Why Ukraine’s War Crimes Indictments Face Great Odds

Evidence of apparent atrocities in Ukraine, with civilians executed on the outskirts of kyiv, is reminiscent of another European horror: the bloody Balkan wars of the 1990s and the sometimes arduous and time-consuming efforts to bring those responsible to justice.

In 1999, Slobodan Milosevic, the former president of Yugoslavia and architect of a decade of war that claimed more than 200,000 lives and tore the country apart, became the first sitting head of state to be charged with war crimes. Three years later, he became the first former head of state to be tried for genocide for the war in Bosnia and Herzegovina, as well as crimes against humanity and violations of the Geneva Conventions for the wars in Croatia and Kosovo. .

Reiterating the importance of the trial, Human Rights Watch, the advocacy group, observed in a 2006 report that bringing the former president before an international criminal tribunal “marked the end of the era of being a leader of State meant immunity from prosecution”.

Since then, he noted, other former heads of state, including former Liberian Prime Minister Charles Taylor and Iraqi leader Saddam Hussein, have been brought to justice.

Mr Taylor was sentenced to 50 years in prison for his role in atrocities committed during Sierra Leone’s civil war in the 1990s. Mr Hussein was found guilty in 2006 by a special Iraqi court for crimes against humanity for the brutal repression of a Shiite city in the 1980s and sentenced to death by hanging.

Mr. Milosevic died in his prison cell in The Hague in 2006, denying his victims the closure of a final judgment, but public disclosure of his heinous crimes was nevertheless an important moral and legal toll.

While the circumstances in Ukraine and the Balkan Wars differ in fundamental ways, including the scope and scale of the bloodshed, some parallels are obvious, including Russia’s obfuscation and denial. Faced with stark evidence that Ukrainian civilians in the suburb of Bucha, some with their hands tied, were killed by Russian soldiers, Moscow claimed it was a “hoax”.

Mr Milosevic, too, responded with a fanciful conspiracy theory when he was accused of complicity in the 1995 massacre in Srebrenica, Bosnia, in which some 8,000 Muslim men and boys were killed, many had their hands tied behind their backs. He said those really responsible for Europe’s worst bloodbath since World War II were French intelligence agents, Bosnian Muslim officials and mercenaries.

The wartime massacre of civilians in a Sarajevo market was not carried out by Serbs but staged by Muslims with bodies taken from a morgue, he claimed.

“It’s all lies,” he said at the start of his trial.

Whatever the echoes, the jurists say that holding the Kremlin to account would be much more difficult than it was with Mr. Milosevic.

First, no sitting president has ever been handed over to an international tribunal. While President Vladimir V. Putin enjoys significant public support and leads a nuclear power, Mr Milosevic had already been ousted from power when he was sent to The Hague in June 2001.

And Russia is not Serbia.

Mr. Putin is an authoritarian leader with a virulent antagonism towards the West and its legal structures.

The Serbian Prime Minister in power when Mr Milosevic was put on trial, Zoran Djindjic, was eager for a rapprochement with the West, as $30 billion in foreign aid to rebuild Serbia’s devastated economy was stake.

Moreover, the burden of proof for war crimes is very high.

Even with the reluctant cooperation of the Serbian government after Mr. Djindjic’s assassination in 2003, the task was difficult due to Mr. Milosevic’s obstructionism. A provocateur, Mr Milosevic, refused to recognize the UN war crimes tribunal, lied, went into hiding and called in sick when insider witnesses materialized.

War crimes prosecutors are sometimes blessed with real-time evidence of atrocities, but they always face enormous challenges. Many dots need to be connected.

In Mr. Putin’s case, prosecutors would have to show that he issued specific orders that led to specific atrocities or that he knew about the crimes or did nothing to prevent them. Prosecutors would also have to show that Russian commanders intentionally targeted civilian structures or struck them in attacks that did not distinguish between civilian and military targets.

Experts say the International Criminal Court in The Hague offers the best chance for real Russian accountability. It was established in 1998 after separate United Nations tribunals that prosecuted mass atrocities in Rwanda and the former Yugoslavia demonstrated the need for a permanent judicial body to deal with such cases.

The United States is not one of the 123 member countries of the tribunal in The Hague, and Mr. Putin recently asked his government to withdraw from the treaty that created the tribunal. His government called the court “inefficient and biased”.

By contrast, the tribunal that tried Mr. Milosevic was established by the United Nations Security Council in 1993 to track down and punish those responsible for the horrific violence against civilians during the breakup of Yugoslavia. As such, he had some political muscle behind him.

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