alleged crimes will reach a courtroom. And this dizzying number of cases will increase with each day the war rages on, making the task even harder. There is no legal system in the world that could cope with that burden as there are not enough investigators, prosecutors, courtrooms, or resources to handle it.
In fact, most of these investigations will never commence. Therefore, there must be a sound process of selection and prioritisation, and transparent criteria on which the decisions about which case to pursue and which to abandon will be based.3
So far, there have been few reports of potential war crimes allegedly perpetrated by Ukrainians against Russians forces.4 In any case, the allegations do not compare to the scale of Russian violations, which has been documented by numerous journalists, NGOs, open-source investigators, and various institutions (Ukrainian and foreign).
However, it is possible, and even likely, that some of the 80,000 cases also include allegations of crimes against, for example, Russian prisoners of war or civilians accused of collaboration with the occupying force. For the moment, we simply do not know the content of those files.
In the aftermath of the war, these cases – where Ukrainian soldiers may be suspects – will be difficult and politically sensitive to investigate for domestic authorities. They will struggle with political pressure and public expectations to punish those that citizens see as aggressors and not those considered liberators. It is, however, crucial for the credibility of the judicial system that Ukrainian prosecutors seek justice in those cases as well.
Trials will not always bring healing or closure
Another vital lesson is not to expect trials to bring reconciliation or heal the wounds of deeply traumatised people, some of whom face living the rest of their lives with their loved ones dead or disappeared, their pets killed, and their homes and livelihoods destroyed. Trials cannot do that, and more and more experts came to accept this sobering reality after the enthusiasm surrounding the early contemporary tribunals of the 1990s faded.5
Trials, on their own, bring no healing or closure to most survivors. They can assist the normalisation of inter-community relations, if combined with other policies, such as psycho-social support, reparations, and similar measures.
As the diplomatic, policy and academic circles debate the best paths forward, especially on the crime of aggression, which for complex legal and political reasons the International Criminal Court has no jurisdiction over, it is important to focus narrowly on the achievable and be consistent in communicating that to survivors. Concretely, that will mean explaining to the survivors and the public more broadly, in due course, how cases will be prioritised and making sure that complementary policies such as finding missing persons are pursued alongside prosecutions. It must be clear that, even in the best scenario, what we can expect in a decade or two are a few thousand cases completed, and likely not more.
One important and achievable goal is the collection and dissemination of court archives, when it is safe and possible to do so without jeopardising fair trial rights of the accused or the privacy of witnesses. These archives collected and created during war crimes trials are an immense source of knowledge about systems of perpetration and the suffering of thousands and thousands of victims.
As there cannot be a judgment in each individual case, these records can become an important pillar of post-war policy, from which history can be reconstructed, the memory of those killed kept alive, and denial of crimes countered with evidence and facts.6
Most of the work will have to be done by Ukraine
While there are numerous states and institutions supporting Ukraine in its pursuit of justice, including the International Criminal Court, it is obvious that most of the work will have to be done by Ukraine. That is what other situations have demonstrated as well; while others can and do help, the bulk of the responsibility – in the long term – is on domestic authorities.
As we have seen, Ukraine has already begun holding trials.7 It is now vital that justice efforts are well-coordinated, adequately funded, and that a solid, realistic long-term strategy is created for the victims and survivors. Only then we can hope that some justice will be delivered to some survivors, some of the time. That is, experience shows, all that we should dare hope for.
- 1Doug Cunningham, “Ukraine Official Tells U.S. Congress of 80,000 War Crimes Cases against Russia” UPI, April 19, 2023.
- 2Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia (New York: Oxford University Press, 2018).
- 3David Schwendiman, “Prosecuting Atrocity Crimes In National Courts: Looking Back On 2009 In Bosnia And Herzegovina", Northwestern Journal of International Human Rights, 8.
- 4Malachy Browne et al., “Videos Suggest Captive Russian Soldiers Were Killed at Close Range” The New York Times, November 20, 2022.
- 5Jennifer Trahan and Iva Vukušić, “The Legacy of the ICTY: The Three-Tiered Approach to Justice in Bosnia-Herzegovina and Benchmarks for Measuring Success” in Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach, ed. Carsten Stahn et al. (Oxford University Press, 2020).
- 6Iva Vukušić, “Archives of Mass Violence: Understanding and Using ICTY Trial Records”, Comparative Southeast European Studies 70, no. 4 (December 1, 2022): 585–607.
- 7“Map of War Crimes Trials in Ukraine”, JusticeInfo.Net (blog), December 6, 2022.