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Interview: Ukraine, Bosnia, War Crimes, And International Tribunals

"Could Vladimir Putin be indicted? Yes. Will he likely face a court? I don't think so anytime soon."

Thirty years ago this week, Bosnian Serb forces began their siege of Sarajevo, the capital of Bosnia-Herzegovina, after the Balkan country declared independence from Yugoslavia.

The victims included about 8,000 Bosnian Muslim men and boys killed in Srebrenica in 1995 by Bosnian Serbs, a massacre that led to the first convictions for genocide in Europe since the aftermath of World War II. Among other war crimes, Bosnians were systematically raped during the conflict.

Three decades later, Russia's unprovoked invasion of Ukraine is generating allegations of war crimes, and the evidence is mounting.

Tanya Domi is an adjunct professor at Columbia University who worked for the Organization for Security and Cooperation in Europe (OSCE) mission in Bosnia in the 1990s. Dr. Laura Cohen is executive director of the Harriet and Kenneth Kupferberg Holocaust Center at Queensborough Community College-CUNY, also in New York, and did fieldwork in the Balkans related to genocide claims.

In a joint interview with RFE/RL on April 6, Domi and Cohen discussed comparisons with Bosnia, the prospects for prosecutions, and the role of the Intentional Criminal Court (ICC) and the United Nations.

RFE/RL: How will allegations of war crimes in Ukraine be pursued?

Tanya Domi: The International Criminal Court is the court of jurisdiction. Everybody's calling for prosecution. However, ad hoc tribunals as established under Rwanda, and for the former Yugoslav tribunal -- those were adopted by the UN General Assembly, referred to the Security Council, and adopted and passed by the Security Council.

Tanya Domi
Tanya Domi

In all likelihood, there is not going to be an ad hoc tribunal here because of the membership of Russia -- a P-5 [permanent, veto-wielding] member -- in the Security Council, as well as [that of] China. I'm sure China would more than likely veto an ad hoc tribunal in support of their friends in the Russian Federation. Therefore, this [matter] will yield to the ICC. The weakness of the ICC is that it does not have an enforcement mechanism where they could go out and arrest X person for X crimes. And that is a weakness.

That court (the ICC) is going to need a lot of support, it's going to need increased funding to do investigations. There are reports right now that the prosecutor-general of Ukraine is in discussions with the ICC. They already are, in fact, sharing information, which is really important. And then there are also organizations within Ukraine, like the Center for Civil Liberties, and other NGOs like that, that probably will have information that should be shared with the prosecutor-general.

RFE/RL: What can the court do if those accused of war crimes remain in Russia?

Domi: So, there was an enforcement mechanism to the international war crimes tribunal for former Yugoslavia. There also was one for Rwanda. There is not an enforcement mechanism that currently exists with the ICC. It is seen as a major weakness in this court.

Dr. Laura Cohen
Dr. Laura Cohen

So what will happen, I think, is there's going to have to be a lot of pressure brought to say, "We're going to bring you to justice, and we're going to put your name" -- probably this is a likely scenario -- "we're going to put your name on an arrest warrant, so you're not going to be able to travel to Spain for vacation," as an example.

[The ICC is] going to need a lot of money because they have to hire investigators. And what's good about this court is there's no end date, and anybody who's charged with these crimes could face arrest at any point in their life. There is no statute of limitations to these charges.

RFE/RL: How would this play out in reality?

Domi: Here's how law enforcement is going to play an important role in Europe: [through] Europol and Interpol. When someone is put out for an arrest or let's say the prosecutor-general of Ukraine has determined that an actor in Russia has violated international law and the laws of Ukraine, then I imagine that the international community is going to support and put those people on an Interpol arrest list. And there's a lot of experience in Europe on this now as an outcome of the Syrian war.

As a matter of fact, a Russian pilot who was engaged in broad bombing in Syria was captured in Ukraine in the recent weeks, and it's probably going to end up being prosecuted as a matter of fact. So, the ICC is the only game in town at the international level at this moment.

RFE/RL: President Volodymyr Zelenskiy has accused Russia of not just war crimes and crimes against humanity, but genocide. What is the significance of that terminology?

Dr. Laura Cohen: The genocide label makes it feel more urgent. But the crimes and the suffering going on are still war crimes and crimes against humanity. But we're paying more attention because the word genocide carries a very specific weight, and a lot of people also don't understand what crimes against humanity are, gruesome as it is.

RFE/RL: You said genocide requires "intent." So, would the ICC go after the soldiers accused of carrying out such crimes or senior officials making policy?

Domi: Intent starts at the highest level. So individual soldiers at the low level of where the crimes that are committed may or may not be charged, but they're more than likely going to be high figures, people who are generals, and political and military leaders are the ones who are going to be indicted for genocide.

Cohen: When you look at Bosnia-Herzegovina, most low-level criminals, if they were charged at all, would be [tried] at the national court. So, the International Criminal Court is only ever interested in the highest levels.

RFE/RL: Do the UN tribunals for Bosnia and Rwanda have any relevance for the ICC as regards any investigations in Ukraine?

Domi: I think where Rwanda and the former Yugoslav war crimes tribunal are relevant is jurisprudence, international jurisprudence. It's the most recent international jurisprudence particularly on findings of genocide, and that would be something for the ICC to look at and take into consideration when they are charging.

The jurisprudence that was produced in particular on sex crimes -- it is a landmark, a landmark, and it will apply. And I am here to say that I think I think that women and the prosecutor-general, they're going to pursue Russia on these rapes -- there's no question that they are, they're already organizing around it.

RFE/RL: Wouldn't Russian leadership just ignore any indictment, so is there really any impact?

Domi: I believe Mr. Putin will die a pariah. He is now a person who has committed crimes. And we know what happened with Ratko Mladic and [Radovan] Karadzic in Bosnia. They blew off the court and said, "Oh, so what?" And they were fugitives for over 10 years. And they were eventually brought to justice, and so was [Serbian President Slobodan] Milosevic. And he was the first head of state to ever be indicted for war crimes.

Could Vladimir Putin be indicted? Yes. Will he likely face a court? I don't think so anytime soon. However, if the burden of defending or protecting these war criminals becomes so great, as we saw happen in the former Yugoslavia, that they eventually turned Milosevic over to the court because the pressure of protecting him or not turning him over became so great.... And there were efforts to entice the government to turn them over. "If you turn him over, we will, we will provide X, Y and Z to you."

RFE/RL: What are your expectations for bring people to trial?

Domi: This is really sad to say, but most victims [in Ukraine] will not have justice. And what Ukraine could do right now is to begin their investigation to document as many crimes as they can, through the Office of the Prosecutor-General [of Ukraine] and begin working openly with the ICC, as they are, to provide this information to the ICC to help them draw up...a list of charges. And it's going to take time, it's going to take a lot of time.

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    Todd Prince

    Todd Prince is a senior correspondent for RFE/RL based in Washington, D.C. He lived in Russia from 1999 to 2016, working as a reporter for Bloomberg News and an investment adviser for Merrill Lynch. He has traveled extensively around Russia, Ukraine, and Central Asia.