By Ella Day
Russia has undoubtably committed some of the worst war crimes this decade has seen. Will justice be served?
Co-editor, Ella Day, provides her perspective on the issue.
The February of 2022 saw Russian President Vladimir Putin announce a “special military operation”, ordering his troops into Ukraine to “demilitarize” and “denazifiy” their Western neighbour. What followed has captivated the international community, with the UN Secretary-General António Guterres condemning this full-scale invasion by telling the Human Rights Council that it had “triggered the most massive violations of human rights we are living today”.[1]
Defying Putin’s threats to unleash “consequences you have never experienced in your history” on those who interfere with the Russian mission, Ukrainian President Volodymyr Zelensky refused to submit to the Russian powers, reassuring his people “We are all here defending our independence, our state and it will remain so.” [2]
Now, more than a year after the inception of the conflict, there is no end in sight. The invasion continues, with consistent violent attacks targeting both the citizens and infrastructure within the region of Ukraine. As of this month, The Office of the United Nations High Commissioner for Human Rights (OHCHR) verified that this humanitarian crisis has caused over 8,300 civilian deaths, as well as the displacement of millions of Ukrainians across the neighbouring borders. [3] Poland recorded the highest number of border crossings from
Ukraine, standing at around 10 million as of March 2023. [4]
This war of aggression is a clear violation of article 2(4) of the United Nations charter, which provides 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”. [5]
Accordingly, the International Criminal Court (ICC) has issued an arrest warrant for Putin over the commission of war crimes within Ukraine. The warrant pertains to Putin’s alleged “individual criminal responsibility” for the abduction, transfers, and deportation of Ukrainian children into Russia, under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. [6] Given the nature of the indictment, Russia’s Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova was also cited by the courts on similar charges. [7]
UNDERSTANDING WAR CRIMES
The United Nations (UN) Commission of Inquiry on Ukraine has concluded in their March 2023 report that Russia has violated a plethora of international human rights laws throughout the duration of this invasion, many of which amount to war crimes. [8] These violations include attacks on civilians not engaged in combat, wilful killings, unlawful confinement, torture, sexual violence, as well as the unlawful transfers and deportations of children. [9] They have also targeted Ukraine’s energy infrastructure, causing a mass power outage in the capital Kyiv in October 2022.
There are numerous existing treaties and conventions that seek to outline the parameters of war, and what constitutes a war crime in international law. This includes, but is not limited to, Article 8 of the Rome Statute of the International Criminal Court, which explicitly references the Geneva conventions. [10] Substantively, war crimes can be divided into five categories; war crimes against persons requiring particular protection; war crimes against those providing humanitarian assistance and peacekeeping operations; war crimes against property and other rights; prohibited methods of warfare; and prohibited means of warfare. [11] War crimes exist separate to, but not mutually exclusive from, genocide and crimes against humanity, and can likewise be tried in the ICC. They can also be investigated through specifically created tribunals, such as the International Criminal Tribunal for Rwanda. [12]
Accordingly, the Commission of Inquiry has recommended the investigation into the conduct of Russia within their report. Calling for a comprehensive approach to accountability at both a national and international level, the commission emphasises both criminal responsibility and the victims’ right to truth, reparation, and non- repetition.[13] Whilst it is highly likely that the extent of the violations committed by both sides will not be able to be fully comprehended, investigated and possibly prosecuted until after the war ends, these international law proceedings are a crucial step in addressing the devastation at hand, as well as setting a precedent for future conduct.
Pertaining to the charges laid out for Putin and Lvova-Belova, many have questioned the choice to issue a warrant for the unlawful deportation and transfer of children from occupied areas of Ukraine to the Russian Federation. Stefan Schmitt, a Project Lead for International Technical Forensic Services at Florida International University, has stated that in order to successfully prosecute this crime, it must be found that the pair both took the children against their will, but also that they also did not intend to return the children to their legal guardians. [14] The necessity of demonstrating future intent means that this crime has a much higher threshold that the evidence must meet in order to successfully be proven, when compared to the other available charges under the war crime umbrella.
These charges are significantly less than what is desired by the general public of Ukraine, with many left questioning as to why he did not get charged with the crime of aggression. The crime of aggression was recognised as the fourth ‘core’ crime recognised under the jurisdiction of the ICC in 2017, the first change made since the post-WWII trials in Nuremburg and Tokyo. Being one of the four crimes listed in the Rome Statute at its inception, it was not clearly defined and the conditions in which it is activated were not finalised until this time. [15] Per to article 8 of the Rome statute, the crime of aggression amounts to "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to 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.” The act of aggression consitutes "the use of armed
force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." [16]
SMALL CHANCE OF TANGIBLE CONSEQUENCES
Given the ICC has issued an arrest warrant, it is evident due to their legal processes that they concluded there is sufficient evidence of crimes of sufficient gravity, and that opening an investigation would serve the interests of justice and of the victims. [17] However, in order for Putin and Lvova-Belova to stand trial Russian authorities must transfer the pair to the ICC, despite these warrants being issued. The ICC possesses no independent enforcement mechanisms, meaning it lacks the power to apprehend those it intends to prosecute.
Accordingly, there are effectively three ways in which the pair will be forced to stand trial at the ICC, with only two pertaining to the situation in Russia. As Russia is not a signatory of the Rome Statute, the ICC does not have the legal power to autonomously prosecute Putin and Lvova-Belova for war crimes, or the alternative crime of aggression. Further, whilst the UN Security Council has the power to refer the matter to the ICC, the veto power held by Russia as a permanent member has effectively prevented this course of action by blocking every referral. Finally, it is also unlikely the court can rely on internal Russian Authorities to transfer them in order to be prosecuted.
Given these barriers to effective prosecution, so long as they remain within the borders of Russia and the police are unwilling to arrest them, it is unlikely the ICC will have the opportunity to investigate the claims and formally try Putin and and Lvova-Belova. Russian authorities have dismissed the allegations, the Kremlin labelling the issuing of the arrest warrant as “outrageous and unacceptable”. [18] They maintain that they do not recognise the legitimacy of the ICC, considering its decisions to be “legally void”. [19]
SYMBOLIC POWER OF THE ICC
Addressing these institutional barriers to the achievement of justice, the court’s president Piotr Hofmanski issued a statement on March 17, announcing that “the ICC is doing its part of work as a court of law. The judges issued arrest warrants. The execution depends on international cooperation.” [20] Despite being constrained from achieving tangible success in prosecuting the alleged war criminals, ICC has held a long-standing reputation for being a symbol figurehead of international peace and justice.
Alongside its actions being recognised as a deterrent for the future conduct of states in conflict, it is likely to serve a very real and timely show of support for Ukrainians. According to Retired Lieutenant Colonel Stuart Crawford who was an officer in the Royal Tank Regiment for 20 years, both sides are likely to be preparing to mount offensive attacks in order to break the stalemate. Therefore, the timing of the issuing of the arrest warrants serves to reinforce the international communities support of Ukraine, and likewise its condemnation of Russia. [21]
SOLUTION: A NEW TRIBUNAL
In a recent blog post by Tom Dannenbaum at Just Security, an ad hoc international tribunal was suggested as an option for prosecuting Russian authorities responsible for the war crimes in Ukraine. Despite the benefits associated with a tribunal created by the UN, being legitimacy and independence, the UN security council will inevitably be unable to create such a tribunal due to Russia’s influence, and the General Assembly lacks the equivalent coercive authority. As such, the pathway to justice by way of the creation of an international tribunal on Ukraine will rely on the pooled universal jurisdiction of states. The Parliamentary Assembly of the Council of Europe has called for such a tribunal to be created. This would allow for police internationally to be alerted to arrest Putin and other responsible leaders should they cross state borders. [22] Alternatively, it could arise via the territorial jurisdiction and consent of Ukraine, where it is held within legislation that aggression is proscribed in its criminal code. [23]
Creating a tribunal exclusively focused on the investigation and prosecution of Russia’s aggression against Ukraine would not only allow for a more comprehensive analysis of the war crimes committed, but also act as a symbol of the international community’s condemnation of Russia’s actions. However, some have cautioned of the implications of endorsing an independent international tribunal with the ability to prosecute for war crimes, becoming not only an issue of justice, but also one riddled with political considerations.
CONCLUSION
Currently, no head of a permanent member state of the UN security council has been tried for crimes of aggression. As it stands, the existing institutions of international law have been successfully incapacitated by the unwillingness of Russian authorities to cooperate and allow for its leader to be transferred to and tried by the ICC.
Whilst a specifically created international tribunal would not face the same barriers, it would require sufficient funding, time, and consensus amongst participating states. This becomes not just a legal issue, but also political in nature. Further, threats targeting The Hague made by former Russian President Dmitry Medvedev, alongside its top investigative body opening a criminal case against ICC Prosecutor Karim Khan and the judges who issued the warrant for Putin, may serve to deter any radical actions by states. [24]
References
[1] United Nations, Human Rights Council: Russia responsible for ‘widespread death and destruction’ in Ukraine (News Report, February 2023).
[2] CNN, Russia’s War on Ukraine, One Year On (February 2023)
[3] Office of the High Commissioner for Human Rights, Ukraine: civilian casualty update 27 March 2023 (Updated Report, March 2023).
[4] Ibid.
[5] Charter of the United Nations art 2(4).
[6] United Nations Human Rights Council, War crimes, indiscriminate attacks on infrastructure, systematic and widespread torture show disregard for civilians, says UN Commission of Inquiry on Ukraine (Report, March 2023).
[7] International Criminal Court, Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Press Release, 17 March 2023).
[8] United Nations General Assembly, Situation of human rights in Ukraine stemming from the Russian Aggression, Resolution 49/1, Human Rights Council, Session 49, Agenda item 1 (adopted 4 March 2022).
[9] United Nations Human Rights Council, War crimes, indiscriminate attacks on infrastructure, systematic and widespread torture show disregard for civilians, says UN Commission of Inquiry on Ukraine (Report, March 2023).
[10] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, Treaty Series, vol. 2187, No. 38544, (entered into force 1 July 2002) art 8.
[11] United Nations Office on Geocide Prevention and the Responsibility to Protect, ‘War Crimes’ (Online, Accessed 18 March 2023) <https://www.un.org/en/genocideprevention/war-crimes.shtml>.
[12] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, Treaty Series, vol. 2187, No. 38544, (entered into force 1 July 2002) art 8.
[13] United Nations Human Rights Council, War crimes, indiscriminate attacks on infrastructure, systematic and widespread torture show disregard for civilians, says UN Commission of Inquiry on Ukraine (Report, March 2023).
[14] Stefan Schmitt, ‘Prosecuting Putin for abducting Ukrainian children will require a high bar of evidence – and won’t guarantee the children can come back home’, The Conversation (Online, 18 March 2023) <https://theconversation.com/prosecuting-putin-for-abducting-ukrainian-children-will-require-a-high-bar-of-evidence-and-wont-guarantee-the-children-can-come-back-home-201833>.
[15] ‘The Crime of Aggression’, Coalition for the International Criminal Court (Web Page, accessed 18 March 2023) <https://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression>.
[16] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, Treaty Series, vol. 2187, No. 38544, (entered into force 1 July 2002) art 8.
[17] International Criminal Court, How the Court Works, <https://www.icc-cpi.int/about/how-the-court-works>.
[18] Mike Corder and Raf Casert, ‘International court issues war crimes warrant for Putin’, AP News (online, 18 March 2023) <https://apnews.com/article/icc-putin-war-crimes-ukraine-
9857eb68d827340394960eccf0589253>.
[19] Ibid.
[20] International Criminal Court, Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Press Release, 17 March 2023).
[21] https://www.sundaypost.com/fp/ukraine-spring-offensive/.
[22] Council of Europe, PACE calls for an ad hoc international criminal tribunal to hold to account perpetrators of the crime of aggression against Ukraine (Parliamentary Assembly Session Report, 28 April 2022).
[23] Tom Dannenbaum, ‘Mechanisms for Criminal Prosecution of Russia’s Aggression Against Ukraine’, Just Security (Online, 10 March 2022) <https://www.justsecurity.org/80626/mechanisms-for-criminal-prosecution-
of-russias-aggression-against-ukraine/>.
[24] International Criminal Court, The Presidency of the Assembly of States Parties to the Rome Statute reaffirms its unwavering support for the International Criminal Court (Press Release, 22 March 2023); ‘After arrest warrant for Putin, Russia opens case against ICC’, Aljazeera (Online, 20 March 2023), <https://www.aljazeera.com/news/2023/3/20/arrest-warrant-for-putin-russia-opens-own-case-against-icc>.
Ella Day is a third year student studying Law and Global Studies.
She is a member of The Reasonable Observer subcommittee, collating articles for the Monash legal community.
Ella has a passion for international human rights law and is extremely interested in analysing its mobility in protecting human rights in accordance with changing global conditions.