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On the Legality of ‘trying’ Russian soldiers for War crime

Beyond an emotional outburst on the horrors of Russia’s invasion of Ukraine, the horrific scenes shown on the media, the obvious brutality captured on camera and the narrations of such brutality by it’s victims, the seemingly evident facts of war crimes and crimes against humanity purportedly carried out on the soils of Ukraine by Russian soldiers; it must be noted that the very notion of war crimes and the conceptual issues that revolves around it’s Legal interrogations as well as the political implications involved in any such proceedings are not matters which can be easily decided upon by a television interview, an on-phone conversation or even at the United Nations Security Council. This is obviously because the question of Law as applicable within the international setting, vis a vis; International Law isn’t just a straight forward analogy subject to a particular Legal order.

In fact what may be termed an International Legal Order, comprises (in an easily understandable term) of conventions and agreements which are only binding on those who are a party to such conventions based on their compliance with it’s terms. It therefore means that there exist no legally authoritative body (as we have; like the Supreme Court in National scenarios) which possess sufficient right to adjudicate matters according to an International constitutional, in a way that becomes fundamentally binding on all involved. It is this obvious realistic problem surrounding the matter of Law in the International sphere that informed the Legal theorist Hans Kelsen’s classification of international law as being nothing but belonging to a primitive Legal order. This doesn’t mean that there aren’t sections of international law that may not have full fledged binding effect on individuals, groups or even countries, but that the very binding effect of such laws are still based on the strength of the existing agreement by countries within the International Community.

Now, understanding the fragility of international law in itself isn’t in anyway tantamount to announcing it’s weakness in handling obvious cases of human right violations or war crimes and crimes against humanity, but rather a pointer to the importance of prudence in handling such cases in a bid to avoid or at least reduce to it’s barest minimum; accusations of Victor’s Justice as have to a large extent plagued the application of international law to several war scenarios. Consequentially four basic questions comes to play in examining the Legal considerations which could trail the charges of war crimes against the Russian Military.

Firstly is the question of Responsibility; that is who should be held responsible for the war crimes committed by Russian soldiers? A very quick response would sometimes point out to the soldiers on ground as being the perpetuators of such crimes and the Russian government as being it’s initiators. Yet, an evaluation of this response would show a whole lot of accompanying problems, this can be based on two considerations, the first of which is based on the notion that the Russian government who has denied attaching the word ‘war’ to what it deems a special military operation, may just as much point out the fact that soldiers were not ordered to attack civilians (in fact the Russian government denies any claim of war crimes), so even in the event of an acceptance to stand trial, the claim of war crime just may not be easy to be admitted as a legal fact ordered by the Russian government unless if there are clear cut written or audio evidences indicting the Government as explicitly ordering such actions, otherwise actions based on an argument that “who ordered the war is responsible for the crimes committed in the war,” may come back to haunt even very moral democratic Nations.

On the other hand, the actions of individual soldiers may present the challenge as to what form of orders a soldier should or should not follow in a war situation. This is based on the obvious reality that a refusal to follow an order may immediately be tagged an act of disobedience, of which once admitted within the jurisdiction of a military court, such soldier could be subjected to a court martial. Thus it may appear that the individual soldier faces a double dilemma of either obeying immoral superior orders and in the long run standing trial for war crimes or disobeying superior orders and facing the reality of an immediate court martial.

Secondly the question of Jurisdiction comes to play. Here the reality lies in the basic notion that the individual soldier is subjected to his own National law and not the law of the country being attacked. This infers that a trial outside the boundaries of his National legal order may pose a problematic scenario for legal theorizing. However the counter question of who should try a crime committed by a citizen of Country X in the territory of Country Y may not pose much problems if such citizen acted on his own volition, without any authorization from his home country.

But in the present situation which is that of a war, the soldiers are fighting on the command of their home country, the reality of standing trial under the laws of the presumed ‘Enemy State’, would immediately bring back the charge of Victor’s Justice. Furthermore there lack any iota of hope for Justice if such soldiers are returned to face trial in their home country, as there is a high probability that they may rather be welcomed as heroes. This brings to bear the reality that in cases like this an independent arbiter Like the International Criminal Court (ICC) ought to handle such trials. But the bigger challenge remains how then can a State like Russia who presently is not a signatory to the ICC treaty be legally subjected under her judgement? However it may be in the interest of all parties to allow that accused war criminals stand trial before the ICC and not before ant Ukrainian nor European court.

Thirdly is the question of facts and evidences, which ought to accompany a due legal process. Here it becomes important for documentation to be presented as legal evidences, however the question would remain; Are there enough evidence of war crimes perpetuated by individual Russian soldiers? Or is it the case that the general documentation of war crimes would be heaped on any Russian soldier brought before the court? Now if there are documentations which could serve as legal facts to indict individual Russian soldiers who have perpetuated war crimes, then one may shout that ‘Justice has been served’, however, if rather than a specific documented charge, a generic accusation against an individual Russian soldier is made on the basis of the generic documentation of “War crimes committed by ‘all’ Russian soldiers”, The court may run into the error of punishing captured soldiers against whom there is no ‘specific’ evidence. Remember running an argument on the grounds that “all captured Russian soldiers are war criminals” may be fine according to present emotions and anger at the Russian invasion. However in a due Legal process based on facts and aimed at Justice, such arguments lack tangibility as being admissible as legal facts, and even if they do, a wrong precedent may just have been set.

Fourthly, is the question of whether or not there can be Forced Legal trials? This particularly concerns the Russian State rather than it’s individual soldiers and hinges more on a political consideration. Factually it remains almost impossible for a State to be coerced into standing trial, this is because; as have being highlighted above, the Russian State isn’t a signatory to the ICC treaty, which leaves it insulated from the Jurisdiction of the ICC. Thus the fundamental weakness of International Law again comes to play.

What have been pointed out above are necessary elements of the integral debates which could accompany an indictment of Russia and a trial of it’s soldiers for war crimes. The Russian invasion of Ukraine remains reprehensible on all moral grounds, but on what grounds then can Law actually take effect?

About the Author
S Ovwata Onojieruo is a Theologian and Political scientist, with major interest in Political theory, Middle-east politics (especially as it affects the Jewish state), and international relations. He currently works as an High school tutor/debate coach, and can be reached on twitter @OvwataS
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