April 12, 2022
By Sarah McIntosh and Sareta Ashraph
Evidence of Russian atrocities against the Ukrainian people is mounting, with each day bringing fresh horrors. What we are witnessing in Ukraine contains within it, dark echoes of other recent—and in some cases, ongoing—conflicts. This includes, notably, Syria where Russia has been an active presence on the battlefield since at least September 2015.
From the outset, Russia’s aggressive war gave rise to claims of war crimes, including attacks on civilians; attacks on healthcare infrastructure; the use of cluster munitions and thermobaric weapons in residential areas; attacks on humanitarian corridors; and the forcible deportation of civilians from Ukraine into Russia. In early April, a mass grave and corpses with their hands bound was discovered in Bucha, near Kyiv. Women, children, and the elderly were among those executed. In some instances, it appears there was an attempt to burn the bodies. As evidence piles up of a widespread and systematic attack directed against civilians, the assault on Ukrainian men, women, and children also likely constitute crimes against humanity.
Within days of Russia crossing the Ukrainian border, states began to proclaim the urgency of accountability.
The International Criminal Court (ICC) already has an active investigation into whether war crimes, crimes against humanity, or genocide have been committed in Ukraine since November 21, 2013, after Ukraine voluntarily accepted the ICC’s jurisdiction to investigate alleged crimes committed since Russia’s annexation of Crimea and the ongoing military conflict in eastern Ukraine. Neither Russia nor Ukraine have, however, ratified the Rome Statute. In March 2022, 39 countries referred the Situation in Ukraine to the Court, allowing the ICC Prosecutor, Karim Khan, to proceed with opening an investigation without seeking judicial approval. In mid-March, the Prosecutor had made a publicized visit to western Ukraine and Poland, which had allowed him “to personally assess the situation on the ground, meet with affected communities and to further accelerate our work by engaging with national counterparts.”
The ICC cannot, however, adjudicate whether Russia committed the crime of aggression against Ukraine because neither country has accepted the ICC’s jurisdiction over this crime. Some international experts have argued that the United Nations General Assembly could work with Ukraine to establish an ad hoc court to prosecute individuals believed to be responsible for the crime of aggression and other international crimes.
Sparks of accountability may also be seen at the domestic level, with the national prosecutors in Germany, Lithuania, Poland, and other countries commencing investigations under territorial or universal jurisdiction, the latter of which allows for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state's territory, and neither the victim nor perpetrator is a national of that state.
The challenges of bringing a case to prosecution, whether at domestic or international level, are significant. Building a case, and in particular charting the criminal responsibility of those in high leadership positions of the effective command structure, may be difficult. Where potential defendants are identified, there are likely to be significant challenges to arresting and detaining them.
In March 2022, the United Nations Human Rights Council established an International Independent Commission of Inquiry (COI) to investigate crimes committed in the context of Russia’s aggression on Ukraine. The COI will investigate all alleged abuses of international criminal law, establish the facts, circumstances, and causes of such crimes, and make recommendations with respect to future potential accountability mechanisms, among fulfilling other responsibilities. The COI is mandated to “collect, consolidate and analyse evidence [...] in order to maximize the possibility of its admissibility in any future legal proceedings.”
Ukraine is also actively engaging international legal avenues available to it. On February 27, 2022, Ukraine filed an application with the International Court of Justice (ICJ)—the organ of the United Nations (UN) which has the authority to settle disputes between UN member states. The application asserts that Russia launched its military operation in Ukraine under the false pretence that Ukraine had breached its obligations under the 1948 Genocide Convention. On March 16, 2022, the ICJ issued a provisional measures order requiring Russia to “immediately suspend the military operations.”
Ukraine also made a request to the European Court for Human Rights—which can adjudicate cases brought by individuals and States involving alleged violations of the European Convention on Human Rights—to issue urgent interim measures against Russia to end “massive human rights violations” being committed by Russian troops in Ukraine. However, on March 16, 2022, the Council of Europe expelled Russia and suspended current cases against it.
The calls for criminal accountability for the atrocities being committed in Ukraine must be met with States’ durable commitment to provide political backing, funding, and other resources needed to lay a foundation for accountability. Lessons must be learned from other situations of atrocities—particularly the need to ensure that the diverse views of victims regarding the justice they seek are both prioritized and understood.
Learn more about the international legal options for accountability and prevention.
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