Ukraine fights Russia on the ground and in the courts 

THE HAGUE, Netherlands (CN) — Ukraine has now filed complaints against Moscow at two international courts, and a third has announced it will open an investigation into Russian activities. 

The European Court of Human Rights announced on Tuesday it was issuing interim measures — essentially an injunction — against Russia, telling Moscow to stop attacks on civilians. This happened shortly after the prosecutor of the International Criminal Court announced late Monday evening that he would open an investigation into Russian actions in Ukraine. 

In its Monday appeal to the ECHR, Ukraine alleged “massive human rights violations being committed by the Russian troops in the course of the military aggression.” The court, created in Strasbourg, France, by the European Convention on Human Rights in 1959, oversees the political and civil rights of Europeans and holds states accountable for violating them. 

While the convention does not prohibit the literal act of invasion, known as the crime of aggression, it does protect the right to life and property. In a statement, the court told Moscow to “refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals.” 

Last week, Karim Kahn, the chief prosecutor of The Hague-based ICC, said the court had no basis to pursue charges as the court also has no authority over the crime of aggression in this case. On Monday, he shifted gears, announcing his office will open an investigation into Russian action in Ukraine. “I have decided to proceed with opening an investigation into the Situation in Ukraine, as rapidly as possible,” Khan said in a statement. 

The court is limited to investigating the crime of aggression to members of the court. Russia is not a party to the Rome Statute, which created the court in 2002, while Ukraine has granted the court only ad hoc jurisdiction since 2014. On that basis, the court completed an initial investigation into Russia’s activities in Eastern Ukraine and its 2014 annexation of the Crimean peninsula, concluding six years later that there was “a reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity.” 

As Ukraine is not a full member, it could not refer the matter to the court itself. Instead, the prosecutor will have to convince a panel of judges it has enough evidence to ultimately move forward. That is unless another member state refers the matter to the court. “It would speed up the process,” Astrid Coracini, a senior lecturer in international law at the University of Vienna, said in a phone interview with Courthouse News. With a referral from another party, the prosecutor wouldn’t need to convince a pretrial chamber. In statements, the governments of Lithuania and Canada have indicated they have planned to do so.

Other countries could also back Ukraine at the ECHR. “It would be good if they did,” Isabella Risini, a visiting professor at the University of Augsburg in Germany, told Courthouse News in a phone interview. The Netherlands has joined a previous complaint Ukraine brought against Russia for the conflict in Eastern Ukraine, because a passenger jet flying from Amsterdam was shot down in 2014. 

The Latvian Minister of Foreign Affairs, Edgars Rinkēvičs, said in a statement on Twitter on Tuesday his country will back backing Ukraine in a case Kyiv brought on Sunday before the International Court of Justice, the high court of the United Nations. That complaint alleges Russian is violating the 1948 Genocide Convention. Ukraine has another case against Russia pending before that court relating to the conflict in Eastern Ukraine. One of Russia’s counsel, Alain Pellet, announced in a statement that he was resigning from the case. “It has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it,” he wrote. 

Proving all of these allegations requires evidence. The investigative journalism website Bellingcat has already begun tracking evidence of war crimes. Staff and volunteers are collecting open-source materials, such as social media posts, as well as conducting their own investigation, Eliot Higgins, founder and creative director of Bellingcat, told Courthouse News in an interview. "The material is archived in a way to preserve it for future accountability processes."

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