Putting Criminal Accountability into Perspective: Russia, Ukraine and the ICC
The role of the International Crime Court (ICC) in the Ukraine-conflict.
'Propaganda was invariably a factor in preparing and conducting acts of aggression […] With the help of the police controls and of a system of censorship, it was possible to do away altogether with the freedom of the press and of speech […] The basic method of the Nazi propagandistic activity lay in the false presentation of facts.'
These are the words of … Russian Judge Iona Nikitchenko, who dissented against the acquittal of defendant Hans Fritzsche at Nuremberg, the head of the German radio campaign on war disinformation under Joseph Goebbels. Typically, the US is credited with Nuremberg. But especially in these times, it is important to recall that Russia played a major role in formulating the legal rationales for crimes against peace, as historian Francine Hirsch set out in a recent book. A significant figure is the relatively unknown Russian criminal lawyer Aron Trainin (1883-1957), a legal contemporary of Raphael Lemkin, who had coined genocide. Trainin defended the idea that war itself should be a punishable as a crime much before Nuremberg, namely in works published in 1937 and 1944. This paved the way for the recognition of the concept of crimes against the peace (the ‘crime of aggression’ in today’s terms) in the UN War Crimes Commission and at Nuremberg. Russia supported the creation of an international tribunal since 1942 to demonstrate to the world that the Nazi war effort was essentially a criminal undertaking.
Later, Russia adopted a more restrictive reading of the impact of Nuremberg on international law. It argued that individual criminal responsibility for international crimes emerged since Nuremberg, and initially only regarding Axis war criminals, in two famous cases concerning Russian atrocities in World War II before the European Court of Human Rights, namely the Kononov and Katyn massacre (Janowiec and Others v. Russia) cases. But Russia did not reject the idea of international criminal justice or the International Criminal Court in principle.
In the 1990s, it voted in the UN Security Council for the establishment of the Yugoslavia (ICTY) and Rwanda (ICTR) tribunals and actively supported them. It became more critical towards the Yugoslavia tribunal after the Kosovo crisis. But it endorsed the ICTR and did not block the ICTY or its successor mechanism, the IRMICT.
In 2000, Russia became a signatory to the ICC Statute. In the first decade of the ICC, it remained relatively neutral, compared to the strong US campaign against the Court. It participated as an observer in the Assembly of States parties and worked actively in the Working Group on the crime of aggression. At the Review Conference of the Rome Statute in Kampala in 2010, the head of the Russian delegation expressed concerns over the issue of immunity, but stated that ‘Russia, being a non-Party to the Statute, fruitfully cooperates with the ICC’. In the UN Security Council, Russia voted for the referral of the situations in Darfur, Sudan and Libya. It is important to keep these general contributions to international criminal justice in mind, when talking about current events.
In the media, relatively limited attention is paid to the fact that the ICC has already been active in relation to violations in Crimea and Eastern Ukraine for 8 years. The ICC became engaged in the situation in Ukraine in 2014, when Ukraine, also a non-party to the ICC, launched a declaration accepting ICC jurisdiction over the violence against the protests on the Maidan square. In 2015, after the occupation of the Crimea and the hostilities in Eastern Ukraine, it followed up with a second declaration, which grants the ICC jurisdiction over acts ‘committed in the [entire] territory of Ukraine since 20 February 2014’ for an indefinite period. This is also the basis of current jurisdiction. The OTP opened a preliminary examination. It made clear that it would examine alleged crimes on all sides of the conflict. In its 2016 report, it identified war crimes and crimes against humanity committed in both, Crimea and Eastern Ukraine, from 20 February 2014 onwards.
This put the ICC in a ‘rock and a hard place’ from different angles. (i) Russia decided to withdraw its signature of the Statute, in order to evade any responsibility to act in good faith towards the ICC – as the US had done earlier under the Bush administration; (ii) Ukraine in turn remained reluctant to become a State Party to the Statute, possibly fearing that its own nationals might be investigated or prosecuted; (iii) ICC States parties remained reluctant to provide sufficient budgetary support for the growing docket of the Court.
In 2020, Prosecutor Bensouda expressed a willingness to move forward with an express request for an authorisation of an investigation by the Pre-trial Chamber. But Ukraine became a breaking point for the struggle over adequate resources of the Court. Bensouda stated openly that her work would be limited ‘by clear mismatch between the resources afforded to my Office and the ever growing demands placed upon it’.
The current events have shifted priorities. Shortly after the adoption of the historic General Assembly Resolution on ‘Aggression against Ukraine’ on 2 March 2022, in which several ICC States parties abstained, Prosecutor Karim Khan has called on states to refer the situation to the ICC. In an unprecedented move, 39 states have supported a collective referral to the Court. It expresses a unique sense of commitment to accountability by WEOG countries and some states of the Latin American group (Costa Rica, Colombia). This is important symbolically and has speeded up proceedings. It allowed the ICC to start its investigations on Ukraine immediately, and might have prompted the request for warrants of arrest against members of South Ossetian administration for crimes in Georgia on 10 March 2022.
The advantage of the ICC over other justice mechanisms is that it has already done groundwork and is able to look at all sides of the conflict, at least through the prisms of war crimes and crimes against humanity. But one needs to avoid overinflated expectations. The ‘proof of the pudding is in the eating’ as Prosecutor Khan said at his inauguration.
Criminal law is an ultima ratio instrument. Its role in active conflict is limited. It will neither ‘bring us to heaven, nor save us from hell’. The involvement of the Court does not necessarily deter crimes from being committed in the heat of the battlefield. In other contexts, its immediate deterrence has been minimal or has even increased violence in the short term. The real effects are often more less visible, more diffuse, and can only be seen in the long term, such as encouraging resistance to unlawful orders, strengthening civil society mobilisation against atrocities, or contributing to a broader justice network, in collaboration with other institutions.
ICC investigations and prosecutions will face significant challenges, beyond budgetary issues. The conflict is already now one of the best documented conflicts in the world through the large amount of social media coverage, videos and online investigations. We already see war crime allegations in relation to intentional targeting of civilians and civilian objects, the use of cluster munition (Bellingcat), attacks on cultural heritage or protected sites or civilian evacuations. The biggest challenge will not be the quantity of evidence on crimes, but their authentication, verification and the linkage evidence to individual perpetrators. It may be a key case for the role of new technologies in evidence collection – an area where our IHL clinic has also been active with a project on Digitally Derived Evidence.
As in other cases, the ICC will face difficulties to get hold of suspects, since it cannot directly arrest individuals. The Court cannot try persons in absentia. Executing any warrants of arrest will be a challenge, as long as suspects are protected by parties to the conflict. This is clearly shown by the MH17 investigation and ICC cases in Kenya and Ivory Coast, where the OTP has struggled with cases against high state officials.
However, I would argue there is value in proceeding, even though we may not yet see clear chances of arrest of the most responsible leaders. First of all, it is crucial to collect and preserve evidence and attribute appropriate legal qualifications to violations. The war in Ukraine is also a war about use and abuse of fundamental concepts of international law. An independent and impartial investigation is critical to counter legal disinformation and misinformation, which are part and parcel of strategic warfare more than ever before.
Second, ICC investigations may have an important spillover effect, facilitating additional domestic investigations and prosecutions. We have already seen this, with Germany starting structural investigations.
Third, it is a key to have a longer term perspective. We have seen on other occasions, such as in the Balkans, that justice in conflict may impede prerogatives to secure peace or to provide a way out of conflict for warring parties. However, it may unfold its effects in the long term, as the arrests and trials of Milosović, Karadžić or Mladić have shown.
A further limitation is the aggression gap: The ICC cannot ‘call a spade a spade’ since it lacks the ability to exercise jurisdiction over the crime of aggression ‘in respect of a State that is not a party’ to the Statute (Art. 15 bis (4)). The crime of aggression carries undoubtedly high normative significance. However, it is important is important not to ‘banalise’ other categories of crimes, such as crimes against humanity or war crimes, which offer better prospects of investigation and prosecution. Even the legendary last living Nuremberg Prosecutor Ben Ferencz, who has fought for a lifetime for the criminalisation of aggression beyond Nuremberg (‘Never give up’), has placed great emphasis on crimes against humanity as a category to address the impact of aggressive acts.
Some have called for a new special tribunal on aggression, in light of the limitations of both the ICC and states to investigate and prosecute aggression. However, such a tribunal would most likely replicate many of the weaknesses of domestic prosecutions. It would lack enforcement power, face immunity challenges, and legitimacy concerns, if it is only about crimes by specific individuals (i.e. a 'Putin's tribunal') or by one side. This is one of the longer-term lessons of the Nuremberg tribunal, which continued to face critiques of victor's justice. It might be better to invest in multilateral structures, rather than seeking a case-specific solution, at least in the current environment, where the selective engagement of the West in relation to international criminal justice also remains a disturbing reality. In this regard, ‘justice delayed’ may turn out to ‘be justice delivered’.