An Architecture for Justice in Ukraine
The immediate priority is for the ICC to indict the person primarily responsible for the war: Vladimir Putin.
Also see
The Complexity of Prosecuting Forced Conscription
Conflicting laws make pursuing such cases more difficult – while criminalising some former fighters may only serve Russian interests.
Tuesday, 30 August ‘22
This week’s overview of key events and links to essential reading.
As war in Ukraine rages, debate continues over how to achieve justice for those who suffer because of the Russian invasion and the atrocities its forces have committed.
The purposeful targeting of civilians and civilian infrastructure is causing many Ukrainian deaths and immeasurable agony for the country’s population.
But it is also a crime against the laws of war, and presents Ukraine and the international community with the challenge of how to bring responsible parties to account.
The task is enormous. The office of Ukraine’s prosecutor general has a running list of incidents, which it refers to as “cases,” that will soon reach 30,000.
Collecting evidence on that scale – or anything in that range, however cases are identified and prioritised – is a monumental effort. Evidence is difficult to collect. In the case of crimes committed on territory occupied by Russia, it may be unavailable or destroyed – including potentially the bodies of those killed.
Military and political records that could provide the best evidence of actions and intentions of the Russian forces are for now unavailable, and may remain so. The Ukrainian authorities have only around two dozen defendants currently in custody, seized on the battlefield, and these do not include key officers or military and political leaders.
Most important is to secure the presence in the dock of the person primarily responsible for the war: the president of the Russian Federation, Vladimir Putin. Many commentators insist that this is a near unimaginable prospect. It is not. His surrender is a matter of sustained international will, manifested by continuing sanctions after the fighting has stopped.
To achieve this, there must in the first place be an overriding commitment to the pursuit of justice.
For Ukraine to be able to move forward, culpability for the war must be inarguably and unimpeachably determined. That means ratifying beyond any doubt, in courts of law or otherwise, that Russia is responsible and that Ukraine is the innocent party. Only on that basis can argument over the war be put to rest and a positive future emerge.
Delivering justice for Ukraine is also critical for peace elsewhere – now and in the immediate and long-term future. A robust process identifying responsible parties and bringing them to account will serve notice to other aggressors to think hard before acting as Putin has. It may forestall other wars and global crises, such as over Taiwan. Conversely, the absence of accountability for the Ukraine war will only encourage future aggression.
More immediately, accountability is vital to give closure to grieving families across Ukraine. Lives cannot be returned. But as lawyer and Ukrainian human rights activist Olexandra Matviychuk of the Centre for Civil Liberties in Kyiv argues, justice is the only way to “restore names to the numbers”, recording each and every victim, recognising suffering and restoring dignity.
Yet how? The structures available for bringing justice are both complex and inadequate. The debate over how to move forward itself introduces delay, and leaves critical questions hanging.
Time is of the essence. Lawyers charge by the hour and have a strong instinct to find complications and problems rather than solutions. Politicians waffle and hesitate, while bureaucracies crush creativity and drive. All this must be resisted. The post WWII Nuremberg trials of the Nazi leaders lasted less than a year; that timescale should at least be an aspiration here.
No single institution can have complete authority over the process, nor should it. Yet clarity, and a division of competencies, could assist all stakeholders to move forward more effectively.
Drawing from consultations in Ukraine, and building on 25 years’ experience working on areas of crisis – one of us as lead prosecutor of former Yugoslav president Slobodan Milosevic among other roles, one as a journalist heading a not-for-profit working in conflict areas worldwide – we have drafted an outline of competencies and priorities which could assist the process.
International Criminal Court – The world’s permanent court, the ICC in The Hague has opened a small number of cases focusing on Bucha and the Kyiv suburbs. But it must issue an indictment of Putin for crimes against humanity as soon as possible.
Amended indictments can always be developed later. Ukraine, which has passed legislation that allows the ICC to have jurisdiction for the present war, should go further and ratify the ICC’s governing Rome Treaty.
But the case-in-chief is evident, and indicting Putin will itself send a powerful message. Critically, issuing such an indictment will help keep the Ukraine alliance strong. Alternatively, failure to indict Putin will inevitably raise a fundamental question of the value and purpose of the ICC itself. If the ICC cannot confront a strong leader now, then when?
Aggression Tribunal – The Ukraine government, with the support of civil society groups, proposes a special international tribunal for the Russian leadership for the crime of aggression.
Many experts believe this is a more straightforward case to prove, although the ICC cannot try it for procedural and jurisdiction reasons. The aggression, as deputy head of Ukraine’s presidential administration Andrii Smirnov argues, is the “mother of all crimes, the crime which gives birth to all the other international crimes.”
There are obstacles in terms of the mechanisms for creating such a tribunal, and some key European states oppose any justice process against the Russian leadership until after the war. Past experience, especially at the Yugoslav tribunal, demonstrates the serious risks of political interference, along with delay once established and substantial costs, if set up as an international body. Many details need to be resolved. However, Ukraine has the absolute right to make this proposal. It should by all means be accepted.
Ukrainian National Courts – Ukraine is a sovereign nation, and the primary means for prosecuting crimes committed on its territory must be its own courts.
The identified number of “cases” risks overwhelming the office of the prosecutor general, whose head has recently been replaced. There are serious questions of capacity for the judges, courts, investigators and police. Bold and innovative leadership will be essential alongside substantial resources, training, mentoring and outside expertise. Concerns about historic corruption must be addressed, further internal reform completed and transparency improved.
But this is the appropriate, and ultimately most efficient venue. Any other ad-hoc international court will cause even more delay, confusion and interference. Proposals for any other hybrid court should be put on hold for now, and all focus should be on assisting Ukraine’s criminal justice system. Justice for Ukraine should be principally made in Ukraine.
People’s Tribunal – However effective they may be, official processes will never meet the huge public need for justice. The people themselves should fill the gap.
Ukraine has an extraordinary spirit of public engagement, born during the Maidan revolution in 2014 and mobilised now amid the war. As well as supporting victims, the displaced and the military with all kinds of aid, volunteers are collecting evidence of war crimes and documenting killings and destruction. With access to this material, Ukraine could readily establish an independent expert tribunal process – ideally supported but not controlled by either government or even NGOs – to provide a formalised basis for recognising victims, assessing evidence and reaching factual determinations of events. Determination of responsibility in law could also be identified by having independent legal experts.
In this case, agreeing the structure, personnel and processes might be challenging; but the cost would be comparatively minimal. Such a tribunal could truly be justice for citizens by citizens.
Experience with independent tribunals in other areas of human rights violations show that such processes, well managed and with complete transparency, can produce credible judgments. Where they lack immediate force of law, they bring the potentially higher value of truth – which courts operating the adversarial system used at the ICC, for example, do not actually pursue.
Such informal judgements have been subsequently adopted by national parliaments, referred to by governments and even utilised to support arrests abroad in universal jurisdiction cases. An independent tribunal process could also feed into national documentation and memorial initiatives.
The above architecture for justice will enable distinct bodies or sectors to get on with the work with a clear remit. No tier should be exclusive, but neither will the different levels conflict.
Whatever happens on the battlefield, the war will never truly be over until justice is achieved. Justice must be supported, the narrative – the truth, so far as possible – must be clarified, and all endeavours must pursue their enormous tasks at full speed. The people of Ukraine deserve no less.
Sir Geoffrey Nice, a British barrister, has served as a part-time judge. From 1998-2006, he led the prosecution of Slobodan Milošević, former President of Serbia, at the UN’s International Criminal Tribunal for the Former Yugoslavia, and served recently as chair of the China Tribunal.
Anthony Borden is founder and executive director of IWPR. They visited Ukraine to meet government officials and experts August 14-21, under the auspices of IWPR’s Ukraine Voices project, supported by Britain’s FCDO. Sir Geoffrey travelled on a pro bono basis.
