Accountability for Ukraine: A Testing Moment for the Future of Accountability

Since the full-scale invasion of Ukraine, a range of initiatives and mechanisms have emerged to address Russia’s accountability for aggression and the commission of core international crimes. These include the Register of Damage, the Claims Commission, the International Centre for the Prosecution of the Crime of Aggression, and proposals for an Aggression Tribunal, among others. While many of these mechanisms have already been established or are in the process of being operationalised, they have not been immune from criticism. Some scholars have expressed scepticism, at times bordering on cynicism, questioning whether these initiatives risk becoming performative exercises in accountability, or whether proceedings conducted in absentia may amount to little more than a moot court.

Such critiques should not be dismissed lightly. Significant legal and political obstacles to full accountability persist, not least because the alleged violations are attributable to a powerful state. Issues such as state immunity, the legality of confiscating frozen Russian assets, and broader geopolitical constraints continue to complicate the pursuit of justice. Yet, focusing exclusively on these limitations risks obscuring a more fundamental point: accountability is not a singular event, but a process – one that begins with the establishment of truth and documentation. Even where enforcement remains uncertain, mechanisms that document violations and attribute responsibility perform a critical function. They counter efforts to manipulate historical narratives, create authoritative records of wrongdoing, and lay the groundwork for future claims to justice and reparations.

From this perspective, the value of existing and proposed mechanisms should not be measured solely against their immediate capacity to deliver outcomes. Rather, their significance lies in their contribution to a longer trajectory of accountability. International law offers numerous examples demonstrating that claims for justice may endure across decades. The experience of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is instructive. Established in 1993, before the most severe atrocities in the region had even occurred, the ICTY initially faced considerable scepticism regarding its effectiveness. The Srebrenica genocide took place two years after the Tribunal was set up, and the Kosovo conflict commenced only in 1998, deepening doubts about the Tribunal’s capacity to respond meaningfully. Yet, over time, the ICTY indicted more than 90 individuals, including senior political and military leaders, and contributed significantly to the development of international criminal jurisprudence. Although figures such as Slobodan Milošević did not ultimately see a final judgment, his transfer to The Hague and death in custody nonetheless marked a profound shift in expectations of accountability.

Like the Nuremberg and Tokyo Tribunals before it, the ICTY was initially met with concerns regarding legality and legitimacy. In retrospect, however, these institutions have come to be regarded as foundational to the modern system of international criminal justice. Their legacy illustrates that legal innovation, even when contested at the outset, can crystallise into widely accepted principles over time. Such progressive development of international criminal and humanitarian law also contribute to the normative project of international law more generally. Hence, if sustained political will exists in relation to Ukraine, a similar trajectory remains possible. Conversely, if international law is invoked only to shield state assets or to prevent the prosecution of high-ranking officials, international law risks being instrumentalised in ways that ultimately undermine both its normative authority and its capacity to deliver justice.

The importance of long-term accountability is equally evident beyond the realm of international criminal justice. The jurisprudence of the International Court of Justice (ICJ) underscores the enduring relevance of documentation and the potential for reparations, even after significant temporal gaps. The case concerning the Democratic Republic of the Congo v. Uganda is particularly illustrative. In its 2022 judgment on reparations, the ICJ ordered Uganda to pay US$325 million for unlawful occupation, human rights violations, and the exploitation of natural resources between 1998 and 2003. While this figure fell substantially short of the $13 billion initially claimed, the discrepancy was largely attributable to evidentiary shortcomings. The Court was, on two occasions, required to determine the quantum of compensation in the absence of sufficiently detailed documentation. This outcome highlights a crucial lesson: the systematic recording of damage and harm is not merely a technical exercise, but a decisive factor in the realisation of future claims. In this regard, Ukraine’s ongoing documentation efforts are not ancillary, but central to any credible pathway to reparations.

Taken together, accountability should not be conceptualised as a rapid or linear process. Rather, it is best understood as a longue durée project, unfolding across legal, political, and historical dimensions.

At the same time, the contemporary context presents distinct and arguably more profound challenges. The normative foundations of accountability are increasingly being questioned, not only by states traditionally sceptical of accountability, but also by actors that have historically promoted them. This shift is reflected in emerging approaches to peacebuilding that prioritise transactionalism over legal accountability. The principles articulated by the Board of Peace, for instance, emphasise the need to depart from existing approaches deemed ineffective, while omitting any meaningful reference to international law or justice. Such positions risk normalising a vision of peace that is decoupled from accountability, thereby weakening the very frameworks designed to address impunity.

These developments are compounded by broader patterns of double standards. Ongoing violations in contexts such as Gaza and Sudan, coupled with muted or uneven international responses, hurt not only the victims but also the principle of accountability. This is taking place while also directly attacking institutions empowered to address accountability. The measures targeting institutions such as the International Criminal Court (ICC) signal an increasingly adversarial posture towards mechanisms of international justice. As Theodor Meron cautions in A Thousand Miracles, actions that undermine the ICC “will inevitably promote impunity” and may, depending on their scope and duration, threaten the Court’s very existence. Against this backdrop, his call to reinvigorate the principle of accountability, both internationally and domestically, acquires renewed urgency.

It is precisely in this context that efforts to ensure accountability for Ukraine assume a significance that extends well beyond the immediate conflict. The response to Russia’s aggression will not only determine the prospects for justice in this particular case, but will also shape the future trajectory of international law itself. What is at stake is not merely the success or failure of individual mechanisms, but the resilience of the broader system of accountability. For this reason, sustained commitment by states is indispensable. The initiatives currently under discussion must be understood as part of a larger normative project, one that will test whether international law remains capable of responding to grave violations, or whether it will gradually yield to erosion of accountability.

Kushtrim Istrefi

Dr Kushtrim Istrefi is Associate Professor of Public International Law and Human Rights Law, director of of the Master’s programme in Public International Law, co-founder and coordinator of the Research Platform on Peace, Security and Human Rights, and substitute member of the Venice Commission.