Below provides a brief overview of the accountability mechanisms for international crimes which have occurred in Ukraine.
Accountability for international crimes committed on Ukrainian territory
It is crucial to consider the circumstances in which these alleged crimes were committed. Violations of international human rights law and international humanitarian law may not necessarily amount to international crimes. The Rome Statute – the founding treaty of the International Criminal Court (ICC) - defines four core categories of international crimes: crimes against humanity, war crimes, genocide, and the crime of aggression. International crimes allegedly committed in Ukraine generally classify as crimes against humanity or war crimes.
These international crimes have additional contextual requirements which set them apart from ordinary crimes. Crimes against humanity are defined as being “committed as part of a widespread or systematic attack directed against any civilian population”, whereas war crimes can only occur in an armed conflict of an international or non-international nature.
A successful prosecution of international crimes must – in addition to proving that the criminal act under consideration has indeed been committed – show these contextual elements of the offence. Accordingly, it is essential that all parties involved in the criminal proceedings of international crimes – from defence lawyers to victim lawyers, prosecutors to judges – possess the capacity to evaluate these contextual elements. Moreover, the relevant legislation should be in place to enable national courts to try international crimes.
Domestic prosecutions in Ukraine
When the MATRA project began in July 2020, Ukraine’s legislation was not aligned with international criminal law. In addition, few actors had any experience in investigating, prosecuting or adjudicating international crimes prior to 2014. Moreover, the crimes that had been brought to court have generally been charged as domestic crimes or as terrorism related offences. Such characterisation fails to account for the special nature of these crimes and contributes to a sense of impunity for perpetrators of international crimes committed on Ukrainian territory.
The Ukrainian government and legislature have more recently moved towards the accommodation of international law standards by Ukraine’s judicial bodies and its legislation. From 2020 in particular, Ukraine has been making active efforts to investigate and prosecute conflict-related crimes, particularly conduct amounting to serious violations of international humanitarian law and/or war crimes. In September 2020, a draft law “On amendments to certain legislative acts on the Enforcement of International Criminal and Humanitarian Law” was adopted by the Parliament. This legislative progress follows the creation of a “War Crimes Unit” in October 2019; a department within the Public Prosecutor’s Office overseeing criminal proceedings in crimes committed in the context of the armed conflict in Ukraine. To this end, Ukraine clearly seeks to deliver justice to those guilty of international crimes.
With the increase in international crimes occurring as a result of the 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 its goal to effectively investigate, prosecute, adjudicate and report on international crimes. It aims to do so by supporting the Office of the Prosecutor General, as well as delivering vital technical and strategic expertise to other criminal justice entities, such as judges and lawyers, civil society organisations and journalists.
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. On that same date, the Prosecutor announced he was proceeding with an active investigation and would collect evidence of international crimes occurring within Ukraine. 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 seize 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.
Human Rights Council - 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.
Calls for a Special Tribunal
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.
Other States and Universal Jurisdiction
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.
Peace and justice: a delicate balance
Developments in the process of conflict resolution provide an extra dimension to the pursuit of justice. A case in point are prisoner exchanges which have taken place between Ukraine and the separatists, and between Ukraine and Russia. These have led to potential suspects or witnesses of international crimes leaving Ukrainian territory, including a suspect possibly involved in the downing of MH17. In addition, the package of measures for implementation of the Minsk agreements signed in February 2015 provides for the enactment of a law which prohibits the prosecution and punishment of persons connected with events that took place in certain areas of the Donetsk and Luhansk regions of Ukraine. However, under international law the scope for amnesty is limited. For amnesties cannot apply to individuals who may be legally responsible for war crimes, genocide or crimes against humanity.