Russia's responsibility for the crimes committed: how and where Ukraine will punish war criminals

The world changed on February 24, 2022 - Russia, as a real fascist state, attacked Ukraine without declaring war.

Hundreds of thousands of Ukrainians have been forced to flee their homes, tens of thousands have lost property, and thousands of Ukrainians have fallen victim to the crimes of Russian "orcs." But sooner or later the punishment for all this will come.

Let's think about who and how can punish Russian war criminals.

Who and how can punish war crimes?

The crimes committed by Russia and its troops in Ukraine can be considered:

• UN International Court of Justice (The Hague, The Netherlands);

• International Criminal Court (The Hague, The Netherlands);

• special tribunal;

• national authorities.

• The United Nations International Court of Justice, which prosecutes member states.

On February 27, Ukraine filed a lawsuit against the Russian Federation with the UN International Court of Justice, demanding that it be prosecuted for distorting the concept of genocide in order to justify aggression and an immediate cessation of hostilities.

In March, the International Criminal Court (ICC) launched a formal investigation into the situation in Ukraine following a violation of a large number of articles of the Rome Statute (42), which Ukraine has not yet ratified. Although the ICC's competence over crimes on the Maidan, Crimea and Donetsk and Luhansk regions was recognized in 2014-2015, Ukraine has committed itself to ratifying the Rome Statute as part of the EU accession process.

The ICC has jurisdiction over the following international crimes: genocide, crimes against humanity, war crimes and crimes of aggression.

Within this Court, it is a matter of personal responsibility, first of all, of the highest political and military leadership of the Russian Federation, which has immunity and therefore cannot be prosecuted at the level of national justice.

The ICC does not replace or supplement the state criminal justice system. This is a matter of determining complementarity, and the court investigates cases in which national law enforcement agencies are unwilling or unable, as in our case, to fully investigate, for example, due to inability to access suspects.

Therefore, an ongoing investigation by the national law enforcement agencies of the ICC Prosecutor's Office will assess which persons should be prosecuted under Ukrainian national law and which through the ICC.

It is clear that the ICC will focus on the most glaring facts for prosecuting high-ranking officials, ie those who gave orders and middle managers who were responsible for organizing the commission of crimes.

Specifically, on the example of war crimes and crimes against humanity committed in the Kiev region: violent murders, torture, kidnappings, extrajudicial executions, sexual violence, indiscriminate shelling of civilian infrastructure.

It is realistic to prove the objective side of these crimes in the presence of a large number of videos and photographs of destroyed infrastructure, places of mass burial or execution of civilians, including children, in cities where there are no military targets.

But the subjective task, in relation to the highest political leadership and military command, is more complex and must be studied on a case-by-case basis.

As for the crime of aggression, it is impossible to prosecute the highest political leadership at the level of the ICC, because Russia has not ratified the Rome Statute.

Therefore, the question arises of the possible creation of a special military court on the principle of the Nuremberg Trials or the International Criminal Tribunal for the former Yugoslavia.

Establishment of a special court to punish the crime of aggression against Ukraine

Now, like the London Declaration of 1942, which laid the foundations for the Nuremberg Tribunal, on March 4, 2022, the Declaration on the Establishment of a Special Court for Punishing the Crimes of Aggression against Ukraine was proclaimed.

The document was drafted by a group of leading Ukrainian and British international lawyers. It has already been signed by a group of international experts: lawyers specializing in international law, former judges of international courts.

Personal prosecution of the top leadership of the Russian Federation for the crime of aggression is considered to be the most efficient and fastest means.

It summarizes all other serious violations of international humanitarian and criminal law, as well as serious human rights violations.

As already mentioned, war crimes, crimes against humanity and genocide require evidence of each individual crime and relationship with an individual official, which makes the process much more complex and time consuming.

Aggressive acts are pre-planned actions that have been publicly confirmed and adopted by Russian President Vladimir Putin himself on the basis of a formal agreement with the leadership of the occupying force. In its seriousness and scope, this is a special violation of the UN Charter.

Examples of such special military tribunals are the International Criminal Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda. Both mechanisms are based on UN Security Council resolutions, not the winning countries.

Again, Russia can prevent the existence of such tribunals in the Security Council by vetoing it. And while there is no way to expel the aggressor from the UN or take away his status as a permanent member of the Security Council, it is still worth following developments at the UN. After all, this is more of a political than a security decision.

Another option among special courts are hybrid courts. Examples are the Cambodian Extraordinary Councils and the Sierra Leone Special Court. They are hybrid, because they are created by their own governments on the basis of an agreement with the UN. However, they remain independent of the UN.

The closest option to us is the Cambodian format, because only it was created without the participation of the Security Council, and based on the resolution of the UN General Assembly, where Russia cannot veto.

How will Russian soldiers be held accountable for crimes committed in Ukraine? (death penalty, life imprisonment).

In my opinion, most trials should be conducted at the national level. Members of the Armed Forces of the Russian Federation, for whom there are no data that they committed war crimes, are prisoners of war and are subject to accommodation in appropriate camps.

Given the immunity of combatants, they are not individually responsible for participating in armed conflict unless they violate the laws or customs of war. Their actions do not qualify under the Criminal Code of Ukraine.

At the same time, the actions of Russian soldiers who committed war crimes are qualified under Article 438 of the Criminal Code of Ukraine "Violation of the laws and customs of war."

This applies to cases where:

• Civilians who do not take part in hostilities are wounded or killed by shelling, artillery or air strikes;

• shelling was aimed at civilian facilities - houses, hospitals, schools, kindergartens, private companies, etc. - that are not intended for military purposes;

• use by the soldiers of the aggressor's country for camouflage, uniforms or insignia of the Armed Forces of Ukraine and other military formations;

• use of prohibited means (weapons, ammunition) and methods of warfare (for example, the command "Do not take prisoners").

Under Ukrainian law, these acts are punishable by eight to 12 years in prison, and in the case of premeditated murder, the maximum penalty is life imprisonment. If the perpetrators of these crimes are transferred to the ICC, they can be sentenced to up to 30 years in prison or life imprisonment. At the same time, international crimes are not statute-barred.

In addition, individuals who are members of irregular military formations under the control of the Russian Federation are taking part in the armed aggression against Ukraine. Their commission of international crimes in Ukraine will also qualify as a violation of the laws or customs of war.

The victims of the crime are all those who were forcibly mobilized in the temporarily occupied territories, especially in the Crimea and ORDLO. Provided that, in fact, they did not commit crimes. After all, forced recruitment into the

armed forces of the occupying country according to international humanitarian law is a war crime.

Is it even possible to find and punish them?

According to the Prosecutor's Office of Ukraine, more than 7,200 criminal proceedings have been initiated since the invasion, of which 97 percent were war crimes. The process of identifying and recording evidence involves not only law enforcement agencies and prosecutors, but also human rights organizations, the legal community, and an international group of experts with experience in investigating this category of crime.

In addition, citizens themselves are actively involved in the search for criminals and relevant evidence. In a number of other countries, criminal proceedings have been initiated at the level of their national jurisdiction, which significantly increases the chances of bringing all perpetrators to justice.

Ukraine has opened a really strong legal front. It is worth realizing that all trials are not a matter of one year, that we will not see Putin and his allies on the dock tomorrow. But all the work is worth it. Sooner or later justice will be served.