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Sensemaker: Justice in war

Sensemaker: Justice in war

What just happened

Long stories short

  • Al-Qaeda leader Ayman al-Zawahiri was killed in a US drone strike on a house in Kabul (more below).
  • Nancy Pelosi, speaker of the US House of Representatives, defied China to say she would meet Taiwan’s president in Taipei.
  • The MP Lisa Nandy visited striking BT workers despite a Labour ban on frontbenchers supporting picket lines.

Justice in war

Last week Russian shells killed 50 Ukrainian prisoners of war and injured 75 more in an attack on their prison camp in eastern Ukraine. The dead were veterans of the siege of Azovstal. There were predictable Russian efforts to blame Ukraine but Russia’s own embassy in London seemed to give the game away: “The Azov militants deserve to be shot, but not shot, but hanged, because they are not real soldiers,” an official wrote on Twitter. “They deserve a humiliating death.” 

The same day a sickening video went viral appearing to show Russian soldiers castrating a Ukrainian prisoner with a knife. Later, he was shot. Ukraine’s prosecutor general opened a criminal case and Amnesty International called the assault “yet another apparent example of complete disregard for human life and dignity in Ukraine committed by Russian forces”.

Earlier, Amnesty concluded that a Russian air strike on a theatre in Mariupol sheltering hundreds of civilians in March was a “clear war crime”, as were mass killings in towns near Kyiv, including Bucha. 

Ukraine is conducting an unprecedented experiment in war crimes prosecution. It’s helped by a superabundance of evidence and suspects – many of whom it holds as prisoners of war. But the effort risks being overwhelmed by the sheer volume of atrocities. 

More than 25,000 suspected war crimes have been recorded since February 24. So far, six sentences have been handed down.

There are a number of hurdles to be overcome if Ukraine is to achieve justice, not revenge:

Ukrainian law. There is no article that provides specific accountability for war crimes in Ukraine’s criminal code. Instead, war crimes have to be prosecuted as general crimes under the code’s Article 438, which refers to unspecified actions that “violate the laws and customs of war”.

This catch-all phrasing is a problem. “In our country, you have to put a concrete article with a concrete crime described by this article… Article 438 doesn’t do that because it’s a blanket referral to the Geneva Convention,” explains Oleksandra Matviichuk, head of Ukraine’s Centre for Civil Liberties.

So, since 2014, when Russia annexed Crimea and backed the separatist Donbas conflict, war crimes have been prosecuted as general crimes: torture, murder, or terrorism. This is still happening:

  • Vadim Shishimarin, the first man convicted in a war crime trial since 24 February, was charged with “violating the laws and customs of war, combined with premeditated murder [emphasis added]”.
  • Draft legislation to define war crimes within Ukraine’s criminal code has been in the works for years, but as of now remains in the government’s intray.

Resources. Ukraine lacks manpower, experience and resources. Consider the Kharkiv region:

  • Before February there were 23 investigators qualified to handle war crimes. Now, in one district of the region alone, more than 100 cases are opened each day. All 350 of the region’s prosecutors have been drafted in to help but this has collapsed the distinction between investigator and prosecutor, a boundary usually maintained to retain the prosecution’s independence.
  • These prosecutors have no war crimes experience; they learn on the job, trained online by Kyiv and international organisations.
  • Investigations are carried out at speed, often months after the event. At a recent investigation in a village outside Kharkiv, prosecutors examined the scene two months after the victim of the shelling attack died. Journalists trampled over areas where prosecutors later fastidiously marked evidence. “I am not sure we are meeting all the requirements for normal procedures,” says Denys Masliy, deputy head of Kharkiv’s prosecuting department, which supervises the police. “It’s hard to imagine the number of mistakes infesting our cases right now.”

Money. There is “almost no” budget for access to services like satellite imagery, an often essential tool for identifying the units responsible for an attack and therefore the commanding culprits, Masliy adds. Many large media organisations are able to conduct more effective investigations into war crimes than Ukraine itself.

A carnival of international experts has arrived to help. The International Criminal Court has sent a team of 42 to Ukraine. The EU, the US, and the UK have sent experts, judges, and investigators, and together established the Atrocity Crimes Advisory Group for Ukraine to coordinate their efforts.

Matviichuk is campaigning for a hybrid tribunal of international and Ukrainian judges and prosecutors, a suggestion similar to that put forward by a coalition of politicians, lawyers and human rights advocates led by Gordon Brown, the former UK prime minister.

No clear consensus on this has been reached and international support remains uncoordinated. Note from history: the Nuremberg trials didn’t start until World War Two was over. Ukraine’s hunger for justice is only human. The risk is that if rushed, the pursuit of that justice becomes fodder for Russian propaganda.

Further reading

  • The BBC’s Fergal Keane examined one alleged war crime in Bucha in painstaking detail.
  • Masha Gessen of the New Yorker has spent weeks in and around Kyiv with war crimes victims seeking justice.


Oil bonanza
BP is raising its dividend and buying back shares after posting its highest quarterly profit in 14 years, thanks largely to the war in Ukraine. It made £8.8 billion between April and June – more than analysts expected and three times more than in the same three months last year. Everyone is cashing in, of course. Shell, Chevron and Exxon all reported record earnings for the same period. And Saudi Arabia’s murderous crown prince, controlling access to the world’s most easily-tapped oil reserves, has shrugged off pariah status like a stripper’s chiffon, paying court to presidents and accepting invitations to the capitals of Europe. Question: at what point does bailing the world out of an energy squeeze at inflated market prices become war profiteering? One would expect nothing less of Riyadh, but don’t the western supermajors have to attend to their reputations – and even perhaps their consciences – as well as their shareholders? This is the time for colossal investments in renewables, not buybacks.


VR surgery 
“Man-on-Mars stuff” is how Noor ul Owase Jeelani, a surgeon based at Great Ormond Street Hospital in London, described using virtual reality to help prepare and lead a successful 27 hours of surgery separating cranially conjoined twins Bernardo and Arthur Lima. The twins, who are nearly four years old, have been under the care of Dr Gabriel Mufarrej in Brazil for the last two years. Despite the 6,000 miles between London and Rio, Jeelani and Mufarrej were able to spend months trialling techniques together in a virtual surgery room – a world first. After previously unsuccessful surgeries the simulations allowed both experts to go through all the steps before lifting a scalpel, allaying some but not all fears about how complicated the surgery would be. Jeelani said the twins’ blood pressure was “off the charts” until they were reunited four days after the surgery and were able to hold hands. 

The 100-year life health, education AND GOVERNMENT

Universal Covid vaccine
Scientists may be one step closer to developing a vaccine that would offer protection against all current and future variants of Covid-19, as well as certain strains of the common cold. Researchers at Francis Crick Institute in London have identified the S2 subunit on the virus’ spike protein as a potential target, as it varies less between coronaviruses compared to the S1 subunit (which is targeted by current vaccines). Their new study found that mice vaccinated using this approach successfully generated antibodies against several coronaviruses. It’s important to note that this vaccine, like other Covid vaccines, would not aim to prevent infection, but would instead reduce the severity of symptoms. It’ll likely be a long time before a pan-coronavirus vaccine becomes available – if ever – but the added protection couldn’t come soon enough, given that 300,000 people in the UK took time off work due to Omicron infection last month.

Our planet CLIMATE AND geopolitics

Carbon neutral eggs
Morrisons has become the first supermarket in the UK to offer “carbon neutral” eggs, from hens fed locally grown grain and insects rather than imported soya feed, which makes up about 80 per cent of an egg’s carbon footprint. Morrisons, the UK’s fourth-largest grocer, installed insect mini-farms in shipping containers at egg suppliers in Yorkshire in partnership with a Cambridge start-up that feeds the insects on the supermarket’s fruit and vegetable waste. The carbon-neutral eggs are for now only available at 50 Yorkshire stores and cost 30p each or £1.50 for a pack of six (compared with £1.39 for six large conventional free-range eggs). Soya is a key element of chicken feed that has been linked by environmental campaigners to Amazon deforestation. Switching laying hens to an insect-based diet (which Morrisons says has no impact on taste) is a good start – a bigger move, observers say, would be soya-free chicken, usually only found in specialist butchers. Further reading: our Sensemaker Special on the price of chicken


Al-Zawahiri dead
If the White House has its facts right, the US has pulled off a remarkable coup by killing Ayman al-Zawahiri and no one else, as the al Qaeda leader stepped onto his balcony in central Kabul on Sunday morning, local time. The architect of the 9/11 attacks had a $25 million bounty on his head but had evaded the CIA for 21 years – and if the Taliban were to be believed could not expect a safe haven in Kabul even after last year’s rushed US withdrawal. It turns out the Taliban was not to be believed. According to the WaPo’s account al-Zawahiri was living in comfort in a recently developed part of the Afghan capital’s Shirpur neighbourhood less than two miles from the US embassy. His room was hit by two Hellfire missiles launched from a drone. The rest of the house was undamaged so his family could be evacuated unhurt, apparently as part of a Taliban effort to pretend they were never there. This is partial vindication for Biden’s long-held belief that the US doesn’t need troops on the ground in Afghanistan because it can do what it needs to from the air. It will damage al-Qaeda at least in the short term and, Biden says, bring closure for some 9/11 families. Whether it gives him a bounce in polls remains to be seen. For now he’s more unpopular than any post-war president at this stage in his tenure except Harry Truman. 

Thanks for reading. Please share this around and tell us what you think. Send an email to sensemaker@tortoisemedia.com.

Antonia Cundy 

Nina Kuryata
Contributing Editor

Additional reporting by Giles Whittell, Asha Mior, Phoebe Davis and Jessica Winch.

Photographs Getty Images, Shutterstock, Gemini Untwined

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