Ukraine: Devastation prompts calls for accountability in international courts
Ruth Green, IBA Multimedia JournalistMonday 14 March 2022
The Ukraine conflict has already caused over 1,000 civilian casualties and the worst refugee crisis since the Second World War, prompting calls for those responsible to be held to account in international courts.
On 28 February, the Prosecutor of the International Criminal Court, Karim Khan QC, announced he was opening an investigation into alleged war crimes and crimes against humanity in Ukraine ‘as rapidly as possible’ after 39 countries referred the situation to the ICC, the largest referral in the Court’s history.
Ukraine has not ratified the Rome Statute and cannot refer situations to the ICC, but the country has twice accepted the Court's jurisdiction over alleged crimes committed on its territory since November 2013.
Ukraine has also called on the International Court of Justice (ICJ) to stop Russia committing crimes against humanity and war crimes. After Russia boycotted the hearing in The Hague on 7 March, the ICJ said it would follow a fast-track procedure to expedite its ruling.
International experts are also pushing to establish a special international criminal tribunal to specifically address the crime of aggression, which falls outside the ICC’s jurisdiction as Russia is not a state party.
The UN Security Council can refer alleged crimes of aggression to the ICC, but Russia, a permanent member, would block this.
Philippe Sands QC, a barrister at Matrix Chambers and a professor at University College London, is leading calls for the special tribunal, which has been endorsed by Ukraine’s Foreign Minister Dmytro Kuleba, his special adviser Mykola Gnatovsky, former UK Prime Minister Gordon Brown and numerous international legal experts.
International law is just one weapon in the armoury available to the international community, but it has become plain to me that sanctions alone will not work and that more is going to be needed
Philippe Sands QC Barrister, Matrix Chambers and a professor at University College London
During an online event hosted by Chatham House on 4 March, Sands said the tribunal would complement the ICC and ICJ’s ‘vital work’ to bring justice to the people of Ukraine. ‘International law is just one weapon in the armoury available to the international community, but it has become plain to me that sanctions alone will not work and that more is going to be needed,’ he said. ‘Harnessing the idea of the rule of law and the crime of aggression is one more way of doing that.’
Kuleba, who spoke via video link from Ukraine, welcomed the move. He said the calls by 141 countries at the UN General Assembly to end Russia’s operations in Ukraine also gave the initiative considerable ‘political ground to move forward.’
Professor Philip Leach, an expert in human rights law at Middlesex University, litigated numerous cases against Russia over almost two decades at the helm of the European Human Rights Advocacy Centre, including claims arising from the conflict in Chechnya. He says a special tribunal focused on crime of aggression would ‘plug a clear gap in the international criminal armoury.’
Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute (IBAHRI), agrees that an ad hoc committee is greatly needed. ‘An investigation is being opened by Karim Khan QC, the Chief Prosecutor at the ICC, into war crimes and crimes against humanity,’ she says. ‘The ICJ, at the instigation of Ukraine, will deal with the accusation by Russia of genocide of the Russian-speaking people of Donbas to justify the invasion and bombing of a whole nation. But no court will deal with the very act of seeking with extreme violence to annexe a nation. For that reason, I think the UN should establish an ad hoc tribunal to address that triggering crime.’
Details on the tribunal’s potential location, necessary funding or membership are still to be determined. Justice Richard Goldstone, the former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia and Honorary IBAHRI President, hopes it could repeat the successes of the Rwanda Tribunal, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia and ‘set a very good precedent to be applied in the cases of future acts of aggression.’
Mark Ellis, IBA Executive Director, has been a strong advocate of the ICC’s decision to launch an investigation and supports any judicial mechanism designed to hold Putin’s regime to account.
However, he believes the international community should strengthen the use of universal jurisdiction before quickly embracing another ad hoc tribunal. ‘States with a formerly wide understanding of the principle have reinstated a required connection of the perpetrator to the state in question, for example, residence in the forum state,’ he says. ‘If states would, in a more robust way, embrace the principle of universal jurisdiction, which is aimed at ensuring that those committing the most egregious atrocity crimes do not go unpunished, then you can create an extensive and effective network of states targeted at the perpetrators of the crimes, including Mr Putin.’
He says this could be more sustainable than an ad hoc approach. Certainly, universal jurisdiction has proven to be one of the few viable avenues left to hold high-level officials in Assad’s regime accountable. In January, the Koblenz Higher Regional Court in Germany found former Syrian security officer Anwar Raslan guilty of crimes against humanity and sentenced him to life imprisonment. The conviction was only possible because Germany’s Code of Crimes, which came into force in 2002, gave the country’s courts universal jurisdiction over genocide, crimes against humanity and war crimes.
Ellis says the Russian invasion should act as a ‘wake-up’ call for the international community to ‘reassess and commit’ to universal jurisdiction: ‘I would argue that there should be no barriers for countries to recognise, in their legislation, universal jurisdiction over the crime of aggression, meaning the planning, initiation, or execution of armed force by a state against another state, as we are witnessing in Ukraine. The crime is now well established, having journeyed from Nuremberg to the ICC.’
Goldstone agrees with Ellis’ approach and says a renewed focus on universal jurisdiction could be ‘complementary’ to the proposed tribunal. However, he urges that, if there’s sufficient political will to make it happen, a special tribunal could provide ‘a quicker route’ to hold the Russian regime accountable.
Image: Bjorn Olof Skoog, Ambassador of the European Union to the UN, discusses the Security Council vote on the Russian invasion of Ukraine at UN Headquarters. New York, 25 February 2022: lev radin/Shutterstock.com