It is unlikely the ICC will bring lasting justice in Ukraine, but there are many legal avenues that could help.
The campaign to hold Russian President Vladimir Putin accountable for war crimes in the International Criminal Court (ICC) faces what could be insurmountable hurdles. But there are other options.
From proceedings in domestic courts that exercise universal jurisdiction over war crimes to post-conflict processes designed to help stabilise peace, there are a variety of avenues that the international community may invoke in pursuit of justice.
On May 13, a court in Ukraine started the trial of a 21-year-old Russian soldier, accused of war crimes. It is the first domestic legal proceedings to be started in Ukraine with regards to the invasion and offers a roadmap for how countries could help issue justice.
“Many countries have their own laws regarding international crimes and are encouraged to prosecute persons accused of war crimes, genocide and crimes against humanity, even if committed elsewhere in the world,” said Monique Cormier, senior law lecturer at Monash University.
“Other countries may also wish to try those who are present in their State, using universal jurisdiction for war crimes and crimes against humanity. Germany and Sweden, most recently, have engaged in the prosecution of ISIS fighters for their conduct in Syria,” said Clare Frances Moran, lecturer in law at Edinburgh Napier University.
“Trials which take place in domestic settings, such as in Ukraine, offer a greater likelihood of securing effective justice for the victims. Patience is key to securing the prosecution of high-ranking individuals for war crimes, but time may not be on the side of either the prosecutor or the victims.”
Truth and Reconciliation Commission
A Truth and Reconciliation Commission is a court-like restorative justice body that allows both sides to share their stories and uncover truths about human rights violations that take place during a conflict.
“If Ukraine survives this war intact and maintains control over the Donbas region, there will be serious post-war tensions between the Russian-speaking and Ukrainian-speaking parts of the country. These groups are likely to have different versions of what happened in the war and who was accountable for it,” said Tom Buitelaar, assistant professor at Leiden University.
“In tandem with criminal accountability for those most responsible for atrocity crimes, it will be important to establish efforts focused on reconciliation and establishing shared truths. A Truth and Reconciliation Commission might be one option, although its designers will have to ensure it has enough political support, it’s accepted by victim groups, and it focuses on reaching out to the Ukrainian society at large.”
A feature of many Truth and Reconciliation Commissions is the offer of some form of amnesty, which helps incentivise parties to come forward with information and confessions.
“Truth and Reconciliation Commissions have become a staple ingredient in the post-conflict or post-repression approach to rebuilding societies. Proponents claim that they avoid some of the divisive and antagonistic approaches of criminal justice and that they are more victim-centred with a focus on the recognition of crimes and suffering and an emphasis on apologies.
“Critics, however, suggest Truth and Reconciliation Commissions are a concession to war criminals, who get away scot-free by issuing an apology and avoid serious prison time. They also question [the] Commission’s impact since they sometimes end up as a primarily elite process with limited influence – or are made irrelevant because of insufficient political support.“
The crime of aggression and reparations
The crime of aggression is committed when a leader of a country plans, prepares, initiates or executes an act of aggression by one country against another.
The crime of aggression as such has not yet been prosecuted before an international judicial body. Crimes against peace (defined as ‘planning, preparation, initiation or waging of a war of aggression’) were prosecuted before the International Military Tribunal at Nuremberg and Tokyo following WWII.
“I recommend that the crime of aggression is punished. The prosecution of that crime needs also to start from somewhere one day for the maintenance of international security and peace,” said Denakpon Tchobo, adjunct professor of law at Case Western Reserve University.
“For the first time in history, individuals who suffer harm as a result of a crime of aggression have a right to be recognised as victims under international law. At the International Criminal Court, victims can participate in the proceedings, and present their views and concerns to the court,” said Erin Pobjie, assistant professor of international law at the University of Essex.
“Significantly, and in a historic first, victims of the crime of aggression also have a right to seek reparations from the convicted person. This means that if Putin were ever brought before the ICC — as unlikely as that may currently seem — Ukrainian civilians, members of the Ukrainian armed forces and even Russian civilians who have suffered harm from his war of aggression can be recognised as victims at the ICC and seek reparations from him if he is convicted.”
To date, Individuals have never been officially recognised as victims of this crime. Until recently, only countries were considered victims of aggression under international law.
“When the International Criminal Court was given jurisdiction over the crime of aggression for the first time, this gave rise to the possibility of individual victims of wars of aggression to be recognised before an international court and seek reparations for the harm they have suffered,” said Pobjie.
“Although Russia’s aggression against Ukraine is a manifest violation of the United Nations Charter, the most obvious forum for prosecuting Putin (and other senior Russian political and military leaders) — the International Criminal Court — does not have jurisdiction over the crime of aggression in this situation.“
“Since Russia is not a party to the International Criminal Court, the only way the ICC can exercise jurisdiction over this crime is by referral of the UN Security Council, on which Russia wields a veto.”
“Alternative avenues for prosecution are therefore being explored, including the creation of a special tribunal. A unique benefit of prosecuting Putin and other leaders for the crime of aggression at the International Criminal Court — perhaps possible after regime change in Russia — is that it would allow Ukrainian victims of the war of aggression to participate in the proceedings, have their voices heard and seek reparations for the harm they have suffered.“
Tom Buitelaar is an Assistant Professor in the War, Peace & Justice program of the Institute of Security and Global Affairs at Leiden University. Tom holds a PhD from the European University Institute and is also the co-chair of the Dutch Peacekeeping Network.
Monique Cormier is a Senior Lecturer at Monash University Faculty of Law in Australia. Her area of expertise is international criminal jurisdiction and she is the author of The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties (Cambridge University Press, 2020).
Clare Frances Moran is a lecturer in law at Edinburgh Napier University. She specialises in international criminal law, with a focus on the authority of international law, the work of the International Criminal Court and the link between refugee law and international humanitarian law.
Erin Pobjie is a Lecturer (Assistant Professor) in International Law at the University of Essex and a Senior Research Affiliate at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.
Denakpon L. Tchobo holds a Doctor of Juridical Science (S.J.D.) in international criminal law from Case Western Reserve University where he is currently an adjunct professor of law. He is the author of the proposed convention for the prevention and punishment of crimes of groupicide. He was one of the recipients of the Case Global Service Award 2021.
No conflicts of interest were declared with regard to this article.
Editors Note: In the story “Putin and the ICC” sent at: 20/05/2022 13:03.
This is a corrected repeat.