Law students and young lawyers in Ukraine file a complaint with JURIST about legal developments and issues as the country defends itself against Russian invasion. Here, JURIST Ukraine’s chief correspondent, Anna Tymoshenko, a law student at the Kyiv-Mohyla Academy, says that for various reasons the International Criminal Court in The Hague is not the appropriate court to try war crimes. Russians in Ukraine. Instead, a separate special international tribunal should be created.
One of the most encouraging news stories in recent weeks came in late April when the Parliamentary Assembly of the Council of Europe announced its support for the creation of a special tribunal on Russian aggression in Ukraine. Among others, Resolution 2436 (2022) suggests that:
- The main military and political leaders of Russia are the defendants;
- the definition of the “crime of aggression” should be drawn from article 8-bis of the Rome Statute;
- the court should have the right to issue international arrest warrants, which cannot be limited to functional immunity, including head of state immunity.
This is indeed an important step towards obtaining justice for Ukraine and the punishment of crimes committed by Russian individuals. The creation of such a tribunal is essential due to the lack of other effective platforms in this particular case.
Although the International Criminal Court (ICC) has now received referrals from 43 countries (an unprecedented number) on the invasion of Ukraine and has already begun its investigation, the buzz surrounding it is much brighter than the actual possible outcome. There are many problems here. First, the ICC currently does not have territorial jurisdiction over the situation as Ukraine only submitted two declarations of acceptance of jurisdiction in 2015 regarding specific crimes and specific territory (i.e. Crimea and Donbass ). The Court’s limits can barely do justice to the terror that Ukrainians are currently experiencing. This problem can certainly be solved with one more declaration, but there are more problems. Namely, secondly, it is essential to hold the Russian leadership responsible for the crime of aggression, but the ICC has a complicated procedure for invoking its jurisdiction over this crime, and even a referral by the Security Council would not solve the problem because that Russia would obviously block this. Third, using the tools of the ICC, there is little or no chance of gaining custody of the people behind this hell on Earth – ie Russian political leaders. Russia will never just “give” Putin, Shoigu, Lavrov and the rest of the company, so the only hope is that other countries will “catch” it.
According to article 86 of the Rome Statute, states must “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. In practice, however, such a provision does not oblige countries to devote all their resources to the implementation of international justice and the functioning of the Court. Member States have authority and resources that are directed first to their own interests and then to supranational bodies. For example, States may sometimes resort to luring perpetrators in order to prosecute an individual without jeopardizing the sovereignty of another State, and by their own means and for their own ends. In the meantime, why would a state mount a difficult operation and expend enormous resources while putting the lives of its soldiers at risk for the ICC? In addition, national laws and judicial systems may grant varying degrees of freedom to law enforcement. For example, the United States can apply the Ker-Frisbie Doctrine to prosecute people illegally trained in the country. However, such a mechanism is not an option for the ICC as it must respect the principles and standards of international criminal law at every stage of the process, from obtaining custody to serving a sentence.
There is an interesting precedent at the ICTY, namely the Nikolic case, where the judges dismissed the motion for dismissal due to the kidnapping of the perpetrator of the offense in his country, arguing that the dismissal cannot be the remedy for these violations when it comes to dealing with someone accused of the most heinous crimes known to humanity, crimes against humanity. However, the authority and jurisdiction of the ICTY was much more advanced and the operation was carried out by UN forces, which made it significantly different from the ICC mechanism. Accordingly, the ICC does not have the power of its predecessor courts.
Moreover, the number of states that have ratified the Rome Statute is still quite frustrating. International justice will never be possible without the participation of the majority of the world, especially countries with significant influence in international political and legal affairs. For example, three of the five permanent members of the UN Security Council, namely the United States, Russia and China, have not signed the treaty.
It is difficult to accept, but the ICC cannot fulfill for the moment its role as a true universal criminal court and an effective mechanism for the fight against impunity. As the number of crimes against humanity and war crimes committed by Russians increases day by day, the creation of a separate tribunal seems to be the only effective mechanism and the only hope for justice for Ukraine.