In what international courts will Ukraine seek justice.
Is it really punish the aggressor country and its leadership for the invasion of Ukraine and the war crimes committed here. In what international courts will this case be considered? During more than three weeks of hostilities, the occupiers also committed a lot of documented war crimes, such as attacks and killings of civilians, destruction and appropriation of property not caused by military necessity, hostage-taking, etc.
The involvement of direct perpetrators and organizers of these crimes, up to Russian President Vladimir Putin, is an important task that Ukraine has taken up since the first days of the war. Of course, its implementation depends on a potential regime change in the aggressor state itself, because so far the Kremlin has completely ignored the decisions and calls of any international institutions, including the courts.
And although seeing Putin in the dock is still a matter of an uncertain future, it is still important for Ukraine to use all available international legal mechanisms to establish and prove the guilt of the aggressor country and its leadership.
Firstly, it will be an extra factor in the diplomatic isolation of the Russian Federation if the stamp of international criminals lies on the country and its president. Secondly, by the time when power can change in the Kremlin (under the influence of any factors, even a palace coup), all legal work should already be done. Then, in addition to just personal punishment of the Russian government for all its crimes, Ukraine will be able to count on receiving reparations from the aggressor.
Now several international legal mechanisms have been launched at once, which ordinary Ukrainians often confuse with each other, since justice, expected to take place in one city, The Hague.
But at the same time, we are not talking about the «Hague Tribunal», which is so often written about in social networks. The case is and will be handled by other courts, with their own jurisdiction and procedures. Although a separate «tribunal» nevertheless, it can really be created to punish Putin and other leaders of the aggressor country.
Russian-style genocide
The first line along which Ukraine seeks justice is at the site of the International Court of Justice, located in The Hague. It handles cases against states, not specific individuals, such as territorial disputes or illegal military actions.
Already on the third day of the invasion, on February 26, Ukraine filed a lawsuit against Russia in the UN ICJ, citing Russia's violation of the international convention on the prevention and punishment of genocide.
Such a formula was forced for one reason — according to the rules of the court, the state can be held liable only if it itself consents to the consideration of this case. Of course, the aggressor country did not give any consent. But since Moscow ratified the genocide convention, it thereby recognized the authority of the UN ICJ to consider such cases against itself.
At the same time, Ukraine deftly turned against the Russian Federation its own absurd accusations of «genocide of the inhabitants of Donbass», with which Russia tried to justify its February invasion. Ukraine stated that de facto the Russian Federation itself grossly violated the convention by launching an unprovoked and unjustified military aggression against Ukraine.
The creative move of Ukrainian lawyers worked — already on March 16, the UN ICJ issued a decision on temporary security measures, by which it obliged the Russian Federation to stop aggression against Ukraine, including through the hands of its proxies (militants from ORDLO).
Of course, Moscow did not recognize this decision, which raises a logical question: what then is the meaning of this court decision and how to put it into practice? Moreover, lawsuits in the UN ICJ last for years, and the UN Security Council, where the aggressor country has the right of veto, should implement its decisions in practice.
However, as noted by Ukrainian international lawyer Mykola Gnatovsky, thanks to the court decision, the legal grounds for the use of force against the Russian Federation were strengthened, and politicians and the military will decide to what extent and how to use it.
In addition, The UNIC may decide to pay compensation to Ukraine in connection with the Russian aggression. There have already been similar precedents in the practice of the court, although it was usually difficult for the injured party to receive money.
Nuremberg-2
Another court in which Russian aggression against Ukraine is considered in parallel is the International Criminal Court, also located in The Hague. It operates on the basis of the Rome Statute, which has been ratified by 123 states. Ukraine signed the Rome status in 2000, but has not yet ratified it. The Russian Federation withdrew its signature under the statute in 2016.
Nevertheless, at the suggestion of 41 countries, from Costa Rica to Japan, in the first week of the aggression, an investigation into the actions of the Russian Federation was launched under the leadership of ICC Prosecutor Karim Khan, who personally arrived in Ukraine in mid-March.
Unlike the International Court of Justice, the ICC does not deal with cases of entire states, but of individuals, mainly military commanders, sometimes former officials.
As a general rule, leaders of states enjoy immunity from liability for their actions on post. However, the Rome Statute provides that the holding of any position cannot exempt from liability.
In addition, there is a precedent — in 2009 and 2010, the ICC issued warrants for the arrest of Sudanese President Omar al-Bashir, who led the country from 1993 to 2019, that is, against the current head of state, who, moreover (like the Russian Federation), withdrew his signature under the Rome Statute. However, de facto, al-Bashir ended up behind bars in his native country in 2019, having lost power due to a military coup.
The ICC will potentially be able to try the Russian military elite for war crimes, crimes against humanity and genocide ( if he considers the actions of the invaders in Ukraine falling under the classification of genocide).
In order to convict Putin and his entourage for the fact of invading Ukraine, it will probably be necessary to create a separate tribunal, outside the existing courts and designed only to investigate Russian aggression.
The most famous historical example of this kind is the Nuremberg Tribunal against Nazi criminals. A more recent example is the International Tribunal for the former Yugoslavia, which worked from 1993-2017. It was he who in everyday life was usually called «The Hague Tribunal».
The leaders of the Bosnian Serbs Ratko Mladic and Radovan Karadzic (who received a life sentence) were on the dock, the ex-President of Serbia Slobodan Milosevic did not wait for the verdict, having died in a Dutch prison. In 2015, the Tribunal for Rwanda was created on the basis of UN Security Council resolutions. Obviously, in the case of Russian aggression, this path will not work — everything will again rest against the right of veto from the aggressor country.
But the process of creating a tribunal to investigate Russian aggression and punish those responsible has already begun. On March 4, a group of Ukrainian and Western lawyers published a corresponding declaration, on behalf of Foreign Minister Dmitry Kuleba. Its authors call on the countries of the world to give such a tribunal jurisdiction to investigate and prosecute those responsible for the aggression against Ukraine, as well as those who helped to commit this crime.
It is envisaged that such a tribunal will not be a substitute for the ICC, but will complement and support his actions. Defense Minister Aleksey Reznikov suggested holding such a tribunal in Kharkov, recalling that it was in this city that the first ever trial of Nazi criminals took place in 1943.
Of course, neither the ICC nor the «Kharkov Tribunal&# 187; will not have a real opportunity to put Putin and his henchmen behind bars. This will require the defeat of the Russian regime and a change of power in the Kremlin, just as the Nuremberg Trials became possible after the defeat of Nazi Germany.