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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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So, FF are the biggest party again. What a f****d up country.
You can’t brand an entire party because of what a small number of people did. There are a lot of new people who had nothing to do with the recession in the party and the FF councillors are a very different crowd to the TD’S.
Sorry Shane, if you join the mafia you join to change it into st Vincent DePaul. Equally when you join FF you join to get a chance to stick your snout in the trough.
Martin, Hanifin, O”Dea, still in the Party….Close it down and start again
Ive said it a million times. the most backward, stupid, ignorant people in the western world…FACT
The Irish are ok with corruption. Voting for the Bertie’s the Brian’s and the Michael’s means core values haven’t changed in FF and FG are no different i.e. Lowry Tipperary. It makes the people who vote for them equally corrupt or just dumb.
Just like yourself!
No matter who won what the turnout overall was in the !ow fifty percent range shame on all able bodied voters who could not be bothered to do so
A large number of the people who’s names are on the register have been forced to emigrate so if you take the number who live here and who voted the turnout would be higher.
Net emigration is about 0.7% of the population per annum.
Its apathy that rules.
Why is Ming wearing a suit now?
Per annum but I know people who moved abroad a decade ago who still get a polling card at their parents house. Then there are others (small number) with multiple cards at different addresses
Thats mings Hemp Suit :)
Because he can Paddy!
John Sherlock thanks for pointing that out about the large number on the electorate who have emigrated who could not vote had not actually thought of that and actually that is another scandal that our people forced to emigrate no longer have any say in who is elected
Amongst the highest turnout in Europe, not so bad. The apathy across the continent highlights the rot in European politics.
Must be made of hemp…:)
Gilmore – RRRREEEEESSSSIIIGGGNNEEEDD & Ggggooonnneeee – Yipeeeeeeee!
General Election now please ?
Delighted for Ming ! They’ve try’d to make him look like a joke all these yrs jokes on them now ..
I don’t know why people voted for him. I have a relation who knows him and he told me Ming never finished school and has been on the dole his whole life doing anything but smoking pot and now where sending him to Europe. That’s a joke.
Youre the joke Shane, its on you :)
If thats true then he probably has more in common than most of the electorate, At least hes spent some time on the dole. Most of our TDs come from a political dynasty and list their profession as public representative since they left school.
Shane….your ignorance is why Ming Flanagan romped in….I hope there are many more like you in the FF Party!
He’ll be more interested in visiting Amsterdam than Brussels I’d reckon…..
That is just about the most stupid, inane, ridiculous statement to be posted today. I have a friend that knows a guy too… And he used to smoke pot!! Typical stupefied answer from someone who probably reads glossy mags at the weekend and thinks they’re all true stories as well..
More working class people like Ming needed on politics , we’ve always had too many of the ivory tower variety who don’t know how the other half lives . Well done to Ming overcoming the prejudice and sneering of the elites
All over now and in 2 weeks 99% won’t remember who their local reps are and won’t hear hide not hair from them till next election. Democracy me a*se
Eamon Ryan !! I dont think he knows his arse from his elbow!! He was interviewed on Euronews about 2 years and painted a picture far from the truth! Actually, nowhere near the truth! He has as much political clout as Kenneth Egan!
Its crazy to think there are hundreds of thousands of people all over the country hoping Eamonn Ryan doesnt get elected…..on environmental grounds…his tireless backing of big business in the form of giant international utility wind developers despite all the independent scientific evidence showing its minimal effect on CO2 reduction and its devestating effect on the landscape and environment has shown him up to be foolish in the extreme and an idealogicalb puppet for fat cat developers..
I sincerely hope Hayes gets the seat; not because I support him or his Party but because he’s an open book – a blueshirt true and true and that gets my respect! But the Ryan boyo hunts with the hare and chases with the hounds – no respect!
Well done to all anti-austerity independent candidates who won seats in the councils with no funding, no backing from major parties, no massive PR machines.. People who slogged it out knocking on people’s doors in all weathers 6 days a week in small teams of dedicated people on a mission to show the Irish electorate that there was an alternative to the major political parties out there who could represent them in local governments across the country. Here in Kildare we in the CAWHT campaign told our Labour councillors – “axe the tax or watch your vote collapse”. Unlike Labour, we kept our promises and this election saw Labour decimated in the council and we won our representatives the seats they deserve through hard work and pure people power. To any and all people who gave up their evenings and weekends to be a part of any of these campaigns – well done, you should be proud of your achievement.
Great coverage over the weekend.Well done Journal.ie
Thanks a million – much appreciated!
Over 400,000 people unemployed I wonder how many of these people got to work at the count centres for a nice little bonus to their benefits?
Hey Paul i was in one center, and a man who takes care of his wife who is ill.Two people who are retired.There was only four in people where i was.
Why is there a re count?
not many u can bet doller
None Paul Mc , all teachers and DCC clerical workers
Interesting that Mary Lou qualifies Boylan as ‘the real deal’. Obviously she regards the rest of Sinn Fein as being fakers of some sort. Refreshingly honest of her.
John you are one sad man
hahaha bitter much!
Id say your a bitter bitter man this morning, SF most popular party on the island of Ireland by vote share, as well as a likely MEP representing all 4 regions in Ireland. The reaction of trolls like yourself makes it all the more sweeter for the rest of us!
Not bitter at all. Real election is in 2016. All to play for. Good luck to SF in their efforts at democracy.
Most popular party is not true, but I’ll leave you to your version of math; Pearse Doherty must have been tutoring.
What planet are you living on?
Johngahan – You are in awful form ? Something seismic must have happened over the weekend that has you now inventing things that people haven’t said at all !
Where’s your other Blueshirt Gobaloon Richard Rodgers ?
Has he gone on an awful tear altogether ?
Tell him that we miss him , will you ?
Shows what u know Paul there not payed anymore for counting I’m counting plus I work so it’s not all unemployed
Why does a small country need so many idiots to run it, and very badly at that
Yes indeed…… lol for the day.
We’v 350,000 public servants , New Zealand have 125 , 000 , population is the same for both NZ and us and Canada has 228,000 for population of 35 million , so what’s going on ?
Jobs for the boys…….
Europe the final countdown, lol!
The country doing so well in making a change through the power of the vote.Then you have the people of south Kerry voting in the Healy reas,and they wonder why their are the bud of jokes?
“Brendan corish, Frank cluskey, Dick spring…can you here me Dick spring? You’re boys took a hell of a beating”
Fully agree james r. Ming can ask them to stop moving house every 3 months to strasbourg and give us the 100 mil that costs to reduce ou r debt to eu/german banks. Time for a straight talker in brussells who messed up the euro, banking regulation etc. Brussels is a sleepy cosy place and packed with highly paid useless people, systems, and policies…just look at the mess europe is in. Time for no nonsense straight talking and ming is the man to do it….hopefully rte/tv3 will actually let us know what goes on there for a change….
Over 13500 votes for Teresa Heaney wtf
that is scarier then the cork peoples choice of f failed
That arsehole Mr Austerity Hayes scrapes his way in, no doubt he’ll view this as a ringing endorsement of FG’s troika appeasement.
Too soon for Ryan to be back at that level. As for the ignorant Blackrock voters …hope that they get what they deserve.
So the fool ming is happy to dress up for Europe but hasn’t the same respect for our own Dàil !! Good riddance to him we wont have to listen to his foolish rants again!
Carlos Valderama certainty does look delighted.
I’ll be sad when all this live blogging is over, it gave me an excuse to babble on about politics and even stay up passed the death, on dare I say it, a school night. I’m not normally one to follow politics so closely but I found this blog coupled with the excellent radio and TV coverage addictive. Well done to all at the Journal.ie!
Thanks Oisín! It’s been crazy alright, going back to normal news will be strange!
Well done Ming!! No more butter vouchers ….. cannabis plants all the way from Europe now ….Medical cards who needs medical cards …. When cannabis cures all ails ….less work for customs and gardai …what fools we are ….
Oh noooooo! Doggy dentures and McGuiness to be elected?!!!!!
Ryan looks like he just remembered he left the immersion on.
It’s an outrage that Edvard Hund didn’t get elected. I’m gutted for him.
I was saying Boo-urns
Excellent graphics from Clare Byrne. Best yet explanation of how the Proportional Representation Voting System works. Send a final disk to each school in the country, the kids will see immediately how it works without a long-winded complicated verbal explanation.
what a brilliant photo by mark stedman
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