In late 2020, Fatou Bensouda, Chief Prosecutor at the International Criminal Court, announced the conclusion of the preliminary examination in the situation in Ukraine; in Crimea, which was annexed by Russia; and in regions of Donbass that are not under the control of the government in Kyiv. She also announced the launch of an investigation into the international crimes committed by all the involved parties. This will be the second investigation of its kind in our region after the previous investigation concerning Georgia. It will, of course, be years before this investigation yields any results, but the very fact that it is being conducted is highly significant for both the ruling elite and society in general.
The International Criminal Court in the Hague has become the systematic response to inquiries concerning the criminal prosecution of military criminals. In the late 20th century, many countries emerging from totalitarian and authoritarian regimes or civil wars began to establish various systems of transitional justice so that society could learn the truth about what happened, honor the memory of those who perished, and draw on the lessons of history. Some countries created international tribunals (Sierra Leone, Cambodia, Lebanon), while others set up truth commissions (Chile and other Latin American countries). And trials or mediation and arbitration proceedings that provide an alternative to criminal prosecution have, of course, been launched in many countries.
But this has not always been possible. On the basis of the Rome Statute, in 2002 the International Criminal Court (ICC) started work as an independent body of justice to address more complex situations where governments cannot or do not want to investigate international crimes. The ICC attempts to respond to crisis situations and is conducting investigations into a number of situations in Africa, Afghanistan, Venezuela, the territory of the Palestinian Authority, and other countries. Over recent decades, the Hague has transformed into a meme and become a symbol of inevitable reckoning, even if the guilty parties are only punished years after they committed their crimes.
After six years of examining the situation in Ukraine, the Office of the Prosecutor at the ICC has concluded that both war crimes and crimes against humanity were committed in Crimea and Donbass. The Office of the Prosecutor separated these crimes into crimes committed in the conduct of hostilities and crimes committed in Crimea. The Chief Prosecutor’s decision must now be approved by the Pre-Trial Chamber; the investigation can begin after this.
What threat does this investigation pose to Russia and its senior leadership? Moscow withdrew its signature from the Rome Statute in 2016, but this does nothing to change the situation: If a country’s citizen commits a crime on the territory of an ICC member state, they must be prosecuted regardless of the relationship between their country and the Court. The Office of the Prosecutor has previously noted that members of separatist groups supported by Russia committed crimes more serious in nature and scale than those committed by Ukrainian soldiers. Also in 2016, the Office of the Prosecutor found that, under international law, Crimea was occupied by Russia and that Moscow was involved in the military conflict in Eastern Ukraine. It is therefore likely that further investigation will focus on identifying members of LNR and DNR military units who perpetrated crimes on the territory of Ukraine and Russian soldiers who participated in the events. Similarly, the court can also prosecute people on the Ukrainian side who are guilty of war crimes. The Office of the Prosecutor will focus specifically on people who gave orders and led criminal operations. Under its mandate, the ICC concentrates on prosecuting senior leadership, since it is easier to prosecute rank-and-file perpetrators at the national level.
When specific suspects are located, the ICC issues international arrest warrants and/or subpoenas. If these people are within the territory of the Russian Federation, then Moscow must hand them over for trial regardless of their positions and in accordance with the general principles of international law. Given the current Russian government, resistance to these trials will only grow. In fact, the Kremlin just recently adopted new countersanctions and announced the future creation of a Russian Court of Human Rights. It has also refused to recognize the supremacy of international law over domestic law. But international pressure will increase at the same time. Some examples of this pressure are the MH17 trial in the Netherlands, proceedings at the European Court of Human Rights and the International Court of Justice, and proceedings concerning Georgia and Ukraine at the ICC. If Russia ignores these proceedings, it will find itself at a new level of isolation.
I would like to believe that the people who created and lead a system that sanctions the perpetration of crimes will be prosecuted and that this unlawful system will itself be liquidated. This is the goal pursued by institutions of transitional justice, which, I hope, will one day be established in our region.
Evgeniya Andreiuk, expert, ADC Memorial
First published on the blog of Radio Svoboda