Ukraine, Russia, and paths to justice.
Updated: Mar 11, 2022
In recent days, Ukraine and its people have been condemned to a living hell.
The Russian invasion and air bombardment has been widely condemned as a crime of aggression contrary to international law. Every day, there are reports of alleged war crimes and crimes against humanity. Footage indicates that banned cluster bomb have been deployed in civilian areas. The UK Ministry of Defence states that Russia has admitted using thermobaric missiles. Multiple tentative ceasefires to allow humanitarian corridors for civilian evacuations have been broken, with reports of fatal attacks on civilians. In Mariupol, it is widely reported that a maternity and children’s hospital has been bombed, with children buried in the wreckage. According to Mariupol’s Regional Governor, women in labour were amongst the casualties. A Red Cross spokesman described the situation in Mariupol as “apocalyptic”. The International Committee of the Red Cross (ICRC) estimates that some two million Ukrainians have fled their homes. The humanitarian situation is said to be “dire and desperate”.
Beyond the horror, Putin’s war threatens to undermine the post WWII international legal order. Out of the rubble, effective containment and redress must involve reassertion and reaffirmation of the UN Charter, and investigation and prosecution of individual alleged perpetrators of international crimes. Crimes of aggression, war crimes, crimes against humanity, genocide and torture are all international crimes.
Neither Russia nor Ukraine have ratified the Rome Statute of the International Criminal Court. President Putin, Foreign Minister Lavrov, and senior military officials, whilst inside Russia, are beyond the current effective jurisdiction of the International Criminal Court (ICC). The ICC has no general jurisdiction over alleged crimes of aggression committed by non-state parties.
Nevertheless, there are potential routes to justice, all of which should be rigorously explored in the effort to hold the perpetrators of these crimes to account.
First, international crimes alleged to have been committed in Russia and/or Ukraine should be investigated and prosecuted before national courts under domestic criminal laws. That said, whilst Mr Putin retains power, it is highly improbable that he, or his immediate entourage, will face justice in Russia, or be extradited to Ukraine or anywhere else. On the other hand, Russian troops inside Ukraine under Putin’s orders, including, reportedly, many young conscripts, are within Ukraine’s jurisdiction. Ukraine's Prosecutor General Iryna Venediktova is actively investigating numerous cases, with a grim roster on the Prosecutor General of Ukraine's website. A dedicated portal has been set up for citizens to report suspected crimes and submit evidence: https://warcrimes.gov.ua/ . Ms Venediktova has called for an international coalition for justice. The international community should actively support this effort, with expert, technical and financial support to bolster the capacity of Ukraine’s independent criminal justice system in pursuit of its investigations. For the dignity and autonomy of victims and survivors, for Ukraine’s civil society, democratic institutions, and Ukrainian self-determination and sovereignty, this pathway to justice and accountability should be central to peace, reconciliation, and the revival of Ukraine. Whilst it may be a long time coming, the same goes for Russia, when Putin’s grip on power ends, and democratic and judicial institutions have been reformed.
Secondly, there is an on-going investigation by the International Criminal Court (ICC). Whilst it has not ratified the Rome Statute, in 2014 and 2015, Ukraine issued declarations under article 12(3) of the Rome Statute, accepting the ICC’s ad hoc jurisdiction. The 2015 declaration accepts the jurisdiction of the ICC “for the purpose of identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014.” The declaration “is made for an indefinite duration”. The Chief Prosecutor of the ICC has recently confirmed that ICC’s investigation extends to the on-going situation in Ukraine.
However, under Ukraine’s 2015 declaration, the ICC’s jurisdiction is territorially limited to Ukraine itself. Mr Putin and other senior political and military figures in command-and-control positions in Moscow are out of reach. Further, the ICC’s jurisdiction is materially limited to war crimes and crimes against humanity, excluding crimes of aggression committed by Russian nationals.
Thirdly, the UN Security Council could refer the situation to the ICC for investigation into alleged crimes in relation to non-state parties such as Russia and Ukraine. The UN Security Council can take decisions in the interests of peace and security, and in response to acts of aggression. In furtherance of those powers, it has authority to refer situations to the ICC. On referral by the UN Security Councils, the ICC acquires full jurisdiction to investigate and prosecute situations involving states that have not ratified the Rome Statute. A referral by the UN Security Council could expand the territorial scope of the ICC’s on-going investigation of war crimes and crimes against humanity, to include the Russian president, and the political and military elite. However, the prospect of the UN Security Council adopting an ICC referral resolution seems remote: Russia is a permanent member of the UN Security Council. China would likely abstain.
Fourthly, there have been calls from eminent legal experts for the establishment of a Special International Tribunal for the Punishment of the Crime of Aggression Against Ukraine, following the model of the International Military Tribunal at Nuremberg (IMT). The proposed tribunal’s territorial and material jurisdiction would extend to the senior political and military leadership in Moscow and alleged crimes of aggression. Whether UN Security Council authority is anticipated or required is unclear. However, without such sanction, the tribunal’s political and legal legitimacy would inevitably be questioned, not to mention its authority to compel Russian cooperation and overcome complex legal arguments regarding officials’ immunity from prosecution. As with a potential ICC referral, approval and authorisation by UN Security Council resolution is improbable whilst Russia retains a permanent seat. Furthermore, an ad hoc international tribunal, operating in parallel with the ICC’s investigation, even if focussed only on crimes of aggression, could give rise to a separate, potentially conflicting body of jurisprudence on collateral evidential and legal issues. Whilst far from perfect, the cohesive neutral authority and expertise of the ICC could thereby be undermined, unhelpfully fuelling existing criticism of perceived institutional weaknesses of the ICC.
Nation states outside Russia and Ukraine have legal obligations to investigate and prosecute crimes alleged to have been committed by non-nationals in another jurisdiction under universal jurisdiction principles. Universal jurisdiction could be triggered when a suspect enters the territory of third countries. 141 states supported a UN General Assembly resolution condemning Russia’s attacks on Ukraine. There is no time like the present to demonstrate through action the sincerity of words: cooperation between even some of those states to investigate and prosecute suspects under universal jurisdiction principles would likely enhance the prospect of justice and accountability for Ukraine. There is a wealth of data and evidence already in the public domain. Millions of refugees who have already fled to other countries are potential eye witnesses to alleged atrocities. States outside Ukraine could and should be actively investigating, and cooperating to support the Ukrainian Prosecutor General. In recent days Germany, Estonia, Latvia and Lithuania have opened investigations into war crimes. Other states should do the same.
This is not just a moral imperative. It is an assertion of the international legal order, the founding principles of the UN, and complies with states' obligations in international law to investigate and prosecute international crimes, wherever they occur.
With effective international cooperation on war crimes investigations, coupled with the international sanctions regime imposed on Russia, the Russian political and military elite, and any other alleged suspect of international crimes, whatever their rank, should never be able travel outside Russia without facing justice. Even after the current regime falls, Russia will likely be consigned to continued isolation and draconian sanctions if it harbours and protects international fugitives.