CONTENT WARNING

By Andrew Fu

Prior to Russia’s invasion of Ukraine earlier this year, the city of Bucha had maintained a thoroughly unremarkable existence. Yet the city, situated on the eastern outskirts of Kyiv, lay squarely in the path of Russian forces charged with taking the Ukrainian capital in the opening days of war. Russian forces first entered Bucha on the 27th of February, just three days after the beginning of the invasion.[1] The city, along with the nearby towns of Hostomel and Irpin, would see ferocious fighting take place in an urban environment still densely populated with Ukrainian civilians.

A month later and the invasion had stalled. Russian supply lines had fallen to pieces.[2] Many of their best regiments had been shattered in the initial advance. With Kyiv remaining safely in Ukrainian hands, Russian forces withdrew from Bucha in early April and the Ukrainians quickly reoccupied the city. Almost immediately, news began to filter through of a massacre.

Civilians had reportedly been shot on sight, some as they attempted to flee the invasion, others as they continued with their daily lives.[3] Then came horrifically graphic images and videos: one showed a row of bodies with their hands bound, lying dead in the street, seemingly executed with shots to the head. Another showed a woman sat slumped in a car riddled with bullets. Most had been left in the street as they fell for a month until Russian forces retreated. Perhaps the most gruesome charge is the alleged use of a summer children’s camp by Russian forces to torture and then execute five Ukrainian men.[4] All told, it appears that over 1,000 civilians were killed in the greater Bucha region during the month of Russian occupation.[5]

Predictably, Russia have denied involvement in the killings, claiming they were staged by Ukrainian forces.[6] However, analysis of satellite imagery has confirmed that many of the bodies appeared during the Russian occupation.[7] Reuters have even identified several of the Russian formations that saw action or were stationed in Bucha at the time of the killings, including regiments of the 76th Guards Air Assault Division (which by an unhappy coincidence is also accused of having committed war crimes during the Second Chechen War).[8] Also present were elements of the Rosgvardiya, a paramilitary security force intended to secure the Russian army’s rear areas, and Chechens volunteered by Ramzan Kadyrov, the despot who leads the Chechen Republic and Putin arch-loyalist.[9]

THE PLIGHT OF UKRAINIAN CIVILIANS

Bucha has become to this war what Mỹ Lai was to Vietnam, but it is just the tip of the iceberg. The liberation of Izium just a few weeks ago, and the stories that have emerged, suggests that other occupied cities and towns have shared Bucha’s fate.[10] The allegations extend beyond murder; the arbitrary detention, torture and general abuse of civilians has been widely reported throughout areas behind Russian lines.[11] Ukrainian officials have reported at least ten torture chambers in Izium alone, and at least one survivor from the town has attested to the use of electrocution as a means of torture.[12] Prominent local politicians and officials who do not cooperate have often been forcibly disappeared as Russia asserts its control.[13]

The indiscriminate methods used by the Russian military have also had been responsible for many civilian casualties. Cluster bombs have become especially notorious, with some notable incidents of their use being captured on social media. [14] These bombs break apart in mid-air to release dozens of smaller bombs, “bomblets”, over a wide area. In the urban centres that have been the focus of much of the fighting it is impossible to use such munitions in a way that discriminates between combatants and civilians. They have proven deadly to innocent civilians far removed from the actual combat. The use of cluster munitions is reflective of the overall disregard Russian forces have for civilians in the deployment of heavy fire support systems. In fact, the Office of the UN High Commissioner for Human Rights has found that most civilian casualties in the conflict so far have been caused by Russian artillery, air attacks and rocket strikes.[15]

THE LAWS OF WAR

The conduct of parties to an armed conflict such as the one in Ukraine is governed by international humanitarian law, more commonly known as the laws of war. Supposedly states themselves will police the conduct of their soldiers and prosecute any breaches of the laws of war. The reality is that this rarely ever happens. It often falls to international tribunals such as the International Criminal Court (ICC) to prosecute the most serious breaches of the laws of war, which are properly referred to as war crimes.

The violence visited upon Ukrainian civilians means that Russian forces are potentially criminally responsible for a whole host of war crimes under the Rome Statute, the treaty establishing the ICC.[16] Obviously, those soldiers who were directly responsible for war crimes perpetrated in Ukraine may be held accountable. Ukrainian authorities have already taken some matters into their own hands: a captured sergeant from the elite 4th Guards Tank Division became the first Russian soldier convicted for war crimes committed during the conflict. He had shot and killed an unarmed civilian as he and his fellow tankers retreated from the village of Chupakhivka.[17]

Senior commanders and even political leaders can also be held responsible for failing to act to prevent war crimes committed by subordinates, under the doctrine of command responsibility.[18]  It is fairly uncontroversial that leaders that have ordered the commission of crimes may be held liable, but command responsibility casts a far wider net. It allows for the prosecution of those with authority over the actual perpetrators of the crime to be prosecuted for failing to intervene when they can and should have done so. This makes it possible to hold not just soldiers or junior officers to account, but also generals, political leaders, and even heads of state: legal figures have already invoked the doctrine to argue that Putin even could be liable for specific war crimes committed in Ukraine.

THE LIKELIHOOD OF SUCCESSFUL PROSECUTIONS

Barring the total collapse of Putin’s regime, it is unlikely that alleged Russian war criminals will ever be brought to trial. The unfortunate reality is that the soldiers allegedly responsible for the crimes in Bucha and beyond either sit behind Russian lines or are already dead. In practice, the ICC is limited by the fact that it can only try those suspects who are under the control of a State who is willing to hand them over to the Court for trial. It is inconceivable that Russia would do so anytime soon. As for prosecuting senior Russian officers, politicians or even Putin himself, the same applies. And although the ICC has already opened an investigation into Ukraine, the court’s requirement that crimes be of sufficient “gravity” means that only the most serious crimes will go before it.[19] Ukraine plans on conducting dozens more prosecutions concerning individual crimes and killings but gathering evidence in the midst of a raging war is difficult, even with foreign and ICC support.[20] The aforementioned example of the Russian tanker is probably the only way in which war criminals can currently be brought to account: if they are captured in battle and then identified.

The reality is grim. Avenues for accountability are predictably flimsy, and the situation is unlikely to improve. Recent weeks have seen Putin announce a part-mobilisation, with the rapid conscription of undisciplined, untrained civilians into a depleted Russian army, including convicted criminals. Wagner mercenaries, notorious for their brutality in Syria, are known to be operating in Ukraine. All the while, Russia has shown no interest whatsoever in curbing the excesses of its troops and allies. For Ukraine, justice will have to be done on the battlefield.

[1] “Ukraine: Russian Forces’ Trail of Death in Bucha” (21 April 2022) Human Rights Watch <www.hrw.org>.

[2] Jack Watling and Nick Reynolds Operation Z: The Death Throes of an Imperial Delusion (Royal United Services Institute, 22 April 2022) at 4.

[3] Joel Gunter “Bucha killings: ‘I wish they had killed me too’” BBC News (online ed, United Kingdom, 6 April 2022).

[4] Sarah Rainsford “Ukraine: The children's camp that became an execution ground” BBC News (online ed, United Kingdom, 16 May 2022).

[5] Rainsford, above n 4.

[6] “Russian War Report: Kremlin claims Bucha massacre was staged by Ukraine” (4 April 2022) Atlantic Council <www.atlanticcouncil.org>.

[7] “Bucha killings: Satellite image of bodies site contradicts Russian claims” BBC News (online ed, United Kingdom, 11 April 2022).

[8] Mari Saito “The Bucha Brigades” Reuters (online ed, United Kingdom, 5 May 2022).

[9] Saito, above n 9.

[10] Luke Harding “Izium: after Russian retreat, horrors of Russian occupation are revealed” The Guardian (online ed, United Kingdom, 17 September 2022).

[11] “Ukraine: Torture, Disappearances in Occupied South” (22 July 2022) Human Rights Watch <www.hrw.org>.

[12] Harding, above n 11.

[13] “Mayor of Kherson Kidnapped by Russian Forces“ Kyiv Post (online ed, Kyiv, 28 June 2022).

[14] Lorenzo Tondo “Russia using cluster bombs to kill Ukrainian civilians, analysis suggests” The Guardian (online ed, United Kingdom, 21 April 2022).

[15] “Ukraine: civilian casualty update 5 September 2022” (5 September 2022) Office of the High Commissioner for Human Rights <www.ohchr.org>.

[16] Rome Statute of the International Criminal Court 2187 UNTS 3 (opened for signature 17 July 1998, entered into force 1 July 2002).

[17] Emma Graham-Harrison “Russian soldier pleads guilty in first Ukraine war crimes trial since invasion” The Guardian (online ed, United Kingdom, 18 May 2022).

[18] Serina Sandhu “Putin bears ‘command responsibility’ for war crimes in Ukraine, says human rights QC Geoffrey Robertson” i (onlined ed, United Kingdom, 10 March 2022).

[19] Rome Statute of the International Criminal Court, above n 18, at art 17.

[20] “Ukraine probing almost 26,000 suspected war crimes cases” Reuters (online ed, United Kingdom, 8 August 2022).

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