War crimes prosecutor says trials this time might be different

The contours of what happened in Bucha are familiar by now: To get to Kyiv, the capital of Ukraine, Russian soldiers had to go through Bucha first — and when the capital didn’t fall as Moscow had planned, Russian soldiers who had come to topple a democratic government stayed in Bucha to wreak havoc instead.

But some 19 months into the war, Bucha is determined to be known for more than this brutal chapter in its history. Instead, it has been collecting evidence for war crimes trials that will hold the guilty to account.

War crimes cases in Rwanda and the Balkans took decades to build and prosecute — so long that the perpetrators and their victims didn’t live long enough to see justice done. Memories got fuzzy, evidence got lost. Bucha wants a different kind of ending.

Click Here spoke with Stephen Rapp, a former U.S. ambassador-at-large for war crimes at the State Department and now adviser to officials in Ukraine, about how that nation’s careful collection of evidence — both physical and digital — while crimes were still unfolding and allow for relatively speedy justice at the International Criminal Court (ICC) in The Hague.

In September, the ICC announced that hackers had breached its computer networks and accessed sensitive information, calling it an act of espionage. The ICC did not attribute the attack to a specific group or country, but another September revelation — a Russian cyber espionage campaign against Ukraine’s Prosecutor General’s office — hinted that these hackers are gathering information related to prosecutions.

Rapp says this should be a wake-up call for prosecutors, especially as they build complex cases.

This conversation has been edited for length and clarity.

CLICK HERE: There were two cyberattacks weeks apart against the International Criminal Court (ICC) and the Prosecutor General’s office in Ukraine back in the fall. The ICC didn’t attribute the attack and Ukraine said their office was hacked by the Russians … what can an attack like that do to derail a war crimes case?

STEPHEN RAPP: On one level, the court should be extremely worried that these kinds of attacks are happening and we hope they have improved their defenses and didn't lose valuable information or put witnesses in danger. I'm confident that, given where their investigation is now and where they're working at it, this should be something from which they can recover. Fortunately, the Ukrainians are responding quite effectively to it.

On the broader issue of cyberattacks constituting war crimes, I was just recently at a conference in Kyiv, where there were people from Estonia who were talking about cyberattacks that went back to 2007 that knocked out their domestic communication system.

[It was] very sophisticated at the time. And indeed, since that time [the ICC has declared that] these kinds of attacks can constitute war crimes, including a cyberattack on civilian infrastructure. And that can be prosecuted in the same way as a bomb on a power plant can be prosecuted.

CH: Declaring something a war crime is one thing, but actually prosecuting it is another. Are you talking to the Ukrainian government at all about how they're going to organize these trials?

SR: Well, I'm talking to the Ukrainian government. I just came back from Ukraine, my third trip since the full-scale invasion. And we'll be back again in December. I'm involved with them on a variety of fronts, trying to achieve accountability for the war crimes and crimes against humanity, and indeed perhaps genocide, and certainly the crime of aggression — the invasion was unprovoked — which is something they would need to try in a special court.

CH: There have been some very famous war crimes cases in recent decades, including the Media and Military trials at the International Criminal Tribunal for Rwanda. Will prosecuting war crimes in Ukraine be fundamentally different from what we saw there?

SR: Well, it's different in some senses. Keep in mind that here in Ukraine, we have a crime being committed largely by forces from outside the country, and the [Ukrainian] government has placed a very high priority in holding the [perpetrators] to account.

That's different from a lot of situations in the world — Syria or Myanmar or elsewhere, where the governments are committing crimes against their own people and obviously they don't want accountability. So there is a Ukrainian justice system. It's under-resourced. It's got only about half the judges for which there's authority of appointment. [They’re] not experienced in doing these kinds of cases but they are very highly motivated to prosecute. But it needs a lot of assistance to bring the strongest possible cases, particularly those cases that don't involve just a direct perpetration.

These are mass crimes and they're organized, supported and ordered — or certainly tolerated — at the highest levels. And it's those high-level individuals you want to reach, and connecting those high-level individuals to the crimes on the ground is the big, big challenge in war crimes prosecution, just like it is in organized crime. How do you get to Mr. Big?

CH: And how does the ICC fit into this?

SR: The ICC is a permanent international court. It has 123 members. It doesn't include Russia or the United States or China. So there is jurisdiction for prosecution of crimes committed on the territory of Ukraine by Russians or others. So far we have had these arrest warrants issued for Vladimir Putin and Maria Lvova-Belova for the crime of deportation of children and active investigation of other crimes.

And then you have the possibility of third-state prosecutions — a number of states have formed a joint investigative team with the Ukrainians that are looking for ways to prosecute Russians or aiders and abettors of the Russians in third countries.

And there's also the possibility now of a court that would prosecute the crime of aggression against Ukraine. That does not exist yet, and the ICC doesn't have jurisdiction over that crime. So the Ukrainian government very much wants to have a special court created that can prosecute the crime of aggression, which is the overarching crime here.

CH: You mentioned the child deportation case. We’ve also reported on what happened in Bucha — a massacre killing hundreds of civilians — and all the digital evidence they’re preserving. How do you see these cases lining up?

SR: Brenda Hollis [the international prosecutor in charge of the ICC’s Ukraine investigation] doesn't speak to the press, but as she always says: It's not what you know. It's not what you believe. It's what you can prove. As for [priorities], there's the [Kakhovka] dam case. It can maybe be argued that blowing up that dam — with all the horrible environmental effects and the effect it had on the populations that were inundated — will be a high priority [for prosecutors], and I think the evidence is building about the Russian responsibility for it.

One could see as well the bombardment of civilian infrastructure, such as the utilities involved in heat and light, particularly during the winter months; the attack on the grain depots because they had nothing to do with the military; and then the Bucha case, attributing those horrendous war crimes to specific commanders. I see each of those as priorities. [There’s] also the cultural destruction — looting the museum in Kherson and relabeling [artifacts] as Russian and not Ukrainian. It's a real effort to eradicate Ukrainian culture, which many view as almost genocidal. It's not genocide, but it's certainly a crime against humanity. The crucial question is: will they be in absentia cases? ICC can't [prosecute cases] in absentia, but Ukraine can.

CH: So do you envision something in which maybe prosecutors would begin with a trial centered on Bucha because it's all in one place and they have digital evidence of it? Or do you expect it to roll out in a different way?

SR: Well, Bucha is a very high priority and there are thousands of crimes in Bucha that the government is investigating. The advantage of Bucha is that the Ukrainian authorities control the crime scene, and they have access to many survivors [and] witnesses of those crimes. The challenge, of course, is getting the perpetrators of those crimes arrested.

Bucha also represents one of these situations where it's not necessarily easy to attribute the conduct on the ground. We saw the civilians that were shot dead, the prisoners who were killed, the evidence of brutal treatment and sexual violence committed against prisoners and others thought to be sympathizers of the Ukrainian cause. But were there orders? How do you go up the chain for those crimes? And as someone who's prosecuted war crimes cases, you will always hear the argument when you bring a high-level offender into custody that those low-level guys were on their own: They were out of control. There was nothing you could really do about it. There are some international provisions that allow you to hold commanders responsible if they have notice of what was going on and fail to take action to prevent or punish. Those laws don't exist in Ukraine. In Ukraine, you need to have much more direct evidence. But there's no question there are war crimes.

CH: I don't know if you saw this op-ed written by Gen. David Petraeus, in which he basically says that war crimes are part and parcel of the Russian playbook and Moscow acts as if the Geneva Conventions do not seem to apply. Does that change the calculus at all, that it seems like they're flagrantly ignoring all the Geneva Conventions?

SR: Well, it certainly appears that Russia has no real effort to restrain these acts against civilians. Russia was of course involved at Nuremberg and prosecuted the Nazi war criminals with the United States and Britain and France. So Russia at least purports to want to enforce these laws, but they're violating them and essentially taking the position that any Ukrainian they perceive as supporting the cause of Ukrainian independence is a combatant. And of course that is wrong.

People can have any opinion they want. You're not entitled to target them. But the ways in which the Russians are holding people includes horrible torture and sexual violence — things that the U.N. Commission of Inquiry has reported on. These totally violate the Geneva Conventions, and I think part of the challenge we have with Russia is that from the Stalin era forward, there really has never been accountability for the crimes committed by the Russian regimes. And, particularly under Putin, they think they can get away with these crimes. It's absolutely necessary that this time there be accountability.

CH: I can’t help but think of the case of [former Serbian President] Slobodan Milošević, who was accused of war crimes in Yugoslavia. It took years to bring him to trial, but it started with some strong-arming from the international community. Can you imagine a scenario like that?

SR: Yes, of course. If the international community is serious, the same formula could work. Milošević was indicted in May of 1999, and a lot of people thought that was crazy. But within 15 months, he couldn't steal enough votes to stay in power. And he was replaced by another nationalist who agreed with him on all the policy issues but wasn't a war criminal. And within nine months of that, as they began to discover all the ways that he was corrupt and had stolen money and hidden it away in Cyprus and everything, he became too hot to handle in Belgrade. And meanwhile, the international community was saying, sanctions don't come off Serbia, you don't get your money unfrozen, unless you turn him over. And they did. That took 25 months.

CH: Can you imagine that happening in this case?

SR: It could. If you want your $300 billion frozen assets back, or a large part of it, you need to comply with international law. Obviously, we'd like to have justice and many say we'll give up on it in return for something that gives us peace. But the ICC won't give up on it. The ICC, once they've arrested somebody, they won't withdraw this arrest warrant. There's no provision for that. This is not something that's going to go away. Even though Putin is extremely strong and very dangerous, eventually there'll be those who say, This guy is setting us back. We'd be better off with a different leader. Then the question is: What do you do with him? The idea that he might end up at The Hague is very real.

CH: Do you feel like we've done enough of these kinds of war crimes trials that there's actually a framework in place? That these courts are more prepared for this sort of undertaking than we've seen in the past?

SR: Well, I hope so. The ICC is less experienced at these high-level cases. And it had leaders — of Kenya, of the Ivory Coast, the vice president of Congo — on trial in cases that it lost. So the question is: Is it ready for primetime, so to speak? The thing that gives me the greatest hope here is that my good friend and my successor at the special court for Sierra Leone, Brenda Hollis, she's extremely experienced and she's been put in charge of this case. She's tough. And the current case — the deportation of children — is hardly comprehensive, but it’s a pretty rock-solid case. The Yale study shows at least 6,000 children forcibly deported. The Ukrainians say at least 20,000. And that's never permitted in a conflict without consent or notice to the parents. The Russian officials have admitted to what they're doing, and Putin himself commended the woman who was running it. So this is a situation where he's directly responsible and where the action is definitely a crime. It’s the equivalent of a slam dunk and easier than, say, the Bucha case.

CH: Going back to Bucha, the people there really want Putin to be prosecuted. I feel that might be a little optimistic. Do you think we should be more hopeful than we usually are when it comes to these kinds of war crime tribunals?

SR: I think one can be more hopeful here in the sense that there is more commitment to justice in this situation from the supportive states of Ukraine. And I would say that in my lifetime, I've seen more discussion about war crimes and crimes against humanity in the context of Ukraine than we saw even in Yugoslavia or Rwanda. I think the commitment is there to build these cases, and there will be Russians held to account. There's an international arrest warrant for Vladimir Putin. Will he end up in the Hague? It's hard to imagine that that would happen, but he will die with a warrant over his head as an international pariah. That's never happened before — the head of a nuclear state, a member of the Permanent Five of the United Nations, being indicted by an international court. This is significant. Is it affecting their conduct yet? No. But it means all the more that we have to put together these cases and bring the most senior people that we can to trial.