Confronting the heavy legal burden posed by the expected prosecution of thousands of suspected core international crimes committed within Ukraine’s borders, the Public International Law & Policy Group, Weil, Gotshal & Manges LLP, and several international law experts formulated draft law for a Ukrainian High War Crimes Court (UHWC). The proposal calls for a highly specialized domestic court dedicated to protecting society from war crimes, crimes against humanity, genocide, the crime of aggression, and related crimes recognized by Ukraine. The overall policy goal of the UHWC is to hold those “persons most responsible” accountable for their atrocities. The efforts of the Court will complement similar actions already underway in existing domestic venues, the ICC, and any potential future hybrid international tribunal which may arise as the conflict progresses. The Court will consist of Trial Chambers and Appeals Chambers and the proposal calls for an initial duration of 10 years.
Being integrated into the Ukrainian domestic court system, the UHWC will follow the legislative framework already adopted in the Ukrainian legal code, but the draft law also proposes a few special features. While prospective Ukrainian judges require approval from the High Qualification Commission of Judges of Ukraine (HQC), UHWC judges will also need to gain the approval of the Public Council of International Experts (PCIE) to even be considered a viable candidate. The PCIE will be a subsidiary of the HQC and its members will be appointed exclusively based on their nomination from Ukraine’s international organizational partners. In addition, to fulfill its mission to conduct fair and impartial trials, the UHWC draft law prohibits individuals who have worked in high-level Ukrainian political party positions, military and civil service organizations, or other domestic war crime prosecutorial bodies. Furthermore, UHWC judges must have at least one of the following: five years of experience as a judge, seven years of scholarly experience in law, seven years of professional experience as a defense attorney, or seven years of total experience for any of these criteria mentioned.
In addition to their obligations to vet the candidacy of UHWC judges, the Public Council of International Experts (PCIE) will also be responsible for nominating international legal advisors to be approved by the Chief of the UHWC. Each chamber must carry at least one international legal advisor who is responsible for advising the court on matters concerning international humanitarian law, international criminal law, and the precedents held by similar tribunals. Both the prosecution and defense are guaranteed their own respective international legal advisor.
In the case of enforcement, sentences will served in Ukraine. When this is infeasible, the Court has a list of states willing to accept persons convicted under Ukrainian law. Only the UHWC will be able to mitigate the sentence of or pardon convicted suspects.
When the Court is focused on bringing the “persons most responsible” to justice, they specifically refer to persons who knowingly plan, instigate, incite, fund, order, or provide logistics for the commission of war crimes, crimes against humanity, genocide, and the crime of aggression. This prioritization aims the crosshairs at mid-level actors within the military hierarchy and helps keep intact the bigger picture of ensuring full accountability to the decision-makers rather than dilute prosecutorial efforts or create a false moral equivalence between on-the-ground actors and their leaders.
While international tribunals dating back to the Nuremberg Trials have taken aim at prosecuting the top-level leaders and planners of mass atrocities, the introduction of the phrases such as “persons most responsible” and persons who bear the “greatest responsibility” into the foundational statutes of later tribunals made room for differing interpretations and confusion. The phraseology was first formally introduced in Article 1(1) of the U.N. Sierra Leone Agreement that established the Special Court for Sierra Leone (SCSL): “prosecute persons who bear the greatest responsibility for serious violations of international humanitarian and Sierra Leonean law. . . including those leaders who, in committing such crimes, have threatened the establishment and implementation of the peace process in Sierra Leone.”
The first issue that arose was whether “greatest responsibility” was a jurisdictional requirement, meaning that if the court could not prove the suspect was “most responsible,” they lacked competence to try the case. After lengthy debate, it was settled that the “greatest responsibility” provision is not a jurisdictional requirement and merely a form of guidance for prosecutors.
The second and more contentious issue was defining who actually is the “most responsible” for mass atrocities enacted by organizations with hierarchical chains of command. One interpretation supposes that senior military and political leaders bear the greatest responsibility because they have the greatest ability to alter the general course of events and punish the wrongful conduct of war crimes perpetrators under their command. The second interpretation is that lower level foot soldiers who pulled the trigger and their immediate superiors who gave the direct order to commit the atrocities should bear the greatest responsibility.
The SCSL eventually settled on a third interpretation that has since been generally accepted: both senior leaders and their rank-and-file subordinates are capable of bearing the greatest responsibility, and it is up to the discretion of prosecutors to decide which cases should be tried. In a world of limited resources, this has meant that prosecutors need to devise strategies and methodologies to decide when and where to prosecute different war crimes.
In the case of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Tribunal would concentrate its aims against the senior leaders while referring intermediate-level suspects to competent national jurisdictions. However, what if a court’s competence spans much more than a single former nation?
The International Criminal Court (ICC), governed by the Rome Statute, holds that a case may be inadmissible when “it is not of sufficient gravity to justify further action by the Court” according to Article 17 (1) (d). In a sordid world that is home to acts of varying degrees of heinousness, the Office of The Prosecutor, when considering the gravity of events, analyzes several factors:
- The number of persons killed
- The number of victims, particularly in cases of willful killings, torture, and rape
- The severity of crimes
- The scale of crimes
- The systematicity of crimes
- The nature of the crimes
- The manner in which those crimes were committed
- The impact of the crimes
However, the line between whether a case is admissible under the gravity standard, and whether the ICC will actually investigate such cases, becomes blurred and leaves the Office open to accusations of bias and potentially undermines the fundamental legitimacy of the court.
While prosecutorial discretion by the OTP is heavily hinged on considering the gravity of the suspected crime, prosecutors also consider factors such as the likelihood of apprehending suspects and the availability of evidence. These practical considerations may carry an unwanted effect of State actors purposely obstructing ICC endeavors to dissuade the OTP from trying their countrymen. Knowing that citing these practical considerations as reasons for not prosecuting certain war criminals would be political unsavory, the ICC may instead downplay the gravity of atrocities to form a legitimate basis for declining to prosecute certain suspects.
These worries will likely have little application to the war crimes accountability process for the current Russo-Ukraine conflict. The widespread publication and condemnation of the atrocities committed in Ukraine by Russian forces have actually rendered it extremely unpopular to NOT hold Russia’s top officials accountable. Additionally, because most of the criminal events have occurred in Ukraine, there has actually been a streamlining, rather than a blockade, of war crimes investigations in the country. Nevertheless, there remains the practical issues of bringing top Russian officials before a competent court.
So long as Vladimir Putin stays in power, it is extremely unlikely he will be held accountable before a court of law for war crimes committed under his leadership. The current strategy by the Western powers to remove Putin from his position is by nudging the Russian people through sanctions and international condemnation. This strategy had success once in the overthrow of Slobodan Milosevic, president of Serbia from 1997 to 2000, after economic sanctions devastated the Serbian economy and spelled doom for his rule. He was later turned over to the ICTY and died in custody.
On November 30, the President of the European Commission, Ursula von der Leyen proposed the establishment of a United Nations-backed court specifically to investigate and prosecute Russia’s crime of aggression and demand they pay Ukraine 600 billion euros in reparations. She believes a specialized venue is required to hold top Russian officials accountable for the crime of aggression. Since Russia is a not a Rome Statute signatory and not a member of the ICC, they do not consent to prosecutions for the crime of aggression. This means that the ICC can only prosecute Russian state actors for the war crimes, crimes against humanity, and genocide, which require specific links to higher level officials to prove their culpability. However, on December 5, ICC head prosecutor Karim A. Khan disagreed with von der Leyen’s proposal and asserted that “we should avoid fragmentation, and instead work on consolidation.”
Finally, the chances that Putin will be tried in absentia are extremely low. First of all, the ICC Appeals Chamber released an opinion in May 2020 which articulated that willfully absent accused parties may only be tried in their absence if they are present for their initial hearing. Additionally, such a precedent would be seen as unfavorable to the interests of many nations, including the U.S., which do not want their own suspected war criminals to be tried and convicted without their presence. Lastly, all of these costs would greatly damage the legitimacy of the ICC with no discernable reward given the fact that no punishment can be enacted when the accused is not present.
 For more coverage of the draft law for a Ukrainian High War Crimes Court, please see Mirrah Papovsky’s article in the International Enforcement Law Reporter:
Mirrah Papovsky, Accountability for Ukraine: The Draft Law for a Ukrainian High War Crimes Court, INTERNATIONAL ENFORCEMENT LAW REPORTER VOL. 38 ISSUE 10, October 7, 2022 https://ielr.com/content/accountability-ukraine-draft-law-ukrainian-high-war-crimes-court.
 Public International Law & Policy Group, Draft Law for a Ukrainian High War Crimes Court, PILPG, https://static1.squarespace.com/static/5900b58e1b631bffa367167e/t/62d6c27baae10b6ca51cadb7/1658241661209/DRAFT+Ukraine+High+War+Crimes+Court.pdf.
 Charles Chernor Jalloh, Prosecuting Those Bearing “Greatest Responsibility”: The Lessons of the Special Court for Sierra Leone, MARQUETTE LAW REVIEW VOL. 96 ISSUE 3, 2013 https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5163&context=mulr.
 Susana SaCouto and Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, AMERICAN JOURNAL OF INTERNATIONAL LAW, 2008 https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1046&context=facsch_lawrev.
 Alex Mostaghimi, Georgetown Law Center for National Security to Head War Crimes Advisory Group, INTERNATIONAL ENFORCEMENT LAW REPORTER VOL. 38 ISSUE 12, December 9, 2022 https://ielr.com/content/georgetown-law-center-national-security-head-war-crimes-advisory-group.
 In Absentia: a roadblock to trying Putin, May 23, 2022 https://theprint.in/world/in-absentia-a-roadblock-to-trying-putin/967427/.