Avenues for Accountability – Breaches of International Law in Ukraine

The war in Ukraine has invoked questions globally as to how those individuals responsible for the atrocities can be held accountable; in what forum and when? The International Criminal Court, a bespoke Special Tribunal or domestically under universal jurisdiction – Tasmanian barrister and former war crimes prosecutor Regina Weiss breaks down the various avenues of bringing perpetrators to justice.

On 24 February 2022, the Russian Federation commenced what it labelled a ‘special military operation’ against Ukraine. Less ‘special military operation’, more ‘crime of aggression’ under international law. What followed in the ensuing weeks, unfolding before the eyes of the world, is breach after indiscriminate breach of international humanitarian law, with evidence of war crimes transmitted into living rooms and on social media platforms globally. The humanitarian catastrophe is shocking. Attacks on civilians, hospitals and other protected structures. Millions of displaced persons streaming into neighbouring countries. Children losing their lives in a war they did not seek.

In a crafty move to invoke the jurisdiction of the International Court of Justice (ICJ), Ukraine filed an application concerning a dispute relating to the “interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” viz. the ‘legal basis’ (as implied by the Russian Federation) for the 24 February invasion of Ukraine.

An Order was handed down on 16 March 2022.1 The Chamber – which includes Australia’s own newly appointed Professor Hilary Charlesworth as one of its judges – ordered that:

1. The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
2. The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above;
3. Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.

Two judges dissented on order (1) and (2). The fact that they were of Russian and Chinese nationality paves the way for an uncomfortable discussion on the politicisation of the ICJ, although that is a conversation for another day.

Despite this, the orders deliver a strong message: stop the atrocities being carried out in Ukraine. Whether Russia will adhere to those orders is doubtful, and at least at the time of writing, no indication of doing so could be seen. As peace negotiations continue with the hope of a ceasefire, questions are raised as to how and where those responsible for the atrocities against the Ukrainian people can be brought to justice.

The International Criminal Court
Despite neither Ukraine nor Russia being Member States of the International Criminal Court (ICC), Ukraine has declared acceptance of ICC jurisdiction under Article 12(3) of the Rome Statute. In fact, it first accepted the ICC’s jurisdiction on 9 April 2014 in the context of the Russian invasion and subsequent purported annexation of Crimea in 2013/2014. The Office of the Prosecutor already had a preliminary examination underway into the Crimea events when Russia attacked Ukraine on 24 February 2022. A formal criminal investigation relating to the Situation in Ukraine was announced by Prosecutor Karim Khan QC on 2 March 2022, triggered by a referral from initially 39 Member States (including Australia), and now 41 States. Within days, Prosecutor Khan had sent in a team to commence with collecting information and evidence. He joined them with his own boots on the ground on 16 March 2022. Prosecutor Khan has publicly declared that there are reasonable grounds to believe that war crimes and crimes against humanity have been committed in the Situation in Ukraine, and no doubt the drafting of arrest warrant applications pursuant to Article 58 of the Rome Statute will be considered.

The Prosecutor will present ‘crime-based’ and ‘linkage’ evidence to support his arrest warrants. The former will be plentiful, with eye-witness statements, documentary, forensic and hard evidence being collected. But as with many cases before the ICC to date, the latter is more difficult to gather. That is, evidence which would link Vladimir Putin and others in his inner circle as being criminally responsible for the war crimes and crimes against humanity in Ukraine.

If an arrest warrant is indeed issued for Putin, it remains dubious whether his arrest could be facilitated any time soon. The ability to arrest suspects is an on-going obstacle for the ICC, as it has no law enforcement arm of its own. Instead, it relies on the Member States to do so, in compliance with obligations found in Part 9 of the Rome Statute. In the past, non-Member States have also assisted in surrendering ICC suspects, for example when Bosco “the terminator” Ntaganda walked into the US Embassy in Kigali in 2013. Neither Rwanda nor the US are Member States yet cooperated with the ICC by transferring him to the seat of the Court in The Hague.

When the ICC issued an arrest warrant against Omar Al-Bashir, then-President of Sudan, in 2010 there was little prospect of his arrest. The international arrest warrant did hamper Al-Bashir’s ability to move freely to territories of ICC Member States (noting that he did travel to Uganda and South Africa despite the arrest obligations). ICC arrest warrants do not have an expiry date. As it happens, Al-Bashir was ousted from power by coup d’état in 2019. There are negotiations on foot for his surrender to The Hague, a prospect that seemed unthinkable only a few years ago.

At this point in time, the ousting of Putin from power does not seem likely, at least not in the immediate future. If an arrest warrant is indeed issued against Putin, the onus (legal or otherwise) remains with the international community to offer any and all assistance to facilitate the arrest.

A Special Tribunal for the Punishment of the Crime of Aggression against Ukraine
The ICC does not have jurisdiction over the crime of aggression in the context of the Situation in Ukraine because both Russia and Ukraine would have to be Member States of the ICC for jurisdiction to be triggered. This major qualification on jurisdiction was vigorously debated and staunchly advocated for by countries including the UK before the crime of aggression was inserted into the Rome Statute, eventually entering into force in 2018. This condition has obstructed the Prosecutor’s ability to investigate the crime of aggression in Ukraine.

In an attempt to alleviate this loophole, a Combined Statement and Declaration was signed by prominent academics and dignitaries on 4 March 2022 at Chatham House, proposing the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine. There would be some complexities as to jurisdiction of said Tribunal, and one can be certain that it would not be an ad hoc tribunal in the vein of those established by the UN in the wake of the conflicts in Rwanda and the former-Yugoslavia in the 1990’s, given Russia’s position as a permanent member of the UN Security Council.

If such a Tribunal were established, one may question whether it should be limited to the Russia/Ukraine conflict, or whether it should indeed extend to other acts of aggression in modern history. The invasion of Iraq springs to mind as falling into the same category, with strikingly similar underlying facts and circumstances.

Universal Jurisdiction
On 8 March 2022, the German Minister for Justice announced the Federal prosecution office in Karlsruhe was opening an investigation into Ukraine. Germany has had plenty of success of applying universal jurisdiction. In a landmark decision in 2021, ISIS member Taha Al J was convicted in Germany of genocide, crimes against humanity and war crimes against Yazidis in Iraq. In 2015, Ignace Murwanashyaka and Straton Musoni were convicted of grave breaches of international law carried out in the Democratic Republic of Congo as president and vice-president respectively of militia group the Forces Démocratiques de Libération du Rwanda. Other countries including Spain, Sweden, Estonia, Poland, Slovakia and Lithuania have followed suit and opened investigations into the conflict in Ukraine. Under universal jurisdiction, an individual suspected of war crimes, crimes against humanity and genocide can be prosecuted locally if jurisdiction can be established, so long as there exists adequate domestic enacting legislation. Australia is no different and should prepare itself to do so.

There are legal avenues for bringing the perpetrators of the atrocities in Ukraine to justice. It is a long road ahead, and some of those roads lead to The Hague. Others are manoeuvred by the global community, in a show of universal responsibility. In the spirit of optimism, justice will eventually be meted out, although when that will be is uncertain. For sure, this does not assist the innocent civilians being attacked, injured, killed and displaced in Ukraine this very minute.

It beggars the question, that with a sudden surge in global interest in the prosecution of war criminals, will this enthusiasm also extend to those grave breaches of international law simultaneously occurring in Palestine, Syria, Yemen, Afghanistan, Ethiopia and Somalia, to name just a few? As an international criminal law practitioner and general member of humanity, one can only hope.

Regina Weiss
Barrister, Derwent & Tamar Chambers

From 2007 to 2016, Regina was a prosecutor with the ICC in The Hague, prosecuting war crimes and crimes against humanity. She remains on the ICC List of Counsel.

1. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation), 16 March 2022, General List No. 182.