THE RUSSIAN STATE has been subject to widespread diplomatic and economic sanctions as a result of its invasion of Ukrainian territory since 24 February.
Russia is also likely to face State responsibility for violations of public international law, international human rights law, and the laws regulating the conduct of armed conflict. This article reflects in particular on the possibility of findings of individual criminal responsibility for the commission of international crimes in Ukraine.
International criminal law
The prosecution of individuals for crimes under international law developed momentum following the horrors of World War II.
In the intervening decades, international criminal law has seen the establishment of the Nuremberg and Tokyo tribunals and the second-generation ad hoc tribunals in the form of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY).
They, in turn, led to third-generation hybrid courts such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL), and a permanent seat of international justice: the International Criminal Court (ICC) in The Hague.
By virtue of the Rome Statute (adopted in 1998; taking effect in 2002), the ICC investigates and tries individuals charged with genocide, crimes against humanity, war crimes, and the crime of aggression.
Individual responsibility for international crimes may also be attained, albeit less frequently, outside of traditional international criminal justice fora through the mechanism of universal jurisdiction. This concept holds that some crimes are so heinous that they may be prosecuted by a court in any jurisdiction.
Examples of such exercises of jurisdiction include the Adolf Eichmann trial in Israel in 1961 and the arrest of Augusto Pinochet in London in 1998.
In the Rome Statute context, the crime of genocide (Article 6) is characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group. Crimes against humanity (Article 7) involve “serious violations” committed as part of a large-scale attack against any civilian population.
Serious violations, in this context, include murder, rape, imprisonment, enforced disappearance, enslavement, sexual slavery, torture, apartheid, and deportation. The crime of aggression (Article 8 bis) is the use of armed force by a State against the sovereignty, integrity or independence of another State.
Grave breaches of the Geneva Conventions (which regulate the conduct of armed conflict) constitute war crimes before the ICC (Article 8).
Such war crimes include intentionally directing attacks against a civilian population or against civilians not taking direct part in hostilities (thereby violating the principle of distinction in international humanitarian law).
Also included are the crimes of intentionally directing attacks against civilian objects (as opposed to military objectives) such as hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes; the torture of civilians or prisoners of war; unlawful deportation, transfer or confinement; and the taking of hostages.
The Court’s jurisdiction in relation to the situation in Ukraine
Jurisdiction may be exercised by the Court where Rome Statute crimes are committed by a State Party national, in the territory of a State Party, or in a state that has accepted the jurisdiction of the Court.
Jurisdiction can also be exercised where crimes are referred to the ICC Prosecutor by the UN Security Council pursuant to a resolution adopted under Chapter VII of the UN Charter (which occurred with respect to Darfur and Libya).
There are currently 123 States Parties to the ICC (including Ireland, following the insertion of Article 29.9 into the Irish Constitution). Russia and Ukraine are signatories to the Rome Statute but neither State has ratified it.
Other powerful global powers such as the United States and China are in the same position (while Biden recently labelled Russian President Vladimir Putin a “war criminal”, the US remains averse to formally joining the Court due to concerns over the prosecution of its own nationals, including those allegedly responsible for crimes in Afghanistan).
While Russia and Ukraine are not States Parties, Ukraine previously issued two declarations under Article 12(3) of the Rome Statute (preconditions to the exercise of jurisdiction) providing jurisdiction to the ICC (once in relation to alleged crimes committed between November 2013 and February 2014 and again in relation to alleged crimes from 2014 onwards, relating to the Russian annexation of Crimea in 2014).
On 28 February, the ICC Prosecutor (currently Karim Khan following an election in 2021 which I discussed here) sought authorisation to open an investigation into the Situation in Ukraine, stating that “there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office”.
In response to the Prosecutor’s announcement on 28 February, 39 ICC States Parties, including Ireland, referred the situation in Ukraine to the Court, which enables the Office of the Prosecutor to proceed with the opening of the investigation from November 2013 onwards, “thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person”.
International crimes in Ukraine
Notwithstanding Ukraine’s previous Article 12(3) declarations and the Court’s current exercise of jurisdiction, the Court will not have jurisdiction over the specific crime of aggression due to limitations set out in Article 15 bis of the Rome Statute. Jurisdiction over the crime of aggression could only be granted where the UN Security Council referred the situation to the Court (highly unlikely except in the event of a regime change due to Russia’s veto power as a permanent member of the Council).
As a result, there have been calls for the establishment of a separate international criminal tribunal to prosecute Putin and other senior Russian officials for the crime of aggression. Nevertheless, there are reasonable grounds to believe that crimes against humanity and war crimes (crimes over which the Court will most likely have jurisdiction) have and continue to be committed in the territory of Ukraine.
Some examples in the public domain would include the bombing of a maternity hospital and other health facilities, the bombing of a theatre where civilians were taking shelter, the bombing of residences and schools, alleged killings of civilians during evacuations, the alleged use of cluster munitions and vacuum bombs in civilian areas, the alleged torture of prisoners of war (possibly on both sides), enforced disappearances, as well as alleged unlawful transfer and unlawful confinement of civilians in parts of Mariupol in recent times.
Due to the volume of evidence and the complexity of gathering data during a conflict, the investigation stage at the ICC can be lengthy, but should any arrest warrants be issued, the Court (a judicial institution without a police force or enforcement body) will rely on international cooperation to have Putin and any senior commanders or other officials transferred to The Hague (the Court does not hold trials in absentia).
In practice, this reduces the likelihood of such individuals travelling outside of Russian territory. While it is not unprecedented for a sitting head of state to be indicted by an international criminal tribunal (for example, Slobodan Milošević at the ICTY and Charles Taylor at the SCSL), another possibility would be the transfer of Putin and others to The Hague by senior officials within Russia in the event of a future regime change.
Another challenge traditionally facing the Court has been budgetary shortages, but a marshalling of the necessary resources is likely to be successful in the case of Ukraine due to the relatively widespread international support for punitive measures against Putin and his regime.
The ICC is to be commended for its swift reaction in the case of Ukraine and should be unequivocally supported by the community of nations in its global fight to end impunity and to hold accountable those responsible for the commission of international crimes.
Dr Donna Lyons is Trinity College Dublin’s expert representative to the Department of Foreign Affairs Committee on Human Rights, former Assistant Professor of International Law with TCD School of Law, and former Liaison Officer for International Institutions with the Department of Foreign Affairs’ Embassy in The Hague. She is happy to discuss issues arising in this article with interested readers and can be contacted at lyonsdm@tcd.ie.
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