Ukraine sues Russia, but Moscow officials fail to show up

“Faced with such open illegality, is this court completely powerless to arrest him?” asked Harold Hongju Koh, one of the lawyers representing Ukraine, in court on Monday. A professor of international law at Yale University, Koh served as legal counsel to the State Department during the Obama administration.

“The answer must be no,” he said, urging the court to quickly order Russia to withdraw from Ukraine.

The case centers on Russia’s official explanation for its invasion of Ukraine, which President Vladimir Putin says is aimed at ending a ‘genocide’ against pro-Russian separatists in the east of the country. . There is no evidence to support Russia’s claims.

“Ukraine comes to this court because of a preposterous lie and to seek protection from the devastating consequences of that lie,” said David Zionts, one of Ukraine’s lawyers. “The lie is the allegation of genocide in Ukraine made by the Russian Federation. The consequences are unprovoked aggression, cities under siege, civilians under fire.

A number of governments have accused Russia of war crimes in Ukraine. Citing “credible reports,” Secretary of State Antony Blinken said in multiple television interviews Sunday that the Biden administration was “documenting all of this, bringing it all together,” to provide support for whatever cases eventually come forward.

Experts and volunteers are working urgently to help provide Ukrainians on the ground with the equipment they may need to record the situation in real time, especially as cities like Kyiv and Dnipro are accessible at this time. but could eventually be completely surrounded or occupied.

Other countries, international organizations and Ukrainians are undertaking the same task as Russia continues its offensive. But there are many different jurisdictions and authorities to charge for violations of international and national law, many of which are unlikely to produce results in the near future, if at all.

Thirty-nine states have referred the situation in Ukraine to the International Criminal Court (ICC), a separate entity that has the power to investigate genocide, war crimes and crimes against humanity, and that court has opened investigation. The ICC can indict individuals, but trying them requires their presence in court. This means that Putin – or any other indicted official – should either be handed over by his own government or arrested outside of Russia.

The ICC can only charge a country with aggression if it is a party to the treaty that created it or if it is referred by the United Nations Security Council. Russia is not a party (neither is the United States) to the treaty and can use its Council veto against any referral.

But even if someone can’t be immediately arrested, the charges alone can “weaken the individual and make them damaged property for their supporters,” said Stephen Rapp, chief of the Department of Global Justice’s office. from 2009 to 2015. He cited war crimes cases. of Slobodan Milosevic, former president of Serbia, and former Liberian president Charles Taylor. Milosevic died before his trial was completed. Taylor, the first former head of state ever convicted of a war crime, remains imprisoned in Britain.

Both Milosevic and Taylor were tried by special tribunals convened under the auspices of the UN. In a statement last week, a number of prominent former judges, prosecutors and international law experts called for the establishment of a special court “for the suppression of the crime of aggression against Ukraine”. They argued that such an effort would be both faster and more efficient than existing international tribunals.

The civilian death toll rose in Ukraine on March 7 as the country entered a new round of negotiations with Russia. (Alexa Juliana Ard/The Washington Post)

Some countries have claimed universal jurisdiction for war crimes or for abuses of their citizens as a basis for arrest. Former Chilean President Augusto Pinochet was indicted in Spain in 1998 for human rights abuses and corruption related to the treatment of Spanish citizens in Chile. He was arrested in Britain, but the government of that country decided against his extradition and eventually sent him home to Chile. In January, a German court, with the testimony of Syrian refugees, convicted a Syrian colonel accused of torture in his own country and sentenced him to life in prison.

If the Ukrainian government survives, it could choose to pursue its own prosecution for violations of the Ukrainian criminal code on its soil. But war crimes laws and courts can give international prosecutors additional tools to target chains of command that don’t exist in domestic law, experts say.

Much of the challenge for investigators is to trace responsibility up the chain of command in a way that can be defended in court. Establishing facts on the ground for others than direct participants in military operations “doesn’t get you to high-ranking individuals who are responsible for criminal acts,” said Bill Wiley, who heads the Commission for International Justice and responsibility.

“The whole point of international humanitarian law is to move up the chain of command,” said Clint Williamson, a former US war crimes envoy who is part of a State Department project to help build capacity on the ground to continue the proceedings.

“What we’ve seen so far in this conflict, most things fall into the category of indiscriminate attacks that affect civilians,” he said, a type of potential war crime. Things could get worse, he said. “We haven’t seen the kind of thing yet where you have Russian troops rounding up people and executing them like you saw in Yugoslavia.”

In Poland, where the bulk of Ukrainian refugees fled during the early days of fighting, civil society groups are already hard at work collecting documentation and interviews they hope could help in the future prosecution of crimes. of war.

At the Pilecki Institute, a Warsaw-based research and education organization that deals more generally with testimonies about past atrocities, an immediate goal is to collect signed testimonies that could potentially be used in court. But its leaders also hope to create a real-time archive of the crimes they believe are being perpetrated in Ukraine for future historians and researchers.

In its pleadings before the ICJ on Monday, Ukraine demanded immediate “provisional” relief, ordering Russia to cease its own military operations and stand down, and cease all support for any other armed groups, while the court examines whether Russia has the right to justify its action. actions on the grounds of “protecting” Ukraine from genocide.

There is precedent for such a provisional judgment, even if the accused does not appear. In 1984, Nicaragua won a similar decision at the ICJ against the United States for its funding and support of contra rebels seeking to overthrow the Nicaraguan government. The United States refused to participate in the proceedings, arguing that the ICJ, one of the founding components of the United Nations system, did not have jurisdiction. Later, he blocked law enforcement by the UN Security Council, refusing to pay the compensation ordered by Nicaragua.

As proceedings began in the imposing Great Hall of the ICJ in The Hague, the tribunal’s president, Joan E. Donoghue, said the Russian Embassy in the Netherlands informed the tribunal on Saturday that the Russian government ” did not intend to participate in the oral proceedings”. ”

Although Tuesday was set aside for Russia to challenge Ukraine’s case, the court retired to make a decision after Ukraine’s presentation.

Hannah Knowles and María Luisa Paúl contributed to this report.

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