How to hold criminals to account
Russia's invasion of Ukraine and war crimes committed by Russian troops prompt us to reflect on the potential criminal responsibility of the perpetrators. In the diplomatic and legal worlds, there is a discussion on how to create mechanisms capable of holding people criminally responsible for all the acts they have perpetrated.
After the Second World War, there was no system of criminal responsibility for war crimes. The victors of the war, therefore, set up the Nuremberg Tribunal, which conducted criminal trials. In retrospect, however, this was an ad hoc tribunal – created to try specific crimes committed by the Nazis. Trials relating to the Second World War also took place in individual countries. Let us recall the trials of Nazi criminals held in Poland or the Eichmann trial in Jerusalem. Even today the Polish Institute of National Remembrance is still investigating such cases and can bring war criminals to justice (for example, guards at Auschwitz) if they are still alive.
In the 1990s, however, mankind came to the conclusion that tribunals set up to try various crimes (ex-Yugoslavia, Rwanda, Cambodia, Sierra Leone, Lebanon) were not enough. A permanent court is needed to deal with war crimes. For these reasons, the International Criminal Court (ICC), based in The Hague, was established in 1998. The Rome Statute establishing the ICC has been ratified by 123 states.
However, in the context of the war in Ukraine, the point is that neither Russia nor Ukraine have ratified it. In Russia, this is due to the same attitude that prevails in the USA – we are a superpower and will not submit to the jurisdiction of an external body. In the case of Ukraine, however, it was due to constitutional constraints and the consequent delays in the ratification process.
However, immediately after the annexation of Crimea in 2014, Ukraine twice made declarations recognising the ICC’s jurisdiction over crimes committed on its territory – this applies especially to war crimes, crimes against humanity and genocide. This is, incidentally, what the ICC Prosecutor Karim Khan is investigating. He cooperates with the Ukrainian Prosecution Services, including through visits to crime scenes (he has been to Bucha). He is supported by the international community. The process of documenting crimes is underway.
In the public debate, there is little doubt that war crimes and crimes against humanity have been committed. However, lawyers are holding their breath as to whether one can also speak of genocide. Politicians use this qualification (for example in the context of Bucha) without hesitation, but lawyers are aware that proving this crime requires presenting evidence of a veritable will to destroy a given national and ethnic group. In court practice, this is not so easy.
The Rome Statute provides for yet another crime. The crime of aggression is understood as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which by its nature, gravity or scale constitutes a manifest violation of the Charter of the United Nations.”
An assessment of the circumstances of the war in Ukraine leaves no doubt that Russia launched the war and has committed an act of aggression. This has even already been confirmed de facto by other tribunals – the International Court of Justice in The Hague (not to be confused with the ICC, also based in The Hague) and the European Court of Human Rights. Both courts have ordered Russia to refrain from military action. However, these rulings and the issue of interim measures by both judicial bodies will not affect the question of the criminal responsibility of Vladimir Putin or other commanders. Why? Because, as has been mentioned, Russia and Ukraine have not ratified the ICC Rome Statute. The lack of ratification means that this particular crime cannot be judged in terms of the legal responsibility of commanders. Moreover, the prosecution of the crime of aggression is limited in time to acts committed after 16 July 2017, and in practice it is up to the UN Security Council (of which Russia is a permanent member with the right of veto) to initiate such proceedings.
However, is it not feasible to deal with such a situation? After all, trying war crimes, crimes against humanity, or even genocide are serious matters. Yes, this is true, but there are constraints inherent in proceedings before the ICC.
Firstly, perpetrators must be physically brought to justice. Secondly, investigations into a crime in question may fail to establish the responsibility of the leadership. A particular commander, a general, may be responsible for the massacre of civilians in Mariupol, but there may be practical difficulties in proving a line of command that goes back to the Minister of Defense or President Vladimir Putin himself. Thirdly, trials before the ICC are long, for procedural reasons, but also because of the need to respect victims’ rights and their active participation in the collection of evidence.
In theory, war crimes can also be judged by the courts of individual states. In some of them, including Poland, the principle of universal jurisdiction applies. In short, it does not matter where the crime was committed – if the perpetrator is on Polish territory, he can be tried as a war criminal. The crime of initiating or conducting a war of aggression is mentioned in Article 117 of the Penal Code, and other war crimes are provided for throughout Chapter XVI of the Penal Code. It is similar in Germany or Belgium. But here, too, we have a problem. Firstly, this person must be detained in Poland (or in another country). Secondly, there is the problem of immunity. People such as Vladimir Putin have immunity from prosecution for acting as Head of State, so it would be very difficult to bring them to court.
This is why lawyers are wondering how to solve this problem. One of the most prominent experts in international criminal law, Professor Philippe Sands (who published a book East West Street about the figures of Hersch Lauterpacht and Rafał Lemkin, 2016) in an essay for the Financial Times of 28 February 2022 proposed the establishment of a special tribunal to try the crime of aggression in Ukraine.
His call was supported by legal circles around the world. In Poland, Professor Paweł Wiliński also spoke approvingly on the subject. The tribunal could draw inspiration from the earlier initiative of the Special Tribunal for Crimes in Lebanon, but the specifics of how to proceed are yet to be determined. The establishment of a special tribunal would have to be the result of an international agreement between states. It would therefore derive its legitimacy from the scale of international support. However, it could try all crimes, including crimes of aggression. Moreover, it would be possible to proceed in absentia, without the presence of the accused. Of course, Vladimir Putin (and others deeply involved in the heinous aggression) would become the principal defendant, and the main proceedings would focus on judging the leadership role in launching the war of aggression against Ukraine.
The renowned Ukrainian lawyer Mykola Gnatovsky suggests that if such a tribunal were to be established, it would work closely with the ICC, and deal only with the crime of aggression. In his view, Ukraine could relinquish jurisdiction to try this crime. Although he expresses doubts – as, indeed, every lawyer does – with regard to conducting cases in absentia, he does not rule out this possibility. At the same time he assumes that such a tribunal would closely cooperate with the International Criminal Court.
Also ideas of creating a special ad hoc tribunal to try acts of aggression could be envisaged under the auspices of the Council of Europe. This could happen if Ukraine invites the Council of Europe to cooperate. For the Council of Europe, this is a rather innovative idea, but it should not be ignored. Perhaps it would be easier to set up such a body with the support and assistance of an existing international organization than to create a whole special court from scratch. There’s a possibility that this would get the agreement of the vast majority of Council of Europe member states fairly quickly. These and other options are likely to be discussed at the plenary session of the Parliamentary Assembly of the Council of Europe in Strasbourg on 27 April (report on the consequences of the Russian aggression) and, possibly, on 28 April (report on holding Russia accountable for serious violations of international humanitarian law).
President Andrzej Duda, in a recent speech on the anniversary of the Katyń Massacre, stated that Poland would “support Ukraine in all legal and diplomatic actions aimed at punishing the perpetrators of crimes currently being committed by the Russians.” Two days later, the pages of Kultura Liberalna published an interview by Dr. Tomasz Sawczuk with the aforementioned Professor Philipp Sands. According to P. Sands, talks are currently underway between Ukraine and five countries regarding the establishment of a special tribunal for Russia’s act of aggression against Ukraine, but “it seems that Poland is not showing interest in this project at the moment. I don’t know what the reasons are, but it is surprising to me, given the very firm stance that Poland has taken so far towards the war.”
Perhaps there are talks going on in the diplomatic offices of the Polish authorities that we do not know about. Perhaps arrangements are being made which remain out of sight. Perhaps President Andrzej Duda was thinking of just such a special tribunal when he said, last Wednesday in Kiev, that international courts should punish the criminals directly responsible, but also those indirectly responsible “who gave the orders, those who gave permission to murder, to kill, to bomb civilians.”
It should, undoubtedly, be Poland’s raison d’état to bring about the trial of all the crimes committed by Putin and his appointees, including support for the creation of appropriate legal mechanisms. It is therefore appropriate for Poland to express unequivocal support for the establishment of an additional special tribunal to try the crimes of Russia’s aggression against Ukraine, complementing the work of the ICC.
The author would like to thank Prof. Paweł Wiliński and Andrew Drzemczewski for their valuable comments.
The Polish version of this article has been published by “Gazeta Wyborcza” on 16 April 2022