The conflict initiated by Russia in Ukraine has spouted one proceeding in an international tribunal and resulted in another monitoring the developments with an eye to starting an investigation. On February 25, 2022, the International Criminal Court Prosecutor, Karim A.A. Khan QC issued a statement on the situation in Ukraine., He said he has been “closely following recent developments in and around Ukraine with increasing concern.” On February 27, Ukraine filed an application instituting proceedings against the Russian Federation before the International Court of Justice (ICJ) concerning “a dispute . . . relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (the “Genocide Convention”).
The International Criminal Court
Mr. Kahn reminded all sides conducting hostilities in Ukraine that on September 8, 2015, the Ukraine government accepted jurisdiction of the ICC. Hence, his Office can exercise its jurisdiction over and investigate any act of genocide, crimes against humanity or war crime committed within the territory of Ukraine since February 20, 2014.
The statement underscored that “(a)ny person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes, may be liable to prosecution before the Court, with full respect for the principle of complementarity. It is imperative that all parties to the conduct respect their obligations under humanitarian law.”
According to Mr. Khan, his office has received multiple inquires with respect to the crime of aggression and the application of this crime to the situation. However, since neither Ukraine nor the Russian Federation are States Parties to the Rome Statute, the Court cannot exercise jurisdiction over this alleged crime in this situation.
Mr. Khan promised that his office will continue to closely monitor the Situation in Ukraine. His Office, h explained, remains fully committed to the prevention of atrocity crimes and ensuring accountability for anyone responsible for such crimes.
Mr. Khan said he intends to issue a more detailed statement regarding the Situation in Ukraine on his return from a mission in Bangladesh.
The ICC’s Preliminary Examination on the Situation in Ukraine
On December 11, 2020, the Prosecutor announced the completion of her preliminary examination of the situation in Ukraine. The Prosecutor concluded a reasonable basis exists 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. In the interim, the Office continues to take measures to preserve the integrity of any future investigation into the situation in Ukraine.
On April 25, 2014, the Office of the Prosecutor (OTP) announced a preliminary examination of the situation in Ukraine. On September 29, 2014,, the Prosecutor announced, based on Ukraine’s second declaration under article 12(3), the extension of the preliminary examination of the situation in Ukraine to include alleged crimes occurring after February 20, 2014. The OTP has received many communications under article 15 of the Rome Statute in relation to the “Maidan protests” as well as to events in Crimea and eastern Ukraine.
The preliminary examination initially targeted alleged crimes against humanity committed in the context of the “Maidan” protests which occurred in Kyiv and other regions of Ukraine between November 21, 2013 and February 22, 2014.
The OTP concluded a reasonable basis exists to believe that a broad range of grave conduct constituting war crimes and crimes against humanity were committed. The OTP also found that the alleged crimes identified would currently be admissible, and thus there was a reasonable basis for investigation, subject to judicial authorization.
The International Court of Justice
Ukraine’s application accuses the Russian Federation of “planning acts of genocide in Ukraine” and contends that Russia “is intentionally killing and inflicting serious injury on members of the Ukrainian nationality the actus reus of genocide under Article II of the [Genocide] Convention”. The Applicant seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties.
Ukraine asked the ICJ to order Russia provisionally to halt its military operations in Ukraine, in order to prevent “irreparable prejudice to the rights of Ukraine and its people” and to avoid “aggravating” the dispute between the two countries, both parties to the Genocide Conventions.
It also disputed Russia’s claims of genocide organized by Ukraine in the Luhansk and Donetsk separatist regions, which the Russian president, Vladimir V. Putin, used to justify for the invasion.
Already the ICJ has a case brought by Ukraine against Russia in 2017, accusing it of furnishing funds, weapons and training to illegal armed groups in the eastern Donbass region and of discriminating against the Crimean Tatar and ethnic Ukrainian communities in Crimea. Russia annexed Crimea in 2014.
The two cases in the ICJ and the statement by the ICC Prosecutor are two tangible cases arising from the Russian – Ukraine conflict.
On February 25, Amnesty International issued a statement, underscoring that the Russian invasion of Ukraine “has been marked by indiscriminate attacks on civilian areas and strikes on protected objects such as hospitals.” Amnesty International documented three incidents that it believes to have killed at least six civilians and injured at least 12 more. Indiscriminate attacks violate international humanitarian law (the laws of war) and can constitute war crimes.
Amnesty International’s Crisis Evidence Lab analyzed digital evidence, including photos, videos and satellite imagery, of three such attacks. The attacks allegedly occurred in the early hours of the Russian invasion of Ukraine on February 24. The attacks occurred in Vuhledar, Kharkiv and Uman.
Non-governmental organizations often play an important role in documenting violations of international humanitarian law and collecting evidence that are later used in international investigations and litigation.