Hope for Justice in Ukraine?
Experts warn that political manipulation and lack of funding may hinder the chances of holding perpetrators to account.
Hope for Justice in Ukraine?
Experts warn that political manipulation and lack of funding may hinder the chances of holding perpetrators to account.
The referral of Russia’s invasion of Ukraine to the International Criminal Court (ICC) has raised hopes that those responsible for the conflict may be brought to justice.
A preliminary examination of Russian aggression in Ukraine has been under consideration by the ICC since the conflict of 2014, with former prosecutor Fatou Bensouda announcing in 2020 that the case warranted a full investigation.
Now, the largest ever mass referral of a state to the court – with 40 countries supporting the move – has thrown the spotlight on international justice and its capacity to hold perpetrators to account.
“There is no other mechanism in the world which can even theoretically bring Vladimir Putin or those surrounding him to justice. We have no international police. We only have the ICC,” said Oleksandra Matviichuk, head of the Centre for Civil Liberties in Kyiv.
More than 100 countries united 20 years ago to set up the ICC, the world’s first permanent court capable of prosecuting war crimes, crimes against humanity, genocide and the crime of aggression.
It was hoped the ICC’s permanence might cause aggressors to think twice before acts of war, or bring swift accountability to those it failed to persuade.
At the beginning, there were requests for the court to investigate crimes against humanity in Libya and suspected genocide in Darfur. But the very countries referring cases to the court failed to support it.
“The UN Security Council shifts cases like Darfur to the ICC, but member states don’t give additional resources to the court, or support the principle of accountability, or mandate countries to follow court decisions. The court is left dangling,” said Mark Ellis, executive director of the International Bar Association.
“Although [Sudan’s former] president Omar Al Bashir was indicted in 2009, he's travelled freely and is still not in The Hague. If the international community is not willing to substantially support the court with enforcement, extradition, political will and adequate resourcing, we’ll face disappointment again and again.”
Matviichuk said that she was desperate for real, tangible backing.
“The countries that triggered an ICC investigation now need to step up and provide all necessary support,” she continued. “The ICC needs enough budget to form a special office, and assign specialist staff to Ukraine. Proper financing and support will prove to Ukrainians whether international justice can be a real instrument for stopping Russian human rights violations.”
However, concrete support for the court is not guaranteed. Some member states, jaded at the court’s slow pace and perceived lack of success, have tried to whittle down financial contributions.
The ICC has been marred by allegations of incompetence, of being slow and uncommunicative. In 2020, an independent audit found staff frustrated with grinding bureaucracy and uncovered a culture of distrust and fear. The incoming prosecutor Karim Khan secured his appointment on a promise of change.
Law experts fear that unrealistically high expectations of the court make delivering justice unworkable.
“As the world sanctions Russia and looks for ways to sway its behaviour, it must consider past criticism of the court, to guard against the possibility that the ICC is misused as a tool by some states over others,” said Haydee Dijkstal, a UK barrister representing victims of international crimes. “The reputation of the court must remain as just a court”.
In 2014 China and Russia stood in the way of a UN Security Council referral of Syria to the ICC. Then in 2020, the ICC prosecutor dropped a preliminary examination into suspected crimes by British troops in Iraq, ongoing since 2014, because of UK assurance it could try those crimes domestically.
Nadia Volkova, director of the Ukrainian Legal Advisory Group (ULAG), said that she felt there was a double standard.
“Political manipulation is damaging,” she said. “If armed conflict occurs, justice shouldn’t be picky. Big states shouldn’t dictate how things are handled, put pressure where they want. It can’t work like that.”
Volkova noted that preferential treatment did not serve the wider interests of justice. She pointed to Nigeria, where in 2010 the ICC began to look at alleged crimes committed by the security forces and Boko Haram. A decade later the prosecutor concluded there were grounds to open an investigation, but this still has not happened.
“Ukraine and Nigeria were in the same boat,” Volkova continued. “Russia needed to invade for Ukraine to become a priority – for an investigation to open. This isn’t right. We should use this as a chance to put things right, change our approach to international justice.”
SLOW PACE OF PROCEDURE
The ICC started examining evidence of crimes against humanity and war crimes in Georgia in 2008, launching an investigation in 2016.
"It is 2022 and only today a request for three arrest warrants targeting high ranking South Ossetian officials has been issued. While this is a positive development, the process took a very long time and victims have started to lose hope that justice will ever be achieved,” said Ilya Nuzov, eastern Europe desk director for the International Federation for Human Rights (FIDH).
Announcing the warrants, Khan noted similarities between what happened in South Ossetia and what is happening in Ukraine today.
“I wish to underline my call to all parties to such conflicts that adherence to international humanitarian law is not optional,” he said. “Those who carry weapons, those who participate in armed conflict, hold a heavy burden of responsibility to ensure their conduct complies with international law.”
Matviichuk said a network of civilian human rights defenders have been collecting evidence of Russian aggression for years.
“We’ve identified people committing similar atrocities in Donbas, Crimea, Chechnya, Transnistria, Moldova, Abkhazia, Georgia. I’m sure if we united our efforts with civilian human rights defenders in Syria we’d identify the same people. Russia wasn’t punished for these crimes. The circle of impunity doesn’t end,” Matviichuk said.
She argued that if evidence-based international criminal investigations had been possible after the fall of the Soviet Union, things would now look very different across the region.
“Stalin committed crimes against humanity, but because there was no accountability, there is a perception now in Russia that he was a good man. This is why we need not only political support and sanctions, we need prosecutions. Law, not politics, can counter propaganda,” Matviichuk concluded.
Justice experts argue that the ICC wasn’t intended to stand alone, and its legal framework was designed to be blended into national laws.
“The ICC isn’t a panacea,” said Nuzov. “The UN human rights council is establishing a commission of inquiry in Ukraine to enable UN investigators to go and – to the extent possible - collect, preserve, verify, corroborate and categorise evidence, write reports, and possibly collaborate with the ICC and national jurisdictions to share evidence with prosecuting bodies.”
Ellis was keen that all routes to justice were kept open, including universal jurisdiction – the principal that those engaged in atrocities in one country could be arrested and tried elsewhere.
“Universal jurisdiction has been weakened in many countries over the last decade, and conditions have been placed upon it. This is a prime opportunity for the international community to re-examine the concept, because it’s a big piece of international justice alongside the ICC,” Ellis said.
Nuzov was optimistic about progress in Ukrainian courts, which he says had been prosecuting some offences in Crimea and Donbas since 2014.
“It is important now that Ukraine redesigns its domestic legal framework to enable prosecution of all crimes under the ICC jurisdictions, and that lawyers and judges are sufficiently trained in these competencies,” he said. “If we use all means at our disposal to mete out justice, justice will be better served.”
This publication was prepared under the "Amplify, Verify, Engage (AVE) Project" implemented with the financial support of the Ministry of Foreign Affairs, Norway.
