Abstract
| The international crimes committed during Russian invasion of Ukraine can be prosecuted under the current international law framework except for the crime of aggression. Prosecution of the latter is the only judicial way to prosecute the Russian leadership. The International Criminal Court does not have jurisdiction over the crime of aggression in Ukraine. Furthermore, the International Court of Justice ruled that third countries cannot prosecute other senior government officials. This only leaves Russian and Ukrainian courts as potentially legitimate entities that can prosecute Russian leadership, as both countries are directly involved in the conflict. There is also the idea of establishing a new special international tribunal for the crime of aggression in Ukraine. However, this court brings huge problems for international criminal justice, such as selectivity criticism and resource problems. This paper favours a prosecution of Russian leadership in Ukrainian courts. Even though it is unlikely that Russian leadership will actually be in court, their prosecution will marginalise their political reputation if many countries accept this ruling. This is far from ideal but the most realistic option. The effect depends on the support of the international community.
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- Introduction
“I have decided to conduct a special military operation”, these were the words Vladimir Putin used when he announced on the 24th of February 2022 that Russia’s army would launch an attack against Ukrainian forces to demilitarise the country and replace the government in Kyiv (Osborn & Nikolskaya, 2022). Several intelligence services, especially from the United States, have sent early warnings of Russian troop concentration close to Ukraine since April 2021. Beyond the Horizon ISSG researchers Coban et al. (2022) already warned a month before the invasion of the high risk that Russia was preparing for a full-scale war against Ukraine. After the invasion date on the 24th of February, the UN quickly adopted a resolution on the 2nd of March 2022, rejecting Russia’s invasion and calling for an immediate troop withdrawal with an overwhelming 141 to 5 vote in the UN General Assembly (UN, 2022a).
For the majority of national governments around the world, it was clear that Russia’s attack was a direct violation of Article 2(4) of the UN Charter, which states that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (UN, 1945). The gravity of the attack and its illegal nature caused many national governments, NGOs, and international institutions to demand legal investigations into the invasion. The goal is to hold the perpetrators and planners of the attack accountable. This call was further amplified over the past months when it became clear that Russian forces purposefully targeted civilian infrastructure and non-combatants, including children and women (Speri, 2022). The following sections outline the legal options to investigate the Russian invasion and committed crimes. These options are also assessed on their effectiveness and implications for international criminal justice.
- International criminal law and justice
International criminal law (ICL) is a complex legal discipline. Unlike, for instance, national tax or family law, it is not enshrined in a singular codification system. Instead, it consists of several components, such as international law, comparative criminal law, national criminal law and human rights law. Arguably the Rome Statute of 1998 is the most extensive form of international criminal law codification (Bassiouni, 2014, p.1).
In general, ICL prescribes particular categories of conduct, such as war crimes or crimes against humanity, and holds persons “who engage in such conduct criminally liable” (Cassese & Gaeta, 2013, p.3). Initially, ICL only consisted of war crimes, based on the Hague Conventions of 1899 and 1907, focusing on the conduct of war, and the Geneva Conventions between 1864 and 1949, concerning the humanitarian treatment in war (Fruchterman Jr., 1983). After World War II, the Nuremberg and Tokyo trials recognised new classes of international criminality, namely the crimes against humanity and crimes against peace. Recognition and codification of genocide followed as a distinct crime in 1948 and torture during the 1980s (Cassese & Gaeta, 2013).
The end of the Cold War marked a new era in international criminal law when the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994. Then, in 2002 the International Criminal Court (ICC) was established in the Hague, while its founding treaty, the Rome Statute, was already signed in 1998. The ICC is the world’s first permanent treaty-based court that can investigate and prosecute individuals for the gravest crimes of concern to the international community (Ellis, 2002). As of December 2022, 123 of the 193 UN member states are State Parties to the Rome Statute (ICC, n.d.-a).
Generally, the ICC’s jurisdiction is bound to three trigger mechanisms that can activate investigations by the court. Firstly, signatory states of the Rome Statute can refer situations to the court. Secondly, the UN Security Council can refer situations to the court to extend its jurisdiction to non-signatory states. Lastly, the ICC’s prosecutor may initiate an investigation – proprio motu – on his own initiative (ICC, 2011, Article 13(a-c)). The ICC can prosecute individuals for crimes against humanity, war crimes, genocide, and since 2018, the crime of aggression (Akande & Tzanakopoulos, 2018).
With the establishment of the court came high expectations for international criminal justice. International criminal justice refers to the desire to hold perpetrators of severe international crimes accountable through the application of international criminal law. Throughout history, perpetrators of these grave crimes frequently escaped punishment, either because they enjoyed immunity or because national borders limited the jurisdiction of courts to hold these individuals accountable. Consequently, the overall goal of international criminal justice is ending impunity (Rodman, 2021).
Another entity besides the ICC and special tribunals can pursue international criminal justice, namely national courts. Especially after the establishment of the ICC, several countries adopted aspects of international criminal law in their national legislation. This allows them to prosecute perpetrators of severe international crimes in national courts. In the most extreme forms, some countries adopted universal jurisdiction (UJ) for certain crimes. Universal jurisdiction provides national courts with jurisdiction over crimes against international law, even when the crimes did not occur on the host state’s territory, and neither the victim nor perpetrator are nationals of that host state. Therefore, this principle enables national courts to address grave crimes without personal or territorial connection to the host state (ECCHR, n.d.). The concept gained international attention again when several national courts, such as those in France, Germany, or Sweden, prosecuted perpetrators for core international crimes during the War in Syria in the mid-2010s (Triscone, 2021). The following section outlines the options to pursue international criminal justice in Ukraine.
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