Will the Russian Federation’s accountability for crimes against Ukraine drive the evolution of international law? | In Principle

One of the sessions at the spring meeting of the New York State Bar Association in Warsaw in March 2023 was devoted to questions of accountability of the Russian Federation for crimes it has committed as a potential driver of changes in international criminal law.

In this article we provide a brief overview of several lines of inquiry under which Ukraine and the international community are working to hold the Russian Federation responsible for its crimes against Ukraine.

As of now, Ukraine has initiated proceedings against the Russian Federation in the International Court of Justice and the European Court of Human Rights, and insists on establishment of a special tribunal for the crime of aggression. Additionally, the International Criminal Court has opened an investigation into the situation in Ukraine under a referral by 43 states-parties to the Rome Statute of the ICC.

International Court of Justice

The ICJ is authorised to resolve legal disputes submitted to it by states in accordance with international law.

As Ukraine and the Russian Federation are both members of the United Nations and are bound by the ICJ statute, and Ukraine and the Russian Federation are both parties to the Genocide Convention (1948 Convention on the Prevention and Punishment of the Crime of Genocide), on 26 February 2022 Ukraine filed an application with the ICJ instituting proceedings against the Russian Federation in a dispute relating to the interpretation, application and fulfilment of the Genocide Convention (Ukraine v Russian Federation).

In its application, Ukraine mentions that Russia is planning acts of genocide in Ukraine: “Russia is intentionally killing and inflicting serious injury on members of the Ukrainian nationality, the actus reus of genocide under Article II of the Convention. These acts must be viewed together with President Putin’s vile rhetoric denying the very existence of a Ukrainian people, which is suggestive of Russia’s intentional killings bearing genocidal intent.” However, Ukraine is not asking the ICJ to adjudge that the Russian Federation is committing genocide. Instead, Ukraine asks the ICJ to declare that no acts of genocide have been committed in the Luhansk and Donetsk oblasts of Ukraine, and that the Russian Federation cannot lawfully take any action in or against Ukraine aimed at preventing or punishing an alleged genocide, on the basis of Russia’s false claims of genocide.

On 16 March 2022, the ICJ imposed provisional measures, ordering inter alia that the Russian Federation immediately suspend the military operations commenced on 24 February 2022 in the territory of Ukraine. But the Russian Federation is manifestly not complying with these provisional measures.

This was a second case instituted by Ukraine against the Russian Federation before the ICJ. The first case was initiated in 2017, alleging violations of the Russian Federation’s obligations under the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 and the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965. Both cases are pending.

European Court of Human Rights

Although most applications to the ECtHR are lodged by individuals, groups of people, companies or NGOs, states may also lodge applications against each other (known as “inter-State applications”) under Art. 33 of the European Convention on Human Rights.

Following Russia’s expulsion as a member state from the Council of Europe on 16 March 2022, the convention has ceased to apply to the Russian Federation. However, Russia remained bound by the convention until 16 September 2022. The ECtHR retains jurisdiction to hear cases against the Russian Federation concerning violations that occurred before 16 September 2022.

In total, since 2014 Ukraine has filed six applications against Russia with the ECtHR. Subsequently, certain applications were joined. For example, on 17 February 2023 the ECtHR Grand Chamber decided to join the following inter-State applications:

• Ukraine v Russia (X), alleging mass and gross human rights violations committed by the Russian Federation in its military operations on the territory of Ukraine since 24 February 2022
• Ukraine and the Netherlands v Russia, concerning the conflict in eastern Ukraine involving pro-Russian separatists which began in 2014, including the downing of Malaysia Airlines flight MH17, which resulted in the deaths of 298 people, among them 196 Dutch nationals. On 30 November 2022 (in a decision delivered on 25 January 2023), the ECtHR Grand Chamber declared the application partially admissible, and now the decision on the merits is pending.

The joined case will be referred to as Ukraine and the Netherlands v Russia (nos. 8019/16, 43800/14, 28525/20 and 11055/22). Aside from this joined case, there are currently three other inter-State applications filed by Ukraine and over 8,500 individual applications pending before the ECtHR concerning the events in Crimea, eastern Ukraine, and the Sea of Azov.

While there is no decision on the merits yet in these cases, there are doubts concerning the possibility of enforcing ECtHR decisions. For example, in 2019 in the inter-State case of Georgia v Russia (I), the ECtHR ordered Russia to pay Georgia EUR 10 million in damages related to mass deportations, which Georgia would then distribute among the victims. But to date Russia has not paid any compensation to Georgia.

International Criminal Court

First of all, according to the Rome Statute, which is the basis for the jurisdiction of the ICC, there are four main types of international crimes:

• War crimes, comprising (a) grave breaches of the Geneva Conventions of 12 August 1949 committed against persons or property protected under the relevant Geneva Convention, (b) other serious violations of the laws and customs applicable in international armed conflict, (c) serious violations of Art. 3 common to the four Geneva Conventions of 12 August 1949 in the case of a non-international armed conflict, and (d) other serious violations of the laws and customs applicable in non-international armed conflicts
• Crimes against humanity—a set of wrongful acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack
• Genocide—a set of wrongful acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such
• Crime of aggression (crime against peace)—planning, preparation, initiation or execution, by a person in a position to effectively exercise control over or direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Neither Ukraine nor the Russian Federation is a state-party to the Rome Statute. However, Ukraine has twice exercised its prerogative to accept the ICC’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory:

• By filing its first declaration, the government of Ukraine accepted ICC jurisdiction over crimes allegedly committed on Ukrainian territory from 21 November 2013 to 22 February 2014
• By its second declaration, the government of Ukraine extended this period on an open-ended basis to encompass ongoing crimes allegedly being committed throughout the territory of Ukraine from 20 February 2014 onwards.

Additionally, during March–April 2022, 43 states-parties to the Rome Statute referred the situation in Ukraine to the ICC for investigation. Therefore, the ICC has jurisdiction to investigate alleged international crimes committed in the territory of Ukraine.

On 17 March 2023, ICC Pre-Trial Chamber II issued arrest warrants against both Vladimir Putin, President of the Russian Federation, and Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. The chamber found that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of the population (children) and unlawful transfer of the population (children) from occupied areas of Ukraine to the Russian Federation.

All 123 states-parties to the Rome Statute have a legal obligation to cooperate fully with the ICC, including the obligation to arrest a person under warrants issued by the ICC. This means that if Putin or Lvova-Belova travels outside Russia to a state-party to the Rome Statute, they should be arrested there.

The ICC is investigating alleged war crimes, crimes against humanity, and genocide in Ukraine. Unfortunately, due to the exceptional nature of the crime of aggression, the ICC has no jurisdiction over the crime of aggression in respect of a state that is not a party to the Rome Statute, except in the case of an appeal by the UN Security Council. But given that Russia has the right to veto decisions of the UN Security Council, such an appeal is impossible.

For this reason, Ukraine insists on creating a special tribunal for the crime of aggression against Ukraine.

Special tribunal on the crime of aggression

In March 2022, Ukraine’s Office of the President and Ministry of Foreign Affairs began advocating the idea of establishing a special tribunal on the crime of aggression. The proposal was then supported by the Parliamentary Assembly of the Council of Europe and by the European Parliament.

Responsibility for the crime of aggression against Ukraine is now being considered through establishing:

• A tribunal based on an agreement between Ukraine and the UN, supported by the UN General Assembly
• A tribunal based on a multilateral agreement between Ukraine and other interested states, or
• A “hybrid” tribunal based on Ukrainian jurisdiction and law but with international participation.

Additionally, two other possible scenarios are being discussed:

• Extending the jurisdiction of the ICC over the crime of aggression by amending the Rome Statute—but this process would take a long time
• Creating a tribunal based on an agreement between the Council of Europe and/or the European Union and Ukraine (the “European” model).

The United States, Poland, Lithuania, Estonia, the Netherlands, Czechia, France, Latvia, Slovakia and other countries are known to support the establishment of a special tribunal. Meanwhile, the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) will commence work in The Hague to collect evidence of the crime of aggression and coordinate relevant investigations.

National Ukrainian courts

As of March 2023, the Ukrainian police had registered about 72,000 cases of alleged war crimes committed since the beginning of the full-scale war in Ukraine, and judgments had already been issued against 29 individuals for crimes committed in the course of the invasion.

While the national judicial system might be an effective tool for holding regular Russian servicemen responsible, there is a concern that due to functional immunities from foreign jurisdiction, heads of state, heads of government and foreign ministers can be prosecuted only before “certain international criminal courts.” This is one more argument in favour of establishing a special international tribunal.

Prognosis

The existing system of public international law faces challenges related to immunities of senior state officials and enforcement of the decisions of international judicial institutions. The world needs an effective mechanism allowing states and responsible persons to be held accountable for international crimes they commit. Establishment of a special tribunal for the crime of aggression is one possible solution for restoring justice and holding Russian senior state officials accountable.

Mariia Derechina, M&A and Corporate practice, Wardyński & Partners