This is the second part of a series that discusses the implications of the Russian invasion of Ukraine under international law. The first article of the series explores the use of force under international law, whilst the second article focuses on the position under international criminal law.
International Criminal Law
Russia’s military operation has legal consequences beyond its breach of Article 2.4 of the UN Charter. Evidence is mounting that it and its officials are also breaching international humanitarian and criminal law, committing war crimes and possibly even genocide. The most serious accusations suggesting that Russia might be in breach of international law include the following:
- increasing evidence that Russian military forces have been conducting indiscriminate attacks against civilian targets, including protected objects like hospitals;
- mounting claims supported by unverified photo and video evidence suggesting that Russian military forces have been using explosive weapons with wide area effects and cluster munitions that are banned by most countries. Those weapons are known to be among the major causes of civilian casualties when used in populated areas;
- the alleged torture and killings of Ukrainian civilians across the entire country. The recently published satellite imagery from the besieged Ukrainian port city of Mariupol which shows multiple mass grave sites is further indication that the Russian invasion has led to a large number of civilian casualties;
- multiple allegations that Russian military forces have been preventing civilians from escaping to safety and conducting direct attacks on evacuation hubs, including railway stations in central and eastern Ukraine. One such recent attack on the main train station in Kramatorsk reportedly resulted in 50 casualties and 100 wounded; and
- allegations that Russia has used the threat of rape as a weapon of war amidst a growing number of reports of sexual violence and abuse suffered by Ukrainian women and girls (sources can be found here, here and here).
As we reported in the first part of this series, there have also been reports of Ukrainian soldiers mistreating Russian prisoners of war, which if proved true, could also constitute a war crime. Those allegations are currently under investigation.
Ascertaining and agreeing upon the “truth” of what is happening on the ground in Ukraine is difficult. Nevertheless, at least according to most Western news sources, there is evidence that Russia is in breach of international criminal law and that, subsequently, its officials may eventually be tried on charges of committing war crimes. If indicted, what kind of justice can Russia’s officials expect to face?
An unlawful military assault occurs and innocent human suffering follows suit; the first institutions we would look to for answers may be the United Nations (the “UN”) or the European Court for Human Rights (the “ECHR”). In this instance, however, these institutions are powerless.
Firstly, Russia’s breaches of the UN Charter that we discussed in the first part of the series will likely not result in practical consequences – at least not directly. Thanks to its position as one of the permanent members of the UN Security Council, and thus holding veto power, Russia will continue to act as it pleases, safe in the knowledge that the Security Council cannot stand in its way.
Secondly, whilst the ECHR exercises jurisdiction over both Ukraine and Russia on account of them being State Parties to the European Convention on Human Rights, its ability to enforce any influential sanctions on Russia will likely be ineffective. Seeing the Council of Europe act so swiftly in suspending Russia from its right to representation was proactive, as was the implementation of provisional measures it granted in the application concerning Russian actions on Ukrainian territory.
The ECHR’s ultimate sanction, provided for by Article 8 of the Statute, is to expel Russia from the Council of Europe, yet Russia pre-empted that from happening when it withdrew from the organisation under Article 7 of the Statute on 15 March 2022, mere hours before the Parliamentary Assembly of the Council of Europe voted in favour of Russia’s departure. This might have a negative long-term impact for millions of Russian nationals, as the Russian regime could take advantage of this expulsion by violating human rights within its territory, for example, by bringing back the death penalty.
So where could justice be pursued? Initially, the International Criminal Court (the “ICC”) did not have jurisdiction to charge Russia for its alleged breach of international law as neither Ukraine nor Russia is party to the Rome Statute of the International Criminal Court (the “Rome Statute”), i.e., the 2002 treaty that established the ICC. However, recent developments have altered this view and there are now two clear paths for the ICC to exercise its jurisdiction.
The first path stems from Ukraine’s acceptance of jurisdiction, pursuant to Article 12 of the Rome Statute. As ICC Prosecutor Karim Khan announced on 28 February 2022, Ukraine “exercised its prerogatives to legally accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, should the Court choose to exercise it”, thus bringing Russia’s alleged crimes committed under the ICC’s jurisdiction.
This was not the first time Ukraine accepted ICC jurisdiction: following Russia’s invasion of Ukraine which resulted in the annexation of Crimea, Ukraine appealed to the ICC alleging that Russia committed war crimes and crimes against humanity in late 2013 and early 2014. These allegations prompted the prosecutor at the time, Fatou Bensouda, to open a preliminary examination (a precursor to an official investigation). Perhaps persuaded by Bensouda’s conclusion that there was a “reasonable basis” that crimes were committed in 2013-14, Prosecutor Karim Khan confirmed that an official investigation will follow. The full investigation will not just encompass crimes considered in the preliminary examination, but all recently alleged crimes as well, including war crimes and crimes against humanity committed over the past months.
The second path to the ICC’s jurisdiction is via Article 13 of the Rome Statute, where States party to the treaty can refer the alleged crimes to the ICC. On 2 March 2022, Prosecutor Karim Khan announced that 39 parties referred the crimes to the ICC, emboldened by public sentiment and thus enabling the ICC to immediately proceed with an investigation into the ongoing violence in Ukraine.
It is important to note that, whilst the ICC has a path to jurisdiction over any acts of genocide, crime against humanity or war crime, it cannot exercise jurisdiction over the crime of aggression. In 2018, an amendment to Article 15 of the Rome Statute blocked the ICC’s jurisdiction over crimes of aggression by States that are not Rome Statute signatories.
To circumvent this barrier, an international cohort of leaders in the fields of politics and law are calling for the creation of a Special Tribunal for the punishment of the crime of aggression against Ukraine. The intention is commendable, but it remains to be seen how soon this can be conceived and whether it can overcome jurisdictional and other practical hurdles, thus dampening hopes that this venture will yield swift solutions.
Should sufficient evidence be placed before the ICC, the Prosecutor may request the Court to issue an arrest warrant for those responsible. There is thus a clear route to put high-ranking Russian officials, and perhaps even Vladimir Putin, on trial, but even if arrests were made, the conviction of those accused is not likely.
Firstly, precedents suggest that linking a head of State directly to war crimes committed by the State’s armed forces is extremely difficult, as only a handful of arrest warrants have been issued for heads of state (i.e., Omar al-Bashir of Sudan in 2009, Laurent Gbagbo of the Ivory Coast in 2011, and Muammar Gaddafi of Libya in 2011) and none were indicted. Secondly, the way that war crimes are defined in the Rome Statute often serves those that are accused. Intention is a key component, meaning that the ICC Prosecutor must prove that war crimes were intentionally committed. For these reasons, in the unlikely event that the Russian Head of State is eventually tried for war crimes or crimes against humanity, an acquittal is likely to ensue. Curiously, the ICC has acquitted more people of the primary crimes of genocide, war crimes and crimes against humanity than it has convicted.
History does not offer much hope that those responsible for the deaths of civilians in this ongoing conflict will be held accountable, whether in the short or long term. Yet, that should not deter us from seeking justice. There is always the possibility that new precedents will set out a clearer path for accountability in the future. Current events indicate that such a shift may be on the cards: public sentiment is vehemently behind Ukraine and most of the Western World has turned its back on Russia, swiftly imposing unprecedented financial sanctions and suffocating the Russian government politically and economically. Those leading the charge, such as ICC Prosecutor Karim Khan and the Prosecutor General of Ukraine, may not get a better hand; it is now up to them to be brave, relentless, and resourceful enough to play their cards just right.