How to hold criminals to account

Share

Professor at the SWPS University, Warsaw, Poland. Ombudsman for the 7th Parliamentary Term (09.2015-07.2021)

More

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 



Author


Professor at the SWPS University, Warsaw, Poland. Ombudsman for the 7th Parliamentary Term (09.2015-07.2021)


More

Published

April 20, 2022

Tags

Supreme CourtConstitutional TribunalDisciplinary ChamberPolandjudgesdisciplinary proceedingsrule of lawZbigniew ZiobroNational Council of the JudiciaryCourt of Justice of the EUjudicial independenceEuropean CommissionEuropean UnionAndrzej DudaMałgorzata ManowskaCourt of JusticeEuropean Court of Human RightsMinister of JusticeIgor Tuleyadisciplinary systemAdam Bodnarmuzzle lawJarosław KaczyńskiNational Recovery PlanCJEUMateusz MorawieckiCommissioner for Human Rightsneo-judgesCourt of Justice of the European UniondemocracyPrzemysław RadzikWaldemar ŻurekNational Council for Judiciarypresidential electionselectionselections 2023disciplinary commissionercriminal lawJulia PrzyłębskaPiotr SchabKamil Zaradkiewiczmedia freedomharassmentpreliminary rulingsHungarySupreme Administrative Courtelections 2020K 3/21Dagmara Pawełczyk-WoickajudiciaryFirst President of the Supreme CourtŁukasz PiebiakprosecutorsPresidentRecovery FundBeata MorawiecPaweł JuszczyszynProsecutor GeneralMichał Lasotafreedom of expressionMaciej NawackiEuropean Arrest WarrantSejmprosecutionCOVID-19Regional Court in KrakówCriminal ChamberNational ProsecutorConstitutionPrime MinisterMinistry of JusticecourtsMałgorzata GersdorfMarek SafjanEU budgetdisciplinary liability for judgesMaciej FerekOSCEWojciech HermelińskiExtraordinary Control and Public Affairs ChamberIustitiacriminal proceedingsWłodzimierz WróbelVenice Commissionconditionality mechanismAleksander StepkowskiTHEMISLabour and Social Security ChamberStanisław BiernatPiScommission on Russian influenceStanisław PiotrowiczPresident of the Republic of PolandNCJimmunityconditionalityAnna DalkowskaJustice FundcorruptionLaw and JusticeNational Public ProsecutorCouncil of Europefreedom of assemblyKrystian MarkiewiczreformsReczkowicz and Others v. PolandKrzysztof Parchimowiczacting first president of the Supreme Court2017policeSenateAndrzej Zollmedia independenceSLAPPdefamationStrategic Lawsuits Against Public ParticipationLGBTJustice Defence Committee – KOSEwa ŁętowskaDidier ReyndersFreedom HouseAmsterdam District CourtMay 10 2020 electionsXero Flor w Polsce Sp. z o.o. v. PolandOrdo IurisPresident of PolandAndrzej StępkaBroda and Bojara v PolandSylwia Gregorczyk-AbramPiotr GąciarekJarosław WyrembakPM Mateusz MorawieckiArticle 7Next Generation EUConstitutional Tribunal PresidentUrsula von der LeyenLex DudaTVPmediaLex Super OmniaProfessional Liability ChamberreformJarosław DudziczK 7/21National Reconstruction PlansuspensionparliamentChamber of Professional LiabilityEAWArticle 6 ECHRP 7/20Supreme Court PresidentLech GarlickiMichał WawrykiewiczabortionPiotr PrusinowskiNational Electoral Commissionelectoral codeJanusz NiemcewiczTeresa Dębowska-RomanowskaStanisław RymarMałgorzata Pyziak- SzafnickaKazimierz DziałochaBogdan ŚwięczkowskiNetherlandsAndrzej MączyńskiMarek MazurkiewiczvetoStefan JaworskiMirosław GranatOLAFBiruta Lewaszkiewicz-PetrykowskaViktor OrbanJózef IwulskiMaciej MiteraSLAPPsjudcial independenceWojciech ŁączkowskiAdam JamrózPATFoxFerdynand RymarzKonrad WytrykowskiRafał Puchalskismear campaignmilestonesKrakówMarzanna Piekarska-Drążekstate of emergencyUkraineelectoral processBelaruscourt presidentsAdam SynakiewiczXero Flor v. PolandAstradsson v Icelandright to fair trialEdyta BarańskaJoanna Hetnarowicz-SikoraCentral Anti-Corruption BureauJakub IwaniecsurveillancePegasusDariusz DrajewiczJoanna Misztal-KoneckaCivil ChamberK 6/21Wojciech MaczugaSzymon Szynkowski vel SękDariusz ZawistowskiOKO.presselections integrityelections fairnessMarek ZubikBohdan ZdziennickiMirosław WyrzykowskiSławomira Wronkowska-JaśkiewiczPiotr TulejaJerzy StępieńAndrzej RzeplińskitransparencyMariusz KamińskiMaciej Taborowskiinsulting religious feelingsPaweł Filipekpublic mediaMariusz MuszyńskiKrystyna PawłowiczlexTuskcourt changesMarek PietruszyńskiMichał LaskowskiSupreme Audit Officeabuse of state resourcesLaw on the NCJEuropean ParliamentJarosław GowincoronavirusRussiaZuzanna Rudzińska-BluszczFree Courts11 January March in WarsawCCBEPiebiak gatehuman rightsrecommendationC-791/19Human Rights CommissionerMarcin WarchołLGBT ideology free zonesreportEuropean Association of JudgesPiotr Pszczółkowskiretirement agedecommunizationGeneral Assembly of the Supreme Court Judgesintimidation of dissentersdemocratic backslidingpublic opinion pollZiobroEU law primacyMarian BanaśThe Council of Bars and Law Societies of Europecriminal codeBelgiumlex NGOEwa Wrzosekcivil societytransferAdam Tomczyńskimedia pluralismBohdan Bieniek#RecoveryFilesFrans TimmermansLIBE Committeerepairing the rule of lawUS Department of StateMarcin KrajewskiKarolina Miklaszewska2018NGOFull-Scale Election Observation MissionODIHRNations in TransitStanisław ZabłockiPetros TovmasyanJerzy KwaśniewskiPiotr MazurekGrzegorz PudaNational Recovery Plan Monitoring CommitteeWiesław KozielewiczChamber of Extraordinary Control and Public AffairsMałgorzata Dobiecka-WoźniakCouncil of the EURafał LisakMichał DworczykWojciech Sadurskidefamatory statementsRome StatuteInternational Criminal CourtC-619/18Rights and Values Programmejudgepress releaseAntykastalex WoślegislationCourt of Appeal in KrakówPutinismKaczyńskiPaulina AslanowiczJarosław MatrasMałgorzata Wąsek-Wiaderekct on the Protection of the PopulatioWorld Justice Project awardStanisław ZdunIrena BochniakKrystyna Morawa-FryźlewiczŁukasz BilińskiIvan MischenkoJoanna Kołodziej-MichałowiczMonika FrąckowiakArkadiusz CichockiEmilia SzmydtTomasz SzmydtE-mail scandalAndrzej SkowronKasta/AntykastaKatarzyna Chmuraadvocate generalGrzegorz FurmankiewiczMarek JaskulskiEwa ŁąpińskaZbigniew ŁupinaPaweł StyrnaSwieczkowskiDworczyk leaksMałgorzata FroncHater ScandalAleksandra RutkowskaGeneral Court of the EUArkadiusz RadwanLech WałęsaWałęsa v. Polandright to an independent and impartial tribunal established by lawpilot-judgmentDonald Tusk governmentRafał WojciechowskiDobrochna Bach-Goleckalex RaczkowskiPiotr Raczkowskithe Spy ActdisinformationCT Presidentfundamental rightsNational Broadcasting Councilelection fairnessequal treatmentcivil lawMarcin MatczakDariusz KornelukNational School of Judiciary and Public Prosecution (KSSiP)codification commissiondelegationsWatchdog PolskaDariusz BarskiLasotapopulismState TribunalRadosław BaszukAction PlanJustice MinistryVěra JourováDonald Tuskjustice system reformAnti-SLAPP Directiveinsultgag lawsuitsstrategic investmentinvestmentlustrationJakub KwiecińskidiscriminationAct on the Supreme Courtelectoral commissionsEuropean Court of HuKrzysztof RączkaPoznańTomasz Koszewskitest of independenceSebastian MazurekElżbieta Jabłońska-MalikJoanna Scheuring-WielgusoppositionThe National Centre for Research and DevelopmentAdam Gendźwiłłtransitional justiceDariusz DończykKoan LenaertsKarol WeitzZbigniew KapińskiAnna GłowackaCourt of Appeal in WarsawOsiatyński'a ArchiveEUUS State DepartmentAssessment Actenvironmentextraordinary commissionWhite PaperKaspryszyn v PolandNCR&DNCBiREuropean Anti-Fraud Office OLAFJustyna WydrzyńskaAgnieszka Brygidyr-DoroszJoanna KnobelCrimes of espionageJędrzej Dessoulavy-ŚliwińskiMarek Piertuszyńskihate speechhate crimesmedia taxadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huGrzęda v PolandŻurek v PolandPrzemysław CzarnekJacek CzaputowiczMarcin RomanowskiElżbieta KarskaPrzemysła Radzikmedia lawRafał TrzaskowskiSobczyńska and Others v PolandTelex.huJelenForum shoppingFirst President of the Suprme CourtEuropean Economic and Social CommitteeSebastian KaletaOrganization of Security and Co-operation in EuropeC-156/21C-157/21foreign agents lawArticle 2Rome IIJózsef SzájerChamber of Extraordinary VerificationKlubrádióequalityGazeta WyborczaLGBT free zonesPollitykaBrussels Ilegislative practiceENAZbigniew BoniekAK judgmentautocratizationMultiannual Financial FrameworkOpenbaar MinisterieRegional Court in Amsterdamabortion rulingArticle 10 ECHRprotestsinterim measuresLeszek MazurIrena MajcherAmsterdamLMmutual trustthe Regional Court in Warsawpublic broadcasterUnited NationsForum Współpracy Sędziówthe NetherlandsDenmarkact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeNorwegian Ministry of Foreign AffairsNorwegian fundsNorwayKraśnikOmbudsmanKarlsruheAusl 301 AR 104/19SwedenFinlandMariusz KrasońC-487/19GermanyCelmerC354/20 PPUC412/20 PPUIrelandMarek AstLSOright to protestSławomir JęksaWiktor JoachimkowskiRoman Giertychtrans-Atlantic valuesMichał WośMinistry of FinancelawyersMirosław Wróblewskirepressive actborderprimacyEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej RutkiewiczAct of 20 December 2019Amnesty InternationalJacek SasinEvgeni TanchevKochenovPechPaulina Kieszkowska-KnapikMaria Ejchart-DuboisAgreement for the Rule of LawPorozumienie dla PraworządnościAct sanitising the judiciaryFreedom in the WorldECJErnest BejdaThe First President of the Supreme CourtMaciej CzajkaMariusz JałoszewskiŁukasz RadkepolexitFrackowiakDolińska-Ficek and Ozimek v PolandRzeszówKoen LenaertsharrassmentOlimpia Barańska-Małuszeinfringment actionHudocPKWKonrad SzymańskiPiotr BogdanowiczPiotr BurasLeon KieresIpsosEU valuesNational Prosecutor’s OfficeBogdan ŚwiączkowskiDisicplinary ChamberTribunal of StateOlsztyn courtPrzemysła CzarnekEducation MinisterENCJauthoritarian equilibriumArticle 258postal voteTVNjournalistslexTVNEwa MaciejewskaGerard BirgfellerPolish mediaAlina CzubieniakSimpson judgmentpostal vote billclientelismoligarchic systemEuropean Public Prosecutor's Officeresolution of 23 January 2020Polish National FoundationLux VeritatisMałgorzata BednarekPiotr WawrzykIsrael