(Ця стаття також доступна українською мовою тут.)
The Prosecutor of the International Criminal Court (ICC), Mr. Karim Khan, has announced his decision to open investigations into the situation in Ukraine. This should end the war. And it should do so immediately.
The continuation of fighting and the advance of Russian troops toward Kyiv, despite the ICC Prosecutor’s decision to open investigations, undercut Russian justifications for the war. If they maintain the course they are on, Putin and his leadership expose themselves to ever greater criminal liability.
Alleged Crimes in the Donbas Region
In their statements of justification for invading Ukraine, Russian President Vladimir Putin and his top diplomats have been at pains to say that there was an ongoing armed conflict in Ukraine for more than six years. And they complain that international crimes had been committed during that war. Those crimes, they allege, include the crime of genocide.
Even if they were true, those claims don’t justify the invasion. It is a clear war of aggression and an international crime on its own account.
It is nevertheless true that the Donbas region – spanning the eastern and part of the southern regions of Ukraine – has been a war zone since 2014. The primary combatants have been Ukrainian forces and pro-Russian separatists. President Putin unilaterally annexed Crimea into Russia in March 2014, taking complete control of the peninsula. But the war continued in the Donbas – specifically in Donetsk and Luhansk where separatists have respectively declared themselves as “people’s republics.” In a report published by the Office of the Prosecutor of the ICC, it is estimated that more than 3,000 civilians were killed in the conflict as of the end of 2020 alone. These include 40 people killed in Odessa on May 2, 2014, when fire engulfed a building in which anti-government protesters were taking refuge.
Who were those 3,000 civilians and more that died? Must their lives not matter? Were they citizens exercising their right to have pro-government, pro-EU, or pro-Russian views – or no political views at all? How were they killed? In what circumstances did those 40 people die in that building in Odessa? Has anyone on either side of the conflict committed war crimes, crimes against humanity, or genocide? Justice calls for answers to these questions and others arising.
President Putin accuses Ukrainian leaders and their agents of international crimes committed in that ongoing conflict. He is within his rights to make that allegation – if it is borne out by the facts. It is, however, crystal clear that the allegation does not justify the invasion of Ukraine that is now ongoing.
Aggression and the Peaceful Settlement of Disputes
Since 1919, international law has been increasingly reoriented toward treating aggressive war as an international crime. That recognition anchored the trials of the war-time cabinets of the Third Reich and of Japan after World War II – prosecuting them for the crime of aggression alongside other international crimes. To that effect, Russian lawyers participated in the Nuremberg prosecution of the Nazi leaders as did Russian judges in the adjudication. Today, the most contemporary international criminal code is the Rome Statute (the ICC treaty). Aggression is listed in it as an international crime, together with war crimes, crimes against humanity, and genocide. So, it follows that President Putin’s allegations of genocide cannot justify his own war of aggression against Ukraine – a clear international crime in its own right, committed in the full view of the whole world.
Moreover, since the first Hague Peace Conference in 1899, international relations have operated on the understanding that States are to resort to peaceful means for the settlement of international disputes. That understanding was restated in 1919 with the establishment of the League of Nations, and amplified in the Kellogg-Briand Pact of 1928, which obligated States to renounce use of force as an instrument of foreign policy. The U.N. Charter reiterated that norm.
Beyond peaceful methods like good offices, independent fact-finding missions, mediation and arbitration, the epitome of peaceful settlement of international disputes remains the judicial method. The Hague hosts two of the top world courts created for that purpose: the International Court of Justice (ICJ) and the ICC. These courts were always open to Russia to bring complaints against Ukraine.
Precedents for such litigation abound at the ICJ. Following the break-up of Yugoslavia and the human carnage that ensued, Bosnia-Herzegovina sued Serbia at the ICJ in 1993, alleging that the Serbian government was complicit in genocide against Bosnian Muslims. More recently, in 2019, The Gambia brought a similar suit at the ICJ against Myanmar, alleging that the latter’s government has been complicit in genocide against Rohingyas. In these suits, it is normal for the plaintiff States to seek what are called “provisional measures.” These are interim court orders which compel defendant States to take effective steps immediately to cease any act or omission that would amount to the unlawful conduct in question or compound them, pending the determination of the given lawsuit.
These are the routes that international law leaves open to States in their disputes with one another. International law prohibits invasion.
There are also precedents for States to bring their disputes to the ICC as a peaceful means to settle disputes. In 2018, Canada and five other countries – Argentina, Chile, Colombia, Paraguay, and Peru – referred Venezuela to the ICC. Notably, each of those countries, especially Colombia, received refugees fleeing the humanitarian crisis in Venezuela. Similarly in 2018, Palestine referred the situation in Palestine to the ICC, which would entail investigations into Israeli use of force against Palestine.
It was thus always open to Russia to join the ICC and refer its complaint of genocide to the Court for investigation and prosecution. Russia did not do so, perhaps because of its notorious disinclination to join the ICC – never ratifying and then withdrawing its preliminary signature to the Rome Statute following the ICC Prosecutor’s preliminary views in 2016 that crimes may have been committed in the Donbas. But such a disinclination – however overpowering – does not allow it to choose the path of war to resolve international disputes.
Next Steps at the ICC – and Impact on the Conflict
Be that as it may, the ICC Prosecutor has now announced his decision to open investigations into the situation in Ukraine, based on an open-ended declaration that the Ukrainian government made on Sept. 8, 2015, to recognize the jurisdiction of the ICC to investigate, prosecute, and try international crimes committed in the territory of Ukraine since Feb. 20 , 2014. At least 39 ICC member states have now announced their referral of the situation in Ukraine to the ICC. As a matter of ICC procedure, that referral (coming from ICC member States) should enable the Prosecutor to move more quickly with his investigations and any resulting prosecution. It should also mean an infusion of additional resources from some of these States to enable the ICC to fulfill the mission.
One thing needs clarifying, though. Although some commentary tends to speak of “referring Putin to the ICC,” what the Prosecutor will do is investigate the “situation in Ukraine.” It means that he will be investigating the whole situation. If that investigation reveals violations by any individual, that will lead to prosecution of the culprit, regardless of the side of the conflict to which that person belongs.
For Russia, on the stated basis of its invasion, this should be a fortuitous development. If there is any truth to the claims made by President Putin of crimes against humanity and genocide committed against pro-Russian inhabitants of Ukraine, then this investigation should unearth the evidence. If it has faith in its own allegations, Russia should welcome and cooperate with the ICC’s investigation in Ukraine.
More importantly, in light of this development, President Putin should now take his soldiers home. The Prosecutor’s move has effectively obviated Putin’s remaining argument for the invasion. For a good cause, I am sure that the world can abide him to tell his people that he obtained the attention of the Court to address Russia’s concerns. But to persist in the war effort – when independent institutions of justice are now seized of the matter – is to drag himself and his senior command into the jaws of greater criminal liability. Such persistence will only denude the reason for this invasion: a war of pure aggression.