Extrabetraktelse om Berlinmurens fall – och Ukraina
How can Europe deal with war crimes on a criminal and civil law basis?
– speech for the planned conference “Berlin Wall 33 – In the Wake of the Russian-Ukraine Conflict”
The 2022 Russian military attack on Ukraine has prompted a lot of questions, some of them of a legal character. This speech is about the issue of war crimes and how to deal with them.
What laws govern the questions that arise and who is responsible for the legal procedure? Will war crimes in Ukraine be handled in any different ways than war crimes in other parts of the world? To what extent will the International Criminal Court be involved, and to what extent national courts? Will there be a special tribunal for Ukraine as there have been for, e.g., former Yugoslavia and Rwanda? Could Russia be sentenced to pay compensation for damage in Ukraine?
2 International law on war crimes
International criminal law is the law that applies in states regarding crimes with an interna-tional character of some kind, including laws on jurisdiction (competence for the courts of a state) and the right to prosecute, and also on cooperation between states in criminal matters, such as investigations, extradition and execution.
International criminal law is designed to prohibit certain categories of conduct commonly viewed as serious atrocities, and to make perpetrators of such conduct criminally account-able for what they did. The core crimes under international law are genocide, war crimes, crimes against humanity and crime of aggression.
International criminal law demands of states that some crimes can be penalized on a national level.
There is a principle for jurisdiction and extradition saying that states must prevent immunity for war criminals by either trying them for the crime or extraditing them to a country which will.
3 The International Criminal Court (ICC)
The establishment of ad hoc tribunals, for example in ex-Yugoslavia and Rwanda in the beginning of the 1990´s, eventually led to the setting up of a permanent court for international crimes, the International Criminal Court (ICC). The ICC was established by the Rome Statute in 1998, which came into force in 2002. A little over 120 States are party to the statute and thereby bound by it and by the jurisdiction of the court.
The ICC is competent to rule on four core international crimes, no other. The ones that are covered by the Rome Statute and the jurisdiction of the court are genocide, crimes against humanity, war crimes and the crime of aggression.
The court has jurisdiction over crimes only if they are committed in the territory of a state party, or if they are committed by a national of a state party. An exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.
The ICC has so called complementary jurisdiction, meaning that it can only investigate and prosecute the four core international crimes in situations where states are "unable" or "unwilling" to do so themselves. So, the jurisdiction of the ICC is secondary to jurisdictions of domestic courts.
China, Israel and the United States were against the Rome Statute and the establishment of the ICC. Also, Russia, India and Saudi Arabia were negative, and so were Iraq, Libya, Qatar and Yemen. Among states which are not party to the Rome Statute, and therefore not bound by the jurisdiction of the court, are both Russia and Ukraine.
The ICC can prosecute individuals but not states or organizations. The ICC may begin an investigation before issuing a warrant if the crimes were referred by the UN Security Council or if a state party requests an investigation.
The limitations of the jurisdiction of the ICC have the effect that many serious crimes cannot be prosecuted internationally. This means that a state is for example free to murder its citizens or to put them in jail forever on any grounds, e.g. because they do not support the dictatorship of the country or because they expressed criticism on parts of the politics of the state.
As Russia is not bound by the Rome Statute, Russian leaders or militaries cannot be tried before the ICC for what they have done in Ukraine even if it was a war crime or a crime against humanity. The possibility that the Security Council of the UN will grant competence to the ICC will not apply to Russia, as it is a permanent member of the Security Council and can therefore veto all possible attempts by the council to prosecute Russians.
In theory it is of course possible, though, that Russia will eventually have a new Government which will not protect its former leaders. So, in theory Vladimir Putin and others could later be tried by the ICC.
4 To what extent do national courts have jurisdiction over war crimes?
As I said the jurisdiction of domestic courts has priority over the jurisdiction of the Inter-national Criminal Court. So, if a domestic court takes up a case, the International Court cannot.
But as I also said, when concerns Russia and Ukraine the ICC is not competent at all. Neither of the two countries is party to the Rome Statute.
To what extent national courts have jurisdiction over crimes differs a lot between coun-tries. For most crimes most states have jurisdiction only if the crime is committed within that state or by a citizen of it. But for certain very serious crimes there is normally so-called universal jurisdiction, which means national courts can deal with them no matter where they happened or who committed them. This is true for example for crimes covered by the Rome Statute. And when genocide concerns it is even an obligation for national courts to take up a case where it has jurisdiction.
It is presumed that the states parties will also make the crimes of the Rome Statute crimes nationally, but it is not formally required.
For somebody to be prosecuted in another state than his own for war crimes he must have a connection to that state. Each country decides for itself what connection is needed. The person would at least need to be present in that state at the time of the prosecution, but sometimes that is all that is needed.
In practice international crimes have so far been prosecuted most frequently in German national courts and to some extent in Swedish.
Police and prosecutors of a country can investigate war crimes in other countries even if there is no suspect and even if it will not be possible to prosecute anyone. This has been done for Syria, Iran and Myanmar, for example. And such action can be very valuable where there are victims or witnesses in the country. The investigation can be needed and perhaps used in a country where a perpetrator is present, or before a special tribunal. It was a learning experience from the tribunals for ex-Yugoslavia and Rwanda that it would have been of great value if one had been able to secure information from victims and witnesses fresh, and not many years later when it is time for trial.
In Europe there is a well-developed cooperation in investigations into international crimes, including war crimes. This works well with some countries outside of Europe also, but in some parts of the world there is no such cooperation at all.
5 What is a war crime?
War crimes are acts which are prohibited in war according to international law. These are some examples mentioned in the Rome Statute for the International Criminal Court (ICC):
– Intentionally directing attacks against the civilian population.
– Intentionally directing attacks against civilian objects, that is, non-military objectives.
– Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
– Killing or wounding a combatant who has surrendered.
– Destroying or seizing the enemy's property, unless such destruction or seizure be im-peratively demanded by the necessities of war.
– Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival.
Beside war crimes, also the so called “crime of aggression” is prohibited in international law. This is “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.
So, the crime of aggression is a crime for which only the political and military leaders of a state can be held responsible. In that respect it is different than other crimes of the Rome Statute.
Without saying too much, it is quite possible that there have been vast and serious war crimes committed by Russia and Russians in Ukraine. It is also quite possible that Russia has committed a crime of aggression against its neighbor.
6 How can civil law be used against war crimes?
The most important way for civil law to play a role when war crimes is concerned would be through compensation for damages. However, a state can in principle not be put to trial for compensation. The reason is the international law principle of immunity for states and its leaders.
One could maybe have expected that a conviction for war crimes in a criminal procedure would be accompanied by a possibility to declare the perpetrator responsible for the damage caused, and therefore guilty to pay compensation. But the Rome Statute does not include anything about compensation for damages, nor does any other international law.
Also, one could maybe have expected that there would be no immunity for states or its leaders when concerns the most serious crimes. But the immunity system does not concern itself with the seriousness of the crime, it simply protects states and its leaders from being tried by the courts of other states. It is a matter of state independence.
When it comes to human rights, it is possible that some very important such rights – for example the protection against torture – will be found superior to immunity, so that a state can be found guilty of trespassing a person´s human rights. So far, such a principle has not, however, been established by an international court. But the European Court of Human Rights has come close. And there could be said to be a movement in practice towards, eventually, such a change in superiority.
But immunity is only for states and its leaders. So, if a military officer, for example, commits a war crime in Ukraine and causes damage for which he is liable according to the law of Ukraine, then it is in principle possible to sentence the person to pay compensation for the damage caused. This, however, is probably not a very important possibility in practice.
7 So what will happen now?
The ICC can aid Ukrainian courts and prosecutors in investigating possible war crimes by Russia in Ukraine. Such aid can be given if Ukraine asks for it, and it has done so. Therefore, the ICC has already been involved in such investigations.
We can count on some European countries investigating and if possible prosecuting war crimes by Russia in Ukraine. In Sweden, as in some other countries, there are specialized police and prosecutor departments for war crimes.
Will there be a special international tribunal established for war crimes in Ukraine?
There have been some efforts in that direction, but I have not heard that such a tribunal is actually on the way. It could be set up by the Security Council of the UN, but this will in practice not be done because of the Russian veto. But it could also be set up by the UN General Assembly through a majority decision. That means Russia could not prevent it through its veto power. For a special tribunal to be able to try and sentence Russians, however, they would have to be handed over by Russia to the tribunal.
8 Summary and conclusions
1. The International Criminal Court will not be dealing with possible war crimes by Russia in Ukraine.
2. It would be possible to establish a special international tribunal for war crimes in Ukraine, as was the case for Rwanda and former Yugoslavia. But it does not seem likely that such a tribunal will be set up. The question is however not yet settled.
3. Domestic courts in Europe and other states will in principle be competent to deal with war crimes in Ukraine. And at least a few of them have made preparations for such action, and are cooperating. However, for somebody from Russia to be prosecuted in another state he must have some connection to that state. Each country decides for itself what connection is needed. Sometimes it is enough that the person visits the country.
4. It is quite possible that there will be evidence to prove vast and serious war crimes and crimes of aggression by Russia in Ukraine.
5. Russia cannot be sentenced to pay compensation for damage because of war crimes or crimes of aggression in Ukraine.