Russia’s war against Ukraine is a gross violation of international law. To stop hostilities on the territory of Ukraine and bring the perpetrators to justice, our state has sought protection in international courts. It is necessary to understand how these courts function, the difference between them, and what Ukraine requires.
The International Court of Justice (ICJ) is the principal judicial body of the United Nations, which considers matters referred to it by States and matters provided for in the UN Charter, existing treaties, and conventions. The court is located in The Hague, the Netherlands. The court consists of 15 judges, elected separately by the General Assembly and the Security Council for nine years. Judges are selected based on their qualifications, not based on nationality. However, they cannot elect two judges from the same country.
The UN Security Council is empowered to deal with territorial and border disputes, maritime, diplomatic, and consular law. The Court is also requested to rule on commercial or private claims against one State supporting another State. Only States may be parties to cases before the Court.
Consideration of the case begins in one of two ways:
On February 26, 2022, Ukraine filed a lawsuit with the UN Security Council alleging that the Russian Federation had violated the Convention on the Prevention and Punishment of the Crime of Genocide (the “Convention”). Ukraine also immediately submitted a request for precautionary measures, requesting the Court to issue an order to cease hostilities on the territory of Ukraine.
The lawsuit alleges that Russia misinterpreted and distorted the notion of the crime of “genocide,” by which it justifies the use of force in Ukraine. Our state claims that Russia is grossly abusing its obligation to prevent the crime of genocide provided for in the Convention. The armed aggression to “prevent and punish” the fabricated genocide against the Russian-speaking population does not comply with the provisions of the Convention, according to Ukraine’s position, and it looks as if Russia is deliberately planning genocide in Ukraine.
States are defendants in international courts and arbitrations if they have agreed to such proceedings in a particular case or in respect for a specific type of violation. The lack of such consent is a significant obstacle to recognizing wrongdoing in the case. Like most countries in the world, Russia is a party to the Genocide Convention, so it has agreed in advance to resolve disputes under this Convention in the UN Security Council.
Ukraine asks the UN International Court of Justice to establish that:
Also, Ukraine demands to oblige the Russian Federation to provide guarantees of non-recurrence of criminal acts, including illegal use of force, and to compensate for the damage caused.
On March 16, the UN International Court of Justice ruled in favor of Ukraine in a lawsuit against Russia. Following the meeting, the judges decided:
At this stage, the Court does not analyze in detail the parties’ position but has the right to make an interim decision, which is subject to immediate execution (similar to securing a lawsuit in Ukraine). Russia is obliged to implement the interim decision until a decision is made on the merits.
The International Criminal Court (ICC), also known as the Hague Tribunal, is the first legal institution to operate on a permanent basis since July 2002. It was founded based on the Rome Statute, adopted in 1998. The court is located in The Hague, the Netherlands, but hearings can be held anywhere.
The International Criminal Court and the UN International Court of Justice are various supranational judicial institutions operating in The Hague. The ICC does not belong to the official structures of the United Nations, although it may initiate proceedings at the request of the UN Security Council. The International Criminal Court is the only judicial body that can prosecute high-ranking officials at the international level.
According to the Rome Statute, the number of members of the Court is 18 judges, elected for 9 years by the Assembly of States Parties. The court hears cases of war crimes, genocide, crimes of aggression, and crimes against humanity. The jurisdiction of the Court is limited in time: the investigation and consideration of the case are carried out in respect of those acts which took place after the entry into force of the Rome Statute on 1 July 2002.
The International Criminal Court can hear cases under three conditions:
Ukraine has not yet ratified the statute but has submitted two statements recognizing the court’s jurisdiction, which has allowed the ICC to launch an investigation. The first statement relates to the events in Ukraine between November 21, 2013, and February 22, 2014, and the second statement concerned the continuation of crimes committed between February 20, 2014. Having analyzed these two allegations, the Prosecutor’s Office has every reason to declare war crimes and crimes against humanity. Since 2014, the ICC has been considering the Situation in the Ukraine case, which deals with three issues: the Maidan killings, the situation in Crimea, and Donbas.
Russia has previously signed the charter but withdrew its signature under it. This is not an obstacle to prosecuting Russian citizens for crimes committed in Ukraine.
On February 28, the court’s chief prosecutor, Karim Ahmad Khan, announced that he was beginning to investigate Russia’s actions in Ukraine. The agency received appeals from 39 countries, including the EU and Australia, Canada, and the United Kingdom. On March 16, the ICC prosecutor arrived in Ukraine and began work. Prosecutors from some countries, such as Germany and Lithuania, have launched their investigations.
The investigation is being conducted by inspecting residential neighborhoods and public buildings that have come under fire. Evidence can also be data from mobile phones, emails, radio interceptions, videos, photos, and more. Confiscated maps of attacks on cities and targets for destruction can become real evidence of the crime. Witnesses and victims are being questioned for investigation. To gather evidence of crimes, involve relevant experts, as well as analyze financial transactions.
The International Criminal Court usually imposes long-term sentences, such as imprisonment for 30 years or life imprisonment. In addition, the court has the right to decide on the imposition of a fine, confiscation of proceeds, property, or assets obtained by illegal means. The perpetrators will not be able to visit the 123 countries members of the Rome Statute and are automatically included in the ISS wanted list. The head of state or government, a government member or parliament member, an elected representative, or a government official may be held criminally liable. The criminal court may issue an international arrest warrant for the President of the Russian Federation and officials close to him during the trial. After that, they have the right to arrest them during a trip to the countries that are signatories to the ICC.
Victims have the right to claim compensation for the damage they have suffered. Upon completion of the trial and conviction, the Trial Chamber may order the convict to pay compensation. The court may decide to pay such payment through the Victims Trust Fund. Reimbursement may include monetary compensation, property restitution, rehabilitation, medical care, the organization of victim care centers, or symbolic events such as apologies or memorials.
Ukraine’s appeal to international courts means the opening of a legal front in the fight against the aggressor. The International Criminal Court has been operating for more than 20 years and has handed down four convictions during its operation, which have been under investigation for many years. According to the Court’s case law, there is a real possibility of prosecuting heads of state for war crimes, subject to their extradition. An example is the former president of Sudan – Omar al-Bashir. It takes a long time to investigate Russia’s crimes in Ukraine and bring Russia’s top military and political leadership to justice, but no matter how much time passes, the perpetrators will be held accountable.
Author of the material:
Roman Tkan, lawyer at Trustme Law Firm