Ensuring fair court proceedings can be challenging even in peacetime. The situation of an armed...
09 April 2021
The International Criminal Court (ICC) has been on a rollercoaster ride. The ICC has faced concerns about its disproportionate focus on Africa, its perceived disconnection from domestic contexts, the length of proceedings and widespread dissatisfaction with high-profile acquittals. The Court has also been struggling to ensure its efficient and sustainable operation pursuant to having “thin and overextended resources”.
Despite all the turbulence, the ICC continues addressing the gravest crimes around the world. Most recently, it has opened an investigation into Palestine and made further progress towards proceeding with an investigation into the situation in Ukraine. Many states, including the EU nations, have reaffirmed their support of the Court in light of the Trump Administration sanctions aimed at preventing the ICC’s intervention in the US fields of interest.
Ukraine has recognised the ICC’s jurisdiction and flooded it with communications about atrocities committed in the armed conflict with Russia. However, Ukraine continues having second thoughts about ratifying the Court’s Rome Statute, with some actors even branding the ICC as “one of the threats to Ukraine in a hybrid war”.
On 26 February, Professor Iryna Marchuk (University of Copenhagen) and Professor Kevin Jon Heller (Australian National University; University of Copenhagen) explored the above and many other issues. They discussed the ICC’s internal dynamics, whether the new Biden Administration might indicate a change in the US engagement with the Court and what the election of the new ICC Prosecutor might mean for the Ukrainian investigation. The discussion was moderated by Ms Maria Tomak, Coordinator, Media Initiative for Human Rights, and Dr Kateryna Busol, Ukrainian international lawyer who is currently advising key international organisations and NGOs on the issues of transitional justice and conflict-related sexual violence in Ukraine.
This event is a part of the #InternationalLawTalks webinar series. Each webinar brings together a Ukrainian and an international speaker to contextualise the Russia-Ukraine armed conflict-related issues within the larger international law and international relations dynamics. The aim is twofold: to help the Ukrainian professionals see beyond their native context and to provide more local and regional insight to foreign fellow lawyers.
Please see the video and the transcript of the discussion as well as the recommended sources for the further exploration of the topic below.
On the newly elected Prosecutor of the International Criminal Court (“ICC”), the challenges he will face and how Karim Khan might potentially influence the investigation on Ukraine:
Professor Heller: The state parties got it right. Karim Khan is a brilliant choice for the Prosecutor, he has an incredible array of experience as a prosecutor, as a defence attorney, as an investigator for UNITAD in Iraq. He is a truly amazing lawyer. If anyone can help turn around the ICC it will be him.
That said, you can’t really envy the situation the new prosecutor is going to find himself in. The Court has always suffered from a lack of funding. At the same time, the workload of the ICC has increased exponentially. Just think about the past couple of years. We now have the Myanmar and the Afghanistan investigations, soon we’ll have the Palestine investigation, we have Fatou Bensouda saying that she intends to open the Ukraine investigation and Nigeria investigation. Guinea, Venezuela, Philippines are close to a decision. And yet there are more resources to actually accomplish them. So the first thing Karim Khan will have to do is to make difficult decisions about which investigations to prioritise. Where Ukraine falls in that — is an open question. Fatou Bensouda said that both Ukraine and Nigeria are not going to be at the top of the list because of the Afghanistan, Myanmar and Palestine investigations. Whether Khan will change that order of priority I don’t know. There are some real difficulties in the Ukraine situation. Namely, one of the sides that is primarily responsible for the international crimes is extraordinarily difficult if not impossible to investigate. Russia. And Fatou Bensuda has highlighted the difficulty of investigating Russian criminal responsibility given that there is no access to the territory. So I don’t think that with regard to Ukraine Khan will fundamentally change the OTP approach.
Professor Marchuk: Karim Khan is very tough minded. He is a veteran of international criminal justice, qualified and has high moral values. There was the question circulating in the media and various blogs “Is Karim courageous enough to take on powerful states?” I think he has no choice, he cannot back off from investigating the situation in Afghanistan potentially implicating American nationals and Palestine potentially implicating Israeli nationals. In his own words, he has “resilience and thick skin” to take on the powerful states. So, I don’t think that Karim will shy away from taking on the cases potentially implicating nationals of powerful states.
But the life of Karim was made a bit easier as in December 2020 Fatou Bensouda concluded that she will not be proceeding with the investigation of the allegations of war crimes committed by the UK forces in Iraq. As Karim is a UK national, maybe, it is a sense of relief for him.
I also don’t think that Ukrainian situation is on the top of his priority list. Ukraine is an outsider. Ukraine cannot demand that the new Prosecutor prioritises the situation of Ukraine considering that Ukraine doesn’t want to move ahead with the ratification of the Rome statute. Why would the new Prosecutor prioritise the situation of a non-ratifying state?
On the capacity of the ICC to bring to responsibility powerful people including, potentially, Vladimir Putin:
Professor Marchuk: We have seen successful and less successful prosecution of the sitting and former heads of state.
The very first case against the sitting head of state (currently former) was the case of Omar al-Bashir. And that started a backlash against the Court and led to African bias claims drama. But there were also cases initiated against former presidents of Kenya and Ivory Coast. So, it is not unusual to have cases against persons who have the most senior jobs. But I think it would be naive to believe that Vladimir Putin will be the first one on the list of suspects. That would just politicize the work of the Court and would shift the discussion to immunities, whether the ICC is a legitimate body to initiate the case involving sitting heads of states who are entitled to immunities under customary international law. I think that the new Prosecutor would not look at the responsibility of the Russian nationals at the highest level. That however does not mean that he would not be willing to open cases involving Russian nationals who are closer to the occupation Crimea and to what is happening on the territory of Donbas in terms of military chain of command or political leadership. It is not just Ukraine, but Georgia also hopes that Russian nationals will be the one bearing responsibility for the crimes that have been committed in South Ossetia. But we also have to keep in mind that by virtue of his mandate the Prosecutor has to investigate crimes that have been committed by all sides of the conflict. In the 2018 report Fatou Bensouda has mentioned that the overwhelming majority of crimes in Eastern Ukraine were committed by the pro-Russian rebel forces. So, we might expect that the first individual cases opened might be against members of the pro-Russian rebel roces.
Professor Heller: I am even more pessimistic. There is no question that the ICC has jurisdiction over the nationals of the non-state parties regardless of what the US and Israel claim. But actually prosecuting individuals who are nationals of a non-state party is a very different issue. Obviously, Russia has no obligation to cooperate with the Court. Same with Afghanistan and the US, same with Palestine and Israel. The ICC has a problem in getting cooperation from the states that are members of the Court. I think there were 19 different states that Omar al-Bashir actually paid visits to that didn’t arrest him. Think how hard it is with non-member states.
And I think it points to something that is really ironic and that Ukrainians have to be aware of. When a state refers to the situation in which its own nationals are involved, even though that referral involves a non-state party like Russia, there is going to be a distinct possibility that the first individuals prosecuted will be from the referring state — in this case Ukraine — since Ukraine presumably will be cooperating more with the Court than Russia. There is no question that the Office of the Prosecutor (“OTP”) believes that the majority of crimes and most serious crimes are not on the Ukrainian side, but it is those less serious crimes that may be the ones the OTP will be able to investigate more effectively.
It is something that Palestinians need to be aware of as well. It is much easier to investigate Hamas shooting rockets at Israeli civilians than to investigate Israeli crimes in Gaza and in the West Bank. Because when you are a Prosecutor, you have to decide what you can actually prove, what suspects you can get, what evidence you can actually obtain. And that is a huge problem when we are talking about nationals of non-member states.
On Ukraine’s domestic capacity to investigate international crimes related to the armed conflict and a potential hybrid court for Ukraine:
Professor Marchuk: I was invited by Ukraine to give a few training to the military prosecutors and those working for the Crimean Prosecutor’s Office in exile. Since then I have seen a huge leap in knowledge in international humanitarian law and international criminal law among Ukrainian legal professionals.
Up to 2016 virtually not a single prosecutor’s office in Ukraine qualified conflict-related crimes under the umbrella of international humanitarian law. The gamechanger was an annual report on the preliminary examination activities published in 2016 where Fatou Bensouda found that the rules of international humanitarian law applied to the occupied Crimea and Donbas. So, the Crimean Prosecutor’s office in exile decided to re-qualify the crimes under the umbrella of international humanitarian law.
Ukrainian NGOs have also done an amazing job documenting international crimes and there was also an immense capacity building within the non-governmental sector.
Also what was achieved is that in 2018 the specialized unit was launched within the General Prosecutor’s Office, it is actually the equivalent of war crimes units that exist in European countries. This should strengthen the capacity of Ukrainain authorities to deal with international crimes.
But the major downside that has been experienced by Ukrainian national authorities is that notices of suspicion in relation to conflict related crimes do not translate into meaningful indictments which they can submit to Ukrainian national courts.
There were successful examples of hybrid tribunals of international character, for example, the Special Court for Sierra Leone and the Cambodian Tribunal. These tribunals were established to enhance national capacity. The composition of them was normally mixed, you would have national and international judges working alongside each other. The benefit of having these tribunals is that you will be able to prosecute a larger number of people. So, even if the ICC will initiate cases within the situation of Ukraine, we are talking about a handful of individuals who might face justice. And we have national courts which are not entirely ready to deal with conflict related crimes. I do believe that the establishment of a hybrid tribunal is an attractive option for Ukraine, but there are many challenges that come with that as well. Who will provide funding? Is there a political will in Ukraine?
On the ICC and the US:
Professor Heller: The US has always been ambivalent about the ICC. And one of the truly bipartisan positions in American politics is never to join the ICC. We saw incredible opposition initially from the Bush administration and then a gradual softening and willingness to work with the Court when the US’s interests coincided with the ICC, such as with the Sudan case and Darfur genocide. That changed under Trump; they went back to John Bolton’s “let’s try to destroy the Court as quickly as it is possible” approach. I don’t think that sanctions against the ICC accomplished anything other than to make the US look really bad, to harden opposition of the European allies against the US, and they didn’t affect the operations of the ICC at all. All Trump really did was to make sure that there will be even more support for the Court than there would have been without the sanctions. I think we’ll probably see Biden coming back to the Obama-era approach, which was as they called it “constructive engagement”. When it was in US interests to support the Court, like with Ongwen or Ntaganda, they did so. When it was in US interests to oppose the Court, as in Afghanistan or Palestine, they would oppose the Court.
What is interesting is that the US takes the position that the ICC doesn’t have jurisdiction over nationals of non-member states. They talk about it in the context of the US in Afghanistan and Israel in Palestine. But it also applies to Russia in Ukraine and Russia in Georgia. If the US was true to its own legal principles, they would be opposed to the Ukraine investigation. I don’t think they will ever take that position publicly, because they have a real political interest in limiting Russian power as much as possible.
Ukraine and Palestine: any parallels in lawfare strategies?
Professor Heller: Palestine has been extremely smart about their lawfare strategy. They convinced the UN to give it greater status as a non-member observer state, which allowed them to ratify the Geneva Convention, join UN agencies, ratify the Rome Statute. And they made the ICC open the investigation. Beyond that, I don’t think the comparison to Ukraine is very good. Ukraine is in a much better position. Palestine has its supporters around the world, but even its traditional supporters — Arab states — have an interest in not upsetting Israel too much, in containing Iran, in placating Saudi Arabia. The Palestinians have no powerful supporters around the world and that is going to make it very difficult for the OTP to investigate successfully in Palestine. Ukraine is incredibly geopolitically important to Western Europe, to the US in terms of containment of Russia. So Ukraine will always have far more goodwill and far more support from powerful Western countries and powerful ICC member states.
Professor Marchuk: It is interesting to see how states with weaker geopolitical presence use all available tools under international law to initiate lawsuits in international courts. Palestinian authorities lobbied to get a non-member observer status at the UN which allowed them to accede international treaties. And based on that in 2015 Palestine was finally able to ratify the Rome Statute. But in addition to that, Palestine went a step further and filed the case against the US in the ICJ based on breaches of the Vienna Convention on Diplomatic Relations following a very unfortunate decision of the Trump administration to move its embassy to Jerusalem. As we know, the status of Jerusalem is contested.
Ukraine has been a frontrunner in relation to a number of disputes that have been initiated by one state against another state arising from the single armed conflict. To some extent Ukraine replicated the strategy of Georgia. We know that following the 2008 war Georgia filed the case against Russia at the ICJ on the basis of the alleged violations of the Convention on the Elimination of All Forms of Racial Discrimination. As well as a number of interstate applications at the ECHR. The ICC Prosecutor decided to initiate an investigation proprio motu. As for Ukraine, it accepted the ad hoc jurisdiction of the ICC in relation to the Maidan crimes, Crimea and Donbas; Ukraine initiated a lawsuit at the ICJ against Russia involving violations of the Convention on the Elimination of All Forms of Racial Discrimination and the Convention for the Suppression of the Financing of Terrorism. Ukraine lodged 8 interstate disputes against Russia to the ECHR (later reduced to 5). This is the largest number of interstate applications which has been brought by one state against another. Ukraine also decided to pursue arbitration proceedings under the UN Convention on the Law of the Sea.
Ukraine as a state has multiple options that were not available to Palestine. The question that Ukrainian government has to be asking itself is as follows: is the strategy coherent? When we look at different disputes initiated by Ukraine sometimes it’s difficult to see what was the purpose of bringing those proceedings in relation to the same situation in different institutions. Ukraine has been also advancing some mismatched arguments in various international courts. Most of these cases have now moved to the merits and it is actually right now that Ukraine has to make sure that it advances a coherent litigation strategy across different international courts.
On the prosecutorial perception of the ICC by Ukraine and the missing victims’ perspective:
Professor Heller: It is tempting to just say: of course the OTP and victims have the same interest, they both want to convict the perpetrators of international crimes. But that conceals as much as it explains. Because when you get down to the micro level of prosecutorial policy, all of a sudden you start to see differences emerge between the OTP and victims. For instance, what crimes are even within the jurisdiction of the Court. I would imagine that many Ukrainians would like to see Russians prosecuted for the crime of aggression. But there is no jurisdiction. Similarly, the victims in the OTP want convictions, but in any situation involving significant violence there are far more cases than than the OTP has the ability to prosecute. The OTP has to make very difficult decisions about which crimes to investigate, which perpetrators to bring charges against, and there will be victims whose suffering is not recognised by the Court. But even within victims whose suffering is recognized, it is not necessarily the case that the OTP will pursue exactly the same legal strategy that victims would want. If you look at the first prosecution at the ICC, Thomas Lubanga, the Congolese warlord, the victims were irate with the OTP that Luis Moreno-Ocampo charged Lubanga only with the recruitment of child soldiers. They wanted him to prosecute sexual violence, of which there was a massive amount. They wanted him to prosecute crimes against humanity involving a wide variety of types of suffering. He made a decision — maybe justifiable, maybe not — to go after the crime that he could prove the easiest and the most quickly. So even if a victim is recognised in a Court case, it does not mean that the OTP will take exactly the same approach to the case as they would. Invariably, that means that there will be victims who will feel left out and alienated by the process. And the ICC, unfortunately, has not proven very skillful at managing the expectations of victims. When they open a formal investigation, as they no doubt will in Ukraine, that is going to raise expectations that the ICC will do something about the suffering of ordinary Ukrainians — and I hope they will. But even if they do, it is not going to be, as Iryna said, a massive “let’s prosecute everybody” approach. The ICC simply is not capable of doing that. So victims always should approach the Court’s work with a sense of realism and not get their expectations too high, because their hopes will, almost certainly, be dashed at some point.
Professor Marchuk: I agree with what Kevin said. It was a conscious decision of the drafters of the Rome Statute to make sure that victims participate in the proceedings. Victim participation is one of the most important innovations of the Rome Statute. And although the victim participation framework is provided for in the Rome Statute, I do not think that the drafters envisioned how this victim participation framework would actually work in practice. Kevin gave very good examples from the Lubanga case. At the reparations stage, in the same case, we could see that the victims expectations were not aligned generally with the general ICC policy. For example, former child soldiers expected to get some financial remuneration for the crimes they had suffered. Just to give a perspective of those who were enlisted and conscripted as child soldiers, these are the children who lost their childhood, they did not get any education, they had their lives shattered. And the least they expected from the ICC was to obtain some sort of financial remuneration for their suffering, which they could use to rebuild their shattered lives. What the judges decided was that the victims would get some symbolic reparations. There were a lot of discussions afterwards that the ICC was not up to the task to satisfy the demands of victims. And although Ukrainians should understand that in the first cases being brought by the ICC there will be opportunities for victims of the crimes to participate in the proceedings, victims should not have very high expectations that they will be given some sort of just satisfaction or financial remuneration as part of the ICC reparations programme for one simple reason: the ICC does not have unlimited resources and the Trust Fund for Victims is underfunded. So here we come back to a previous question when we talked about the multiple avenues, which not only the state of Ukraine pursued to address the violations of international law by Russia, but also, for example, many victims, around 7,000-8,000 have filed individual complaints with the European Court of Human Rights (“ECtHR”). These victims might expect that there will be some just satisfaction decisions at the end of the proceedings. However, Russia has a history of non-compliance with decisions of the ECtHR. So victims should also lower their expectations, not thinking that at the end of the proceedings Russia will be the one paying the bill. And it has been a political discussion in Ukraine. If Russia was the one who caused all this chaos on the territory of Ukraine, clearly they are supposed to pay for everything – for the seized property, for the property that was destroyed, also covering the costs of victims who have been forcibly displaced (about 1.5 million Ukrainians who have been displaced from occupied Crimea and eastern Ukraine). And I would like to ask the Government of Ukraine: what are the obligations of Ukraine in relation to these individuals? I do not think that the Government of Ukraine has questioned itself seriously on the commitment to help the victims of international crimes. I feel that all the blame has been shouldered on Russia. The Ukrainian politicians have not been able to agree on the steps that could alleviate the suffering of victims. The subject of reparations clearly falls within the transitional justice scenario. We should not be expecting that here will be the ICC with generous reparations programmes or that Russians will have to make very generous payouts if they lose in the litigation before the ECtHR. The Ukrainian Government should also question itself on how it is going to help the victims of international crimes. It could do better than it has done until now.
On a possible catalysing effect of Ukraine’s armed conflict-related proceedings at different international courts (ICC, ICJ, ECtHR):
Professor Marchuk: Clearly, there has been such an effect. There has been the emergence of such proceedings, not only in relation to Ukraine. For example, Myanmar: we have the situation, which is currently being considered by the ICC, then there is a separate case, which was brought by The Gambia before the ICJ. Will international courts accept each other’s fact-finding? What about the questions of law? Will the courts agree? How can this interaction between the courts strengthen the landscape of international law more generally?
The major problem of the situation in Ukraine is fact-finding. We have seen a lot of disinformation and misinformation shared about the conflict. For example, if you were following the proceedings before the ICJ, in which Russia participated, I had a feeling that I was hearing about two completely different conflicts. The parties could not agree on that. And it is one thing when Ukraine is voicing its grievances before different international bodies or at the UN Security Council, arguing that Russia has consistently violated its obligations under international law. But it is a completely different situation when we have an international court, which will conduct some credible fact-finding. It is important for Ukraine to get the facts straight. Ukraine has also been pursuing a sanctions policy against Russia. We have also seen that European states start to forget about the occupation of Crimea. For example, Russia was expelled from the Parliamentary Assembly of the Council of Europe after the occupation of Crimea in 2014. However, it was able to return comfortably to the table of negotiations last year. And so, instead of Ukraine keeping to “rub into the face of the international community” that Russia is violating international law, and everyone is getting tired of it, it is important that we have some authoritative decisions coming from the international courts. They will, first of all, conduct credible fact-finding and then, most hopefully for Ukraine, they will establish the violations of international law by Russia, which could be used as an effective tool to continue the sanctions policy against Russia. This is something that will help Ukraine more generally in the international arena.
On using the “information warfare” and misinformation by the Russian Federation:
Professor Heller: In theory, sure. Is it fundamentally different than any other conflict? Maybe quantitatively. Qualitatively — probably not. As Iryna has highlighted, fact-finding is the most difficult thing that particularly an international criminal court can do. And I do not have very much to add other than to remind the people that the ICC is a court of criminal law, it is about individual criminal responsibility, not about state responsibility. And when there is someone in the dock of the ICC accused of an international crime, it will be the Prosecutor’s burden to prove all of the facts beyond the reasonable doubt. He or she is not going to be able to just say “the ICJ said so and so” or ”the ECtHR has said so and so”. All of those facts are going to have to be proven again. And that is not going to be an easy task no matter who is being prosecuted or what side of a conflict is being prosecuted.
On how Ukraine’s potential ratification of the Rome Statute might, if at all, impact the jurisdiction of the ICC over the situation in the country recognised in two article 12(3) declarations and how a potential withdrawal of such declarations might impact Ukraine’s obligations under international law and geopolitically:
Professor Heller: As a technical matter, it does not really make a difference whether Ukraine ratifies the Rome Statute. There are a lot of reasons to ratify. It is a good idea to ratify. In terms of the actual jurisdiction of the Court, the declarations function just as the ratification would. I think Iryna is right that not ratifying might have a pragmatic import in terms of prioritising Ukraine vis-a-vis other member states. But that is more of a policy decision, not a legal one. So in this regard it does not really make a difference.
Now in terms of the withdrawal question, that is a really good one and we have not faced the situation before. It is extraordinarily unclear under the Rome Statute what the right answer would be. My assumption is that the OTP would take the same position as it has taken with regard to Burundi or the Philippines or anyone else, which is: you have given us jurisdiction, we have started an investigation, you may not have an obligation to cooperate with us a year from now, but we have jurisdiction to continue our investigation and we will continue to investigate. Obviously the Rome Statute could not function and the ICC could not work if states could treat it like a yo-yo and say, “We are giving you jurisdiction. Oh, you are doing what we do not want — we are taking it away. Oh, you are doing what we like — then we are giving it back to you.” The ICC does not work like that. When a state says to the Court “Go and investigate crimes committed in our territory” — that is essentially for life. They cannot just change their mind and say “Sorry, our bad, we do not want you to be involved.” So I am pretty sure that even if there are some difficult legal issues, the Court will continue to have jurisdiction over crimes committed within the timeframe of the original declarations.
Professor Marchuk: As regards the ratification, there is a misconception and a myth in Ukraine that the ratification would somehow change the legal parameters of the ongoing preliminary examination or a potential investigation. Those who have read the second declaration submitted by the Ukrainian Government in relation to Crimea and Donbas, it mentions explicitly that Ukraine wishes the ICC Prosecutor to focus on the responsibility of senior Russian nationals and the responsibility of the terrorists from eastern Ukraine. However, the wording of the declaration is not binding on the ICC Prosecutor. By virtue of his/her mandate, the ICC Prosecutor is supposed to investigate all sides to the conflict. So by being a non-ratifying state, Ukraine gains absolutely nothing. Ukraine is just missing out on all the benefits of being a State Party to the Statute. For instance, Ukraine does not have a voice and cannot participate in taking any important decisions during the Assembly of States Parties meetings. Also, if Ukraine were a State Party to the Rome Statute, it would allow Ukraine to lobby for the situation in Ukraine to be handled within a reasonable period of time. And especially now, given the fact that the ICC does not have much resources, Ukraine would be in a stronger position asking the new ICC Prosecutor to prioritise the situation of Ukraine. If Ukraine were a State Party, it would be able to nominate Ukrainian nationals for senior positions at the ICC such as a judge or any other committees that are dealing with other important matters. And also this would open a door to Ukrainian professionals, especially Ukrainian legal professionals to seek employment at the ICC. Although the employment is open to all nationalities, the priority is given to those who have the nationality of the states that have ratified the Rome Statute. And given the fact that Ukraine is in desperate need of capacity building and more professionals who know how to apply international criminal law, that will definitely be beneficial for Ukraine. So the conclusion is that Ukraine is gaining absolutely nothing from not ratifying the Rome Statute. This is just fear-mongering among the Ukrainian politicians that if Ukraine were to ratify the Rome Statute, then the Prosecutor will initiate the cases involving the responsibility of Ukrainian Armed Forces.
The second question is a tricky one and an interesting one as well. As Kevin said, there is no practice whatsoever. It has never happened that a state accepted the jurisdiction of the ICC and then later withdrew its declaration. It was actually the opposite that happened. For example, Ivory Coast and Palestine accepted the ad hoc jurisdiction of the ICC and then, within a short period of time, they became state parties to the ICC. So Ukraine should be viewing the acceptance of the ad hoc jurisdiction as the first step towards the ratification [of the Rome Statute], not vice versa. It will be interesting to see if it is ever to happen. And I hope it will never happen. And what will be the position of the Court. It might be, as Kevin said, that the Court will follow the Burundi scenario. When Burundi decided to withdraw from the Rome Statute, this did not terminate the preliminary examination, which had been initiated by the OTP. Burundi was covered by the jurisdiction of the Court before it decided to withdraw from the Rome Statute. And this is exactly the same position that could be taken by the OTP: Ukraine confirmed the jurisdiction of the Court from 2014 and this declaration remains valid until maybe one day Ukraine will withdraw the declaration from the ICC. I do not think it will be in the interest of Ukraine to withdraw its acceptance of the ad hoc jurisdiction of the ICC. It will also show that Ukraine does not uphold its obligations under international law. So, hopefully, these are just some unsubstantiated rumours and myths that are being circulated in the media.
On what types of crimes should be prioritised in the potential Ukraine investigation and whether the professional experience of the newly elected ICC Prosecutor might impact such prioritisation:
Professor Heller: It does not really matter in a sense what crimes are actually charged if you do not have a very skilled prosecution team that has a reasonable chance of getting a conviction. One of the reasons why I am so excited about the results of the Prosecutor election is, I think, you have a Prosecutor coming in in June who is unbelievably skilled in a courtroom and is capable of managing a team of equally skilled prosecutors. I expect them to greatly improve upon the track record of the OTP in obtaining convictions. There have been some very high-profile acquittals at the ICC — rightful acquittals, in my view — over the past few years, and some of that is due to lack of cooperation, lack of funding, etc. But it is in large part due to problems within the OTP and their difficulty in building coherent, effective, and understandable cases. No matter what ends up being prosecuted in the Ukraine situation, if that happens, I don’t think you will see a group of prosecutors under Karim Khan that will have these types of problems. I think they will be much more efficient and effective.
Professor Marchuk: The Prosecutor in her latest Report on Preliminary Examination Activities singled out three major categories of crimes, which show a pattern of criminality in the territory of Ukraine. She mentioned detention-related crimes – unlawful imprisonment, torture, cruel and degrading treatment. Also she mentioned crimes committed by the occupying authorities in Crimea. And the latest category of crimes are crimes against civilians. So one could say that the OTP is prioritising these three patterns of criminal behaviour as those that will, most probably, lead to individual cases. However the specific crimes are always linked to the charges, which are levied against an individual suspect. So far, we do not know how far down the chain of the military command of political leadership the ICC Prosecutor would wish to travel. So the major task for the ICC Prosecutor will be to identify these aspects and, depending on who will be a suspect, – and my best bet on this would be that pro-Russian separatist rebels would be the first ones the list – depending on that, the Prosecutor will have to evaluate the evidence and see how their conduct fulfills the legal elements of various underlying war crimes or crimes against humanity within the jurisdiction of the ICC. So it is very difficult to say what international crimes will be prioritised as we do not know who will be the first suspects identified by the ICC Prosecutor. Of course, provided – and this is an important disclaimer – we are still waiting for a decision of the Pre-Trial Chamber to authorise the investigation into the situation of Ukraine.
Professor Heller: Let me just add very briefly to that. As a general legal matter, it is normally easier to prosecute crimes that take place in detention or that involve civilians who are captured and executed. Whenever you are talking about war crimes, crimes that take place in the fog of war, even deliberate attacks on civilians can be extraordinarily difficult to prove. Were they firing at civilians? Or were they firing at the military target nearby? Was it disproportionate? What was the military advantage versus the anticipated civilian damage? These are extremely, extremely difficult crimes to prosecute. So, insofar as the OTP can get evidence and the suspects, I would expect them to focus on detention-related crimes like torture, extrajudicial executions and the like.
On the campaign to criminalise ecocide in the ICC’s Rome Statute:
Professor Heller: I care passionately about the natural environment and I think the idea of criminalising the intentional destruction of the environment regardless of its anthropocentric effects is a good one. Whether ecocide is the kind of crime that should be added to the Rome Statute and whether we should further complicate the work of the OTP — there I am not so sure. It is worth noting that the war crime of causing disproportional damage is not just about damage to humans; it also applies to damage to the natural environment. And this is a world first in international criminal law. Now, the crime applies only in international armed conflicts; it does not apply to non-international ones. But it is still a huge step forward that it is criminal to cause disproportionate damage to the environment even if it does not affect humans, cause them to starve, or destroy their necessities of life. The ecocide proposal is extremely well-intentioned and we should firmly support the criminalisation of it at an international level. Whether we should add it to the list of things the ICC should do — here I am a little bit more sceptical.
Professor Marchuk: I passionately support Kevin on that. If there is a will to protect the environment and introduce an additional crime that will protect the environment, this is something that could benefit potentially the ICC and will show that international criminal justice has a broader reach as well. So I have nothing against that. But, of course, this should be followed by a lengthy period of negotiations of the States Parties to the ICC and there should be a political will to include this crime within the jurisdiction of the ICC.
On the lack of diversity at the ICC at different levels:
Professor Marchuk: It is not a revelation to anyone and I do not want to insult anyone that the practice of international law and international criminal justice is dominated by white older men from a common law background. There are reasons for it. The way the procedure works at international criminal courts and tribunals is adversarial. So those who have a common law background are in an advantageous position because they can argue the cases convincingly in a courtroom. However, there was a great emphasis in the ICC that we have to maintain more diversity in international criminal justice. In particular, we have seen the proliferation of situations across the globe. So, for example, if a potential defendant comes from the Philippines or Venezuela, it might be that the defendant would prefer to be represented by a defence counsel of his nationality or, at least, by a counsel who speaks his language. Also, when we look at the early examples of prosecutions at the ICTY, there was a great degree of miscommunication between the defendants and defence counsels. First of all, they did not speak the same language and they did not understand the cultural differences.
So it would clearly strengthen international criminal justice if we have greater diversity. But then, if you want to be included in the list of practicing counsel at the ICC, you have to fulfill a number of strict criteria. You have to show that you have practiced, not national criminal law but international criminal law for a number of years. And so, for example, if we want more legal professionals from Ukraine or from Eastern Europe to be included on that list, I do not think we have that many professionals. At least I do not know of so many professionals from Eastern Europe you have practiced before international criminal courts or tribunals. So, on the one hand, we want to show that there is diversity and it is important to bring awareness about it. But it is also important that criteria that you have to fulfill as a candidate to be included on the ICC list of practicing counsel are realistic. For example, that it is not only limited to people who have earlier practiced international criminal law, but that would also be possible to be included on the list if you have practiced national criminal law for a number of years.
Professor Heller: As an older but certainly not old white man from a common law background, I wholeheartedly endorse what Iryna said. Perhaps I will just take a slightly wider perspective on it. Diversity is not just about defence counsel, it is about every office and every organ of the ICC. There is not enough representation of women, there is not enough representation of individuals from the Global South, there is not enough representation of non-common law and non-civil law backgrounds. In and of itself, that lack of diversity should be a concern. But pragmatically it should be a concern as well. In terms of the treatment of women, I do not have to get into the horrific, horrific history of the mistreatment of women and the sexual harassment of women at the ICC. The Independent Expert Report, which everybody can read, is incredibly damning in that regard and justifiably so. That needs to change. To be sure, appointing a bunch more women is not somehow a magical solution. But it is also certainly not an accident that an older male-dominated court would have an issue with sexual harassment. We need more diversity in that regard.
Even beyond that, there is another important substantive point, which is: this is not a court that is just prosecuting crimes committed by white people in Europe. It is ostensibly a global court dealing with situations all over the world, involving different races, different religions, very different social and cultural backgrounds. And how could a court possibly be sensitive to all of those differences if it is only staffed by, as Iryna said, older white men from common law backgrounds? We have to have a diversity of people at the Court because the Court has a diversity of work in the real world. And a lot of the problems that the Court has had, from prosecution to outreach, stem from the fact that they do not have the kind of local knowledge and racial, ethnical, gender diversity that is required by the kind of work that it does.
On how do the incidents like ex-President Trump’s pardons and the UK Overseas Operations (Service Personnel and Veterans) Bill impact the states’ readiness to prosecute their own citizens and the ICC’s openness to going after the power players:
Professor Heller: It is hard not to be pessimistic about these things. In general, states do not like others prosecuting their own nationals for international crimes. Nor do they particularly like prosecuting their own nationals themselves. If there is a change of a regime, like in Côte d’Ivoire, sure. But in general we should not be shocked when the UK passes a bill like that. We should not be shocked when the US does everything it can to avoid American nationals ever ending up in the dock at the ICC. I don’t think there is an easy solution. And we also have to recognise that 2021 is not 1990. I don’t think the ICC could be created today. It was created at a rare moment of optimism after the collapse of communism, when the Security Council was actually working for a change and the international community actually did have a commitment to international criminal justice. It does not have the same commitment to the international rules-based-order as it used to. I don’t think that we should expect that to change. We have to change our strategies to take into account the fact that there will be no more Yugoslav tribunals or Rwanda tribunals, there probably will not be another Cambodian tribunal. There simply is not the will. We did not talk about universal jurisdiction, but that would be my plea — that the future of international criminal law is at the domestic level under universal jurisdiction and not at a place like the ICC. The ICC is important, but it is always going to be limited by all the things we talked about tonight. Again, we should believe in international criminal justice, but we should not burden it with so many expectations that are only going to be disappointed at the end.
Professor Marchuk: Every single state takes pride in their military and so it is not the unique situation, which is being faced by Ukraine that “We do not want to prosecute the members of our armed forces who are considered national heroes for the alleged violations of international humanitarian law”. And then we see that those almighty or powerful states try to do everything possible to make sure that their national armed forces do not face justice in national and international courts. So why exactly should Ukraine subject its members of its armed forces to prosecution while other more powerful states do not do that? There was a very troubling comment that was made by President Trump: “We train our boys to kill and we prosecute them for that afterwards”. It was quite controversial when in 2019 Trump pardoned three members of the US military who were charged with war crimes and, I believe, one of them was convicted of war crimes. However, we should not really see that these decisions taken by the national governments are popular in the eyes of the general public. For example, the decision of the Trump administration to issue pardons was quite criticised by the wider general public. The prominent members of the military stood against these decisions saying that members of the armed forces should follow international humanitarian law and if they decide to protect the territorial integrity and serve the interests of the state, they have to hold themselves to the highest standard. Looking at Australia, we have seen that Australians also realised that they were complicit in the commission of war crimes abroad. Now investigative steps have been undertaken to unravel what has happened. But it is important to deliver the message to those who are fighting on behalf of the state that they should follow the rules of international humanitarian law. It is completely unacceptable that the members of the military are implicated or complicit in the commission of war crimes, in particular against the civilians.
To conclude, I would like to mention the quote by Martin Luther King Jr., which was very much popularised by President Obama, who said that “The arc of the moral universe is long but it bends toward justice”. So we should not find any excuses whatsoever not to prosecute those responsible for international crimes, but we have to focus on bringing justice and reconciliation to the affected communities.
For further exploration of the discussed issues please see:
The #InternationalLawTalks webinar and the transcript have been co-developed by the Media Initiative for Human Rights, Ukrainian Helsinki Human Rights Union and Kateryna Busol as part of the USAID Human Rights in Action Programme. The Mission of the President of Ukraine in the Autonomous Republic of Crimea is a partner of the #InternationalLawTalks webinar series.
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