War Crimes: Russia's Invasion of Ukraine

Civilized countries recognize that war crimes are serious violations of international humanitarian law and human rights. Those who commit such crimes must be held accountable. The concept of international criminal justice has been developed for many years. Scholars have different opinions about when exactly international criminal justice was born.

 Christopher Keitle-Hall, a former legal adviser to the International Bureau of Amnesty International, said that until the 20th century, most trials for violations of the laws of war were, in principle, carried out by means of the establishment of tribunals. One side was, as a rule, the victorious state. Such trials did not fall under the jurisdiction of a regular court or an international criminal court.

Such proceedings do not fall under the jurisdiction of ordinary courts or the International Criminal Court. In 1474, the first International Criminal Court was established to try de Hagenbach for crimes against "the laws of God and men." He committed a number of crimes during the occupation of the city of Bryzach. It is interesting that during this trial, the punishment of the accused was connected with the decision of the issue regarding the execution of the orders of the commanders, as during the 13th Nuremberg Tribunal. But, as D. Schwarzenbeger pointed out, since then it took humanity more than four centuries to thoroughly cope with the important idea of ​​forming an international system of criminal justice.

The huge number of victims and victims among the civilian population during the hostilities of the First World War forced the international community to take immediate measures. As a result, the authors of the Versailles Peace Treaty included a special "sanctions" section in the document, which directly provided for the criminal liability of war criminals.   

Before the Versailles Peace Treaty, all international treaties mentioned war crimes only in the so-called "amnesty clauses". These articles provide for the official prosecution of William II by the victorious powers for "violation of the sacred powers of the treaty", and the possibility of creating a special tribunal to give the executors the necessary legal protection. The winning countries — USA, Great Britain, France, Italy and Japan — took part in it. The main issue that worried the international community was the need to create an international tribunal to consider war crimes committed by individuals. In fact, the creation of the International Criminal Court was originally planned, the specific purpose of which was to bring the Kaiser of Germany to justice.

At the same time, the commission proposed to prosecute the government of Turkey, which was an ally of Germany during the war, for crimes against humanity, including the Armenian genocide in 1915. However, these recommendations were not implemented, as the Allies did not want to further humiliate Germany and feared political instability in Turkey. As a result, the proposal to establish the International Criminal Court was not supported

In 1923, the Treaty of Lausanne was signed, which officially ended the First World War between Turkey and its enemies. Accordingly, those guilty of the Armenian genocide were also amnestied.

It is noteworthy that, for the first time in history, the "sanctions" section distinguishes between "major" war criminals and "other" war criminals, who will be tried in the national courts (including tribunals) of the states that are parties to the treaty. This division of war criminals primarily separated the jurisdiction of international criminal justice from the jurisdiction national courts.

The International Criminal Court is a special court established to hear cases arising under international criminal law. These courts have jurisdiction over international crimes such as genocide, war crimes and crimes against humanity. They are divided into permanent and special (temporary) courts. The International Criminal Court (ICC) is the only permanent criminal court.   

The infamous ad hoc international criminal tribunals include: - The Nuremberg Military Tribunal (including the International Military Tribunal and the subsequent Nuremberg Trials), established in 1945 to prosecute those responsible for war crimes and crimes against humanity during World War II.

-The International Military Tribunal for the Far East (Tokyo War Crimes Tribunal) was convened in May 1946.

-The International Tribunal for Yugoslavia was established in 1993 to prosecute war crimes committed during the conflict in the Balkans.

-The International Criminal Tribunal for Rwanda was established in 1994 to prosecute war crimes committed during the Rwandan genocide. The Special Court for Sierra Leone (closed in 2013, now the Special Court for the Rest of Sierra Leone) was established in November 1996 to prosecute war crimes and crimes against humanity related to the civil war in Sierra Leone.

Nevertheless, the establishment of the ad hoc International Criminal Court has been strongly criticized as a cover for the selective policy of the great powers and as an alibi for postponing the establishment of the Permanent International Court indefinitely. They made a number of important decisions. The ICTY has delivered two verdicts, and pressure is mounting on war criminals indicted by the ICTY, as evidenced by arrests in the summer of 1997. The track record of both tribunals has been largely disappointing, primarily because it is incomplete and very vague. On the other hand, it also turned out to be extremely valuable and informative. Not only has the possibility of creating a permanent International Criminal Court appeared, but it will undoubtedly have a decisive impact on the application of humanitarian law.

The International Tribunal for the Former Yugoslavia (ICTY) is a UN body created to prosecute and try war crimes committed during the Yugoslav conflict. The Special Court is located in The Hague, Netherlands. Established by UN Security Council Resolution No. 827 of 25 May 1993, it has jurisdiction over four crimes committed on the territory of the former Yugoslavia since 1991: grave violations of the Geneva Conventions, violations of the laws and customs of war, genocide and crimes against 22 humanity. The maximum penalty is life imprisonment. Various countries have signed agreements with the UN on the execution of prison sentences. A total of 161 people were indicted, the most recent indictment was filed in December 2004 and unsealed in the spring of 2005. The last fugitive, Goran Hadzic, was arrested on July 20, 2011. The final verdict was handed down on November 29, 2017, and on December 31, 2017, the body officially ceased to exist.

The remaining functions of the ICTY, such as the supervision of the execution of sentences and the review of appeal proceedings initiated after 1 July 2013, are under the jurisdiction of the successor body, the International Residual Mechanism for Criminal Tribunals (IMCT). By the time the trial ended on November 12, 1948, two of the defendants had died of natural causes, and one, Shumei Okawa, had been declared incompetent. All other defendants were found guilty of at least one count, and seven of them were sentenced to death and 16 to life imprisonment. Thousands of other "lesser" criminals were convicted in national tribunals convened by the Allies in Asia and the Pacific, most of which were completed by 1949. Due to the intervention of the US government, the tribunals were unable to try the leaders of Imperial Japan responsible for Article 731. In 1948, the UN General Assembly first recognized the need for a permanent international tribunal to deal with crimes committed after World War II. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes in the early 1950s, but their adoption was delayed during the Cold War, making the creation of an international criminal court politically impractical

States may also establish or use special national courts to prosecute war criminals. Proving known facts is a generally accepted rule when prosecuting war criminals. The evidence must be sufficient to prove the person's guilt. If found guilty, the court may impose appropriate penalties such as fines, imprisonment or other sanctions in accordance with relevant legal provisions.

Extraordinary Chambers in the Courts of Cambodia

This is another example of an international tribunal created by agreement between the United Nations and its member states to ensure accountability for international crimes.

 In 1997, the Cambodian government appealed to the United Nations for assistance in prosecuting senior Khmer Rouge leaders.

 In 2001, the Cambodian parliament passed a law establishing a court to try crimes committed during the Khmer Rouge era (1975-1979) as part of Cambodia's existing judicial system.

 In June 2003, at the request of the United Nations General Assembly, the United Nations Secretary-General signed an agreement with Cambodia detailing how the international community would support and participate in the Emergency Chambers. Although this special court was established by the Cambodian government and the United Nations, it is independent of them. It is a Cambodian court with international participation that applies international standards.

Looking at today's situation, it can be assumed that the UN General Assembly will turn to the Secretary General with a request to work on concluding an agreement on the creation of a similar body responsible for the fight against Russia's aggression against Ukraine. However, such a tribunal would not be based on a binding decision of the United Nations General Assembly, but would be based on the jurisdiction of the state establishing the tribunal.

 Furthermore, this tribunal model is ineffective in overcoming the immunity of senior officials from prosecution.

 It is also worth adding that in this case it was Cambodia, the suspect's country of citizenship, who requested the establishment of such a court, adopted the necessary national legislation and became a party to the relevant agreements with the UN.

Specialized Court Chambers and Specialized Prosecutor's Office for Kosovo

This tribunal, like the two previous ones, are examples of so-called "hybrid" tribunals, that is, tribunals integrated into the national justice system with international elements. The peculiarity of the Specialized Trial Chambers and the Specialized Prosecutor's Office regarding Kosovo is that the UN bodies were not involved in their creation. The impetus for this was the report of the Committee on Legal Issues and Human Rights "Inhuman treatment of people and illegal trade in human organs in Kosovo." The Specialized Trial Chambers and the Specialized Prosecutor's Office for Kosovo were established on the basis of an agreement between the Republic of Kosovo and the European Union. Subsequently,

On 3 August 2015, the Assembly of Kosovo amended Article 162 of the Constitution of Kosovo and passed the Law on Specialized Chambers and Specialized Prosecutor's Office, authorizing their establishment and granting them jurisdiction over crimes against humanity, war crimes, and other crimes and offenses under Kosovo law.

Specialized Chambers are attached to all levels of the judicial system in Kosovo – the Local Court, the Court of Appeal, the Supreme Court and the Constitutional Court. They operate in accordance with the laws of Kosovo, as well as customary international law and international human rights law. Thus, such a model would likely be relevant to the exercise of domestic criminal jurisdiction and would differ from the conditions that would require the creation of a Special Tribunal.

It should be noted, however, that the prosecution of war criminals may face various challenges and obstacles. Examples include insufficient cooperation with lawbreakers, the political or legal situation, and the absence of a reliable international legal system. However, this does not release the state from the obligation to prosecute war crimes, and the unpredictability of social processes is not an excuse for impunity.

It is important to properly respect the rights of victims of war crimes and ensure transparent, fair and impartial prosecution processes. This includes, in particular, ensuring the right to defense, public access to information, witness protection, cooperation with international judicial bodies. In the absence of adequate prosecutions, it is important that the international community continues to ensure prosecutions and reminds perpetrators of war crimes that they will not go unpunished. International organizations such as the United Nations (UN) and civil society organizations must be mindful of these obligations and play an important role in supporting the prosecution of war criminals.

In general, the international legal mechanism in the form of a special international tribunal has three options:

- Option 1: Ukraine signs an agreement with the UN on the establishment of a Special Court.

- Option 2: a multilateral international convention on the creation of a special court is signed between democratic states.

- Option 3: The special court is created as a European court, acting in accordance with the domestic legislation and jurisdiction of Ukraine, with the participation of international judges and prosecutors.

Currently, Ukraine is actively developing options for introducing such a special court. The first option is not realistically feasible given Russia's actions and its ability to veto resolutions in the UN Security Council. On the other hand, if we consider the second and third options, their prospects seem more realistic and can be implemented in the near future. Moreover, these options already have intermediate results.

However, none of the considered tribunals can be automatically used as an example of Russian aggression against Ukraine. Moreover, the differences between the existing situation and all the examples used are sometimes so significant that even drawing analogies requires great care. At the same time, each model of creating a tribunal may provide for certain decisions regarding possible legal grounds for creating a tribunal regarding crimes of aggression by the Russian Federation against Ukraine. In fact, it is a very complex and multi-layered process that may differ on a case-by-case basis depending on legal, political and international circumstances.