War crimes and international responsibility

 On February 24, 2022, with Russia launching  missile and artillery strikes and air strikes, while Russian troops attacked the territory of Ukraine from the North, east and south, a new stage of the Russian-Ukrainian war began.  Ukraine reacted by filing a lawsuit against Russia on February 26th  in the UN International Court of Justice as Russia has violated Convention on the Prevention and Punishment of the Crime of Genocide  .

Presenting the case, Ukraine demanded an immediate cease of fire by Russian troops and their withdrawal from Ukraine.  On March 16, the UN International Court of Justice announced a decision requesting interim measures in the Ukraine v. Russia genocide case.  According to the court ruling, Russia must immediately suspend all hostilities in Ukraine and stop any military or irregular armed groups under its control or influence.

Pursuant to Article 59 of the Charter of the International Court of Justice, its decisions are binding on the parties.  There are two important points here: first, the court can proceed with hearing of the case even in the absence of representatives of one of the parties (this is exactly what happened this time), and therefore “Moscow” cannot use its absence as a ground for non-enforcement;  secondly, the requirement of this article applies to both interim and final decisions, so Russia can’t make up any legally correct excuse to not obey the ruling.

It is very important that the interim decision obliges Moscow to ensure the cessation of hostilities by both its armed forces and paramilitary forces, as well as any parties it supports : representatives of international institutions are well aware of common Russian practice of using proxy forces.

Considering the relatively low efficiency of modern international legal institutions and their weak ability to ensure peace and security, some very valid questions  have arisen in regards to the strategic prospects of this lawsuit.  What would be the next step once the final decision will be in Ukrainian favor and Russia will simply not comply and refuse to implement it? An appeal to the General Assembly and the Security Council can be made.  In particular, Article 94 of the UN Charter allows the possibility of referring to the Security Council in such cases. Moscow, as a permanent member of the Security Council, still holds a veto right and might use it.  Ukraine can insist on removing Russia from the relevant decision, considering it being a party in the conflict.

Nevertheless , what if the requirements of the Court, strongly supported by the Security Council or the General Assembly, still will not be met by Russia?  Regardless of an actual outcome , this trial is beneficial for Ukraine.

At first, the court’s recognition of the legitimacy of Russia’s actions, and further recognition of their criminal nature, will be a significant argument in order to maintain and strengthen sanctions and also prevent their lifting.  Secondly, the UN Court of Justice ruling can help further isolate Moscow.  Evidence, accumulated in the process of considering the claim, can be used in other proceedings, in particular for cases in the International Criminal Court.  Even so Russia is not a party to the Rome Statute of the International Criminal Court, it might be another way of holding responsible those, who commit war crimes, acts of genocide, and aggression in Ukraine.

After the Second World War, there were many cases of successful prosecution for the crime of genocide with the help of international judicial institutions.  For instance , a number of officials were given a life sentence and long-term imprisonment by the International Tribunal for Rwanda.  In particular, former Rwandan Prime Minister Jean Cambada and Finance Minister Emmanuel Ndindabahizi were both  sentenced to life in prison. Tribunal proceedings lasted more than 10 years, and a significant number of Rwandan officials responsible for the genocide were convicted.

The second known example of prosecution for genocide and war crimes was the International Criminal Tribunal for the Former Yugoslavia.  In particular, the commander of the Bosnian Croat forces, Slobodan Praljak, was sentenced to 20 years in prison for war crimes.  Former Yugoslav President Slobodan Milosevic (who died in prison) has also been charged with genocide.  Despite the length of the trials, these tribunals held senior officials responsible for the most serious crimes.

We should not rule out other possibilities , such as instituting proceedings in other countries. International law doctrine holds a concept of universal jurisdiction over crimes against humanity;  which means that a national court may rule on such crimes, even if they have been committed in another country.  For example, the Spanish Constitutional Court once proceeded cases of crimes committed by representatives of the Chinese government during the occupation of Tibet.  Obviously, such processes will not lead to the immediate arrest of Putin and his allies, but positive decisions in favor of Ukraine will further isolate war criminals and complicate their stay in civilized countries.

After all, it is crucial that war crimes and crimes against humanity have no statute of limitations.  The perpetrators are being brought to justice for decades after the crimes were committed. The same fate awaits all direct executors of criminal orders issued by Russia’s military and political leadership.  Modern technologies facilitate the identification of these individuals.  It might be that Putin along with the top Russian circle may not live long in order to witness it, but each and every commander who gave and carried out criminal orders, will be known and persecuted.

Kyrylo Latyshev, expert in international law

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