Russia’s shocking war crimes in the towns of Bucha and Borodyanka must be punished. Unarmed prisoners were executed in cold blood, whether civilians or suspected Ukrainian defenders. Some were gruesomely tortured or raped. Defenceless civilians were murdered by snipers or ripped apart by tank shells, including when fleeing or searching for food or water. All of this follows a month of deliberate or indiscriminate Russian attacks on civilians elsewhere.
The Australian government is right to call these war crimes. They could also be crimes against humanity, which involve a widespread or systematic attack on the civilian population. They are unlikely to be genocide, as Ukrainian President Volodymyr Zelensky claims, since this requires the deliberate physical extermination of Ukraine’s people because of their nationality. Russia’s attacks instead seem intended to terrorise civilians, punish Ukraine’s resistance, eliminate non-existent “Nazis”, or inflict gratuitous or vengeful violence.
Ukrainian servicemen check for booby traps in bodies, homes and abandoned equipment after Russian forces attacked the Kyiv suburb of Bucha.Credit:AP
It matters little if these crimes are not genocide. War crimes and crimes against humanity are also grave international crimes, condemned by the whole world, and like genocide they can be punished with up to life imprisonment. Every country has the right of universal jurisdiction under international law to prosecute them, even when they occur in other countries.
Already, there are many legal processes under way to bring perpetrators to justice. Investigations are being conducted by prosecutors from Ukraine, many European countries, and the International Criminal Court. Evidence is also being documented by a United Nations Human Rights Council inquiry, as part of a European Court of Human Rights case, and many expert NGOs.
Australia could do six things right now to contribute to justice and accountability. First, it should provide full support to prosecutors from Ukraine and the International Criminal Court. This could include long-term funding — to sustain complex and expensive investigations and prosecutions which will take many years — and technical expertise, such as investigators, forensic specialists and lawyers.
Australia sent hundreds of federal police to assist Ukraine to investigate the shooting down of MH17 in 2014. Australia should also work with its Five Eyes partners to share as much intelligence as possible which may have evidentiary value in criminal trials.
In Lvic, people light candles as they hold a vigil for those killed in Bucha.Credit:Getty
Secondly, Australia should consider ways to prosecute Russian President Vladimir Putin for starting the war in the first place. Aggression – invading another country – is already an international crime, but in this situation, the International Court has not been given the power to prosecute it.
The Security Council will not refer the case for prosecution because of Russia’s veto. One option is to pursue legal reform to allow the General Assembly to refer the case to the court. Another is for a coalition of countries to establish a special tribunal to prosecute aggression, as the allies did after World War II through the Nuremberg and Tokyo military tribunals.
Thirdly, Australia should join with other countries to dial up sanctions on Russia. Western sanctions still have too many self-serving loopholes, and Russia will continue to weather the storm without tougher measures. Australia should also pressure those countries that have been soft on Russia — not only China but huge democracies like India, Bangladesh and Pakistan.
Fourthly, Australia should ensure that justice is blind, not partisan, in all accountability efforts. Attention is rightly focused on the magnitude of Russian crimes. Yet, there is some evidence of Ukrainian war crimes, too, including torturing Russian prisoners and using banned poison.
Fifthly, Australia should put in place its own systematic structures to address international crimes. Australian law already comprehensively enables international crimes to be prosecuted. But there has not been one successful prosecution of an international crime since 1950 – over 70 years ago – when the last post-war trials of Japanese prisoners concluded.
The Australian Federal Police needs a dedicated, permanent, international crimes unit, with the resources and expertise to swiftly investigate allegations and arrest suspects here. One existed for only briefly from 1987 to 1994. Many other democracies have them.
One is sorely needed here. The AFP has botched investigations over the years, from failing to promptly pursue the killers of the Balibo Five journalists in East Timor, to most recently mishandling allegations against a visiting retired Sri Lankan army general.
Allegations of Australian war crimes in East Timor in 1999 and later in Afghanistan also underscore the need for a more structured approach to accountability, rather than ad hoc responses.
A special unit could also work with NGOs and civil society to elicit information about suspects present in Australia or intending to visit. The famous Simon Wiesenthal Centre historically helped to hunt down many Nazis after World War II for prosecution. International crimes are being committed all over the world, as in Myanmar, Syria, Yemen, Ethiopia, Congo, Somalia, and Nigeria. Not only Europeans deserve our efforts for justice.
Finally, Australia should establish an ambassador for international justice, modelled on the US ambassador for war crimes, to promote international co-operation on accountability.
Australia already has thematic ambassadors on issues such as counter-terrorism, human trafficking, the environment and women and girls. Such an office would demonstrate Australia’s leadership on international justice, and its solemn commitment that atrocities against fellow human beings anywhere in the world should never go unpunished.
Ben Saul is Challis Chair of International Law at the University of Sydney and an associate fellow of Chatham House in London.
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