Dr. John Cencich, former senior international war crimes investigator for the United Nations International Criminal Tribunal for the former Yugoslavia in The Hague and a professor at the University of California, Pennsylvania, discusses war crimes in Ukraine and of the possibility of piercing the military veil to extend the range of potential criminal liability of an aggressor…
The Russian invasion of Ukraine comes with calls for war crimes investigations and prosecutions, and rightly so. Many discussions revolve around whether war crimes, crimes against humanity or genocide have been committed, who can be prosecuted and which venue will best serve the Ukrainian people and the interests of justice.
As a former senior international war crimes investigator for the United Nations, I know how to investigate crimes committed on the ground and work these cases to the top, holding accountable those most responsible for the worst. crimes. This is precisely what we have done successfully at the United Nations International Criminal Tribunal for the former Yugoslavia (“ICTY”). Through my experiences, I argue that the combatants involved in the initial aggression in Ukraine, as well as their military and political leaders who may ultimately be accused of atrocities, should be stripped of certain affirmative defenses that legitimate combatants are usually masked with.
To begin the investigation, one of the initial phases of a war crimes investigation is to establish the so-called basis of the crime. This means determining what crimes under international law have been committed, such as murder, rape and torture, and identifying the perpetrators as well as their organizational units and chains of command. In this case, the focus will likely be on regular Russian armed forces, including naval infantry (Marines) and Spetsnaz (special operations); the Federal Security Service or FSB; and foreign mercenaries.
And it’s at ground level, places like Bucha and Makariv, where the world began to see images of bound victims being shot and killed; murdered innocent women, children and elderly; and reported cases of torture and sexual assault. An appalling pattern of attacks on hospitals and other civilian property has also emerged. These are heinous crimes that have been perpetrated not only against the Ukrainian people, but against all of humanity.
As for the murderous bombardment of the market in Sarajevo in 1995, we also saw the horrors of the strike against the Kramatorsk train station where Russian forces reportedly used a short-range ballistic missile, killing more than 50 civilians and injuring hundreds of others who sought to flee the war. In a CNN reportPresident Zelensky, referring to this attack, says, “every effort in the world” will be directed to establish minute by minute “who did what, who gave orders, where the rocket came from, who was carrying it, who gave the order and how to hit it has been coordinated.
“Responsibility is inevitable,” he said.
These are war crimes. Yet, in seeking to hold the perpetrators accountable, war crimes investigators will strive to confirm that there were no legitimate military targets near the killings. Past experience shows that the accused will often claim that the attacked infrastructure housed military equipment or was perhaps mistakenly considered a legitimate military target. In both defense scenarios, the tragic but legitimate realities of collateral damage come to the fore. Following this line of defence, the accused can admit to having had knowledge of the presence of civilians before the attack and remain immune from conviction because of the military nature of the target as long as the number of civilians killed n was not disproportionate to the overall military objective. .
However, I submit that this apology – in the circumstances of this conflict – is irrelevant. This is because the original aggressors have lost their ability to successfully assert such defenses. It’s like the armed robber who shoots and kills a security guard in the bank in response to the officer firing his gun at the offender. The thief is the initial aggressor. He cannot claim self-defense. Nor can the invading aggressors in Ukraine properly assert military necessity or collateral damage. This simple analogy turns into a much more complex analysis of the prosecution theory of joint criminal enterprise (“JCE”), which we have established as one of the primary modes of individual criminal liability at the ICTY. It should serve to bar traditional military defenses for alleged war crimes.
For crimes against humanity, there is no defense of military necessity or collateral damage. Even traditional defenses in criminal law, such as mistake of fact and self-defence, are not available to actors engaged in criminal activity. I supported this by conducting the investigation against Slobodan Milosevic for the atrocities committed in Croatia, and I do so again today. For example, how could a court determine that a JCE involving a crime against humanity, such as deportation or forcible transfer, has been proven beyond a reasonable doubt, that the accused knowingly participated in the ‘ECC, but that he was nonetheless entitled to an override of a defense that he believed the civilian casualties were actually enemy combatants, or that they were collateral damage from an attack on a target legit military?
To claim that such defenses are available in a genocide case is even more absurd.
As for the crime of aggression, there are politicians and legal experts who argue that this offense took place against Ukraine from the very beginning of the invasion. I agree. Indeed, all the prohibitions on the use of force against a Member State set out in the Charter of the United Nations have been violated in this case. Unfortunately, while the International Criminal Court (“ICC”) ends up being the primary venue for war crimes, it has no jurisdiction over the crime of aggression in Ukraine, despite the fact that the crime has likely been committed. This is because Ukraine is not an ICC member state.
Nevertheless, there are calls for a Nuremberg-style tribunal. That sounds powerful, but by almost all accounts, what resulted after World War II was the dispensation of some form of “victor’s justice”. While 20 other Allied states ratified the London Accord, the prosecutors and judges were nationals of the states that won the war: the Soviets, Americans, British and French.
Ukraine certainly has the right to prosecute crimes that occurred on its territory, but I submit that if there is to be international prosecution in some form or another, the best forum for justice, including the guarantee fair trials for all defendants, is the ICC. Indeed, Karim AA Khan, the Attorney General of the ICC announced that it was opening an investigation in the situation in Ukraine, which has twice recognized the criminal jurisdiction of the ICC, except for the crime of aggression. He also clarified that by doing so, his office will investigate all war crimes allegations, regardless of the actor’s nationality. It is equal protection under the law as it should be.
But regardless of venue, what is not equal – and should not be – is the cloak of legitimate combatant immunity and associated defenses generally granted to authorized belligerents for acts taking place in the context of an armed conflict. For all intents and purposes, Ukrainian fighters remain protected by such a shield. As for the initial aggressors of this illegal act, in violation of the Charter of the United Nations, their veil of military protection must be pierced, and these combatants as well as their military and political leaders must be exposed to the full extent of their criminal responsibility. I argue that such criminal liability (in the circumstances described below) can even be extended to the deaths of Ukrainian combatants since the authorized belligerent immunity presumably enjoyed by Russian forces was lost at the time of the initial criminal assault. and/or at the beginning of the criminal enterprise, although prosecution for this category of murders is unlikely to fall within the scope of international criminal law.
These are the lenses through which charging decisions, and ultimately the judgments of the courts, must be viewed. This should be true for all conflict-related civilian deaths in the following circumstances: 1) if the crime of aggression is proven, although not charged; 2) despite traditional military defenses such as military necessity and collateral damage associated with JCE; or 3) notwithstanding criminal law defenses including mistake of fact and self-defence where the alleged crimes occurred in the course of a JCE.
Jean-Jacques Rousseau said in The state of war, “let us forever lift the veil on such terrible sights.” And while the noble objective of saving “future generations from the scourges of war”, so rightly implored in the preamble to the Charter of the United Nations, has certainly not been achieved in Ukraine, ultimately this approach can help pierce the veil of unlawful belligerents who often benefit from the same defenses in war crimes trials as legitimate combatants who are accused of crimes.
Dr. John Cencich is a professor of criminal justice at the University of California, Pennsylvania. He is also an assistant professor of law at the University of Pittsburgh where he teaches international criminal law and the law of armed conflict. Previously, he was a senior war crimes investigator for the United Nations International Criminal Tribunal for the former Yugoslavia in The Hague and led the investigation into Slobodan Milošević, which resulted in the indictment of the first count of sitting state (in line with his official position as President) for war crimes and crimes against humanity allegedly committed in Croatia.
Suggested quote: Dr John Cencich, Piercing the Military Veil: Aggressors Should Be Stripped of War Crimes Defenses Afforded to Licensed Belligerents, JURIST – Academic Commentary, 17 April 2022, https://www.jurist.org/commentary/2022/04/john -cencich -ukraine-war-crimes/.
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