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Why U. law professor says prosecuting atrocities in war-torn Ukraine is an ‘international obligation’

Will global sanctions and the possibility of Ukraine becoming a member of the EU impact Vladimir Putin’s ability to sustain invasion?

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A resident looks for belongings in a building destroyed during fighting between Ukrainian and Russian forces.

A resident looks for belongings in an apartment building destroyed during fighting between Ukrainian and Russian forces in Borodyanka, Ukraine, on Tuesday, April 5, 2022. Ukrainian President Volodymyr Zelenskyy accused Russian troops of gruesome atrocities in Ukraine and told the U.N. Security Council on Tuesday that those responsible should immediately be brought up on war crimes charges in front of a tribunal like the one set up at Nuremberg after World War II.

Vadim Ghirda, Associated Press

Even as Ukrainian President Volodymyr Zelenskyy is calling for tribunals for Russians responsible for gruesome atrocities against civilians in Ukraine, a panel of legal experts say it is unlikely that the threat of prosecution under international law will stop Russian President Vladimir Putin.

“It won’t stop him but he can be held accountable,” David Schwendiman, who prosecuted war crimes while working for the Bosnian government, said during a panel discussion Tuesday at the University of Utah’s S.J. Quinney College of Law, where he is an adjunct professor.

“(Putin) has committed these crimes. The Russians are committing these crimes. The evidence is being collected. It’s being evaluated and verified in ways that it can be. And that counts, because sooner or later, these things are going to be brought to the tribunal or a court that can actually find someone responsible and accountable and punish them for what they did,” Schwendiman said, who also served as an interim U.S. attorney for Utah.

Earlier Tuesday, Zelenskyy told the U.N. Security Council that those responsible for the brutality should immediately be brought up on war crimes charges before a tribunal like the one set up at Nuremberg after World War II, according to published reports.

Civilians have been shot in the back of the head after being tortured, blown up with grenades in their apartments and crushed to death by tanks while in cars, Zelenskyy said.

Women have been raped and killed in front of their children. People have been dismembered and had their throats cut, he said.

Schwendiman said “there are ways to do what needs to be done, to investigate, gather evidence, preserve it, and keep it in a way, in a place where it can be accessed for all these people to do this work. Is it worth it? It’s not just worth it, it’s an international obligation.”

But don’t expect prosecutions to occur immediately, he said.

“We run out of patience when we get morally outraged. We get frustrated because something isn’t happening right now. It took until the early 2000s for much of what went on in Germany during World War II to finally be resolved. I was working in Bosnia-Herzegovina 10 years after the war ended in Kosovo ... so this is going to take time,” Schwendiman said.

U. law professor Amos Guiora, a child of Holocaust survivors, said there has been “an enormous amount of talk” since Russia’s recent invasion of Ukraine “but at the end of the day, actually very little happening. But the complexity here is what, if anything, can be done above and beyond the talk.”

From a military perspective, “obviously, no one wants to go there,” he said.

Guiora evoked the lyrics of “Vietnam Song,” performed by Country Joe and the Fish at Woodstock, that said in part, “Come on fathers, don’t hesitate. Send your sons off before it’s too late. Be the first one on your block, to have your boy come home in a box.”

As the legal experts and scholars conducted a “wonderful conversation” in the college’s moot courtroom, “I don’t really see anything being done” internationally, he said.

Establishing a “no-fly zone” over Ukraine may be the only military action world leaders may be willing to take, Guiora said.

“But it seems to me that absent that, all of us collectively and individually, are not more than bystanders and enablers,” he said.

“So those of us who are steeped in the history of the Holocaust ... when we see refugees being massacred, and the world uttering its utterances, that obviously takes us back to the dark days of the Holocaust, and requires all of us to ask ourselves, ‘What, if anything, have we learned?’ It seems to me that absent the phrases, the mantras that we’re all hearing, it strikes me that we actually haven’t learned anything.”

Martin Steinfeld, the Charnley Fellow in Law at Hughes Hall, Cambridge, and a research seminar leader in European Union Law at the Dickson Poon School of Law, King’s College London, broached what would happen if Ukraine became a member state of the European Union.

“Some of you may have noticed the rather nasty broadside issued by Vladimir Putin towards Finland and Sweden. Both of them are not member states of NATO. They are member states of the European Union. What would happen if Putin dared to go into Finland? This is the big question,” Steinfeld said.

The Treaty of European Union appears to create “a collective security arrangement” among member states. “If a member state is the victim of armed aggression on its territory, the other member states shall have towards it an obligation ... of aid and assistance by all the means in their power” in accordance with the UN Charter, he said.

“Now it makes it clear it’s not supposed to reproduce NATO, but there are a number of commentators who’ve made the point well, this looks like a collective security arrangement,” Steinfeld said.

U. law professor Tony Anghie, whose research interests include public and private international law and human rights, joined the panel via Zoom from Singapore.

Outside of legal channels, economic sanctions leveled by the United States and its allies have had a “massive impact on the Russian economy,” Anghie said.

“Will this slow Putin down? I don’t know. But it is certainly going to have an impact on Russia and the economic foundations of its ability to wage war.”

Widespread sanctions have revealed “a different type of global governance, not through the official channels of the United Nations, but through the world of finance,” he said.

Steinfield said the global sanctions, which have included identifying and seizing the assets of wealthy Russians who have supported Putin’s regime, have stirred debate in the United Kingdom regarding the “money laundering exercise that’s been going on for the last 20 to 30 years,” he said.

“I think we are now having a meaningful discussion about where the dirty money has come from. I’ll tell you one thing, hurting the oligarchs, there are other ways of doing it, but hurting the oligarchs does have an impact. They just don’t want to admit it,” Steinfield said. “So from a British point of view, I’m delighted that this dirty money train is finally being shone a light on.”