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Ukraine mobilizes international law: ways to punish Russia for aggression and more

On the legal front, during the week of the war, Ukraine has already appealed to a number of international criminal justice institutions accusing Russia of military aggression and war crimes, and has launched an investigation at the national level. We are witnessing an unexpectedly quick response from international institutions due to the scale of the aggression, so we can rest assured that Ukraine has mobilized (enforced) extremely clumsy mechanisms of international law. We decided to gather information about all the appeals and reactions to them so that everyone could see the actions happening on the legal front and the prospects of bringing to justice the aggressor state, its leadership and the military staff that committed war crimes against civilians.

From the point of view of the “Hague law” and the “Geneva law”, which constitute the international humanitarian law, we can speak of individual responsibility for 1) war crimes; 2) crimes against humanity and the responsibility of the state and its military-political leadership for 3) genocide; 4) the crime of [military] aggression. All these crimes are mentioned in a number of treaties, and an institute for dispute resolution (courts) of various jurisdictions has been established to bring justice if the crimes are committed. Depending on the type of agreement signed and ratified by Ukraine and the aggressor state, we have the opportunity to appeal to various international institutions, each of which has its own limitations. We describe it in detail below.

So, what mechanisms of prosecution are involved:

International Court of Justice (ICJ)

Ukraine filed a lawsuit against the Russian Federation to the United Nations International Court of Justice in The Hague (ICJ) on the distortion of the concept of genocide to justify its own military aggression in the form of a “special operation to” demilitarize” and “denazify” Ukraine. Ukraine has been seeking a court ruling that it has not been committing genocide against the Russian-speaking population in Donetsk and Luhansk regions for eight years, which has been proclaimed by the Russian President Vladimir Putin.

At the same time, in the appeal to the ICJ, Ukraine claims that Russia intends to plan real acts of genocide in Ukraine, as Russia deliberately kills and seriously injures Ukrainians, which, together with the official rhetoric of the President of the Russian Federation, who denies the existence of the Ukrainian nation, constitutes actus reus (objective side) of the crime of genocide under Article II of this Convention. It should be added that Putin’s statements about “denazification”, i.e. accusations of Ukrainians that they are “Banderivtsi” (Ukrainian nationalists), “Nazis”, etc., and even more so – the intention to destroy the Ukrainian state as such, because it did not exist before 1918, can be considered as planning the genocide of the Ukrainian people on ethnic grounds, i.e. the existing mental element (intent, mens reus). These elements of the crime, together with the contextual element (circumstances) are enough to claim that even if there will be no genocide of Ukrainians, it has definitely been planned.

The ICJ has the power to take temporary (preliminary, pending, final) measures that may require Russia to take specific actions or refrain from them. On March 7-8, 2022 ICJ will hold open hearings concerning interim measures on this complaint of Ukraine.

In addition to the legal mobilization (enforcement) of the Genocide Prevention Convention (1948), Ukraine has the right to file an appeal on violation of obligations of other agreements signed by both parties, i.e. Russia and Ukraine. For example, according to Dr. Talita Dias (Jesus College, University of Oxford) Ukraine may file an appeal on violation of the obligations under the International Convention on the Use of Radio Broadcasting for Peace (1936), as the dissemination of information through propaganda channels about the “8 years of genocide of Russian-speakers in Donbass” distorts reality and does not correspond to reality and factual circumstances of what was happening in eastern Ukraine.

It is also worth remembering that this is the second case against Russia in this court – On January 16, 2017, Ukraine appealed to the ICJ against Russia regarding the violation of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). On November 8, 2019, the ICJ previously acknowledged its jurisdiction in this case, the trial is currently ongoing.

International Criminal Court (ICC)

The International Criminal Court is also based in The Hague. It is the first permanent court at the international level, which deals with the the military-political leadership of the states, which are brought to justice for war crimes, crimes against humanity, genocide, and from 2018 – the crime of [military] aggression.

Ukraine has a long history with the ICC: in 2000, it signed the Rome Statute, the document that lies in the basis of the Court’s functioning. After the annexation of Crimea and the occupation of Donbass, Ukraine adopted a Resolution of the Verkhovna Rada recognizing the jurisdiction of the ICC, and later amended the Constitution accordingly, which provided for the ratification of the Rome Statute (in 2001 this possibility was blocked by the CCU). These changes came into force in 2019, and two years later Ukraine adopted amendments to the Criminal Code of Ukraine in terms of war crimes required for ratification of the Rome Statute (draft law awaits the signature of the President from June 2021). Thus, for a full consideration of Russia’s crimes, one step remains – to ratify the Rome Statute. At the same time, the jurisdiction recognized in 2014-2015 allows the ICC to collect evidence today.

On February 25 ICC Prosecutor Karim Khan reported that he is closely monitoring the situation in Ukraine. On February 28 he independently initiated the opening of proceedings for war crimes committed by Russian servicemen, and on March 2, after an appeal to the ICC by 39 member states of the Rome Statute, which confirmed the gravity of crimes committed in Ukraine, he opened the proceedings. Finally, on March 3, it was reported that ICC prosecutors went to Ukraine to study the situation in more detail.

It should be noted that this is an investigation of war crimes, i.e. those committed against civilians – shelling of houses, killing of civilians, looting, etc. At the same time, the crime of aggression cannot be considered by the ICC in this case, because (1) Russia has not ratified the Rome Statute, and (2) Ukraine has not ratified either the Rome Statute or Kampala amendments (2010). Russia is not required to oppose war crimes, crimes against humanity and genocide.

The ICC is about individual responsibility, not state responsibility. At the same time, the principle of complementarity applies, i.e. the ICC does not replace national protection mechanisms, but takes into account only those war criminals who cannot be reached by the national legal system. Let us stress here that we are talking about the leadership of the highest level, not ordinary war criminals.

The ICC can prosecute suspects, but has no authority to make arrests. The court relies on states that have law enforcement agencies to do so. If the perpetrators remain in power, they cannot be arrested. But the accusations limit the ability of these leaders to travel and send a signal to their state that it will remain isolated as long as they remain in power. In some places, criminal charges by the international court may have contributed to popular uprisings (for example, against Slobodan Milosevic in Serbia, see Bulldozer Revolution (2000)).

Thus, the ICC can make a significant contribution to the further isolation of Russia, and if its military-political leadership finds itself abroad, there will be a chance to arrest them and carry out a conviction against them.

European Court of Human Rights (ECtHR)

On February 28, in connection with Russia’s military aggression, Ukraine requested urgent interim measures in accordance with Rule 39 of the ECtHR Rules. Such requests are usually made in the event of a threat to human life and health, such as failure to provide medical care to a prisoner, which may have irreparable consequences. In our case – the shelling and killing of civilians. It is important that Russia is a member of the Council of Europe and recognizes the jurisdiction of the ECtHR over itself, so this mechanism is used in this case.

On March 1 ECtHR decided on temporary measures – request to the Russian government to refrain from military attacks on civilians and civilian objects, including housing, emergency vehicles and other specially protected civilian objects, such as schools and hospitals, as well as the immediate security of medical facilities, personnel and rescue services within the territory attacked or besieged by Russian troops”.

At the same time, the Court not only ruled on the day following the receiving the appeal, but also quoted the requirements of Ukraine’s request verbatim. Besides, for the first time in a situation of bilateral conflict, the Court pointed to remedies of only one party of the conflict (!).

For the civilized world, this is yet another confirmation of Russia’s war crimes. For Russia itself, this means nothing, as its lawyers have consistently, since 2010, adhered to the concept of “primacy of domestic law”, which is consistently implemented by the Chairman of the Constitutional Court of the Russian Federation V. Zorkin. Finally, in 2015, Russia passed a law allowing its national courts to overturn ECtHR decisions (!). Therefore, it is quite expected that Russia will ignore the temporary measures and will not even report on their (non) implementation.

In addition, in response to Russia’s military aggression against Ukraine on February 25, 2022, the Council of Europe stopped the mission of Russia in the Committee of Ministers and the Parliamentary Assembly of the Council of Europe. This does not preclude the possibility of a complaint against it, but if Russia continues to remain a member of the Council of Europe, it may stop the possibility of new complaints against it. In other words, the affected citizens of Ukraine will not be able to use this mechanism to protect their rights.

Special Court – “Kharkiv” Tribunal

In international law, tribunals are the courts that are established ad hoc, i.e. on a case-by-case basis. After the brutal shelling of the civilian population in Kharkiv, the idea was born to try Russian President Vladimir Putin and his entourage in this city.

On March 4 British Chatham House hosted a presentation of the project “Kharkiv Tribunal”. Since, as already mentioned, under the current treaties it is impossible to prosecute the top leadership of the aggressor state for the crime of aggression, which created the preconditions for all other international crimes, other mechanisms are required.

Just like the London Declaration of 1942, which laid the foundation for the Nuremberg Tribunal, the Declaration on the Establishment of a Special Tribunal for the Crime of Aggression against Ukraine (Kharkiv Tribunal) was proclaimed.

The text of the relevant statement and the draft declaration, prepared by a group of volunteers of international lawyers, is already approved by the Minister for Foreign Affairs of Ukraine Dmytro Kuleba and signed by dozens of leading worlds (and Ukrainian) international lawyers, former judges of international courts, as well as such prominent figures as Nuremberg Prosecutor or actor and writer Stephen Fry.

The existence of this tribunal does not abolish the complementary jurisdiction of the ICC, since it concerns the crime of aggression. In other words, it complements the liability of Russia’s top military and political leadership.

Universal jurisdiction

In accordance with the principle of universal jurisdiction, national crimes committed by foreign nationals in foreign territory may be prosecuted within national justice systems. Several countries – Germany, Sweden, Finland – have jurisdiction over all international crimes committed in Ukraine.

Other countries have jurisdiction if the perpetrator is in their territory or one of their citizens is a victim. Some countries have established teams of specialized prosecutors to combat international crimes, and cooperation between national justice systems that invoke universal jurisdiction is growing.

In practice, these are international investigative teams, i.e. a group of investigators from different national legal systems, which are tasked to bring perpetrators to justice. Ukraine has already resorted to this practice when it participated in a special investigation team led by the Netherlands to investigate the downing of a civilian passenger plane MH17 near Donetsk (2014).

Such a mechanism allows to bring to justice not only the military-political leadership of the state, but also servicemen of any rank who has committed war crimes against the civilian population of Ukraine in any part of the world under the jurisdiction of the special investigation team (for example by using the mechanism of instructions (cards) of Interpol).

On February 26, Prosecutor General Iryna Venediktov discussed the possibility of joint investigation with specialists from the United States, and on March 3 – with prosecutors from Italy, Britain and Wales, who have already launched an investigation into Russia’s military aggression. It is also known that Lithuania and Poland have launched their own investigations, as well as, without a doubt, many other countries.

International investigative mechanism

The UN General Assembly and the UN Human Rights Council have established mechanisms for certain situations to gather and preserve evidence. These institutions, in particular those created for Myanmar (2011) and Syria (2016), have a mandate to prepare cases for prosecutors who wish to use them in the future – in international or national courts.

On March 4, 2022, 47 members of the UN Human Rights Council voted to establish such a mechanism. With 32 votes in favour, the UN Human Rights Council created International Commission of Inquiry into War Crimes Committed by Russian Soldiers and Violations of International Humanitarian Law (Commission of Inquiry to investigate violations of human rights and international humanitarian law resulting from Russian aggression against Ukraine). These mechanisms usually involve experienced international investigators and prosecutors. They can collect, store and systematize evidence at a high level.

Thus, experienced prosecutors have already begun gathering evidence of Russia’s war crimes for further use in the various prosecution mechanisms described above.

Application of national legislation

Finally, the mechanisms of national law should apply. Section XX of the Criminal Code of Ukraine provides for liability for criminal offenses against peace, security of mankind and international law and order. Central to it is such a crime as violation of the laws and customs of war (Article 438 of the Criminal Code of Ukraine), which is the basis for putting to justice war criminals here and now, as they came under the jurisdiction of Ukraine.

Chapter XX also includes a wide range of other corpus delicti, such as propaganda of war (Article 436 of the Criminal Code of Ukraine) or planning, preparation, resolution and conduct of aggressive war (Article 437 of the Criminal Code of Ukraine). From a legal point of view, this is an opportunity to involve any serviceman, the military-political leadership of Russia and civilians in general, who played a role in the aggression against Ukraine. However, precisely because of the limited physical access to these individuals, as well as possible allegations of political persecution, there are international mechanisms for investigating these crimes.

Currently the Office of the Attorney General uses national criminal procedural legislation for the detention of prisoners of war, i.e. combatants under the “law of Geneva” (these persons are charged with encroachment on the territorial integrity of Ukraine (Article 110 of the Criminal Code) and illegal smuggling of persons across the state border (Article 332 of the Criminal Code)). At the same time, after the end of the war (or before it in the process of exchange), these people will most likely be extradited to Russia and will not bear individual responsibility here in Ukraine, as they obeyed the orders of the aggressor state’s armed forces. Although it all depends on how the peace treaty will be concluded and what it will proclaim.

Finally, among these prisoners of war are those who committed war crimes and who can be prosecuted here, i.e. not extradited in any way, given the principle of extraterritoriality of criminal law (Article 6 of the Criminal Code of Ukraine). The same applies to members of the sabotage–intelligence groups, some of whom are citizens of the Russian Federation, and who are accused of encroaching on the territorial integrity and sovereignty of Ukraine (Article 110 of the Criminal Code of Ukraine) and sabotage (Article 113 of the Criminal Code of Ukraine). After the end of the war, they can be held accountable under Ukrainian law and serve their sentences in our country.

So, let’s summarize:

– Ukraine appealed to the UN International Court of Justice (ICJ) concerning distortion of notion of genocide by Russia to justify war, as well as to plan the genocide of Ukrainians (based on the 1949 Genocide Prevention Convention);

– the Prosecutor of the International Criminal Court (ICC) independently initiated proceedings on war crimes of Russian servicemen (based on the appeal to the ICC in 2015 to recognize the jurisdiction of the Court);

– The ECtHR requires the Russian government to refrain from attacks on civilians (based on Rule 39 of the Rules of Court);

– Ukraine, within its universal jurisdiction, communicates with other countries that are already investigating Russia’s military aggression, such as Italy, Lithuania, Poland, the English and Welsh prosecutors’ offices;

– The UN Human Rights Council has established an international commission to investigate war crimes committed by Russian servicemen and violations of international humanitarian law, whose prosecutors are preparing evidence that can be used in all international and national jurisdictions;

– At the national level, Ukraine is investigating the war and other crimes of combatants involved in the war by Russia.

Yevhen Krapivin, expert of Center for policy and legal reforms

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