Putin To Be Taken Before Major International And Regional Courts

The war on Ukraine unleashed by Putin on February 24, 2022, has shocked the world. This act of aggression against Ukraine was followed by reports on attacks on civilians and civilian objects. On March 2, 2022, the Office of the U.N. High Commissioner for Human Rights (OHCHR) recorded 752 civilian casualties in Ukraine: 227 killed (31 men, 25 women, 6 boys, and 3 girls, as well as 6 children and 156 adults whose sex is yet unknown) and 525 injured (42 men, 33 women, 7 girls, and 2 boys, as well as 19 children and 422 adults whose sex is yet unknown). OHCHR believes that real figures are considerably higher. Most of these casualties were caused by the use of explosive weapons including shelling from heavy artillery and multi-launch rocket systems, and air strikes.

As the hostilities continue, Ukraine and other states have taken steps towards justice before major international and regional courts.

The International Court of Justice

On February 26, 2022, Ukraine filed an application instituting proceedings against the Russian Federation before the International Court of Justice (ICJ), the principal judicial organ of the United Nations. The application concerns “a dispute . . . relating to the interpretation, application and fulfillment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide [the Genocide Convention].”

As the application states, “the Russian Federation has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine.” As such, the application aims to establish that “Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.” The application further accuses Russia of genocide by “intentionally killing and inflicting serious injury on members of the Ukrainian nationality, the actus reus of genocide under Article II of the Genocide Convention.”

Lastly, the application seeks provisional measures “in order to prevent irreparable prejudice to the rights of Ukraine and its people and to avoid aggravating or extending the dispute between the parties under the Genocide Convention.” The hearing on provisional measures will take place as early as March 7-8, 2022.

The International Criminal Court

The Office of the Prosecutor (OTP) to the International Criminal Court (ICC) has been looking into the situation in Ukraine ever since Ukraine made two special ad hoc declarations under Article 12 (3) of the Rome Statute giving the ICC jurisdiction over crimes perpetrated in the territory of Ukraine from November 2013 onward. In December 2020, the OTP concluded its preliminary examination and found that there was a reasonable basis to believe that war crimes and crimes against humanity were committed. The next step in the judicial process is to request authorization from the Pre-Trial Chamber to open an investigation into the situation in Ukraine. 

On February 28, 2022, the ICC Prosecutor announced that he would be seeking authorization to open an investigation into the situation in Ukraine, on the basis of my December 2020 conclusions of its preliminary examination. On March 2, 2022, the ICC Prosecutor announced that he will be opening an investigation. This follows the referrals of the situation in Ukraine from 39 Member Parties to the Rome Statue: Albania, Australia, Austria, Belgium, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hellenic Republic, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, and United Kingdom of Great Britain and Northern Ireland.

These referrals enable the OTP to proceed with opening an investigation into the situation in Ukraine from 21 November 2013 onwards. As such, the OTP will be able to look into any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person.

The European Court of Human Rights

On February 28, 2022, Ukraine made a request to the European Court of Human Rights (ECtHR) to indicate urgent interim measures to the Government of the Russian Federation, under Rule 39 of the Rules of Court, in relation to “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine.”

On March 1, 2022, the ECtHR has decided to indicate to the Government of Russia to refrain from military attacks against “civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.” Justifying its decision, the ECtHR stated that the military action which commenced on February 24, 2022, gives rise to a real and continuing risk of serious violations of the European Convention on Human Rights (ECHR), including the right to life. The Government of the Russian Federation are requested to inform the ECtHR, as soon as possible, of the measures taken to ensure that the ECHR is fully complied with.

As the atrocities continue, the issue of justice and accountability is at the forefront of the actions of the Ukrainian Government and other states. The case of Ukraine shows the importance we place on justice and accountability. Justice cannot be postponed. The sooner these international and regional courts are involved, the sooner we could work towards ensuring justice for victims and survivors.