With the Russian invasion of Ukraine comes calls for war crimes investigations and prosecutions, and rightfully so. Many of the discussions surround questions concerning whether war crimes, crimes against humanity, or genocide have been committed, who can be prosecuted, and which venue will best serve the people of Ukraine and the interests of justice.
As a former senior international war crimes investigator for the United Nations, I know how to investigate the crimes committed on the ground and work those cases to the top, holding those individuals most responsible for the worst crimes accountable. This is precisely what we did successfully at the United Nations International Criminal Tribunal for the former Yugoslavia (“ICTY”). Through my experiences, I argue that combatants involved with the initial aggression in Ukraine, along with their military and political leaders who may ultimately be charged with atrocity crimes, should be stripped of certain affirmative defenses with which lawful combatants are typically cloaked.
To begin with the inquiry, one of the initial phases of a war crimes investigation involves establishing the so-called crime base. This means ascertaining which crimes under international law were committed such as murder, rape, and torture, and identifying the offenders and their organizational units and chains of command. In this instance 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 is at the ground level, places like Bucha and Makariv, where the world has begun to see images of bound victims shot and killed; innocent women, children, and elderly murdered; and reports of torture and sexual assault. An appalling pattern of attacks on hospitals and other civilian objects has also emerged. These are heinous crimes that have been perpetrated not only against the people of Ukraine, but against all of humanity.
As with the deadly shelling of the marketplace in Sarajevo in 1995, we have also seen the horrors of the strike against the Kramatorsk railway station where Russian forces are alleged to have used a short-range ballistic missile, killing more than 50 civilians and injuring hundreds more who were seeking refuge from the war. In a CNN report, President Zelensky, referring to this attack, said, “all the efforts of the world” will be directed to establish minute-by-minute “who did what, who gave orders, where did the rocket come from, who was carrying it, who gave the order and how the strike was coordinated.”
“Responsibility is inevitable,” he said.
These are war crimes. Yet in seeking to hold offenders responsible, war crimes investigators will endeavor to confirm that there were no legitimate military targets within the proximity to the killings. Past experience demonstrates that the accused will often claim that the infrastructure attacked housed military equipment or perhaps was mistakenly believed to have been a legitimate military target. In either defense scenario, the tragic yet lawful realities of collateral damage come to the fore. Following this line of defense, the accused can admit to knowledge of the presence of civilians prior to the attack and remain immune from conviction owing to the military nature of the target as long as the number of civilian deaths was not disproportionate to the overall military objective.
However, I argue that these excuses—under the circumstances of this conflict—are not relevant. This is because the initial aggressors have lost their ability to successfully argue such defenses. It is like the armed robber who shoots and kills a security officer in the bank in response to the officer drawing his weapon on the offender. The robber is the initial aggressor. He can’t claim self-defense. Neither can the invading aggressors in Ukraine properly assert military necessity or collateral damage. This simple analogy develops into a far more complex analysis of the prosecution theory of the joint criminal enterprise (“JCE”), which we established as one of the principal modes of individual criminal responsibility at the ICTY. It should serve to bar traditional military defenses for alleged war crimes.
For crimes against humanity, there are no defenses whatsoever in relation to military necessity or collateral damage. Even traditional defenses in criminal law, such as mistake of fact and self-defense, are unavailable to those actors engaged in the scope of criminal activity. I argued this while leading the investigation against Slobodan Milošević for atrocity crimes 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 forced transfer, was proved beyond a reasonable doubt, that the accused was a knowing participant in the JCE, but that he was nevertheless entitled to potentially prevail on a defense that he thought the civilian victims were actually enemy combatants, or that they were collateral damage in connection with an attack on a legitimate military target?
Arguing that such defenses are available in connection with a case of genocide is even more absurd.
As for the crime of aggression, there are politicians and legal experts who argue this offense has taken place against Ukraine from the outset of the invasion. I agree. Indeed, every prohibition of use of force against a member State found in the United Nations Charter has been breached in this instance. Unfortunately, if the International Criminal Court (“ICC”) ends up being the principal venue for war crimes, it has no jurisdiction over the crime of aggression in Ukraine, despite the fact that the crime was likely committed. That’s because Ukraine is not a member state of the ICC.
Nevertheless, there are calls for a Nuremberg-style tribunal. That sounds powerful, but by almost all accounts, what resulted after the Second World War was the dispensation of some form of “victor’s justice.” While 20 other Allied States ratified the London Agreement, 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 in its territory, but I argue that if there is going to be an international prosecution of some form, the best venue for justice—including ensuring fair trials for all accused—is the ICC. Indeed, Karim A.A. Khan, the ICC Chief Prosecutor announced that he opened an investigation into the situation in Ukraine, which has twice granted criminal jurisdiction to the ICC, save for the crime of aggression. He has also made clear that in doing so, his office will investigate all allegations of war crimes regardless of the nationality of the actor. This is equal protection under the law as it should be.
But whatever the venue, what is not equal—nor should it be—is the cloak of lawful combatant immunity and associated defenses typically afforded t0 licensed belligerents for acts taking place within the context of an armed conflict. For all intents and purposes, Ukrainian combatants remain protected by such a shield. As to the initial aggressors in this unlawful act—in violation of the United Nations Charter—their military protective veil must be pierced, and those combatants and their military and political leaders should be exposed to the fullest extent of criminal liability. I argue that such criminal liability (within the circumstances described below) may even be extended to the deaths of Ukrainian combatants since the licensed belligerent immunity presumably enjoyed by Russian forces was lost at the moment of the initial criminal aggression and/or at the outset of the criminal enterprise, although prosecutions for this category of killings would likely not fall within the scope of international criminal law.
These are the lenses through which charging decisions, and ultimately judgments of the courts, must be seen. This should hold true for all civilian deaths connected to the conflict under the following circumstances: 1) if the crime of aggression is proved, albeit not charged; 2) despite traditional military defenses such as military necessity and collateral damage in connection with a JCE; or 3) notwithstanding criminal law defenses including mistake of fact and self-defense when the crimes alleged occurred as part of a JCE.
Jean-Jacques Rousseau said in The State of War, “let us forever draw the veil over sights so terrible.” And while the lofty goal of saving “succeeding generations from the scourges of war,” so aptly implored in the preamble to the U.N. Charter, was certainly not achieved in Ukraine, in the end, this approach may help pierce the veil of unlawful belligerents who are often afforded the same defenses in war crimes trials as legitimate combatants who are charged with crimes.
Dr. John Cencich is a Professor of Criminal Justice at California University of Pennsylvania. He is also an Adjunct Professor of Law at the University of Pittsburgh where he teaches International Criminal Law and the Law of Armed Conflict. He previously served as a senior war crimes investigator for the United Nations International Criminal Tribunal for the Former Yugoslavia at The Hague and led the investigation of Slobodan Milošević, resulting in an indictment of the first sitting head-of-state (pursuant to his official position as president) for war crimes and crimes against humanity alleged to have been committed in Croatia.
Suggested citation: Dr. John Cencich, Piercing the Military Veil: Aggressors Should Be Stripped of War Crimes Defenses Afforded to Licensed Belligerents, JURIST – Academic Commentary, April 17, 2022, https://www.jurist.org/commentary/2022/04/john-cencich-ukraine-war-crimes/.
This article was prepared for publication by Amanda March, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
