Will 2023 bring closer the punishment off Russian war criminals?

What mechanisms of justice Ukraine can use to gain it?

For almost a year now the whole of Ukraine has felt the consequences of a full-scale war. The world is still shocked by the truth of the crimes committed by the aggressors. A month after the aggression the story of a Ukrainian woman who dared to tell the truth made the rounds of the Western media. Russian soldiers broke into the house where her family lived, killed her husband, and raped her while her 4-year-old son hid in the boiler room and cried. Then there were reports from Bucha, Izyum, Kherson...

Since the beginning of the full-scale aggression, several hundred criminal cases have been registered in Ukraine every day. In addition to the events off 2014. Thus, as of December 22, we have more than 100 000 cases related to the consequences of the armed conflict. Not every victim is ready to speak publicly about the events and contact law enforcement agencies, but every story is someone’s tragedy. Therefore it is necessary to think about the mechanism of justice and restoration of the rights of the victims..

What is already done?

Protecting its sovereignty and human rights Ukraine as a state, actively defends its interests at all possible international platforms: the UN International Court of Justice, European Court of Human Rights, the International Tribunal for the Law of the Sea.

With regard to certain international crimes, it should be noted that no national judicial system is capable of dealing with such a massive number of crimes on its own. We therefore turn to other justice mechanisms that can complement national efforts. 

First of all it is the International Criminal Court, which in our situation has a jurisdiction to investigate war crimes, crimes against humanity and genocide. However, the ICC should focus on so-called big fishe as Court’s resources are modest at best.

But the ICC is not the only option. Therefore, there is now a debate about how to punish the maximum number of war criminals for international crimes. And rightly so the future Nuremberg Trials were discussed in 1942, as confirmed by The Declaration of St James’s Palace on Punishment for War Crimes the main purpose of which was to cement the inevitability of punishment. But let’s not forget that the trials themselves began after the end of the war. The treaty on the creation of the Tribunal and its statute were drafted by the victorious countries. Thus, the legal assessment was delivered merely to the vanquished side. For instance, the crimes of the Soviet army were not taken into consideration. That is why this approach is often perceived as the as judging the victors over the vanquished.

In Ukraine, the creation of the Tribunal on Aggression, that is, a special tribunal that will try the Russian leadership for one of the four most serious international crimes — the crime of aggression — is being discussed the most. This model is proposed because the International Criminal Court in our case does not have jurisdiction to consider the crime of aggression due to the fact that Russia (as well as Ukraine, by the way) has not ratified the Rome Statute. The Tribunal on Aggression, in case of obtaining the appropriate support, can overcome the immunities of the heads of state, and this is certainly a plus. However, I would not stop at this option for a number of reasons. In the case of the implementation of such a model, the entire scale of war crimes registered already and in the future will fall on the ICC and our national system. And since the resources of the ICC are limited, in practice the entire burden will fall on Ukraine. But can we cope with it? Despite the fact that the logic itself, when the victim judges the criminal, raises many questions, trust in the mechanism of punishment must be both inside the state and outside. Yes, the crime of aggression must definitely be punished. But what about the fate of all the victims of war crimes and crimes against humanity?

In addition, there is a position that the creation of a new institution is a difficult, long and expensive way. So it makes sense to consider alternatives. For example, amending the Rome Statute. By the way, on December 5, at this year's Assembly of the Rome Statute, ICC prosecutor Karim Khan spoke out about this.

The alterations may relate to the retrospective nature of the punishment for the crime of aggression; extending to states that have not ratified this document and expanding the circle of persons responsible for the crime of aggression, providing for complicity.

Instead, the national system can be strengthened and legitimized with the help of an international element, introducing the so-called hybrid mechanism of justice. It is about involvement at the level of investigation, public prosecution and court proceedings international experts and specialists with experience of working in armed conflicts. This will strengthen our system and ensure credibility both internationally and nationally. In addition, it solves the problem of immunity. After all, we have the example of Sierra Leone, when with the help of the international element in the hybrid mechanism, it was possible to prosecute the then president of Liberia, Charles Taylor.

In addition, we should not forget about the principle of universal jurisdiction, which reflects the attempts of various states to promote punishment for particularly serious crimes that pose a threat to the entire world (ie, the most serious international crimes), regardless of the place of commission. In the context of the situation in Ukraine, this principle is extremely relevant. In the public sphere, it is communicated that more than 20 states are engaged in investigations of international crimes committed in Ukraine. More or less clear information can be found about 18 of them. Such investigations are primarily related to the mass wave of Ukrainian refugees to other countries. Among them are many victims who turn to local law enforcement agencies. In particular, one of the potential tools in the case of the rape of a Ukrainian woman by Russian soldiers, which was mentioned at the beginning, is the appeal to the mechanism of universal jurisdiction. The lawyers of the Ukrainian non-governmental organization Ukrainian Legal Advisory Group, who are conducting this case, are considering the possibility of applying this tool and are consulting with international partners who have practical experience in conducting such cases..

What to expect?

From the information that we are able to track, we can see the relative unity of our partners in the issues of building a mechanism of justice following the consequences of the aggression of the Russian Federation. A number of states at the level of parliaments and international organizations supported the creation of the Tribunal on Aggression. But if you dig deeper, it will turn out that in reality everything is much more complicated. Most of the resolutions are political and declarative in nature and do not offer real steps that would bring us closer to justice. And discussions about the model are still ongoing.

We must clearly understand that it is we, Ukrainians, who are most interested in all episodes of the war being investigated, and the criminals being punished. And only after analyzing the real capacity of our system, we can decide which mechanism of justice we need. It is in our interests to approach this as seriously as possible, without sticking to beautiful and bright slogans.

Ukraine has many tasks on this path. The main thing is to win on the battlefield and restore territorial integrity. After all, any half-measures can give Russia back its voice and influence on international legal processes, which it can use for speculation and avoiding responsibility.

We must also convey to our partners that the future trial is under no circumstances subject to bargaining. Every war criminal must understand the inevitability of punishment. Yes, Russia is the state with the largest nuclear arsenal, and we must take this into account, but this cannot be an argument for sacrificing the rights of the victims.

And, in the end, we have to admit that justice is a long way off. So it would be naive to hope that in 2023 we will hear the verdict of the Russian political and military leadership. Let's recall the recent high-profile verdict regarding the downing of MH17. We heard it exactly in 2022, more than eight years after the disaster. But this is the path we will take. And each of us is responsible for not turning away from it.

Read this article in russian and Ukrainian.