Accountability
Below provides a brief overview of the accountability mechanisms for international crimes which have occurred in Ukraine.
Domestic prosecutions in Ukraine
When the MATRA-Ukraine project began in July 2020, Ukraine’s legislation was not aligned with international criminal law. Few actors had any experience in investigating, prosecuting or adjudicating international crimes prior to 2014. Moreover, the crimes that had been brought to court had generally been charged as domestic crimes or as terrorism-related offences. Such characterisation failed to account for the special nature of the international crimes occurring.
Draft laws No. 2689 and No. 7290, which attempted to align Ukrainian law with international criminal law standards, have not yet received presidential approval. Nonetheless, since 2020, Ukrainian criminal justice actors have been making active efforts, within the existing domestic legal framework, to investigate and prosecute conflict-related crimes. With the increase in international crimes as a result of the full-scale Russian invasion it is ever more important that Ukrainian actors have the necessary skills and tools to achieve accountability for these crimes. The MATRA project ‘Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes’ aims to assist Ukraine in capacity strengthening towards domestic prosecutions. The number of conflict-related cases registered in Ukraine is noted on the website of the Office of the Prosecutor General. Since the full-scale invasion, over 60 judgments have been issued by Ukrainian courts relating to conflict-related crimes.
Ukraine and the ICC
Although Ukraine has not ratified the Rome Statute, and thus is not a state party to the ICC, the Ukrainian government accepted the jurisdiction of the ICC regarding crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014. Later that year, the preliminary investigation of the ICC was expanded to include events from 20 February 2014 onwards.
The ICC’s Office of the Prosecutor (OTP) assessed that by 30 April 2014, “the intensity of hostilities between Ukrainian government forces and anti-government armed elements in eastern Ukraine had reached a level that would trigger the application of the law of armed conflict and that the armed groups operating in eastern Ukraine […] were sufficiently organised to qualify as parties to a non-international armed conflict” (para. 266). In addition, the OTP assessed “that direct military engagement between the respective armed forces of the Russian Federation and Ukraine, indicated the existence of an international armed conflict in eastern Ukraine from 14 July 2014 at the latest” (ibid.). Moreover, it concluded that there is a reasonable basis to believe that a series of war crimes and crimes against humanity were committed on Ukrainian territory. In 2020, the OTP sought to assess the admissibility of potential cases that would be the focus of a full investigation.
In response to the Russian invasion, on 28 February 2022, Prosecutor of the ICC, Karim Khan, announced that he would seek authorisation to open an investigation into the Situation in Ukraine. On 2 March 2022, he further announced that 39 State Parties to the Rome Statute had referred the situation in Ukraine to the OTP (in the end, the situation was referred by 43 State Parties). On that same date, the Prosecutor announced he was proceeding with an active investigation and would collect evidence of international crimes occurring within Ukraine.
On 17 March 2023, ICC Pre-Trial Chamber II issued arrest warrants for Mr Vladimir Vladimirovich Putin, President of the Russian Federation, and Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, for their alleged responsibility for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
It is relevant to note that Russia is not a State Party to the Rome Statute and thus does not accept the Court’s authority.
International Court of Justice
In response to the Russian invasion, Ukraine filed a lawsuit against Russia before the International Court of Justice (ICJ) on the basis of the 1948 Genocide Convention. Ukraine accused Russia of falsely relying on a claim of genocide to justify its invasion of Ukraine. Ukraine called on the ICJ to adopt provisional measures ordering Russia to cease its offensive actions in Ukraine.
On 16 March 2022, a 13-2 majority of the ICJ found in favour of Ukraine and ordered Russia, as a provisional measure, to “immediately suspend the military operations” in the territory of Ukraine. This decision is binding on Russia, however the ICJ does not have any mechanism by which to enforce its orders.
On 3 October 2022, the Russian Federation raised preliminary objections to the jurisdiction of the Court and to the admissibility of the Application. Between 21 July 2022 and 15 December 2022, 33 States filed declarations of intervention in the case, 32 of which were admissible at the preliminary objections stage of the proceedings. The public hearings on the preliminary objections raised by the Russian Federation in the case concluded on 27 September 2023. The Court will now begin its deliberation and deliver its decision at a public sitting which will be announced in due course.
United Nations Human Rights Council (UNHRC) Commission of Inquiry
On 4 March 2022, 32 countries voted in favour of a UNHRC resolution to establish a commission of inquiry to investigate violations committed during Russia’s military attack on Ukraine. The commission will investigate violations of human rights and international humanitarian law stemming from the Russian aggression.
A commission of inquiry is largely a fact-finding mission which can feed into accountability processes for serious violations. The work collected by commissions can provide a historical record of the violations and furnish crucial elements to judicial procedures.
The reports of the commission of inquiry can be found here.
Calls for a Special Tribunal for Aggression
The ICC does not have jurisdiction over the crime of aggression in the case of Ukraine and would require a referral from the UN Security Council. Given Russia’s veto power on the Council, this is not an option. As a result, a number of high-profile legal and political actors have called for a special tribunal for the punishment of the crime of aggression in Ukraine. These calls have held that the special tribunal would complement the actions before the ICC, ICJ and other mechanisms. Debates are ongoing between academics and legal professionals as to whether this is a feasible prospect. The Asser Institute held an SCL Lecture “Pursuing accountability for the crime of aggression against Ukraine” in September 2023.
Universal Jurisdiction cases
While international institutions have a role to play in holding perpetrators accountable for the violations in Ukraine, it should be noted that domestic jurisdictions can also bring prosecutions under the principle of universal jurisdiction. The concept behind this principle is that international crimes are a violation of international norms owed to the international community as a whole and thus any domestic state has jurisdiction to prosecute them.
A number of states have initiated domestic criminal proceedings investigating potential international crimes committed by Russia against Ukraine. These include Poland who have opened an investigation including the ‘initiation of war of aggression’ and several war crimes found in the Polish Criminal Code. Germany has also opened an investigation into suspected war crimes and crimes against humanity committed by Russian forces. Similar investigations have also been opened in Spain, Estonia, Lithuania, Slovakia, France, Norway, Latvia and Sweden.
Register of Damage
On 17 May 2023, at the Council of Europe Summit in Reykjavik, the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine was established by the Council of Europe, through an Enlarged Partial Agreement with 44 countries and the EU.
The Register will serve as a record of evidence and claims for damage, loss or injury caused to all natural and legal persons concerned, as well as to the State of Ukraine, by Russia’s internationally wrongful acts in or against Ukraine. Since the first meeting of the Conference of Participants in June, a Host State Agreement with the Netherlands as the seat of the Register in The Hague was signed and has come into force. The intention is that the Register is to pave the way for a compensation mechanism.