For Ukraine, war rages on the ground and in the courts

Unlike war crimes, where it may be difficult to tie the top political echelon to crimes happening on the ground, aggression is a leadership crime. The Rome Statue defines the perpetrator as “a person in a position effectively to exercise control over or to direct the political or military action of a state.” 

“I made a decision to carry out a special military operation,” Russian President Vladimir Putin declared in a speech announcing the invasion of Ukraine on Feb. 24, 2022. 

Only days after the invasion began, top legal scholars began to call for the creation of a special tribunal to deal with the crime of aggression. The idea has gained traction. In January, the European Parliament passed a resolution to prosecute top Russian leadership for the war. The U.S. House of Representatives is currently considering a similar bill. 

Ad hoc tribunals are not new. The International Criminal Tribunal for the former Yugoslavia prosecuted war criminals from the Yugoslav wars. The International Criminal Tribunal for Rwanda did the same for the Rwandan genocide.  

Those courts were created by resolutions passed by the United Nations Security Council, the 15-member body tasked with ensuring global peace. It is the only U.N. organ with coercive power over the member states. 

Russia is a member of the security council and, having veto power, would certainly block any attempt to create a tribunal aimed at putting its leaders in jail. It has blocked similar efforts to create a court to try Syrian leaders for attacks during the civil war. 

Advocates have looked instead to the U.N. General Assembly, its main deliberative body, for backing instead.

“It’s wishful, optimistic thinking,” said Tamsin Phillipa Paige, senior lecturer at Deakin University School of Law in Australia, in an interview.

The General Assembly certainly has the power to set up a tribunal, Paige said, but it lacks the authority to establish a court that could overcome head-of-state immunity. 

Immunity

Nations have long recognized immunity for top leaders, believing that one state cannot exercise authority over another. This idea was put to judges at the International Court of Justice, the highest judicial body of the U.N., in 2002. 

Belgium charged Abdoulaye Yerodia Ndombasi, the Democratic Republic of the Congo's minister of foreign affairs, with inciting genocide during the Rwanda genocide and issued an international arrest warrant. The Congolese government fought back, arguing the minister was immune from prosecution. 

In what became known as the Arrest Warrant Case, the ICJ issued a landmark ruling that sided with Congo and found Yerodia could not be tried in a Belgian court for these crimes. The ruling noted, however, that heads of state can be tried by international courts, a decision that has been held up by other international courts, including the ICC.

Proponents of an ad hoc tribunal for the Russian-Ukrainian war point to the Special Court for Sierra Leone, a court established to look into crimes against civilians and U.N. peacekeepers in the West African country’s decadelong civil war. That court would go on to convict Charles Taylor, president of neighboring Liberia, for aiding and abetting war crimes by backing rebel groups in Sierra Leone. 

“There is sound precedent on both immunity and the creation of a tribunal,” said Jennifer Trahan, an international law professor at New York University, speaking to Courthouse News.

But other legal experts are less sure. Paige pointed out that the Special Court for Sierra Leone was also created by the Security Council, although using a different process than what it took to create the ICTY and ICTR.

“This is not a good faith engagement with the law,” Paige said.

Advocates for a special tribunal could ask the ICJ for an advisory opinion to clarify the issues, but those can take years. Otherwise, the validity of a tribunal would be established by the first defendant who appears before it.

“It will certainly be challenged,” Trahan said.

The World Court 

While legal experts have been wrangling over the options for a new court, Ukraine has availed itself of nearly every existing international judicial body to fight Moscow. 

Ukraine has brought two cases before the ICJ, sometimes called the World Court. The Hague-based court is currently considering one complaint from Kyiv about the 2014 annexation of Crimea and the seizure of territory along the border and another stemming from the full-scale invasion.

Kyiv filed the earlier complaint in January 2017, accusing Moscow of violating two treaties: the International Convention for the Suppression of the Financing of Terrorism, or ICSFT, and the International Convention on the Elimination of All Forms of Racial Discrimination, or CERD.

The ICSFT claim centers on a series of violent events that Ukraine alleges Russia either committed or provided support for, including the shooting down of Malaysia Airlines Flight 17, also known as MH17, in July 2014. The alleged CERD violation concerns Russia’s treatment of the ethnic Ukrainian community in Crimea.

Although the ICJ partially denied Ukraine’s request for preliminary measures - essentially an injunction - it ruled in 2019 it does have jurisdiction to consider the case. Those proceedings are ongoing. 

In the more recent complaint, Kyiv used a creative legal argument to bring the invasion before the ICJ. Putin accused Kyiv of engaging in genocidal policies against Russian-speaking people in the eastern part of the country, an accusation that Ukraine says is baseless and violates the Convention on the Prevention and Punishment of the Crime of Genocide, more commonly called the Genocide Convention. 

Ukraine is not going it alone at the ICJ. A record-breaking 34 other countries have filed interventions on Kyiv’s behalf. 

During hearings in March 2022, Ukraine didn’t argue Russia was committing genocide, but rather that using baseless genocide claims as the precursor for the invasion violated international law. The ICJ was sympathetic, ordering Russia to stop the invasion less than a week later, a call Moscow has obviously not heeded. 

Regardless of Russia's noncompliance, succeeding with these cases is still important for Ukraine.

“International litigation is also another form of pressure,” said international lawyer Priya Pillai, noting favorable rulings can open the door for other avenues and strategies to obtain, for example, reparations. 

The Strasbourg court

The Hague isn't the only city of justice. Both Ukraine and Russia were both parties to the European Convention of Human Rights, which created the European Court of Human Rights, and Ukraine has filed several complaints against Russia at the Strasbourg-based court.

The ECHR was the first international court to make a ruling about the full-scale invasion, ordering Russia to stop the hostilities on March 1, 2022 - only one day after Ukraine made the request, and two weeks before the ICJ issued its order.

In fact, the rights court backtracked from another decision it made also involving Russia. In a case over the Russo-Georgian War, the court ruled that it couldn’t adjudicate part of the dispute, essentially because the facts of the conflict were too muddled. But it was willing to take on the Ukraine challenge.

“There’s some feeling that if you [the ECHR] don’t do it, no one will do it,” said Isabella Risini, a visiting professor at the University of Augsburg in Germany who studies the Strasbourg court. 

Ukraine isn’t fighting at the ECHR alone either. Twenty-six countries have now filed briefs in support of Kyiv.

Kyiv had also filed nine previous complaints about Russian actions in Ukraine, accounting for half of the pending intrastate cases at the court. There are also 8,000 complaints brought by individuals against Russia stemming from the conflict. 

Russia has filed its own complaint against Ukraine at the ECHR, arguing Kyiv is discriminating against Russian-speaking people in the country. 

But Russia has since been expelled from the Council of Europe, which oversees the court, over its invasion.

“For the first time, there is absolutely no channel of communication opened,” said Risini. However, she said Russia’s departure wouldn’t stop the proceedings and the court would consider the evidence it has available, even if Russia refuses to participate. 

Last month, the ECHR ruled it would move forward with a group of Ukrainian cases, including one joined by the Netherlands over the downing of MH17. The court is expected to hold hearings on the merits in the next year. 

The MH17 disaster

Although the MH17 tragedy is being litigated before both the ICJ and the ECHR, the Netherlands felt it had sufficient evidence to bring criminal charges against four men for the downing of the passenger aircraft. 

In March 2020, The Hague District Court decamped to a highly secure facility just miles from the airport where the Boeing 777 departed on July 17, 2014. Traveling from Amsterdam to Kuala Lumpur, the plane was shot out of the sky over eastern Ukraine, killing all 298 people on board. The majority of the victims were Dutch, leading the Netherlands to spearhead the investigation into the crash.

Last year, the court found Igor Girkin, Sergei Dubinsky and Leonid Kharchenko guilty, while a fourth man, Oleg Pulatov, was acquitted of all charges for supplying the weapon used in the disaster. The court concluded the plane was shot down by a Buk surface-to-air missile that was supplied by the Russian Federation and fired from an area of Ukraine controlled by separatists. 

Just last month, the investigation team announced it acquired evidence linking Putin to the attack. The Joint Investigation Team said it had evidence showing “strong indications” that the Russian president signed off personally on the transport of the Buk missile. Despite that finding, the JIT is winding down its operations, citing Russian interference. “After 8.5 years the JIT has exhausted all avenues for investigation,” Dutch prosecutor Digna van Boetzelaer told reporters. 

Girkin, Dubinsky, and Kharchenko were given life sentences, though none are in Dutch custody. The three men were tried in absentia and are believed to be in Russia. 

Although the men may never serve their sentences, Marieke de Hoon, an assistant professor of international criminal law at the University of Amsterdam who has followed the case closely, said the verdicts are still important for truth-telling.

“These judgments are important because they help Ukraine fight Russia's formal denials and disinformation,” she said in an interview.  

Risini, the ECHR expert, noted that judgments like the MH17 decision are useful for the proceedings in Strasbourg. “The court likes to draw on materials from national authorities,” she said.

But the Dutch aren’t finished with their legal battle either. In March 2022, together with Australia, the Netherlands filed a complaint with the U.N.'s International Civil Aviation Organization claiming Russia violated the 1944 Chicago Convention, which established the aviation body, by shooting down the aircraft. The proceedings are ongoing. 

Other venues

Ukraine has had some luck in other venues as well. In 2019, another U.N. court, the International Tribunal for the Law of the Sea, ordered Moscow to return captured ships and Ukrainian soldiers in what was known as the Kerch Strait incident. 

In November 2018, three Ukrainian Navy ships were attempting to reach the eastern Ukrainian port of Mariupol via the Kerch Strait, which connects the Sea of Azov to the Black Sea. The two countries are supposed to share access to the strait under a 2003 agreement, but Russians pursued the Ukrainian vessels, fired upon the ships and then captured them, taking all 24 sailors aboard into custody. The men and equipment were ultimately returned in a prisoner swap.

Russia contested the tribunal’s jurisdiction over the matter, resulting in another legal dispute before the Permanent Court of Arbitration. The intergovernmental dispute resolution body, housed in the same building in The Hague as the ICJ, also concluded in 2022 it would move forward with the case and those proceedings are ongoing. 

The people v. Putin 

While legal scholars and politicians have been working within the system of international justice to bring accountability to Ukraine, a group of activists has taken the initiative to start proceedings against Putin on their own. 

The People's Tribunal of the Citizens of the World opened in The Hague on Monday, backed by the nonprofit Cinema for Peace and supported by a group of prestigious international lawyers and judges, including Ben Ferencz, the last living prosecutor from the Nuremberg trials. 

The informal court spent the week hearing evidence about whether the Russian president is guilty of the crime of aggression, including in-person testimony from witnesses who saw the invasion firsthand. The first person to testify was Ukrainian journalist Angela Slobodyan, who was held for a month in a detention center in the port city of Kherson.

“They were shooting everything that was moving,” Slobodyan said of the Russian soldiers. 

Such tribunals, which have no legal authority, are held to raise awareness of crimes that victims feel have not been punished. Uyghur Muslims, a persecuted minority group in China, held a people’s tribunal in London in 2021 accusing Beijing of crimes against humanity and genocide. Others have been held to draw attention to crimes committed against journalists and the victims of the Iranian regime. 

“In the past century, the world has made significant steps for law and justice,” said Nobel Peace Prize winner Oleksandra Matviichuk of the Ukrainian advocacy organization Center for Civil Liberties when she opened the tribunal proceedings on Monday. 

Unlike more traditional legal venues, the people’s tribunal is moving quickly. It will announce its verdict on Friday.

Follow @mollyquell

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