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A new documentary recounts the first 20 days of the Russian attack on Mariupol.
Mstyslav Chernov: If people see only light version of the events, they tend to accept war.
Brooke Gladstone: From WNYC in New York, this is On the Media. I'm Brooke Gladstone. The path to justice for war crimes is long and often fruitless but a shift in US policy announced this week removed a roadblock for a team investigating the alleged kidnapping of Ukrainian children by Russia.
Nathaniel Raymond: It is a landmark moment. Having the metadata able to be shared with International Criminal Court is a victory for justice.
Brooke Gladstone: Plus the case to prosecute Putin for initiating the conflict.
Philippe Sands: For the Nuremberg Tribunal, the crime of aggression was the crime of crimes because all the other crimes followed, and that, of course, is exactly the situation today.
Brooke Gladstone: It's all coming up after this. From WNYC in New York, this is On the Media. I'm Brooke Gladstone and sitting next to me this week is Deb Amos. If you've heard a report from the Middle East on NPR over the last four decades, there's a good chance you've heard Deb. She's a longtime foreign correspondent and a journalism professor and a residence at Princeton University. Hello, Deb.
Deb Amos: Hello, Brooke. You start.
Brooke Gladstone: This week we begin with Russia's ongoing assault on Ukraine.
Male Speaker: The fighting is continuing at a grueling pace along the 900-mile-long frontline in Eastern and Southern Ukraine.
Male Speaker: The city of Odesa has been struck by missiles or drones nearly every day since Russia left a key multi-nation grain deal last week.
Female Speaker: Fighting has intensified in southeastern Ukraine and it comes as Key continues its counteroffensive against Russian forces.
Deb Amos: Putin's invasion is now more than 500 days old but on Wednesday this week, there was some breaking news about the International Criminal Court.
Female Speaker: Extremely significant, actually a historic shift. Now, the US is saying that they are going to provide, the ICC, the International Criminal Court with the evidence that the US has obtained of Russian war crimes as part of the ICCs investigation into that in Ukraine.
Deb Amos: That's a big deal because traditionally the US has not cooperated at all with the ICC but as the war grinds on, so does the amassing of evidence in all forms, hard data, homemade videos, satellite images, tweets, and eyewitness accounts, and even a staggeringly explicit profoundly moving documentary.
Brooke Gladstone: In February of 2022, Mstyslav Chernov, a video journalist for the Associated Press decided to go to Mariupol, the critical port city on Ukraine's Southeastern Edge, just 35 miles from the Russian border. He arrived an hour before the first bombs hit the city. What Chernov chronicled over the next three weeks is captured in the new documentary, 20 Days in Mariupol. He was there as a reporter but only a small fraction of his footage made it to the outside world but when it did, the impact was great.
Female Speaker: AP reporters on the ground showed the world a mass grave in Mariupol.
Female Speaker: I'm talking about narrow trenches in Mariupol with babies' bodies. AP journalist
Male Speaker: [crosstalk] so many face, who wins the information world?
Male Speaker: The one [unintelligible 00:04:41].
Female Speaker: Do you two really believe this? Do you truly believe what you are saying?
Brooke Gladstone: At every moment we get to see what he sees and a warning that's pretty disturbing.
Mstyslav Chernov: We immediately started to hear explosions on the outskirts. There were flashes of light. You could see from the window it was still dark. The battle was largely happening on the outskirts of the city, military bases, and the trenches that were built there for years. For a while, it was calm. There was no panic. Some people went to work. It was quite surreal because I had a feeling that something horrible is coming, judging by just how Russia deals with cities that it tries to attack how it was with Grozny, how it was with Aleppo. People kept asking me, what's going to happen? What shall we do?
Brooke Gladstone: Early in the film, you meet a panicked woman crying, where shall I go? What shall I do? To calm her down, you tell her to go into her basement, they won't shell civilian areas and of course they do. Later you see her at a shelter and she reminds you of your not-so-great advice and you say, I'm sorry.
Mstyslav Chernov: I feel like I am telling the story of the community that I'm part of and sometimes it is hard for me to decide what's best to keep filming or just to try to help. That's a core thought which I wanted to come through my narration that I am not a decent reader. At the same time, I didn't want to impose my emotions on the audience.
Brooke Gladstone: But in describing their trauma, you're also describing your own. It's evident in your simple words of description but behind it, so much weariness, a dull ache.
Mstyslav Chernov: That is something that probably all Ukrainian journalists feel and how probably all conflict journalists feel.
Brooke Gladstone: One of the most horrendous moments includes the aftermath of a maternity hospital bombing. Incredibly hard to watch. One very pregnant, very injured woman is carried out on a stretcher. We don't know her fate but then at a second hospital, you find the doctor who treated her. She said that her pelvis had been shattered by the explosion and that the mother and baby died.
Male Speaker 8: Her name was Irina. They said she screamed, kill me when they brought her. She knew her child was dead.
Brooke Gladstone: So many dead in the war and in your film we see nurses getting sniped at, so many dead babies, the kind of thing that a news consumer in America would never see on television. What do you think about American morays when it comes to war violence?
Mstyslav Chernov: It is crucially important for the war coverage not to be sanitized in any way because if people see only, let's say, light version of the events, they tend to accept war and it's just unacceptable. We didn't sanitize anything when we were editing. I remember when Russia shut down MH17 airplane over at Donbas nine years ago.
Brooke Gladstone: The Malaysian airliner.
Mstyslav Chernov: Yes, the Malaysian Airlines. I was one of the first journalists has arrived at the scene, filmed these hundreds of bodies scattered across the fields and melted plastic with human bones. It was horrifying. Most of those images never made it to screens because it was really too difficult. I think if we would be filming this now, we could show much more. The limits to what international outlets are showing to their viewers have changed. There's just too many war crimes, too much pain happening. It's just impossible to ignore it.
Brooke Gladstone: And you're not worried about numbness or empathy fatigue in viewers?
Mstyslav Chernov: It's important to find balance. You cannot just bombard the audience with blood and tears and expect people to care all the time. It needs context to show how people react and how they feel.
Brooke Gladstone: Speaking of reaction, there were a few moments in the film where you hear people expressing disdain for you and the crew being there and then we saw a lot of people feeling quite the opposite.
Mstyslav Chernov: For most of the people, it was a chance to just send a message to their relatives. People would just come up to us on the street and ask to film them. Then they would just ask us, is Ukraine still exist as a country? How is Kyiv doing? How is Kharkiv, Odesa? Is Ukraine's army resisting? Other people came and said, please keep filming. I think this also gives us a good understanding of how not just a physical military siege works on psychology of people. It's also an information siege that destroys the society.
Brooke Gladstone: Which brings to mind that when Global TV used some of your footage, Russian officials were confronted with what was in those tapes and they specifically labeled the footage you were able to get out from, say, the bombing at the maternity ward or the mass graves as propaganda.
Mstyslav Chernov: They said we are information terrorists and that we staged everything. I think it's a part of the story because the story is not only what happens on the ground, it's the ripples of the information that is going across the planet, influencing people.
Brooke Gladstone: There's a moment in the film that might have not worked at all because you leave the present moment and you offer a montage of the terrible trials of the Ukrainian people in recent history.
Mstyslav Chernov: I think about all this country has been through over the past eight years. All that I filmed, revolution of dignity, Crimea's annexation, Russia's invasion of Donbas.
Brooke Gladstone: The acrid smell of violence-
Mstyslav Chernov: MH17.
Brooke Gladstone: -seems to waft off the screen.
Mstyslav Chernov: Donetsk airports siege.
Brooke Gladstone: Variations on a theme.
Mstyslav Chernov: War that seems endless. We keep filming and things stay the same. Worse even, propaganda turns everything upside down.
Brooke Gladstone: That interlude offered some really essential context.
Mstyslav Chernov: It is coming after very hard moments, heartbreaking moments. I felt like we all needed time to just sit down and reflect and prepare for what's coming next.
Brooke Gladstone: You've mentioned elsewhere that the footage was not taken to be a film. It was simply news dispatches.
Mstyslav Chernov: Further the siege went, more we realized that we were the only ones who were sending anything from the city, any information, any footage, more I knew that I need to capture every minute. There are so many stories I was just told about, or I got firsthand but was not able to film because I was hiding, I was afraid, and that is a regret too. Probably I just need to write those stories. I guess that's the only way to tell them.
Brooke Gladstone: You need to tell them all?
Mstyslav Chernov: They're so important somehow to be told. There's a story of a woman who is sitting in a corridor after we witnessed the birth of a child in a hospital and before we find out that we are surrounded.
Brooke Gladstone: They aren't sure whether the child is alive and they keep smacking it and rubbing it. Then suddenly this triumphant wail.
Mstyslav Chernov: The doctors told me that the birth is just like a ray of light from heaven for them. We walk back to the entrance of the hospital and I meet a woman who tells the story of her children that were killed by a shell in their basement and I have footage of those children. It's not in a film, we thought it would be just too much. Later on, we found her and we know that they buried their children in the yard of their house. Then they left the city through the green corridor and they came back to rebury the children.
They didn't find them in a place where they were supposed to be. They went through these hundreds of bodies that were just piled up near the hospital to try to find the bodies of their children. They did just before they were dropped in the mass grave to be lost forever and they gave them a proper burial.
Brooke Gladstone: I'm wondering about the policeman who helped you for a while, Vladimir, who asked to make a statement in front of the camera.
Vladimir: The Russian troops commit war crimes. Our family, our women, our children need help. Our people need help from international society. Please help Mariupol.
Brooke Gladstone: I think every war reporter, maybe every reporter faces this question eventually and they have to find an answer. Do you really believe you can make a difference?
Mstyslav Chernov: I faced that question exactly in 2014 while filming the MH17 and I thought the war is going to stop when the world sees this footage and it of course didn't. It just got worse. I don't have a lot of illusions about direct power of journalism. We are soldiers, we can't change the course of events. All we can do is just to keep telling everyone about them. There is something that was done. Some families found their loved ones because they saw them in the photos and in the videos and they were able to locate them in the city and extract them and save their lives.
Authorities have used what we filmed to negotiate the green corridor which also saved lives. This is immediate direct effect that we can do. Whether we have an impact in the long term, I don't know. I guess we will see much later when we look back. Again, even if it just remains in history, even if the film remains as an evidence of what happened in the first days of full-scale invasion, that's already a lot because we judge the world around us by watching news and reading headlines through our screens. We understand our past through cinema, through documentary films, feature films, books. That's where these films are important for generations that are to come.
Brooke Gladstone: What do you want viewers to take away from this?
Mstyslav Chernov: I definitely want viewers to take away hope and they do.
Brooke Gladstone: Viewers take away hope from this film?
Mstyslav Chernov: Despite so much desperation, hope is coming through because people see how Ukrainians resist, how they survive. That desperation does not give us strength to keep going. Hope does.
Brooke Gladstone: What do you think is the most hopeful moment in your film?
Mstyslav Chernov: The birth of a child. After what we've seen, after all the children that have died, knowing that this is just a tiny fraction of what happened, seeing that a child was born and it's healthy and now we know this child survived, that is the most crucial moment for me in the film and the most hopeful one.
Brooke Gladstone: Thank you so much.
Mstyslav Chernov: Thank you to you.
Brooke Gladstone: Mstyslav Chernov is a journalist and director of the 2023 documentary, 20 Days in Mariupol. He's also a novelist. His latest is called The Dream Time.
Deb Amos: Coming up, how to investigate war crimes in real-time.
Brooke Gladstone: This is On The Media.
Deb Amos: This is On the Media, I'm Deb Amos.
Brooke Gladstone: I'm Brooke Gladstone. Almost immediately after Russia launched a full-scale invasion of Ukraine, already those at the highest level of power in the West were talking about war crimes.
Male Speaker 9: Biden flat-out called Putin a war criminal for the first time. In case we thought that was off the cuff, the president doubled down on that today.
Biden: He is a war criminal, but we have to gather all the detail so this could be an act that should have a war crime trial. This guy is brutal.
Brooke Gladstone: International justice is complicated. Deb is not only my companion this week, she's also my guide to this world of war crimes and tribunals, a world she knows well. Hi, Deb.
Deb Amos: Hi, Brooke.
Brooke Gladstone: What were you doing when the Russian army put the city of Mariupol under siege?
Deb Amos: I was in Berlin, Germany. I was there on a fellowship, and I also was there to cover Syrian war crimes trials, and it was three weeks later that the Russian army crossed the border into Ukraine.
Brooke Gladstone: Tell me the reasons why you were covering Syrian war trials in Germany.
Deb Amos: Germany had about a million refugees, and Germany interviews refugees, and they would hear these stories about tortured chambers, about prisons in Syria where people were just swept off the street, tortured, and died. There was one refugee, a colonel, his name was Anwar Raslan, and he'd been in charge of interrogations in one of Syria's prisons called Branch 251.
When he turned up to Germany, he asked for asylum, thinking somehow that his past life would disappear and no one would notice, but refugees noticed, and said, "I know that guy." That's the guy who was in charge of interrogation when I was arrested. Eventually, the Germans had a big enough file on Colonel Anwar Raslan to arrest him, which they did in 2019 and then it was a two-year trial for Crimes Against Humanity.
Brooke Gladstone: Does Germany have standing to arrest a Syrian war criminal?
Deb Amos: Germany is not the only European country that has this provision, and it's called universal jurisdiction. It is something that your legislature passes and then, you have this ability to take on the most grievous international crimes. They don't have to be committed in your territory. In fact, they don't even have to be citizens of your country that committed these things.
Brooke Gladstone: This was in the city of Koblenz. It was called the Koblenz trial. What was the impact?
Deb Amos: It was an unprecedented trial. There's been no one in Syria who had ever been held to account for anything.
Brooke Gladstone: We know that the path of international justice does not run smooth. Can you explain what some of the obstacles are and how this German court using this idea of universal jurisdiction, made it happen?
Deb Amos: Not only does it not run smoothly, it takes a long time. I'm going to start with talking about Ukraine. President Biden called President Putin a war criminal that was unusual for one nuclear power to call out another one publicly. European officials are talking about war crimes, tribunals and so was Washington. There's a couple of obvious places that you could take a criminal prosecution for war crimes. One of them is in Ukraine's domestic courts and they have 80,000 cases that they have compiled. The other place that you can try war crimes is in the international criminal court in the Hague, and the third place you can do it is in national courts in Europe. For example, just a few weeks ago, Germany announced that they are going to try a rape case, a Ukrainian rape case because the victim has moved to Germany.
Brooke Gladstone: Germany can take on these cases because it has universal jurisdiction, but the people have to be there, don't they?
Deb Amos: They do. There's no trials in Absentia in Germany, so somebody has to be there. In fact, the victim is there, but the alleged perpetrator is not. What Germany will have to do is build a case and have a case ready if they can extradite him from somewhere, if he shows up in another European country. The fact that they're beginning to take some of those cases off the books in Ukraine and move them into European courts, this could be another way to take down that number. 90,000 cases cannot be resolved, certainly in my lifetime or in the lifetime of the people who are running the country now.
Brooke Gladstone: I spoke to Mstyslav Chernov, the person behind the film 20 Days in Mariupol, and he told me that the war in Syria offered a preview of how the Russian military would behave in Ukraine. I wonder if you could explain that and also how the Syrian experience enabled potential war crimes to be tracked.
Deb Amos: I would agree that watching the Russians in Syria would give you a sense of what was going to happen in Ukraine because I was doing that. I watched the Syrian uprising from the beginning, and the Russians don't get there until somewhere in the middle 2015. Their method of suppressing the uprising was to bomb hospitals, apartment blocks, bakeries, all the things that were done in Ukraine. In Syria, the Russians were invited in by a sovereign nation, so no one called what they were doing war crimes, although they were so obviously war crimes.
Brooke Gladstone: Tell me about the Syrian-Ukraine network. They are really committed to exposing Russian crimes.
Deb Amos: There was nobody in Germany who understood what was happening in Ukraine more than the Syrian community, and they were on alert from the first day. In fact, the Syrian American Medical Association who did a lot of work in Syria and did clinics behind rebel lines, they went right to Ukraine because they understood battlefield medicine as well as anybody. They rushed to help. There were Syrians who went right to the Ukrainian border with supplies.
The other thing is that the open-source investigators, and there were plenty of them in Ukraine, they looked to Syria because Syria had perfected some of these techniques. In particular, there's a group in Germany that's run by a Syrian, it's now called Mnemonics. Mnemonics was a group that was taking social media and packaging it as evidence. They grew to also do the same thing for Sudan, for Yemen, and finally, Ukraine came to them and said, "Can you help us? Could you package this for us as evidence?" In Berlin, that is what Mnemonics is doing.
Brooke Gladstone: Is accountability writ large why you got so interested in international justice?
Deb Amos: If you work in the Middle East long enough, you want to see accountability somewhere because there's so little of it. There's so little accounting for the terrible measures that people take and it looked early on like there was this atmospheric change. You could feel it. You could hear it in the way that people were talking about justice, about courts, about tribunals, about genocide. I'd never really heard anything like it. I think 18 months in there has been a recognition that it's not as easy as anyone thought.
Brooke Gladstone: You've been covering the Middle East for 40 years. You've been a war correspondent throughout that period. Do you miss the excitement? You're talking about the law.
Deb Amos: We're talking about history. We are asking ourselves at this moment, are we going to have an international system that holds states accountable for their worst behavior? It will not be a pleasant world if we find that the answer is no. That is why this can't stand.
Brooke Gladstone: On that note, I think you should introduce the next guest.
Deb Amos: Shortly after the war began, international investigators started looking for ways to hold Russian President Vladimir Putin accountable for war crimes. It wasn't until March that the International Criminal Court, the ICC, was finally able to issue arrest warrants for Putin and his commissioner for children's rights, Maria Lvova-Belova for the alleged crimes of deporting Ukrainian children to Russian reeducation camps.
Until now, the US relationship with the ICC has been complicated. In the 21 years since the court's establishment, 123 countries joined the court, the US did not objecting to its jurisdiction over US citizens. Then under President Trump, it got a lot worse. The US plays sanctions on ICC officials and there were statements from Trump's National Security advisor, John Bolton, like this one.
John Bolton: We will provide no assistance to the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
Deb Amos: President Biden reversed those sanctions when he took office. Then on Wednesday, we heard this.
Female Speaker: A surprising decision from President Biden ordering the US to share evidence of Russian war crimes with the International Criminal Court. That move goes against longstanding US policy and the Pentagon's recommendation.
Deb Amos: Nathaniel Raymond is a war crimes investigator and the executive director of Yale's Humanitarian Research Lab. His team is also part of the state department's conflict observatory. It was set up to investigate Russian war crimes in Ukraine. Their latest report released in the spring was titled Russia's Systematic Program for the Reeducation and Adoption of Ukrainian Children. Raymond's team will likely be the first American group to share data directly with the ICC.
Nathaniel Raymond: This is the biggest of big deals. I never thought I would see the day where an American president, in a specific case before the ICC would authorize the direct sharing of information gathered with US taxpayer support and would encourage the executive branch to actively support an ongoing ICC investigation. Pigs have flown and Midville won the ball game. This is a momentous occasion for everyone who cares about international justice.
Deb Amos: They could have read your report online. What extra do they get now?
Nathaniel Raymond: They get the underlying metadata from our investigative files. They get specific location names and latitude and longitude. They get all the forensic pieces they need to strengthen the case they're already bringing and to potentially bring new elements to the case and new indictments.
Deb Amos: Raymond's team will likely be the first American group to share data directly with the ICC. When we spoke earlier this week, here's how he described his role.
Nathaniel Raymond: To put it in the simplest terms, we're basically Jerry Orbach in Law & Order. We're not Sam Waterson, we are not the prosecutors. We are the cop side of Law & Order.
Deb Amos: In the report, you said there were more than 6,000 Ukrainian children in Russian custody. Who are those kids and how did they come to be in these Russian camps?
Nathaniel Raymond: We're really talking about four groups of kids. The first group are children from primarily Luhansk and Donetsk, who were taken to reeducation camps, often under the guise of going to summer camps, and this program has been going on since 2014. The 6,000 number in our report are primarily children in that group, but there are 3 other groups of kids as well. The second group are referred to by Russia as evacuees from Ukraine's state institutions.
The third group of children are what we call the battlefield kids. Children who were picked up by Russia's combat forces in the early phase of the war, and were taken into Russia's custody often during combat operations. The fourth and final group, which we know the least about, are children who were separated from their parents in the filtration camps that were set up primarily in Donetsk Oblast after the fall of Mariupol. We don't know how many there are, but they have been, in many cases, transferred for adoption and fostering like the evacuees and the battlefield kids.
Deb Amos: You did a comprehensive report from New Haven. How did you do that?
Nathaniel Raymond: Our assistance really came from selfies. Russian officials started taking pictures of themselves with busloads of children being offloaded at these specific facilities, and as we began to look at those photos, we were able to geo-locate the camps. We used satellite imagery to take open source photographs and identify buildings or other visual objects or features, and then overlay that with maps to try to get a precise latitude and longitude of where the photo was taken.
In some cases, the photos themselves have metadata. The time and place that the photo was taken can sometimes be embedded in the photo. Other times, we have to figure it out ourselves, but the officials who were central to the chain of command in moving the children, because they were promoting it for really a public relations campaign aimed at a Russian domestic political audience, we were able to use that as our starting point, and we combined that with information we gathered from Telegram and VK.
Deb Amos: Social media channels that are almost exclusively Russian.
Nathaniel Raymond: Yes, data being generated by the perpetrators combined with the data being generated by parents and others looking for the kids that we began to get a sense of two things. One, the scope of the network, and it's truly a network of 43 facilities we identified, and then the aggregate count of children that we know were deported. And that was where the 6,000 number came from.
Deb Amos: When you wrote 6,000 in the original report, you also said 'to a high degree of certainty.' Is that legal language?
Nathaniel Raymond: That is a term taken from the Berkeley protocol. The Berkeley protocol was developed by the Human Rights Center at the University of California Berkeley to create common evidentiary standards, and so each of our high-confidence findings to translate it into English is really based on five independently verified and corroborated sources for each finding. The key of any prosecution is establishing the who, what, when, where, around the perpetrator. In this case, the perpetrator themselves through the media, were communicating exactly what they were doing, why they were doing it, and how it was being done.
Deb Amos: Putin responded pretty quickly after your report came out.
Nathaniel Raymond: Hours after our report came out in the Russian media, Vladimir Putin and Maria Lvova-Belova, who is also the co-inditee, they're sitting at a desk in the Kremlin and they're recorded in media B-roll. Vladimir Putin asked Maria Lvova-Belova, how is the pilot program in Chechnya for military education of Ukrainian children going? She says it's going very well, and Putin responds and says, "We should expand the program by 2,000 Russian and Ukrainian children." Putin, on tape, says the Russian government is doing military training of children, which is against international law, and then directs Maria Lvova-Belova to expand the program.
Deb Amos: Do you think they knew that they could be found out? Do you think that they believed that they were doing no wrong or they just have been used to impunity to do whatever they wanted?
Nathaniel Raymond: I think one part of the calculus here is that the effort to capture and move these children was part of a broader rebranding in Russian media of the war itself to try to get support from the Russian population for saving these children purportedly from Nazis. Maria Lvova-Belova is seen greeting children in one case at an airport with basically a plastic trash bag filled with teddy bears. You have this charm offensive to really showcase the arrival of these children.
Deb Amos: How effective has that messaging been at convincing Russians that this is not an issue, that they should, they have the right to be doing this?
Nathaniel Raymond: Those who apologize for Russia's behavior say that they are saving children from harm, and they also talk about the conditions at the camp and say, "Look, they're learning musical instruments or they're going to computer camp." My response to that is, well, read the law. When we look at what the international criminal court indicted, the act of deportation is a war crime, but the second crime is transfer. What we know is that Russia is attempting to erase the national or ethnic identity of these children by, in some cases, through courts, changing their name, issuing them Russian passports, and adopting them into Russian families, which is distinctly prohibited by the law.
Deb Amos: This isn't the first time that children have been used as pawns, as you say. In World War II, there was a similar instance of German troops taking Polish kids from their homes and placing them in German families. It was a forcible assimilation. Is there a legal precedent in that case or others for bringing these charges for child abduction to an international stage?
Nathaniel Raymond: In the case that you mentioned of Polish children being transferred to German families by the Third Reich during World War II, that was the first trial at Nuremberg.
Deb Amos: I've seen pictures in Poland of statues of those children. It is a moment that lives in the memory of all Poles to this day. Do you think that Ukraine will have that similar experience?
Nathaniel Raymond: The abduction of Ukrainian children in this war has been, and I'm saying this in the context of all the horrors they have faced since February 2022, stark and central in the Ukrainian psyche in terms of representing why they fight. When I speak to Americans about the ICC indictments, there's often cynicism saying, "Oh, well, Vladimir Putin is never going to face trial or Maria Lvova-Belova is never going to be in the dock in the Hague. It's almost night and day. When I talk to Ukrainians, the ICC indictments for them in this case, were so important, validate their anguish. That matters regardless of whether Putin or Maria Lvova-Belova ever faced trial.
Deb Amos: Nathaniel Raymond is a war crimes investigator and the executive director of Yale's Humanitarian Research Lab. Nathaniel, thanks so much.
Nathaniel Raymond: Thank you, Deb. Always a pleasure
Brooke Gladstone: Coming up the war criminal who got away with it, and the handful of those who didn't.
Deb Amos: This is On the Media.
Brooke Gladstone: This is On the Media. I'm Brooke Gladstone.
Deb Amos: And I'm Deb Amos. There's no shortage of charges to bring against Putin for his actions in Ukraine, but his first crime in this war was the very invasion of Ukraine. Says Philippe Sands professor of law at University College London, an author of East West Street on the origins of genocide and crimes against humanity. He says that prosecuting Putin for this initial act of war, the so-called crime of aggression is the best way for the international community to hold Russia's leaders accountable. Sands made the case in a Financial Times guest editorial just a few days after Putin invaded Ukraine. I asked Sands to describe the war crimes on the books today and how they came to be there.
Philippe Sands: Everything really does go back to 1945 and the summer of that year when the allies decided to set up an international military tribunal to try senior Nazi leaders,
Male Speaker 10: Merely as individuals, their fate is of little consequence to the world. What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust.
Philippe Sands: They lacked the sufficient crimes. It could be said the one they had was war crimes, which dated back to the 19th century, the targeting of civilians, the failure to focus on military, the use of weaponry that was itself unlawful, but that wasn't enough. The allies cobbled together three new international crimes, crimes against humanity, the targeting of civilians on a systematic, widespread scale, genocide, the targeting of groups, and the crime of aggression, waging and manifestly illegal war. For the Nuremberg tribunal, the crime of aggression, waging an illegal war was the crime of crimes because all the other crimes followed from that crime. That, of course, is exactly the situation today in relation to Ukraine.
Deb Amos: Let's talk about jurisdiction for a minute if we can. What court can prosecute the crime of aggression?
Philippe Sands: At this point, there is no international tribunal that can prosecute the crime of aggression. There are some domestic courts, national courts, but a case before a national court runs into one particular problem. That is the immunity of Mr. Putin as a head of state. That doesn't apply in relation to an international court. That's one of the reasons Ukraine and many of the countries that are supporting it want a special tribunal established under international law.
Deb Amos: Putin's been indicted by the ICC, but not for the crime of aggression for allegedly deporting and transferring Ukrainian children to Russia.
Philippe Sands: I think the problem with the indictment is you're going to have to show the direct involvement of Mr. Putin, and that will not necessarily be an easy thing to prove. Now the prosecutor of the International Criminal Court, who happens to be former student of mine and who I know well, has been very opposed to the idea of a special tribunal for the crime of aggression. I think because he's worried that it will deflect attention from the efforts of his own international criminal court.
Deb Amos: Let me get this right. This is the prosecutor of the International Criminal Court. He sees a new court as a competitor. He wants to be the major player in this game.
Philippe Sands: That's my interpretation. Yes, correct. My concern was that we would end up in a situation in which the lesser millions, the lower level people would be hauled up to the Hague. Mr. Putin, Mr. Lavrov, Mr. Shoigu, the people who designed and decided to go to war would, if you like, escape the long arm of justice.
Deb Amos: The crime of aggression is to go after the top table. That's the only way to hold the leadership accountable.
Philippe Sands: It's the only way with any degree of certitude to get to the top table. It's a small number of people, 15 or 20 max. The only way you can aim at them and you can establish very easily their culpability is the crime of aggression.
Deb Amos: The crime of aggression is interesting because it hasn't been prosecuted since the Nuremberg trials. It seems that war crimes are now about atrocities, not about accountability.
Philippe Sands: I think it's fair to say that the five permanent members of the Security Council, Britain, France, the US, China, Russia, have a common interest in diminishing the capacities of an International Court or tribunal to deal with the crime of aggression because they don't want themselves to be in the spotlight.
Look, let's jump straight to the elephant in the room. Certainly, from the perspective of many countries around the world, and that's Iraq in 2003, many people, myself included, think that Iraq was as a matter of international law, illegal. Many other people think that it was a crime of aggression for which the perpetrators, including Mr. Blair and Mr. Bush, should have faced some sort of accountability. You can understand against that background that in the White House, in the [unintelligible 00:43:46] at 10 Downing Street, there's going to be a bit of nervousness about establishing a big new precedent in relation to Ukraine.
Deb Amos: Is that a reasonable fear for all of them?
Philippe Sands: Well, I think it's a reality. If you create a special tribunal for the crime of aggression for the first time since Nuremberg, then you are creating a precedent. You've essentially got an issue of principle and a political issue. How committed are you to dealing with the crime of aggression in relation to what Russia is doing now? What I fear Britain, France, and the United States are doing is sitting on the fence. There is a double standard.
Deb Amos: That double standard is noted by people in the global south. They say that their lives are less valuable when they have a conflict like the one that is happening in Ukraine.
Philippe Sands: Absolutely, there is merit to that. Why was I not writing pieces in the Financial Times calling for a special tribunal in relation to Syria or in relation to Congo? I think each of us has a sense of kinship with a particular community. I know the folks in Ukraine, I've spent time in Lviv, I've been in Lviv when it was attacked. That has made it real. That does not in any way diminish, although it partly explains the force of those who say, why are you only doing this now in relation to a war in Europe? Why didn't you do it in relation to these other places? I think that question forces us to look deep down into ourselves and ask ourselves, how it is we've allowed this to happen? But it's not a reason for doing nothing. It's a reason for doing more, not less.
Deb Amos: Have countries opposed to the international tribunal? Are they suggesting an alternative way to hold Putin accountable?
Philippe Sands: Yes. I want to give credit here also to Britain, France, the United States, Germany, which have moved very far. These are countries that have never since Nuremberg supported the creation of any a tribunal at the international level to deal with the crime of aggression. In the case of Russia, they have shifted big time. They want accountability for the crime of aggression, but they want it before essentially a glorified Ukrainian tribunal. That's a problem. They're not willing to go the extra mile for the reasons that we've been discussing. It wouldn't be right to say that they don't want accountability. I think it would be right to say that their room for maneuver is deeply constrained by their own actions in the past, at least some of them.
Deb Amos: This war, which is so much based on history, has a corollary in the legal realm of accountability?
Philippe Sands: Absolutely. I think your history point is extremely important. After all, this current war is taking place on the very same territory, which the war of 1939 to 1945 took place on. It's absolutely incredible. If you go into, for example, the transcripts of the Nuremberg trial, you will find the Soviet prosecutors in fact who pushed the crime of aggression more than anyone charging the Germans with crimes at Mariupol. The very same place where the West now charges Russia with having committed war crimes. That, I think is the particular horror of what is going on right now.
Deb Amos: There are rare cases where leaders are held to account. I can think of two at the International Criminal Court, Milošević after the war in ex-Yugoslavia and Charles Taylor in Africa. It is rare, it is possible that even Vladimir Putin will not be held accountable. What difference will that make?
Philippe Sands: You never quite know what direction things are going to take. I think we're not at the end of the story in relation to Ukraine. For example, we're hearing stories about a nuclear power plant, which has been mined ready to be blown up in part. I think if you get something like that or another major atrocity taking place on a very significant scale, the political imperative to go for the top table will be so great that the dam will burst, and these countries that have opposed a special international court, I think will change position. The bottom line is Mr. Putin cannot be allowed to get away with this.
Deb Amos: I want to go back to World War I, to a leader who wasn't held accountable. I was in the Hague recently and I went to the final resting place of Kaiser Wilhelm. Now, he was given asylum in the Netherlands after World War I while in England, the Prime Minister Lloyd George, his campaign slogan was Hang the Kaiser, but it didn't happen. It never happened. Would history be different if the Kaiser had been held responsible for World War I?
Philippe Sands: It's funny you should mention that because just today I've been writing a little piece about this. The idea of an indictment of a former Kaiser was unbelievably revolutionary at that period. It took another, if you like, 25 years for the President to be taken forward with Nuremberg. Nuremberg, of course, then begot Yugoslavia, Rwanda, the International Criminal Court, and now we're into Russia and the crime of aggression. I think you can see here a sort of incremental picture that I'm describing. It's a long game. One thing leads to another and you never quite know what it's going to lead to. That is the remarkable thing about it.
Just today I've been focusing on a Augusto Pinochet's surprise. When he got the tap on the shoulder on the night of October the 16th, 1998.
Deb Amos: The Chilean dictator who was indicted by a Spanish court for human rights violations under universal jurisdiction.
Philippe Sands: That was a direct consequence of the story you tell about Kaiser Wilhelm and of course of Nuremberg. If those things had not happened, Augusto Pinochet would not have spent 503 days in detention in London.
Deb Amos: In your view, these are early days, even this conversation, who knows. Plenty of people say it's unlikely that Vladimir Putin will ever be in the dark, but what you're saying is, this is a very early moment in the legal history of this conflict.
Philippe Sands: They said the same thing about Charles Taylor, and they said the same thing about Mr. Milošević, and they said the same thing about Al-Bashir of Sudan.
Deb Amos: These are all leaders who were held accountable.
Philippe Sands: Indeed. It's really important to stick to a principled position. What's the right thing to do? This war is illegal. It is manifestly illegal, it is criminally illegal, and it's absolutely right to focus on the crime of aggression. One day there will be negotiations to end this conflict. The Russians have made it very clear that all these issues of justice and criminality, aggression, war crimes, crimes against humanity, they are a prerequisite for discussions about peace. That I think is going to raise some very fundamental questions. If you come to a crossroads, and the choice is between peace or justice, which way do you go?
Deb Amos: Philippe, thanks very much.
Philippe Sands: It's been really wonderful to talk to you. Thank you for your interest.
Deb Amos: Philippe Sands is the author of East West Street. His latest book is titled The Last Colony: A Tale of Exile, Justice, and Britain's Colonial Legacy.
Brooke Gladstone: The show On The Media is produced by Micah Loewinger, Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang, and Suzanne Gaber, with help from Shaan Merchant. Our technical director is Jennifer Munson. Our engineer this week was Andrew Nerviano. Katya Rogers is our executive producer. On The Media is a production of WNYC studios. Deb, thank you so much for joining us this week.
Deb Amos: Thanks so much for having me, Brooke.
Brooke Gladstone: I'm Brooke Gladstone.
Deb Amos: I'm Deb Amos.
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