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Can Russia be brought to justice for war crimes in Ukraine?

As more Russian troops withdraw, many more instances of appalling conduct – including torturing and killing civilians – may come to light

Paul Rogers author pic
Paul Rogers
9 April 2022, 12.00am

As Russian soldiers retreat, fire fighters in Borodyanka clear debris from collapsed buildings in search of bodies

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Jana Cavojska/SOPA Images/Sipa USA/Alamy

Something singularly unexpected happened in the war in Ukraine last weekend. After more than six weeks of artillery fire and missiles raining down on Kyiv, combined with slow ground encroachment by armour and infantry, Russian forces suddenly withdrew over 2-3 April. Their retreat was anything but orderly and left behind huge destruction, with ever more evidence emerging of troops torturing, raping and killing civilians.

The horror of it all was captured both on social media and by the Western mainstream media. Days later, on 5 April, Ukraine’s president, Volodymyr Zelenskyi, was forthright in his address to the UN Security Council: demanding the unequivocal condemnation of Russia, that the country’s leadership be brought to justice and that Western states provide far more support.

Arguably Zelenskyi’s most compelling point was that the Russians’ actions in Ukraine are unparalleled in the post-Second World War era – and the rest of the world should act accordingly. Except, this is not actually true.

The happenings in Ukraine have been truly appalling, but if there is any way that peace can eventually be restored and lessons learnt, we will have to face the uncomfortable truth: the main reason this war is causing such anger across the West is that it is being reported with a degree of detail far more substantial – and alongside images that are much more graphic – than in other wars.

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As I wrote last week, while many people across the Global South are deeply critical of Russia, they also do not hold NATO and the associated Western countries in high regard. Many see hypocrisy in Joe Biden’s comments on the standing of the liberal West in contrast to autocracies elsewhere, most notably Russia.

The wider reality of the terrible suffering in Ukraine is not that it is an unprecedently brutal war but that it is all too typical of the wars fought in recent decades. All the atrocities seen in Ukraine – wilful killing of civilians, hostage-taking, human shields, mass slaughter and more – have been carried out in other wars, often with intense loss of life, extending to the deaths of hundreds of thousands or even millions of people.

The Korean war (1950-53) and the French Indochina war (1946-54) are early examples, but there have since been terrible wars in Vietnam, Angola, Mozambique, the Caucasus, the Horn of Africa, twice in Afghanistan and, of course, in Syria, Iraq and Libya. This is not to mention the repeated violence and killings in many parts of Latin America.

Russia or the former Soviet Union have been involved in some of these wars, including Syria, Libya and Afghanistan, and the two brutal internal wars in Chechnya, as well as in repression in Czechoslovakia and Hungary. Some Western states, most notably the United States and Britain, have been involved in even more, and that is before we consider the many wars of decolonisation.

Decolonisation is an important factor in wars across the Global South and does much to explain the attitudes to former colonial masters. Recent research by historians repeatedly brings to light the violence of both colonisation and decolonisation, with the publication last month of Caroline Elkins’s monumental study, ‘Legacy of Violence: A History of the British Empire’, a vivid recent example that will shock many British readers.

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This still leaves us short of explaining the appalling behaviour of Russian troops and who should be held responsible, a theme I explored peripherally last week in highlighting elements of the Iraq War including the destruction of Fallujah and the old city of Mosul.

In the Iraq war, one particularly violent incident, when a US unit fought with insurgents, was witnessed and documented by experienced US war correspondent Tom Lassiter, who was at the time embedded with the US Army as it engaged in counter-insurgency operations outside Samarra, north of Baghdad. Reporting in the edition of the Houston Chronicle published on 19 February 2006, Lassiter wrote:

Staff Sgt. Cortez Powell looked at the shredded jaw of a dead man whom he’d shot in the face when insurgents ambushed an American patrol in a blind of reeds. Powell’s M4 assault rifle had jammed so he’d grabbed the pump-action shotgun he kept slung over his shoulders and pulled the trigger.

Five other soldiers from the 101st Airborne Division scrambled down, pulled two of the insurgents’ bodies from the reeds and dragged them through the mud.

‘Strap those mother-----s to the hood like a deer,’ said Staff Sgt. James Robinson, 25, of Hughes, Arkansas.

The soldiers heaved the two bodies into the hood of a Humvee and tied them down with a cord. The dead insurgents’ legs and arms flapped in the air as the Humvee rumbled along.

Iraqi families stood in front of the surrounding houses. They watched the corpses ride by and glared at the American soldiers.

For those glaring Iraqis, this was an act of wanton sadism by occupying invaders, perpetrated against brave young men fighting for Iraq’s freedom. It was no doubt one of the many examples of US military action that produced such hatred of the Western coalition forces during the war.

The American soldiers involved, on the other hand, felt they were fighting a war against a state they believed partly responsible for the 9/11 massacres. What’s more, they had found the fight far more difficult than expected and many of their comrades in arms had been killed or terribly injured by people who were out to kill them. Those men they had dragged out of the reeds were, in their eyes, terrorists – and the macabre parade might just make the Iraqis realise that this was how terrorists should be treated.

Were these soldiers wholly responsible for their actions? Similarly, were the US troops killing so many civilians in Fallujah and elsewhere responsible? Was it down to their field commanders? Or was it really the responsibility of President Bush, who, supported by Congress, had ordered the war in the first place? The answer is possibly all of the above, but then how is the responsibility shared?

It’s not just the United States either. Britain has been closely involved in the wars against al-Qaida, AQI in Iraq and, more recently ISIS. In recent months, the role of the UK in the bitter war in Yemen – which has already killed more than 377,000 people, including many thousands of civilians, and come close to wrecking an already poor country – has slowly come to the fore. This is in large part due to the work of Declassified UK, whose pioneering investigative reporting has exposed the close connections between the British Army, the RAF, British arms companies and the Saudi and Emirati armed forces.

After the war

Now, to return to the terrible happenings in Ukraine. According to Western intelligence reports, between seven and ten thousand Russian military personnel have been killed, and a further 20-30,000 wounded. These are huge losses for a force of 150,000. Meanwhile, Russia’s three elite formations, the two elite airborne divisions and the First Guards Army, have also taken significant casualties.

Many of the forces being withdrawn from Ukraine are in no condition to be redeployed and bringing in barely trained conscripts is of dubious value. So, with three-quarters of its available combat forces already committed to the war in Ukraine, the Kremlin is having to recall its troops from Syria, Libya, Abkhazia and South Ossetia, as well as bringing in Syrian mercenaries, Russian private military corporations, such as the Wagner Group, and fighters from Chechnya.

But integrating mercenaries into a regular army is not easy. The much-feared Chechens have already taken considerable losses and, like the Syrian mercenaries, were probably only numbered in the hundreds in the first place. Meanwhile, Western arms continue to be pumped into Ukraine and Ukrainian morale remains high.

Many of the forces being withdrawn from Ukraine are in no condition to be redeployed

We should not expect this war to end easily – as it drags on and Russian troops withdraw in defeat from large parts of northern Ukraine, many more instances of appalling conduct could come to light. What these soldiers are doing is utterly abhorrent but, as with the Americans in Iraq, there are other circumstances to consider.

Many of the Russian troops were misled into the war and then told repeatedly that the Ukrainians were neo-Nazis out to damage Russia. They found themselves in an unwinnable war, in which they were seeing their comrades killed and terribly injured in large numbers. For at least some of them, perhaps this presented grim opportunities to exact revenge. Are they wholly responsible, or are their superiors, or does the chain of responsibility go directly up to the Kremlin and Vladimir Putin?

Perhaps, when this war finally comes to an end, existing international legal instruments will be used to dispense justice. This is a great deal to ask for, given what is available – primarily limited to the International Criminal Court, which was set up under the Rome Statute of 2002. The court, which has 123 member states, is based in the Hague and is charged with “trying individuals for genocide, war crimes, crimes against humanity and aggression”. Its slow and exacting work has at least brought some significant war criminals to justice, not least those from former Yugoslavia. In the case of the Ukraine War, though, any proceedings will be made a lot more difficult because Russia has not ratified the Rome Statute and thus is not a member state. Nor, for that matter, is the United States.

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