During 6 months of full-scale armed aggression against Ukraine, Russia has committed ALL crimes that are currently classified as war crimes, crimes against humanity and genocide under international humanitarian and criminal law. The Office of the Prosecutor General informed that since 24 February, more than 30 000 war crimes and crimes against humanity were registered and are being investigated in Ukraine.
“The world security system turned out to be powerless and unable to prevent and stop the largest war in Europe since 1945. One of the reasons is that Russia has not had to account for atrocities committed during earlier conflicts for the last 30 years starting from Chechnya, Georgia, Syria and until the recent cases in Crimea and Donbas. Now, it is the last chance to prove that the existing legal order and international justice are viable.” – noted the President of the Ukrainian Bar Association Anna Ogrenchuk during her speech at the 14th annual round table on the international law of the Chautauqua institution ” Standing up to aggression: from Nuremberg to Kyiv”, which was held on August 28-30, 2022 in Chautauqua, USA.
It is an influential platform for prosecutors, experts in international humanitarian law, and human rights defenders. In particular, among the participants of the forum, there were the prosecutors of the Special Tribunal for Lebanon Norman Farrell, the Special Court for Sierra Leone and the so-called “residual” court Stephen Rapp, James Johnson and Brenda Hollis, who, together with Andrew Cayley and Robert Petit, represented the prosecution in the Extraordinary Chambers in the Cambodian courts , as well as the Prosecutor of the International Residual Mechanism for the Criminal Tribunal for the Former Yugoslavia, Mathias Marcussen. They managed to convict the President of Liberia Charles Taylor for war crimes and crimes against humanity, the leaders of the Khmer Rouge for the genocide in Cambodia, the heads of the Yugoslav state security system
This year’s round table was chaired by Fatou Bensouda, Prosecutor of the International Criminal Court in 2012-2021. During her tenure, the ICC Prosecutor’s Office opened a preliminary investigation of the situation in Ukraine and in 2020 announced its completion, recognizing the existence of war crimes on the territory of the temporarily occupied Crimea and part of Donbas. A full-fledged investigation was opened by the current Prosecutor of the International Criminal Court Karim Khan QC in March after the full-scale invasion of the Russian Federation into Ukraine.
As Anna stated, the ICC is the key institution to qualify the actions of the Russian top military-political leadership and the Russian military for committing war crimes and crimes against humanity. The interaction of the ICC, law enforcement agencies and justice authorities of Ukraine reached an unprecedented level – the investigators of the International Criminal Court, and there are more than 40 of them currently working in Ukraine, have direct access to crime scenes, which is maybe the first time in the history of the ICC that it is happening in the context of ongoing hostilities.
“However, there are certain risks and imperfections which still need to be improved. In particular, Ukraine has to ratify the Rome Statute and implement IHL into national legislation. The involvement of the professional legal community and civil society will increase the effectiveness of the overall response of the justice system of Ukraine to the challenges of war. As the ECHR repeated in a number of its judgments, “justice delayed is justice denied”. In this case of blatant and cynical violation of international law and order, expedited proceedings are of utmost importance. Warrant orders and other tools at the disposal of ICC and national justice mechanisms would strip president Putin of his support and would prevent further massive recruitment of soldiers,” – added Anna.
The UBA, together with the international community, with numerous legal organizations like NYSBA, IBA, ABA, GAN, and others, have consolidated the response of the Ukrainian and international legal community regarding legal mechanisms to punish the guilty and fully compensate all losses caused by the Russian Federation to Ukraine, citizens and businesses. Thus, currently, Ukraine has employed most of the available legal mechanisms that international law provides for the cessation of armed aggression by the Russian Federation. In particular, the decisions of the UN, the ECHR, the UN International Court of Justice, the introduction of sanctions, which turned out to be insufficient, because hostilities continue. Therefore, the UBA once again called to strengthen the sanctions regime until the complete economic isolation of the Russian Federation, and the introduction of an oil and gas embargo, as well as to update the issue of suspending Russia’s membership in the UN and depriving it of membership in the Security Council.
“The UN, as the guarantor of peace, must finally uphold its responsibilities to “cease acts of aggression and other violations of peace”. Otherwise, we must work together on creating a new, transparent and genuine structure of rules and institutions to protect the peace,” – noted Anna.
Besides, it’s the duty of lawyers, attorneys, and prosecutors to ensure that all high-ranking officials of the Russian Federation who launched a full-scale war, as well as the military command and servicemen who are executors of criminal orders and participants in war crimes on the territory of Ukraine, are brought to justice as soon as possible.
As US State Department Ambassador-at-Large for Global Criminal Justice Beth Van Schaack noted at the conference, Putin’s most powerful weapon is time. That is why the international justice system must act immediately, and there is political will and readiness for this.
“We need to restore the rule of law. This is the least we can do for the next generation,” added Ambassador Hans Corell, who in 1994-2004 held the position of Under-Secretary-General for Legal Affairs and UN Legal Counsel, and was also an ideologue and author of international criminal tribunals.
That is why Ukraine insists on the creation of a Special Tribunal for the crime of aggression, under which the higher military and political leadership of the Russian Federation will stand before the military court. “Regardless of which platform will become the basis for the creation of the Tribunal, one thing is certain – the crime of aggression should be prosecuted. Otherwise, we will create a precedent having potential consequences for the next generations”, – Anna Ogrenchuk believes.
As a result of the round table, a Resolution was adopted, providing recommendations for improving and updating the international criminal justice system for a more prompt and effective response to crimes. The communique refers to the possibility of creating new institutions at the national or regional levels, including mixed tribunals or international national courts. In addition, states should begin the process of negotiating and adopting a treaty on crimes against humanity, such as the Geneva Conventions of 1949, which prohibit war crimes. Criminal prosecution should be combined with other mechanisms of transitional law.
In addition, the jurisdictional gap must finally be eliminated in the prosecution for the crime of aggression, which is the highest international crime, and war crimes, crimes against humanity and genocide are derived from it.
There is an urgent need to establish a competent international tribunal with appropriate jurisdiction to prosecute those most accountable for the crimes of aggression against the people of Ukraine.
Legal and practical norms regarding the recruitment and actions of illegal armed groups should also be reviewed, and international law should legalize such new crimes as ecocide and cyber attacks.