The World Court and the Spectre of Genocide: The ICC is not the only Hague court with jurisdiction over Gaza

Posted on October 16, 2023 by Guest Post Admin

Shane Darcy joins Justice in Conflict for this post on the International Court of Justice and its role in Gaza. Shane is a professor of law and the Deputy Director of the Irish Centre for Human Rights in the School of Law at National University of Ireland, Galway. 

People in Gaza walk following an evacuation order by Israeli forces (Photo: EPA)

The Chief Prosecutor of the International Criminal Court (ICC) has broken his silence on the mass killing of civilians and the taking of hostages by Hamas and the indiscriminate bombing of civilians and civilian property in Gaza by Israeli forces. Karim Khan has confirmed to the media that such atrocities fall within the Court’s jurisdiction. While his mandate “applies to crimes committed in the current context”, he has not followed the approach of his predecessor, Fatou Bensouda, who issued formal statements on more than one occasion expressing her grave concern and emphasising the Court’s jurisdiction.

Successive ICC chief prosecutors have not treated the situation in Palestine with any great sense of urgency. Palestine’s entreaties to the Court began as far back as 2009, but no arrest warrants have been issued, even though Fatou Bensouda considered there was a reasonable basis to believe that international crimes have been committed. The Pre-Trial Chamber confirmed the Court’s territorial jurisdiction over Gaza and the West Bank, including East Jerusalem in 2021. And Karim Khan explained this week that crimes by Palestinians, “including on the territory of Israel”, are also within the jurisdiction of the Court, even though Israel is not a state party.

While the ICC may have jurisdiction, the Prosecutor ultimately remains the gatekeeper when it comes to taking investigations and cases forward. Judicial approval is needed at various stages of proceedings, but if the Prosecutor decides not to take a situation forward, there is little that States, civil society, victims, or even the judges can do. 

The Office of the Prosecutor has acted very quickly in other situations – in Ukraine and Libya, for example – but in the context of Palestine, the slow rate of progress is at odds with the rationale of ending impunity for international crimes. It is important to emphasise that in addition to giving rise to individual criminal responsibility, acts that amount to war crimes, crimes against humanity, genocide or aggression can also lead to State responsibility. This is the domain of the International Court of Justice (ICJ). 

The World Court and Genocide

Where jurisdiction exists, States can initiate contentious proceedings before the ICJ. Certain United Nations bodies can seek advisory opinions from the Court on legal questions (as the General Assembly did earlier this year on the legal status of Israel’s occupation of Palestinian territory). Unless States have accepted the ICJ’s compulsory jurisdiction, and just over a third have, jurisdiction has to be grounded in an existing international treaty.

Continue reading →
Posted in Gaza, Genocide, International Court of Justice (ICJ), International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | Tagged | 6 Comments

Enough with the silence: the ICC Prosecutor must speak and act on the situation in Israel and Palestine

Posted on October 12, 2023 by Mark Kersten
(Photo: EPA, 2014)

Update: on 12 October, the ICC Prosecutor spoke with Anthony Deutsch and Stephanie van den Berg on the situation in Palestine and Israel. His comments can be found here.

The world is once again witnessing mass atrocities committed against civilians in Palestine and Israel. The scenes are heartbreaking and horrific. They demand a response based not on furthering more violence and suffering but based on fostering justice and accountability. There is only one independent, international institution that could investigate and prosecute these international crimes: the International Criminal Court (ICC). 

The ICC has jurisdiction over the territory of Gaza and international crimes committed by Palestinian factions, including Hamas. In 2021, the ICC Prosecutor opened an official investigation into the situation in Palestine. This came in the wake of the Prosecutor’s Office determination that “war crimes have been or are being committed by Palestinian and Israeli actors in the West Bank, including East Jerusalem, and the Gaza Strip”. 

Among those ongoing crimes that the ICC can and should investigate are the deliberate targeting of civilians, taking civilians hostages, as well as indiscriminate bombing campaigns. In addition, there is a clear and obvious risk that some of Israel’s planned conduct may amount to collective punishment – punishing the broader Palestinian population for Hamas’ atrocities – which is a war crime under the Geneva Conventions. 

A United Nations Commission of Inquiry continues to collect evidence of atrocities committed in Israel and Palestine and has recently stated that “there is already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza.” Human Rights Watch has also described war crimes committed on both sides and noted that such atrocities would continue “so long as human rights and accountability are disregarded.”

In response to this most recent spate of atrocities, the ICC’s Office of the Prosecutor issued a statement replying to journalist Alice Speri. It said that the Prosecutor’s investigation is ongoing, that the current conflict falls under the Court’s jurisdiction, and invited those with “relevant information” to send it to the Court. That is good, but not good enough. Why is ICC Prosecutor Karim Khan silent in the face of war crimes and crimes against humanity in Israel and Palestine? 

Continue reading →
Posted in International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC | Tagged | 4 Comments

It’s Time: Canada should support an investigation by the ICC into Palestine

Posted on October 10, 2023 by Mark Kersten
Photo: UNWRA, Shareef Sarhan 2015)

It is time. It is, in fact, well beyond time. 

The images and information of atrocities streaming from Israel and Palestine – the murders, rapes, bombings, the hostages taken by Hamas, including children – are harrowing and heartbreaking. They demand accountability. 

Canada has a role to play. It should immediately offer its unyielding support to the International Criminal Court (ICC) and its investigation into war crimes and crimes against humanity committed by Palestinian and Israeli figures. 

In 2019, the ICC Prosecutor announced that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”. In 2021, Judges at the Court officially ruled that the Prosecutor had jurisdiction over those areas. The Court subsequently opened an investigation into the situation in Palestine in 2021. 

The Prosecutor’s investigation is not about demonizing or excusing either party. The ICC has shown no bias in its investigation. The Court is mandated to investigate all sides of the conflict between Israel and Palestine, including indiscriminate attacks by Hamas as well as alleged atrocities committed by Israel’s military and government. 

Canada has never fully supported an independent international investigation into atrocities committed in Palestine and Israel. Unlike most other countries and many of its own allies, Ottawa has repeatedly insisted that it “does not recognize a Palestinian state” and therefore that the ICC cannot investigate crimes committed there, whether they be perpetrated by terrorist organizations like Hamas or the Israeli military. Ottawa’s position has left victims in the lurch, communicating clearly that it does not believe they are worthy of justice.

What makes its position especially bizarre is that Canada has been an admirable supporter of the ICC since its creation in 2002. Yet this support ends when it comes to atrocities committed against Israelis and Palestinians. 

Canada also remained silent when Israel – which deeply opposes any ICC investigation into the country – equated the Court with terrorist organizations and mounted a sophisticated campaign to undermine the very existence of the only independent and permanent court capable of investigating and prosecuting international crimes.

Continue reading →
Posted in "Peace versus Justice" Debate, Canada, International Criminal Court (ICC), Israel, Palestine | Tagged , , | 1 Comment

The Shadow of Impunity: Justice for the killing of Baha Mousa and lessons for Afghanistan

Posted on September 18, 2023 by Mark Kersten

Elizabeth Brown joins JiC for this guest-post on ongoing need for accountability over the death of Baha Mousa and other Iraqis killed in UK detention. Elizabeth is a doctoral researcher in the Department of War Studies at King’s College London, where her PhD research concerns accountability mechanisms following allegations of war crimes by British forces in Iraq and Afghanistan. She is also co-ordinator of Kings’ War Crimes Research Group, and can be found on Twitter and LinkedIn.

Baha Mousa’s father, showing photos of his son to the UK press in 2004 (Photo: CNN)

Twenty years ago, on 15 September 2003, a 26-year-old Iraqi man named Baha Mousa died following catastrophic mistreatment carried out by British soldiers in a detention facility in Basra. The incident spawned a complex web of accountability efforts, including a Royal Military Police investigation, a Court Martial, a judicial review case which ultimately concluded at the European Court of Human Rights in Strasbourg, a full Public Inquiry, and a civil litigation seeking compensation. 

Britain’s experience of engaging with allegations of war crimes in Iraq was not isolated to this case. In the years after the Mousa family’s judicial review, thousands of additional alleged victims emerged. Yet more accountability efforts followed, including a second Public Inquiry, further judicial review and civil proceedings, and the establishment the Iraq Historic Allegations Team (IHAT), to investigate the claims. Now, twenty years later, a new Public Inquiry is preparing to hear evidence, this time into allegations of war crimes by British forces in Afghanistan. So, what, if anything, has the United Kingdom learnt in the two decades since the tragic death of Baha Mousa? 

The Death of Baha Mousa

After being arrested on 14 September 2003 during a raid on the hotel where he worked, Baha Mousa and his colleagues were taken by members of the First Battalion, Queens Lancaster Regiment (1QLR) to their headquarters. There, according to the subsequent Public Inquiry, the men were subjected to continued and deliberate brutality. They were forced to hold painful stress positions for hours at a time, whilst their hands were bound, and thick hessian sacks were hung over their heads in the oppressive Iraqi heat. They were prevented from sleeping and given limited food and water. One was forced to sit next to a noisy and hot generator simulating white noise. 

The use of these techniques had been outlawed by then-Prime Minister Edward Heath in 1972 (the ‘Heath ban’) after their controversial use in Northern Ireland. However, the ban was effectively forgotten by the time British forces were deployed in Iraq. The poor conditions were enforced through a regime of brutal violence, casually inflicted. Detainees deemed uncooperative were beaten, shouted at, and sexually humiliated. The Inquiry found “that most, if not all, of the Detainees were the victims of serious abuse and mistreatment by soldiers during their detention.”

After withstanding 36 hours of this treatment, Baha Mousa was found having removed his hood and hand restraints. Perceiving this as an escape attempt, 1QLR’s Corporal Donald Payne brought Mousa to the floor and knelt on his back whilst attempting to re-apply the restraints. According to witness testimony, frustrated that Mousa was not submitting easily, Payne ‘lost control of himself’, punching and kicking the detainee and slamming his head against a concrete wall. Baha Mousa stopped moving and was pronounced dead by the unit’s medical officer. 

Continue reading →
Posted in European Court of Human Rights, Human Rights, Iraq, Torture, United Kingdom, War crimes | Tagged , | 1 Comment

Junta against junta: Guinea between transitional justice and political uncertainty

Posted on July 31, 2023 by Mark Kersten

The following article is a guest-post by Marco Bocchese on the trial of former junta members in Guinea over the 2009 Conakry Stadium massacre. Marco is an Assistant Professor at Webster Vienna Private University.

(Photo: France 24)

For the last year, Guinea has been mired in a bizarre political situation . Exactly thirteen years after the massacre at the Dixinn football stadium, a district in the capital Conakry, the trial against the leaders of the military junta finally began last September. The junta ruled the country from December 2008 to January 2010. The list of defendants includes Moussa Dadis Camara, better known as Dadis, captain of the presidential guard (the so-called red berets) and former head of state. What follows is the remarkable story of how one junta endorsed international criminal law to prosecute members of another and how these unprecedented proceedings may impact Guinean politics and society for years to come.  

How Guinea got here

Guinea was the first sub-Saharan Africa nation to gain independence from France in October 1958. It is known for its rich bauxite deposits, making it the second largest producing country globally. Despite its mineral wealth, however, Guinea ranks among the ten least developed countries according to the United Nations (2022 Human Development Index – HDI). The armed forces have always played a crucial role in the country’s domestic politics. They first guaranteed their support to Ahmed Sekou Touré, a nationalist leader and the first president of independent Guinea (1958-1984). Subsequently, the military staged the coup that installed career soldier Lansana Conté at the helm of the country for a quarter century (1984-2008). Military spending, which already amounted to 12.65% of the national budget in 2008, ballooned following the military’s seizure of power again in December 2008, reaching 24% in 2009 and 33.5% in 2010. 

The military’s grip on the country’s political and economic life did not loosen after Alpha Condé’s election in 2010. The latter’s decision to entrust two ministries (one for the fight against organized crime, the other for presidential security) to prominent members of the previous junta personally implicated in the massacre of 28 September 2009 demonstrated the army’s control. In July 2011 Condé luckily escaped an assassination attempt carried out by members of the army and the presidential guard. In the following ten years, Condé sought to consolidate his power and managed to get re-elected for a controversial third term in autumn 2020 after having the constitution amended to allow him to do so. 

In September 2021, when Colonel Doumbouya’s red berets put an end to Condé’s regime, the news was greeted with relief, if not joy, by all opposition forces who feared the establishment of a presidency for life. After months of exhausting negotiations with political and social forces, and under constant pressure from the international community, the current junta finally announced the roadmap towards areturn to the polls: presidential elections will be held in early 2025, and neither Doumbouya nor other junta members will be eligible to run for office.

Towards Trial

The following analysis is based on twenty-five interviews I conducted in Conakry with political leaders, government officials, judges, prosecutors, lawyers, and victims between the May and June 2023. These interviews shed light on the primarily political reasons which led the current junta to try Dadis alongside ten more defendants, all members of the armed forces. 

Continue reading →
Posted in Conakry Stadium Massacre, Guest Posts, Guinea, International Criminal Court (ICC), International Criminal Justice | Tagged | 2 Comments

Ukraine’s allies can and should find a way to seize repurpose Russian assets to fund reparations

Posted on July 11, 2023 by Mark Kersten
A Russian plane seized by Canada at Toronto Pearson Airport in February 2022 (Photo: BlogTO)

Pass through Toronto Pearson airport and you might spot a tired looking plane on the tarmac. No, it’s not another delayed Air Canada flight. The aircraft is the Russian-registered Volga-Dnepr, seized by Canadian authorities in February 2022. That plane is now likely to be forfeited, with the proceeds directed to Russia’s victims in Ukraine. But more is needed: Canada should lead an international effort to seize Russian assets and repurpose them as reparations for Ukraine.

Since Russia’s 2022 invasion of Ukraine, global accountability efforts have focused on prosecuting Russian war criminals. But going after their money is crucial too, for least three reasons.

First, it’s the right thing to do. World Bank estimates put the damage caused by the first year of Russia’s invasion at $410 billion – before the destruction of the Kakhovka Dam. Only Russia is responsible for those costs. As former Canadian Foreign Minister Lloyd Axworthy says, making Russia pay through the forfeiture of assets is “a Robin Hood proposition. You take from the Sheriff of Nottingham who was putting people in jail, and you give it to the people who were affected by this.”  

Second, with the onset of fatigue among some populations over spending billions of dollars on a foreign war, redirecting Russian assets is the practical thing to do. Using Russian assets to help pay for Ukraine’s recovery could reduce the political costs of using taxpayer dollars to support the war and reconstruction effort.

Third, converting Russian assets into reparations can help address Russian atrocities. International crimes – like the war crimes and crimes against humanity Russia has committed in Ukraine – are lucrative. There exists an economy of human rights violations and international crimes. As I concluded in a recent study, atrocities often create opportunities for perpetrators to make money by plundering resources and creating profitable markets for the trafficking of drugs, precious resources, and even people. 

Continue reading →
Posted in Asset Seizure, Canada, Russia, Sanctions, Transnational Criminal Law, Transnational Organized Crime, Ukraine, United Nations | Tagged , , | 4 Comments

Keeping the Hope of Justice Alive: Canada and The Netherlands take Syria to the International Court of Justice over Torture Allegations

Posted on July 3, 2023 by Mark Kersten
(Image: Brandan Reynold)

For the most part, Syrian President Bashar al-Assad has gotten away with it. Rather than being held to account for the countless atrocities his regime has committed against civilians, Assad has been busy reconciling with world leaders. But a Canadian-Dutch initiative might just change that.

The Syrian civil war erupted in 2011. Since then, it is likely that every single human rights violation and international crime enshrined in international law has been perpetrated – most repeatedly. There was a time when these atrocities and the desperate plight of civilians fleeing Syria earned the world’s attention. In recent years? Not so much.

It is therefore little surprise that accountability for atrocities committed in Syria has been fleeting. China, Russia and, initially, the United States, all thwarted efforts to allow the International Criminal Court (ICC), which has jurisdiction over war crimes, crimes against humanity and genocide, to investigate atrocities in Syria.

There has been a steady stream of cases in European states that exercised their legal powers to prosecute Syrian war criminals in their own courts, although these cannot hope to adequately tackle the widespread and systemic nature of atrocities committed in Syria. Canada, for its part, has pointedly refused to do the same – neglecting to prosecute even its own foreign fighters who joined the Islamic State in Syria for their alleged participation in war crimes and crimes against humanity.

In this context, the announcement that Canada and the Netherlands have begun legal proceedings against Syria at the International Court of Justice (ICJ)  – which Canada, the Netherlands and Syria are all members of – is especially noteworthy. Ottawa has said that it is seeking to hold Damascus accountable under the United Nations Convention Against Torture, “for the countless human rights violations it has inflicted on the Syrian people since 2011”. Legal hearings are likely to begin later this summer and offer some hope that the thousands of Syrians brutalised, maimed, and murdered by the Assad regime will not be forgotten.

This does not mean that Assad will find himself hauled before an international tribunal to answer for atrocity crimes. Rather, Canada and the Netherlands are going to the “world court” in an attempt to ensure that Syria complies with international law in relation to torture.

Continue reading →
Posted in Canada, International Court of Justice, International Court of Justice (ICJ), Syria, The Netherlands, Torture | Leave a comment

End of the Road: Prosecuting Fulgence Kayishema for Genocide against the Tutsi in Rwanda

Posted on May 31, 2023 by Mark Kersten

The following is a guest-post by Owiso Owiso and Doris Uwicyeza Picard. Owiso is an international lawyer, scholar and researcher whose primary interests and areas of specialisation include general public international law, international criminal law/justice, international arbitration and dispute settlement, law of international organisations, human rights, and transitional justice. Uwicyeza Picard is an international law scholar and researcher whose areas of research include public international law, the law of international organizations, third-party remedies in international law, international humanitarian law, peacekeeping, human rights and international criminal law. She currently serves as Chief Technical Advisor in the Ministry of Justice of the Government of Rwanda. Her views are made in her personal capacity and do not represent the views of the Government of Rwanda. 

Fulgence Kayishema appears at a Cape Town court earlier this month (Photo: Yahoo)

After nearly three decades on the run, Fulgence Kayishema was arrested on 25 May 2023 in a grape farm in Paarl, South Africa where he had apparently been residing and working as a labourer. Kayishema, a former senior police officer, is suspected of playing a prominent role in the Genocide against the Tutsi in 1994, particularly in killings in Kivumu commune in Kibuye préfecture, including the particularly notorious massacre of approximately 2,000 Tutsi civilians in Nyange Catholic Church. Kayishema was indicted by the International Criminal Tribunal for Rwanda (ICTR) in 2001, charged with genocide; complicity in genocide; conspiracy to commit genocide; and crimes against humanity. In this post, we explore what his arrest tells us about South Africa’s role in harbouring genocidaires and where Kayishema should be transferred and prosecuted.

South Africa’s complicated ‘relationship’ with suspected Rwandan genocidaires 

Similar to questions that France faced in 2020 – but is yet to answer – when alleged genocide financier Félicien Kabuga was arrested in an affluent Paris suburb after nearly 26 years on the run, it is inevitable that many are wondering how Kayishema managed to live so long in South Africa unbothered by authorities. Indications are that South Africa knew of Kayishema’s presence long before his arrest on 25 May 2023. Addressing the UN Security Council in 2021, the Prosecutor of the IRMCT Serge Brammertz accused the South African government of stone-walling the search for Kayishema. The Prosecutor had earlier claimed that South Africa had initially acknowledged, as a reason for not arresting and extraditing Kayishema, that it had granted him refugee status, but later changed its position and pointed to legal difficulties in cooperating with the IRMCT. South Africa, however, changed its tune in 2022, ramping up cooperation with the IRMCT and establishing an operational task-team that eventually apprehended Kayishema. 

South Africa’s dalliance with suspected genocidaires is not new; it goes back to Apartheid South Africa, which, alongside France, is reported to have been one of the main arms suppliers to the genocidal Rwandan regime in the years leading up to the Genocide against the Tutsi. Elements of the Apartheid regime ensured that the arms flow to Rwanda continued even after the official collapse of the Apartheid in South Africa, without much interference by the newly elected democratic South African government. It is no surprise, therefore, that many Rwandans fleeing the collapse of the genocidal regime found their way to South Africa. While Kayishema’s case has been the most prominent due to his indictment by the ICTR, he is reportedly not the only fugitive known to be residing in South Africa. Kigali has claimed that at least four other persons suspected by Rwandan authorities of involvement in the genocide eventually made their way to South Africa, and reside and work there to this day. 

Where will/should Kayishema be prosecuted? 

Apart from the reputational embarrassment of having hosted a suspected genocidaire, Kayishema’s arrest now raises another uncomfortable dilemma for South Africa, that is, where Kayishema will be extradited to. While Kayishema was indicted by the ICTR in 2001, in 2012 the ICTR referred his case, among others, to Rwandan authorities. In May 2014, the ICTR issued an arrest warrant for Kayishema, requesting States to arrest and transfer him to Rwanda for trial. With this referral, it follows therefore that Kayishema ought to be transferred to Rwanda for trial. 

Continue reading →
Posted in International Criminal Tribunal for Rwanda (ICTR), Rwanda, Rwandan Genocide, South Africa | Tagged , , | Leave a comment

New Article Alert: ‘Global South’ Voices Are Muted in Debates over the Crime of Aggression: What Three Books on Illegal War Tell Us About Why

Posted on May 29, 2023 by Mark Kersten
(Photo: AP)

Dear readers,

I wanted to share with you a new article published at the International Journal of Transitional Justice earlier this year: “‘Global South’ Voices Are Muted in Debates over the Crime of Aggression: What Three Books on Illegal War Tell Us About Why”.

The article explores the sticky question of why it appears that so many states in the “Global South” (an utterly imperfect short-hand that I explore a bit in the article) remain ambivalent about prosecuting the crime of aggression in Ukraine. Rather than focus on more immediate debates on the subject and especially those that have taken place since Russia’s 2022 invasion of Ukraine, I reviewed books on the crime of aggression from three eminent experts – Carrie McDougall, Tom Dannenbaum, and Noah Weisbord – to try to understand where such ambivalence derived from. I therefore explore how previous debates and negotiations over the crime of aggression under the Rome Statute of the International Criminal Court as well as conversations about the purpose and goals of international criminal law more generally have contributed to a less-than-enthusiastic engagement among many States outside of Europe and North America in efforts to hold Russian authorities for the crime of aggression. A recent trip to Kenya to engage with international human rights and accountability advocates confirmed that this antipathy remains strong and is something that advocates must reckon with if we hope to convince a greater number of communities that Russian aggression must be prosecuted.

Here is an excerpt of the article:

Political and legal efforts to criminalize illegal warfare have received a tremendous amount of attention since the 2002 establishment of the International Criminal Court (ICC). At no point have discussions on the crime of aggression reached such feverish levels as they did following the 2022 invasion of Ukraine by Russian forces. Ongoing debate over how to investigate and prosecute the invasion, alongside the relatively muted response of the “Global South” to a proposed specialized tribunal to prosecute Russian leaders for the crime of aggression, is symptomatic of how diplomats have crafted the crime over the past two decades.

Those negotiations – their reasoning, political contours, historicity and consequences – have been studiously covered by Carrie McDougall, Tom Dannenbaum and Noah Weisbord in their respective books on the crime of aggression. Theirs are persuasive volumes written by thoughtful and diligent scholars of international criminal law (ICL). The books offer detailed assessments of what the crime is, its historical trajectory, its adoption and particular jurisdictional shape under the Rome Statute, as well as the role it might play in moderating international relations’ most devastating excess: war. Each author speaks to the politics of law and, to put it crudely, how the proverbial sausage – international law in this case – is made. The books articulate with laudable finesse how the crime of aggression came to be what it is today. This is, at times, a grim task, and the disappointment of the authors at the neutered version of the crime of aggression included under the Rome Statute is apparent. At the same time, these volumes, which also offer much hope, include lessons for the law student, diplomat and negotiator on how negotiations capture particular cross-sections in time and politics…

The diligent observer and academic would do well to consume all three books, even if they are left with the inevitable sense that the more they know about the crime of aggression, the more they know what they do not know. Rather than distil their findings any further, I thought it would be of greater interest to readers to use the balance of this review essay to enquire into what pertinent sections of these volumes tell us about Global South attitudes to the crime of aggression.

Continue reading →
Posted in African Union (AU), Crime of Aggression, International Criminal Court (ICC), Russia, Ukraine | Leave a comment

A view from Ukraine: Models for a Future International Tribunal for Russian AggressionA view from Ukraine:

Posted on April 17, 2023 by Mark Kersten

The following guest post was written by Volodymyr Pylypenko. Volodymyr holds a PhD in Law and is an Associate Professor in the International Relations Department of Lviv University of Business and Law, Ukraine. His previous post for JiC, ‘The View from Ukraine: Why a New International Criminal Tribunal to Prosecute Russian Aggression is Needed’ is available here.

A convoy of Russian armored vehicles moves along a highway in Crimea in January 2022. (Photo: AP)

Modern international law knows several relevant precedents. International tribunals became effective tools to punish persons guilty of the most serious international crimes of the 20th century, including the crime of aggression. The International Military Tribunals in Nuremberg and Tokyo, which were established after the Second World War recognized in their verdicts the planning, preparation, initiation and/or the waging of an aggressive war as an international crime. Accordingly, an ad hoc international criminal tribunal (ICT), with the power to prosecute senior Russian officials with the planning, preparing, and waging of aggressive war in Ukraine is plausible and legitimate. That is also the view of states, including The Netherlands, Estonia, Latvia, and Lithuania, as well as some international organizations such as the European Union (EU) and the Counsel of Europe, which have discussed the need to create such a tribunal to punish Russian officials for the crime of aggression and other international crimes.

A week ago, the ICC issued an arrest warrants against Putin and Russian Commissioner of Children’s Rights, charging them for serious war crimes such as unlawful deportation of Ukrainian children. Other charges for war crimes in Ukraine are like to still appear while the  ICC Prosecutor meticulously examines Russian atrocities in Ukraine. Meanwhile, the ICC does not have a jurisdiction to accuse Putin and hold him to account for the crime of aggression he committed against Ukraine. As I mentioned in my previous blog piece, I believe the establishment of a separate, international ad hoc tribunal is the best option to prosecute Russian aggression. In this blog I discuss possible options concerning the nature and the manner of establishing such a tribunal.  

 The sooner the main stakeholders agree on a unified strategy over the organization and functioning of this ICT and define a legal basis for its creation, the sooner accountability for aggression will follow. However, there are still some ‘pitfalls’ connected to the model of the future tribunal.  In what follows, I briefly assess three possible options.

Creating a tribunal through treaty between the states

An ICT can be created on the basis of an international treaty between states. Ukraine, as the state that has directly suffered the damage caused by Russian aggression, should be a mandatory participant in such a treaty. Under the same treaty, the parties should approve the ICT’s Statute, which will determine its procedural and substantive elements. The best precedent for this mechanism is, in my view, the well-known Nuremberg Tribunal, which was established on the basis of an agreement between the USSR, the United States, Great Britain and France with 19 other countries joining afterwards.

Continue reading →
Posted in Bilateral Immunity Agreements, Europe, Guest Posts, Hybrid Courts, Hybrid Tribunals, International Criminal Court (ICC), Russia, Ukraine | Tagged | 1 Comment