‘All … are equal but some are more equal than others’: Russia’s invasion of Ukraine and the question of accountability. Part 2

This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.

Before you read this blog, you may want to listen to Part 1 of this post: Russia’s invasion of Ukraine and the question of accountability (Part 1)

Question mark.

In the first part of this blog, we picked up some of the possible issues that need considering if there is to be legal accountability further to Russia’s invasion of Ukraine. In this part we unpack those issues. It is worth recalling here that have we a nuclear armed, permanent, veto wielding member of the United Nations Security Council committing international crimes. Those crimes are not just those committed since the start of 2022, rather potentially they also extend to since Russia invaded and annexed Crimea from Ukraine in 2014. It is also key to note that Ukrainians may have committed crimes in their defence against Russia – there is no carte blanche to behave as you wish because you have been attacked by another.

The issues noted above and in the earlier blog effectively boil down to three interrelated matters. First, there is the question of immunities. Second, there is the question of the forum.  Third, are the crimes and the issues of evidence.  Immunity as was noted in the first blog is an impediment where there is an attempt to hold accountable one state’s officials, who are outside its borders, before another state’s institutions. This is because all states are legally equal.  However, the rule on immunity is not immutable nor is it all encompassing. Immunity can be withdrawn by the state that grants it.  It follows that immunity would not be withdrawn for Vladimir Putin or Russia’s Foreign Minister, Sergey Lavrov, while Putin or someone sympathetic to him is in power.  If Putin was deposed, however, and replaced by a regime which disassociated itself from him, then immunity would not be an impediment at all for members of the current regime for two reasons.  First, members of the current regime would in all likelihood be ex-ministers and officials and immunity only extends to those currently in post. Second, if there was a new regime, they could withdraw the immunity extended to any individual if they wished.  Those are some big ‘ifs’ but there would need to be a change of regime. Equally, it needs to be noted that should the current regime stay in power, or its leaders be replaced by those sympathetic to it, then the withdrawal of immunity is not a given. But the position is still not so clear cut. Ex-ministers or officials, as just alluded to, do not have immunity under international law and thus national courts and tribunals could try them. Moreover, domestically awarded immunity can be bypassed by an internationally established court or tribunal.  This leads us on – although without clear answers – to the question of forum.

In terms of forum there are a number of options.  The first is the International Criminal Court.  Russia and Ukraine are not party to the ICC.  Ukraine has twice (at the time of writing) accepted the Court’s jurisdiction to events occurring within it further to the Russian invasions.  But Russia has not and will not – as things currently stand – accept the Court’s jurisdiction. As an international forum, immunity is not a shield before the ICC. The ICC is a most unlikely forum for Russians to be held accountable but may provide a forum to try Ukrainians who have committed atrocities against Russians further to the Russian invasions.  Quite what such prosecutions against Ukrainians would do to the ICC’s credibility – in the absence of any accountability anywhere for Russians – would remain to be seen but it is not likely to be positive, however generous one seeks to be. As noted a few times, a second forum is a domestic court or prosecutor’s office in a third state bringing a prosecution against key (Russian) protagonists on its own initiative. There are a number of conditions here that need to be satisfied. To commence with, Putin, Lavrov or another would need to be physically present in another state and one where the criminal prosecutors are willing to bring charges against them. It is, of course, true that Putin etc., are unlikely to travel to such a state. Even if they did so travel to such a state, there are further impediments.  First, immunity – as noted – above may prevent prosecution but that would only be an issue if Putin, Lavrov etc., were still in positions of leadership.  As ex-ministers they would not enjoy immunity before a domestic court but there would be the issue of the crimes and jurisdiction to contend with – which we will come to shortly. For lesser-known figures, however, this is a real and viable option but there is still jurisdiction to contend with, which we will come to.

Another option related to forum – in theory at least – could be an ad hoc tribunal of the sort established by the Security Council for the former Yugoslavia and also for Rwanda. This is only theoretically possible if the Putin regime is overthrown – it is inconceivable that a veto wielding Russian leadership would agree to such a tribunal for Russia’s crimes in Ukraine unless a new Russian leadership was in power and diametrically opposed in its views to the current regime.  The legal basis for the Yugoslav and Rwandan tribunals was Chapter VII of the UN Charter and that withstood robust challenge.  It is hard to consider any other legal basis. Again, before such an internationally established forum, immunity is not a bar. It is possible that the General Assembly could try and establish such a tribunal and it is not outside the realms of possibility. But the legal competence of the General Assembly – as opposed to the Security Council – to do so would be highly questionable and it is not at all certain that it would withstand the inevitable legal challenge.  This also assumes there would be enough agreement in the General Assembly for such a tribunal, and that is not certain. If the Putin regime is replaced by one diametrically opposed to it, then this option becomes more realistic even if not probable.

The final issue is jurisdiction over the crimes in question. War crimes seemingly have been committed by both sides if news reports are to be believed.  Russia’s actions also amount to the crime of aggression and there are possibly crimes against humanity too. All of these are crimes of universal jurisdiction, so can be tried anywhere.  A domestic state need have no nexus or link at all to prosecute anyone accused of them. Crimes of universal jurisdiction are crimes against the international community as a whole.  The question of evidence is tricky always in such cases.  For those in leadership positions, the evidence is not difficult but it is key that there is a fair and transparent trial so there are no justifiable accusations of double standards.  For those not in the public eye – the soldier on the Kyiv street as it were – evidence of personal culpability is key. That is never straightforward and always a huge challenge for prosecutors.  Conflict destroys evidence. How would you gather witnesses and could such a trial actually be fair?  These are not insurmountable obstacles but they certainly are challenging.

In the final analysis, personal legal responsibility as a consequence of Russia’s invasion of Ukraine is likely to very much be the exception and certainly not the norm, when all is said and done. Quite when, how and where that will be remains to be seen.  But this is not new or unique. A similar set of arguments can be made regarding, for example, the USA led invasion of Iraq in 2003.  No USA or British national, for example, has yet been held accountable for the crimes undeniably committed then. To come back to Orwell, everyone is equal (before the law) but some (perhaps) are more equal than others.

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