From time to time someone raises the idea of an International criminal court to judge and punish Russian top brass for war crimes in Ukraine. Does it make sense?
Mark Feygin has no doubt about it. Ukraine should nail high-ranking Russian officials for war crimes. Feygin, a Russian lawyer who became famous for defending Nadiya Savchenko, interviewed by the Ukrainian channel 112 TV, said that “Ukraine should perform all legal proceedings for an international court on Russian war crimes to be set up”. He took this position after the Prosecutor General of Ukraine put 39 senior Russian officials on the wanted list for their responsibility for the annexation of the Crimea and the war in Donbass. “I can’t tell now whether this will have any consequences. Russian officials will most likely ignore Ukraine’s request to testify. But that doesn’t mean Ukraine should not gather the respective materials”, Feygin added.
War crimes on both sides
The Prosecutor General, Yuriy Lutsenko, said that the list included, among others, the Minister of Defence Sergey Shoigu, the Deputy prime minister Vladislav Surkov and the envoy of the Kremlin for the Crimea, Oleg Belaventsev, plus a number of deputies and army generals. They are suspected of having “committed particularly serious crimes against the national security of Ukraine and public safety, peace and the international rule of law,” said Lutsenko, adding that Ukraine will seek international aid to bring them to justice.
The idea of an international tribunal for war crimes in Ukraine is not new. Neither – and that’s the most curious thing – is it just a prerogative of Ukraine. The president of the Upper house of the Russian parliament, Valentina Matviyenko, launched the same idea, of course with different purposes. “Let us first put the culprits, responsible for such a heavy death toll, on trial by an international public tribunal”, said Matviyenko in June, inviting “foreign countries and all those who condemn the present Kiev regime to join the international tribunal”.
It is clear that the argument is a weapon to wield in the hybrid war between Russia and Ukraine. But, beyond this, does it makes any sense?
A theoretical exercise
Matviyenko’s request is singular. First, because it’s flawed by a pre-trial judgment, even before the court itself comes to life (“foreign countries who condemned the Kiev regime…”); but also because it seems to forget that Russia has already had the opportunity to establish an international tribunal under the UN for war crimes in Ukraine and has opposed this with its veto. Exactly one year ago, the Russian representative Vitaly Churkin raised his hand and with his ‘no’ against 11 votes in favour killed the international tribunal on the disaster of the Malaysia MH17. Probably at that time the “countries who condemned the Kiev regime” were not enough.
From the Ukrainian side, meanwhile, something has been done. In September 2015, Ukraine asked the International Criminal Court to extend its jurisdiction over crimes committed on its territory since 20 February 2014. Previously Ukraine had accepted the court jurisdiction only on crimes committed by Yanukovych during the revolution of Maidan. Since last year, therefore, the Hague prosecution can investigate the events of the war in Donbass, the shelling of residential areas, the use of civilians as human shields, as well as the dawning of the Malaysia Boeing 777.
Theoretically, though, because Ukraine has not yet ratified the Rome Statute of the International Court, it therefore has no jurisdiction over its territory. The request of the authorities of Kiev was made under Article 12(3) of the Statute, which provides for the acceptance of the jurisdiction of a non-party State on a voluntary basis. In addition, the jurisdiction of the ICC is always complementary to the local authorities and starts only in the event of inaction by national courts.
So far the move has resulted in only a few meetings between the CPI delegation with Ukrainian authorities and a preliminary statement saying the court will continue to “gather information” on Donbass and Crimea, and to “closely follow the progress and findings of the national and international investigations into the shooting down of the Malaysia Airlines MH17 aircraft”. Very little.
And the fact that the ICC will have to work in cooperation with Ukrainian authorities to investigate such facts as the massive use of heavy artillery by Kiev forces on Slaviansk, the air strikes on Luhansk at the beginning of the military operations and cases of torture of POWs on both sides, makes concrete developments very unlikely to happen soon.
@daniloeliatweet
From time to time someone raises the idea of an International criminal court to judge and punish Russian top brass for war crimes in Ukraine. Does it make sense?
