Watchdog

A veteran human rights lawyer who prosecuted the trial of former Serbian President Slobodan Milosevic says Russians could be tried for war crimes over their actions in Ukraine.

Geoffrey Nice, who prosecuted several cases at The Hague-based International Criminal Tribunal for the Former Yugoslavia (ICTY), told RFE/RL's Balkan Service that building a war crimes indictment relating to Ukraine "is a substantial task" but "not necessarily" difficult.

"It's very, very important for Ukraine, and Ukrainians, not to think that the process of building an indictment -- and then possibly having someone tried -- needs to take years," he said. The work of the ICTY was often criticized for being too slow, its efforts hampered by countries refusing to give up their citizens accused of war crimes.

Since February 24, when Russia launched an unprovoked invasion of Ukraine that has killed thousands of civilians, Russian troops have been accused of committing war crimes.

In Bucha, a suburb of Kyiv, the Ukrainian capital, hundreds of civilians were found dead after the withdrawal of Russian forces, with many of them lying in the street with their hands tied. Russia has repeatedly bombarded residential buildings across Ukraine and, on April 8, Russian forces fired a missile at a crowded train station in the eastern city of Kramatorsk, killing at least 52 people.

The longest running war crimes court ever, the ICTY was created in 1993 by the UN Security Council in response to the "horrific crimes" and "grave breaches" of the Geneva Conventions that were taking place across the former Yugoslavia, where at least 130,000 people died in a series of conflicts that blighted the 1990s. In total, the ICTY sentenced 90 war criminals to prison terms before passing its final judgment in 2017.

In Ukraine, a war crimes investigation has already begun.

On February 28, Karim Khan, a prosecutor at The Hague-based International Criminal Court, announced that a war crimes investigation was under way for which evidence was already being collected. Neither Russia nor Ukraine are parties to the ICC, although Ukraine does recognize the court's jurisprudence. The United States is also not a party to the ICC.

Any war crimes investigation in Ukraine is unlikely to be hampered by a lack of evidence. Nice, a British barrister who has focused on human rights work for much of his career, is optimistic about the amount of evidence that already exists regarding potential war crimes taking place in Ukraine.

"You build the indictment for a trial by obviously accumulating all the evidence that you can," Nice said. "There is stacks of it: Everybody using their mobile telephones as cameras, the journalists being on the ground in all the relevant centers of the conflict."

And, as Nice pointed out, Russian President Vladimir Putin does not seem to deny this evidence.

"If he wants to say any of that was done by a rogue group out of his control or not following his instructions, then he would have said that, and he should immediately have recalled the troops to Moscow for trial," Nice said. "Has he done that? No, he hasn't. Why not? Because they're doing what he wanted."

SEE ALSO:

Is Russia Committing Genocide In Ukraine?  

At the ICC, defendants can face charges of war crimes, crimes against humanity, and genocide. A war crime occurs when a combatant violates the laws of war by, for example, killing or raping civilians. Crimes against humanity are committed not by an individual but by a state and must be motivated by the pursuance of a policy.

Ukrainian President Volodymyr Zelenskiy has said that Russian actions on the ground have amounted to "genocide," although U.S. and Western leaders have been more cautious in using that term.

WATCH: Ukrainian authorities exhumed dozens of bodies from mass graves in the Kyiv suburb of Bucha for forensic tests and to prepare them for proper burial. There is strong evidence that Russian forces committed war crimes in the town. The head of Ukraine's National Police told RFE/RL on April 8 that many victims were shot in the temple at point-blank range.

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Ukraine Exhumes Bucha Victims For Forensic Tests, Reburial

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The Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the UN Security Council in 1948, states that genocidal acts have to be "committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group."

Despite the sheer amount of evidence coming out of Ukraine, Nice says the crime of genocide can be very hard to prove, as it is necessary to determine the thoughts and motives of the accused. Proving that Putin's intention was to kill Ukrainians simply because they're Ukrainian wouldn't be easy.

To convict of genocide, "you [have] to exclude all sorts of other possible states of mind and all sorts of possible intentions," Nice said. "We're doing what we're doing simply because we want to expand our territorial limits," he cited as an example of a possible defense, or "because we want to retain our perceived historic borders."

That doesn't mean it can't be done.

The International Court of Justice, the principal judicial organ of the United Nations, ruled in 2006 that the events at Srebrenica -- where some 8,000 Bosnian Muslim men and boys were killed by Bosnian Serbs -- constituted genocide.

While the "genocide" debate arouses intense passions, Nice reminded that a label of genocide "doesn't actually make the crime any more serious necessarily than war crimes or crimes against humanity." Whatever the label, the act of violence -- and its consequences -- are the same.

"I think the easiest crimes to prove in [Ukraine's] case will be crimes against humanity and war crimes," he said.

The elephant in the room is, of course, Russia -- and Putin.

Depending on how the war ends, Moscow could be the biggest obstacle for any war crimes trials by not handing over those accused. The ICC doesn't have a police force and doesn't hold trials in absentia, so its options are limited. One of the main problems with the Yugoslav trials, Nice said, was that suspects weren't handed over by their parent states for decades. In the case of Putin, a trial would be unlikely, especially given that the ICC has never tried a sitting head of state.

Nice said it is crucial now to ensure that as much as possible is documented and in the public record, for journalists and civilians to bear witness, so that an "evidence-based record of criminality is left as soon as possible."

"Ukraine has been terrific at being on the moral high ground. And it just now needs to reinforce that by having every politician saying that these are war crimes," he said.

It's very important, said Nice, that "a record is properly made, kept, and made public…and then kept in public, that shows precisely from the beginning that this was a criminal act."

Written by Luke Allnutt based on a report by Dragan Stavljanin

KYIV -- When soldiers from Russia threatened to rape a young girl in Ukraine, her mother tried to persuade them to take her instead, psychologist Vasylisa Levchenko said, recounting the story of an alleged rape victim.

"One of them agreed," she said.

The woman's account was just one of dozens that have been documented by officials, aid workers, and human rights monitors as Russian troops have retreated from areas around the capital, Kyiv, and other parts of the country they invaded on February 24.

"It is impossible to count how many victims there are now," Ukrainian rights ombudswoman Lyudmyla Denisova told RFE/RL's Ukrainian Service, "because so many people have been brutally killed…. But it is a different story when our women, children, and their parents are now telling us about the violence that was committed against them."

Denisova added that some of the purported rape victims claimed that the soldiers said things like: "We will make sure that you never want to be with a man again so that you won't have any more children."

"According to preliminary information, there have been a lot of rapes -- an awful lot," said Ukrainian Prosecutor-General Iryna Venediktova. "All the cases will be investigated as territory is liberated."

In a report published on April 3, New York-based Human Rights Watch (HRW) documented the first reported rape allegations. A 31-year-old woman, who asked not to be identified, from the village of Malaya Rohan, near the eastern city of Kharkiv, said a Russian soldier broke into the basement of a local school where a group of women and children were sheltering on the night of March 13-14. She said the soldier took her to a classroom on the second floor and forced her at gunpoint to undress and perform oral sex on him.

"The whole time, he held a gun near my temple or put it into my face," she was quoted as saying. "Twice he shot at the ceiling and said it was to give me more 'motivation.'"

The soldier then raped her twice, she said. He cut her face and neck with a knife, then let her go.

The next day, she and her family walked to Kharkiv, where she was given help.

"I am lucky to be alive," she said.

The same day, British Ambassador to Ukraine Melinda Simmons posted on Twitter that rape is "a weapon of war."

"Though we don't yet know the full extent of its use in Ukraine, it's already clear it was part of Russia's arsenal," Simmons wrote. "Women raped in front of their kids, girls in front of their families, as a deliberate act of subjugation."

Russia has not responded to allegations about rape specifically. Russian officials have denied that Russian forces in Ukraine have targeted civilians or committed war crimes, but have provided little evidence to support those denials.

Shortly after the initial HRW report, HRW researcher in Ukraine Yulia Gorbunova told RFE/RL she had investigated two other cases of sexual violence by Russian troops in the Kyiv suburbs of Bucha and Brovary.

"Gathering information about such cases can take a long time," Gorbunova said on April 8. "In some conflicts, it took months or even years before the true scale of the crimes became known."

In the wake of such initial reports, a flood of similar stories of sexual violence -- and allegations of many other atrocities -- began to be documented following the Russian withdrawals at the beginning of this month.

Andriy Nyebytov, the head of the Kyiv regional police, told Current Time about a case of alleged rape in the village of Bohdanivka.

"The woman went home with her toddler son and tried to hide” from the Russian soldiers who had killed her husband, Nyebytov said, but two of them showed up that evening, drunk. “And they raped her after threatening to shoot her son.”

“They left, but then came back three more times, raping her each time,” he said. “Finally, she managed to get loose and escape.”

At a press briefing on April 7, Oleksandr Vilkul, head of the Ukrainian military administration in Kryviy Rih in the southern Kherson region charged that Russian soldiers had raped a 78-year-old woman.

In a Facebook post on April 8, ombudswoman Denisova reported the alleged rape of a 14-year-old girl by five soldiers in Bucha, adding that the victim had been impregnated. Denisova also reported that a woman in Bucha had been tied to a table and forced to watch as Russian soldiers raped her 11-year-old son, and that a 20-year-old woman in the Kyiv region town of Irpin had been raped by three soldiers simultaneously.

"The level of brutality of this army of terrorists and executioners of the Russian Federation knows no bounds," Denisova wrote, calling on the United Nations to investigate the alleged atrocities.

Psychologist Levchenko said that the number of rapes is probably far greater than the number that has been reported so far.

"It is not that women don't want to talk about it, " Levchenko said. "They can't. The shock prevents the formation of thoughts…. Such a person often cannot even report exactly what happened."

She added that new cases are emerging among Ukrainians who have fled to Poland and are now telling their stories to aid workers there.

Others, aid workers say, decline to speak out for fear of retribution as Russia's war against Ukraine continues in its second month.

"There is one woman who said directly that she does not want us to share her story with anyone," said Maryna Lehenka, vice president of the European NGO La Strada, a platform against human trafficking. "Because she is afraid she will be found and killed. That's what they told her."

In an April 7 interview, psychologist and aid worker Kateryna Galyant, who created a Telegram channel where mental-health professionals can be connected with people who need help, described three purported gang rapes involving groups of three to five Russian soldiers in Bucha.

She said the victims told her that the perpetrators were drawn to residences and shelters with signs indicating that women or children were hiding within.

"Rape is now an instrument of war," Galyant said. "A way of demonstrating strength, of terrorizing people, and breaking them psychologically and physically."

Ukrainian Prosecutor-General Venediktova told Current Time that her office has created a working group to gather information about the alleged rapes and transmit it to the International Criminal Court.

"There they have opened a case against the Russian Federation," she said. "Against the aggressor country. This enables us to use this evidence not just personally against individual soldiers. If we are able to identify soldiers, great. But if we can't identify them, we can still use this information and evidence to confirm instances of crimes committed by the Russian Army on the territory of Ukraine."

Robert Coalson contributed to this report.