Following the conclusion of a preliminary investigation that has taken more than six years to complete, the International Criminal Court’s chief prosecutor said on December 11 that there is enough evidence for the court to open a full investigation into alleged war crimes and crimes against humanity perpetrated throughout the course of the war in eastern Ukraine.
The court’s chief prosecutor, Fatou Bensouda, noted that the preliminary investigation, which began on April 24, 2014, was thorough, independent, and had found enough evidence for the court to open a full investigation. “My office has concluded that there is a reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the court have been committed in the context of the situation in Ukraine,” Ms. Bensouda said in her statement, referring to the ongoing war in eastern Ukraine that has now claimed more than 13,000 lives since the conflict began in 2014.
The prosecutor’s statement also noted that the preliminary investigation determined that there are three broad categories of potential criminality: “crimes committed in the context of the conduct of hostilities, crimes committed during detentions, and crimes committed in Crimea,” which Russia annexed in 2014.
Ms. Bensouda also said that the next step in the process is to request authorization from the judges of the pre-trail chamber of the ICC to formally open a full investigation. It is not currently known when that step will occur, and the prosecutor noted that the court is “gripped by operational challenges brought on by the COVID-19 pandemic, on the one hand, and by the limitations of our operational capacity due to thin and overextended resources, on the other.”
Despite the challenges the court faces in conducting a full investigation of alleged war crimes perpetrated in eastern Ukraine, Ms. Bensouda called on Russia to cooperate with the probe. “And as we look ahead to future investigations in the independent and impartial exercise of our mandate,” the prosecutor said in her statement, “I also look forward to a constructive and collaborative exchange with the government of Ukraine and, it is my hope, with the government of the Russian Federation, to determine how justice may best be served under the shared framework of complementary domestic and international action.”
Sadly, we are not as hopeful of Russia’s cooperation with a future full investigation conducted by the ICC into crimes against humanity and war crimes committed during the war in eastern Ukraine. We are, however, encouraged that Ms. Bensouda’s office has found enough evidence to warrant a full investigation. Whether or not the Russian government decides to cooperate – and we are most certainly under no illusions that it will – justice must be served and the perpetrators of war crimes and crimes against humanity must be held accountable.
“The day will come when Russian criminals will certainly appear before the court,” Ukraine’s Foreign Minister, Dmytro Kuleba, wrote on Twitter after learning of Ms. Bensouda’s call for a full investigation, adding that “international justice is not quick, but inevitable.”
We agree with Mr. Kuleba that this is a “historic decision” by the ICC, but we caution against complacency. Despite the significant hurdles of completing a thorough investigation amid limited resources and the COVID-19 pandemic, we urge the ICC to complete a full investigation of the matter and bring the perpetrators of war crimes and crimes against humanity in Ukraine to justice.