Ukrainian International Criminal Justice Week has passed — results of the discussions and lectures on important issues
Every year, on July 17, the anniversary of the adoption of the Rome Statute in 1998 and the establishment of the International Criminal Court in the Hague is celebrated. The Center for Civil Liberties with its partners has organized Ukrainian International Criminal Justice Week – 3 panel discussions in Ukrainian and 5 academic lectures in English were held. These events have united outstanding lawyers, researchers, experts, public officials and representatives of international and regional civil society organizations confirming the importance of the fight against impunity in Ukraine and the world.
A year and a half of the great war: how do international and national war crimes punishment mechanisms work?
The experts have discussed the investigation being conducted by the International Criminal Court, establishing a Special Tribunal to punish the crime of aggression against Ukraine, the liability of perpetrators for the war crimes, and the District Court of the Hague verdict in the MH17 criminal case. Our task as civil society and the task of the universities is to prepare students well because we are just laying the groundwork. And our future – alumni and applicants. They will implement everything we give them. Applying criminal law instruments lets us do a crucially important thing namely to individualize the responsibility. It is individualized responsibility that is a way to build a peaceful future. We cannot talk about the complete liability for russian aggression or the war against Ukraine without the responsibility for the crime of aggression. International criminal law should be implemented, and corresponding amendments should be made to get everything in line.
The experts: Oleksandra Romantsova, Executive Director of the Center for Civil Liberties, Anzhela Stryzhetska, Head of the Department of Criminal Law Policy and Criminal Law at the Institute of Law of Taras Shevchenko National University of Kyiv, Mykola Gnatovskyy, judge of the European Court of Human Rights and Ukrainian lawyer, Zera Kozlyieva, Senior Legal Counsel of Truth Hounds, Gaiane Nuridzhanian, a professor at the Department of International and European law of National University of Kyiv-Mohyla Academy, Anton Korynevych, a politician and PhD in Law, Oleksandr Pavlichenko, Executive Director of the Ukrainian Helsinki Human Rights Union, Konstantin Zadoia, a professor of the Department of Criminal Law Policy and Criminal Law at Taras Shevchenko National University of Kyiv and an expert at the Center for Civil Liberties, Viktoriia Mozgova, a national expert of the United Nations Population Fund on the Istanbul Convention, Mykhailo Savva, a specialist in the examination of political motives of criminal prosecution and project evaluation and a permanent expert of the Center for Civil Liberties.
Can reforming international humanitarian law reduce the risk of war crimes?
The problem of non-compliance with international humanitarian law regulations is that nobody knows them. The states must disseminate this knowledge among their armed forces. It is important to build the national capability of compliance with international humanitarian law regulations and of punishment for anyone who violates them. Obviously, we have to speak one language with the whole world about persecution of law of war violations. That is why we must immediately ratify the Rome Statute of the International Criminal Court. International Humanitarian Law is not the end in itself, these regulations were established with the specific aim – to reduce suffering. Once upon a time, someone realized – you should wage war in a way with fewer victims or in a not so cruel way. Nowadays, the system of deterring such states as the russian federation does not work at all. The reforming of international humanitarian law is impossible without an effective system of liability and prosecution.
The experts: Oksana Senatorova, an associate professor of the International Law Department at the Yaroslav Mudryi National Law University, Mykola Pashkovski, a scientific advisor of Barristers JSC, Arie Mora, an expert at the Ukrainian Legal Advisory Group, Oleg Martynenko, a lawyer-criminologist, Sergiy Movchan, Head of the Department for Documentation of War Crimes at the Ukrainian Helsinki Human Rights Union, Mykhailo Savva, a specialist in the examination of political motives of criminal prosecution and project evaluation and a permanent expert of the Center for Civil Liberties.
What prevents Ukraine from ratifying the Rome Statute?
The Head of the Center for Civil Liberties, Oleksandra Matviichuk, said that now we are the influential players in the evolutional way of international justice for the whole world. So we should realize our responsibility. One of our tasks is advocacy with the aim of forming such a real request. We have to make every effort to conduct explanatory work for law enforcement agencies, judges, prosecutors and advocates until the moment of amending the Criminal Code. It is important to speak with Ukrainian society about the instruments we would like to see to achieve this justice. Because of the unratified Rome Statute, we are deprived of the right to participate in court work, to delegate our candidates and prosecutors, and to vote during the elections. Ukraine cannot influence the Rome Statute or propose amendments as well. But with it, we will get a wider range of conditions for prosecuting war crimes on our territory.
The experts: Oleksandra Romantsova, Executive Director of the Center for Civil Liberties, Arie Mora, an expert at the Ukrainian Legal Advisory Group, Andreas Umland, a German political scientist and an associate professor of the Master’s program in German and European studies of the Department of Political Science at the Kyiv-Mohyla Academy, Oleksandra Senatorova, PhD in Law and Associate Professor of the Department of International Law at the Yaroslav Mudryi National Law University, Roman Romanov, Director of the Human Rights and Justice Program of the International Renaissance Foundation, Kateryna Kyrychenko, Program Manager and Legal Counsel of the Public International Law & Policy Group.
On the Crime of Aggression, international Tribunal and amending the Rome
Invasion, occupation, annexation or regime change on the territories of other states are the examples of the crime of aggression. The International Criminal Court is responsible for prosecuting this. Despite the fact that Ukraine is the center of the current investigations of the ICC, our country has not ratified the Rome Statute. The discussion participants recommend Ukraine become a member of the ICC to ensure accountability of perpetrators and to protect national sovereignty. In the search for answers and accountability for the crimes of aggression, the establishment of the International Tribunal looks promising. To eliminate the jurisdictional imbalance, Article 15 bis 5 should be amended to give the ICC the power to prosecute officials of non-parties.
The experts: David Cattin, Secretary-General of the transnational network of parliament members “Parliamentarians for Global Action” (PGA) and the Adjunct Professor of International Law at the Center for Global Affairs of New York University, Frederika Schweighoferova, Director of the “Parliamentarians for Global Action” (PGA).
Lecture by Professor Gregory Townsend on the crime of genocide under international law
The Genocide Convention of 1948 defines genocide as any of the following acts committed with intent to destroy (in whole or in part) a national, ethnic, racial or religious group as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures designed to prevent births within the group; forcibly transferring children of the group to another group. Citing various historical examples of genocides in Rwanda, Cambodia, and Bosnia, Townsend concludes that we must analyze what the suspects say and do using the words of these accused (language, social media, texts, radio). The potential application of the Genocide Convention in the context of the russian invasion of Ukraine became a reminder of the continued relevance and necessity of international efforts to prevent and punish this cruellest crime.
Expert: Gregory Townsend, Lecturer at the Hague University of Applied Sciences and Professor of Practice at the Brandeis University in The Hague, member of the Advisory Committee on Legal Texts of the International Criminal Court, and practitioner with 20 years of experience in international criminal law.
The Special Tribunal for Ukraine
Today, we are dealing with what Crane calls “the era of the strong man,” defined by leaders who use force without regard for humanity. However, since the beginning of the russian invasion of Ukraine, there has been a clear promising shift toward legal mechanisms to combat such violations. There are three different models for dealing with the crime of aggression committed by russia. The first is a hybrid approach involving Ukraine and the international community. However, this model faces the problem of state immunity when it comes to bringing important officials, such as Putin and his generals, to justice under national law. The second is a Europe-oriented solution that combats crime at the regional level. However, the application of the immunity of the head of state in this context also remains a grey area. The third is the creation of a bilateral special tribunal for Ukraine, bypassing the issue of immunity. Starting from obtaining consent from the General Assembly, determining jurisdiction, mandate and funding and proceeding with the stages of operational logistics. The tribunal’s jurisdiction will not be limited to russia, but will extend to other countries that support the crime of aggression, including Belarus, Iran and North Korea.
Expert: David Crane, an international lawyer, former chief prosecutor of the Special Court for Sierra Leone (SCSL), who continued to work on international crimes.
Cyber operations and international humanitarian law
In cyberspace, the method and tactics of a cyber operation do not constitute acts of violence by themselves. That is why it is necessary to look at the consequences of a cyber operation in order to assess whether it constitutes an attack. The Tallinn Manual offers a good starting point for a definition: a cyber attack is a cyber operation, whether offensive or defensive, that results in injury or death to persons or damage or destruction of objects. The principles of International Humanitarian Law are also applied to them. For example, distinction – the principle which is used to determine who and what can be targeted. This means that it is prohibited to attack targeting civilians and civilian objects. According to other principles, it must be considered in context and reasonably foreseeable consequences. Those that result in excessive incidental loss of life or damage to civilians are also prohibited, even if they are not directed against civilians. In addition, the precautionary principle prohibits cyberattacks on military objectives that are expected to cause incidental harm to civilians. The principle of military necessity prohibits cyberattacks using means and methods that go beyond what is necessary to achieve a legitimate aim of the conflict.
Expert: Captain Christian P. Fleming, Senior Military Instructor at the Defense Institute of International Legal Studies, Adjunct Instructor at the Center for Global Affairs and New York University.
Crimes Against the Environment
Consequences, such as unexploded ordnance or soil and water contamination, remain visible long after hostilities have ended. The lasting environmental impact of war is often an obstacle to lasting peace and sustainable development because of depriving local communities of natural resources. They depend on them to survive. In the 20th century, this dynamic was observed during the Second World War with the atomic bombings of Hiroshima and Nagasaki, and in the Vietnam War with the massive use of defoliant agents. Kuwait’s oil fields, deliberately set on fire by Iraqi forces during the Gulf War, and the draining of the Mesopotamian marshes by Saddam Hussein’s regime are the other examples. The environmental disasters during the war in Ukraine should be viewed in this context and recognized as an important problem that requires the attention of the world. As for the Kakhovka dam, in addition to the people who died or were left homeless as a result of the dam’s collapse, it will have detrimental long-term consequences for public health and the environment. The large-scale flooding contaminated drinking water sources and created a favorable environment for waterborne diseases. In addition, the loss of the main source of drinking water for southern Ukraine (including occupied Crimea) threatens the future viability of agriculture in the entire region. The Kakhovka Dam reservoir was also supplying cooling water to the Zaporizhzhia Nuclear Power Plant, so its loss could exacerbate the serious crisis that has gripped the facility since its seizure by Russian forces in March 2022.
Expert: Maud Sarlieve, a lawyer specializing in complex international cases at the intersection of human rights and criminal law.
