It has been over a year since Russia invaded Ukraine, in an attempt to annex its territories. Since then, war crimes have been committed, allegations of crimes against humanity have been made, and the invasion itself has been labelled as an illegal act of aggression by commentators. The alleged perpetrators range from foot soldiers to Vladimir Putin himself.
By Marie-Armance Renaud, Pupil Barrister at Church Court Chambers
There has been unprecedented international denouncement of the acts committed in Ukraine and consensus exists that individuals should be held accountable for the shocking crimes they continue to commit. A year on, what steps have been taken to achieve this aim?
- International Criminal Court (ICC)
Although neither Ukraine nor Russia or Belarus are state parties to the Rome Statute (the ICC’s founding statute), Ukraine previously accepted the Court’s jurisdiction over alleged international crimes committed throughout its territory from 20 February 2014 onwards. In March 2022, ICC Prosecutor Karim Khan KC received referrals from 43 state parties and opened an investigation into the situation in Ukraine. The scope of the situation now encompasses any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards.
A notable advantage the ICC provides is the possibility to hold civilian and military leaders to account for their role in the commission of the gravest crimes based on the concepts of superior and command responsibility. However, this can only be achieved when the individual concerned is no longer in public office. This may be a difficult hurdle to overcome considering Putin has been in power for nearly 19 years and that, in 2021, he signed a law enabling him to run for presidency twice more in his lifetime.
A further limitation is that the ICC cannot try individuals in absentia. Thus, in order to be tried for the crimes alleged against them, defendants would first need to be arrested and extradited to the Hague. Today, this option seems inconceivable as Putin retains power internationally. However, even if it is not immediately executed, the issuance of an international arrest warrant would undoubtedly curtail his overseas travel and damage his standing, both at home and abroad.
An important limitation to the ICC’s jurisdiction in Ukraine is that it cannot investigate the crime of aggression, the gravest of crimes and the first act allegedly committed by Russia in this conflict. This is because non-ICC member states are excluded from the Court’s jurisdiction over the crime of aggression, regardless of victim or aggressor status. The UN Security Council (UNSC) can override this carve-out by voting to refer a matter which may amount to aggression to the ICC, but as Russia has a permanent seat on the UNSC, this is not a viable option.
- International Court of Justice (ICJ)
On 26th February 2022, Ukraine filed an application to institute proceedings against Russia concerning a disagreement between them on whether genocide had occurred in the Luhansk and Donetsk regions of Ukraine, and whether Ukraine had committed genocide. The unilateral assertion that genocide was occurring was used by Russia as a “lawful” basis to take military action in and against Ukraine. The Court concluded that Ukraine had a right not to be subjected to military operations by Russia for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine. Pending its final decision, the Court ordered that Russia suspend the military operations it commenced on 24th February 2022 and ensure that any military or irregular armed units which may be directed or supported by it take no steps in furtherance of such military operations. Although decisions by the Court are binding on the parties concerned, there is no international police force that can support an international court judgment, and so Russia effectively ignored the decision.
It should be noted that the ICJ considers violations by States, rather than individuals. It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. This means that Putin, and those making decisions with him, cannot be tried by the Court. The ICJ has the power to order Russia to pay reparations, but UNSC members have veto power which would frustrate any enforcement of a judgment.
- European Court of Human Rights (ECtHR)
In March 2022, the ECtHR told Russia to cease attacking civilians and bombing homes, hospitals and schools, and to start ensuring safe evacuation routes and access to humanitarian aid for civilians. Russia ignored the decision. As with the ICJ, there is no police force that can support the enforcement of any such decision.
The ECtHR announced on 25 January 2023 that Russia was in “effective control” of separatist regions of Eastern Ukraine from 11 May 2014. In doing so, it has formally acknowledged the inter-state character of the conflict and Russia’s culpability for human rights abuses. This may assist to dispel myths perpetuated by Russia about the conflict and provides a robust reference point on when and where Russia’s military operations in Ukraine began.
Being concerned only with violations by States, the ECtHR also has the power to order compensation. However, the only recourse it has if Russia does not comply is to exclude it from the Council of Europe, which already happened on 16th March 2022.
- Universal jurisdiction
Several European countries have opened independent investigations into Russia’s activity in Ukraine. They did so under the principle of universal jurisdiction which allows countries to use domestic courts to prosecute individuals for grave violations of international law, even if they are committed abroad by foreign perpetrators and against foreign victims. This approach has produced results in the context of international crimes committed by Syrian government officials. The crime of aggression is subject to prosecution via universal jurisdiction and in fact, many countries have outlawed the offence in their domestic legislation.
However, sitting heads of states and senior officials usually benefit from immunity from prosecution in other countries. Concerns also arise in respect of the lack of local expertise, perceptions of political overreach, comity, and the prohibitive logistical and financial burdens. Further, a nexus to the country wanting to prosecute is usually required in order to open investigations into crimes committed abroad.
- National Courts
Ukraine has launched investigations into thousands of war crime allegations and identified hundreds of suspects, including Russian government officials, military leaders and propagandists. Soldiers have already been sentenced for the killing of civilians, indiscriminate attacks on civilians, murder, rape and pillaging.
Although the adaptability of the Ukrainian legal system merits to be lauded, concerns exist in relation to such proceedings. Academics worry about the independence of the Ukrainian judiciary, their impartiality and overall fairness of the trials. Other concerns include the risk of the standard of proceedings due to the ongoing war and the lack of national experience in prosecuting war crimes. Here again, a key lacune is that government and military officials remain immune from prosecution.
- Ad-hoc international tribunal
Some have called for the creation of a special tribunal established specifically to investigate and prosecute crimes committed by Russia in Ukraine. Such a court could prosecute Putin for the crime of aggression, even if he stays in Russia.
In the past, ad-hoc international criminal tribunals have been established via UNSC Resolutions, although this would be impossible due to Russia’s seat on the Council. Some have suggested that the UN General Assembly could create such a tribunal by passing the Uniting for Peace Resolution, originally used during the Korean War when Russia prevented the UNSC from taking action with regard to North Korean aggression. Other tribunals have been created pursuant to an agreement between the country in which crimes have been committed and the UN, approved by the UN General Assembly. These include the Special Court for Sierra Leonne and the Extraordinary Chambers in the Courts of Cambodia.
Leaving UN avenues to one side, another proposal imagines a treaty among numerous countries, or with an organisation such as the EU, which would create a special international tribunal. This would be an extraordinary response but would set a strong precedent which may dissuade any future acts of aggression by other countries.
A year on, we are still at the very beginning of what history has shown will be a long and arduous journey to justice. Although multiple complimentary avenues are open to prosecute international crimes committed in Ukraine, each one presents its own issues; those relating to immunity being difficult to overcome at present. There may be scope for creativity in establishing an ad-hoc international criminal tribunal which could remedy such issues, notably in relation to the crime of aggression. This would be an unprecedented act and require effective cooperation and organisation between states at a time when tensions are high internationally. It would however demonstrate that it is possible to prosecute individuals for the crime of aggression, which has not happened since the Nuremberg trials of the 1940’s.
Marie-Armance Renaud
Pupil Barrister at Church Court Chambers