(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
When Ukrainian and international lawyers assembled in December in a wintry Lviv as part of the summit organized by the American Society for International Law (ASIL) and the Ukrainian Bar Association, it was impossible not to discuss the potential criminal characterization of what Russia was perpetrating in Ukraine. Lviv, we were told, was considered somewhat of a refuge for Ukrainian communities located closer to the front lines of the conflict, but it was hardly untouched. It, too, had been hit by Russian projectiles, its historical monuments were wrapped in protective sheathing, and dotted around the city were memorials to fallen Ukrainians. Discussions were wide-ranging, but particularly poignant were those concerning the evidence of atrocity crimes playing out in real time, including in the context of “filtration camps”; crimes whose labels in part had their genesis in Lviv.
The conference venue itself virtually compelled consideration of criminal accountability. Present-day Ivan Franko University, where many of the meetings took place, had, in the early 20th century, hosted as students instrumental figures in defining the international criminal law landscape that shapes the work of international and internationalized tribunals and other accountability mechanisms today. These figures include Raphael Lemkin—who conceptualized genocide—and Hersch Lauterpacht—who served as a standard-bearer for the crystallization of crimes against humanity. It was therefore fitting to discuss within the walls of this university how these ideas, brought forward into the 21st century, mapped on to still-evolving events in Ukraine.
One of many roundtables throughout the conference focused on the Russian filtration camps that had been widely reported, and the indications of forced transfer, deportation, and arbitrary detention surrounding them. These actions touched on long-standing prohibitions in war; as early as 1863, the Lieber Code provided that “private citizens are no longer … carried off to distant parts.” Such treatment is, moreover, explicitly prohibited by the Fourth Geneva Convention, which directs that: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” An occupying power may evacuate persons provisionally for the security of the population or imperative military reasons, but there are both geographical and temporal restrictions on their ability to do so. Similarly as regards arbitrary detention, the Fourth Geneva Convention is clear that civilians may be placed in internment only when the security of the acting power makes it “absolutely necessary” or, during occupation, for “imperative reasons of security” with certain procedural protections.
The discussions were not happening on a blank slate. Earlier in the year, the Prosecutor of the International Criminal Court (ICC) had announced arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russian Commissioner of Children’s Rights, on war crimes of deporting and transferring children. As then President of the ICC Judge Piotr Hofmański noted at the time the warrants were announced, children are afforded special protection under the Geneva Conventions. The UN Independent International Commission of Inquiry on Ukraine had also issued reports detailing, among other transgressions, unlawful confinement and forcible transfers of Ukrainians by Russian forces. The reports recounted confinement of large numbers of men, women, and children, without any access to judicial process, their subsequent forcible transfer to other parts of Ukraine, and, ultimately, their deportation through Belarus or directly to Russia.
More recently, the ICC Prosecutor announced that arrest warrants have also been issued for two Russian military leaders. While the latest warrants, as described, were not focused on transfers or detentions (they address attacks on civilian objects and excessive harm to civilians in attacks), they are nevertheless instructive. Crucially, these latest warrants were not only for war crimes, but also for crimes against humanity, encompassing the requisite Rome Statute finding that the alleged crimes against humanity (in these warrants, the crime of “other inhumane acts”) involved the multiple commission of acts as part of an organizational or State policy. The organization and systematicity of the filtration cramps, and the victims involved, would seem to be strong evidence pointing towards a State policy regarding a civilian population for those crimes as well.
The possibility for individual accountability for these crimes, and others, is not limited to the ICC. Ukrainian investigators and prosecutors, some of whom were also at the conference in Lviv, are working to put together cases, with the assistance of civil society organizations. Notably, however, while the Ukrainian Criminal Code has provisions that would allow prosecutions of a range of potential crimes including “violations of rules of warfare,” there are no domestic provisions at present covering crimes against humanity as such. Prosecutions in third party states under universal jurisdiction may be possible as well, as indicated by three requests concerning events in Ukraine, including claims of crimes against humanity, filed by the Clooney Foundation for Justice in Germany.
ASIL has a long history of being a convener for discussions around accountability. In April 1945, Justice Robert Jackson delivered a speech at the organization’s annual meeting. The following month the war would end in Europe; the writing was on the wall, and for some time the Allies had been discussing the possibility of an international tribunal to try war crimes. Perhaps most well-known from that speech is Jackson’s emphatic admonition that any trials be substantive inquiries adhering to fair trial principles, and not just for show: “[A]ll experience teaches that there are certain things you cannot do under the guise of a judicial trial. Courts try cases, but cases also try courts. You must put no man on trial before anything that is called a court, if you are not prepared to establish his personal guilt.” But Jackson also sought to calm nerves about the availability of laws that covered the atrocities the world had just witnessed, stating: “I am not so troubled as some seem to be over problems of jurisdiction of war criminals or of finding existing and recognized law by which standards of guilt may be determined.”
Jackson’s confidence was ultimately proved right, but when a year after Jackson’s speech President Harry S. Truman appointed him U.S. Chief Prosecutor at Nuremberg’s International Military Tribunal, he was still fleshing out the framing of those legal precursors. That was when Jackson travelled from London to pay a visit to Lauterpacht in Cambridge. Just a few days after they spoke, the category of “crimes against humanity,” a term already in circulation but never charged as a crime under international law, was included in the Nuremberg Charter, including the crime of deportation. (Of course, international criminal law has continued to evolve since then. Notably, crimes against humanity no longer require a connection to aggression or war crimes.)
Fast forward to the roundtable discussion of December 2023, and Lauterpacht’s ideas and influence, at least partially formed in the city today named Lviv, and the laws that emerged from Nuremberg and other international(ized) courts and conventions, returned to frame the actions being perpetrated in Ukraine. One other topic discussed is also worth briefly mentioning, and that was the further question of not just the possibility of accountability, but its likelihood. That is, not just arrest warrants, but arrests. Participants discussed the likelihood of apprehending alleged perpetrators in both the short and long term, and the establishment of adequate judicial institutions to address the crime of aggression. Jackson’s words to the ASIL annual meeting here again prove noteworthy: “[W]e can have nothing in common with the cynics who would have us avoid disillusionment by having no ideals.”