Ця стаття також доступна українською мовою тут.
Depictions of gruesome and heartbreaking mass atrocities resulting from Russia’s invasion of Ukraine have injected discussions of war crimes trials into common discourse the world over. World leaders and government spokespersons in major capitols now field a steady stream of media questions on how crimes in Ukraine will be confronted. An unprecedented number of States Parties (41) of the International Criminal Court (ICC) referred the crimes in Ukraine to the ICC Prosecutor for investigation, and a video statement from the last living prosecutor of the Nuremberg era, 102-year-old Ben Ferencz, was played at one of the most-watched United Nations General Assembly debates ever.
Yet the unprecedented interest in justice for Ukraine has also exposed weaknesses in the global justice system to a much larger audience, and underscored that international institutions, including the ICC, can only be as strong as the commitment of the States supporting them. Achieving accountability for atrocity crimes in Ukraine, while also bolstering the field’s overall effectiveness and legitimacy, is attainable, if the international community approaches the problem with that goal in mind. To this end, ICC States and non-States Parties, including the United States, should pursue a combination of innovative and long-overdue improvements.
We suggest three ways in which efforts to ensure accountability for the ongoing crimes in Ukraine can be strengthened and, at the same time, bolster the world’s fledgling international justice system.
- Succeeding at the ICC: Play the Long Game and Avoid Double Standards
The ICC has the mandate to investigate and prosecute atrocity crimes committed in Ukraine because Ukraine accepted the Court’s jurisdiction in 2014 and 2015. The ICC Prosecutor has begun investigating, as have Ukrainian and other national prosecutors. But the ICC has been weakened over the past 20 years, even by some of the ICC States Parties that are now spearheading efforts to rally support for it. Some of those same States Parties contributed fewer resources than the Court needed to address its burgeoning caseload and pushed for amendments on the crime of aggression that departed from the automatic jurisdiction applicable to the Court’s other three crimes.
The ICC also suffered punishing treatment at the hands of some non-States Parties, including the United States. On June 11, 2020, former U.S. President Donald Trump declared the ICC to be a threat to U.S. national security, threatening ICC staff and their families with financial and other punitive measures. Three months later, the United States made good on those threats, sanctioning the Court’s Prosecutor and a senior member of her team, and adversely affecting many others in her office. The action prompted one of us (Leila Sadat) to join a lawsuit brought by the American Civil Liberties Union and Covington & Burling LLP, challenging the sanctions as unconstitutional. The Biden administration finally revoked the sanctions last year and settled the lawsuit, but only after insisting that it maintained its “longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties.”
The ICC and other international justice mechanisms cannot succeed in the long term with grudging, situation-specific support. Indeed, international justice could fail if its application in Ukraine reinforces the selectivity of the system, rather than fostering universal accountability, especially as regards the creation of a new tribunal for aggression. Holding individuals accountable for the crime of aggression is important. However, vital questions of legitimacy and fairness must be addressed when contemplating the creation of a Nuremberg-style special tribunal for one crime in a European country, when robust global accountability measures for the litany of mass atrocities in countries such as Syria, Yemen, Afghanistan, Palestine, Libya, Sri Lanka, South Sudan, Ethiopia, and Myanmar (to name a few) have stalled or receded from the world’s attention.
As efforts to forge a principled accountability mechanism for Russia’s alleged aggression into Ukraine through the U.N. General Assembly are explored, the ICC’s Assembly of States Parties should revise the Kampala amendments on the crime of aggression to bring them in line with the jurisdictional regime applicable to other ICC crimes so that, in future, the Court’s jurisdiction in a similar case would cover all four ICC crimes.
Moreover, the justifiable concern about crimes in Ukraine should translate into more consistent support for the ICC from States and non-States Parties alike, including material resources, investigative cooperation, and, critically, intelligence sharing necessary for the Prosecutor to bring successful cases. Both the Court and the Assembly of States Parties (ASP), when speaking with one voice, have tools at their disposal to negotiate outcomes that benefit the ICC’s entire docket. For example, the 10 of the 15 current U.N. Security Council members who are also ICC States Parties (including permanent members France and the United Kingdom) are well-positioned to make a strong diplomatic push for the U.N. to sanction ICC fugitives where possible, a practice that could then become a norm.
Additionally, momentum for accountability in Ukraine should be harnessed by the ASP to buoy the Court’s budget across the board, by ensuring that voluntary contributions under Article 16 of the Statute do not create a régime d ’exception, in which ad hoc funding swallows the ICC’s regular budgetary process or is used to manipulate the Court’s priorities. The ASP could provide such oversight via a special session that ensures any voluntary funding follows the 2002 ASP Resolution empowering the Assembly to set additional criteria for whether voluntary contributions will be accepted. That resolution also bestows the Registrar of the ICC with the power to reject voluntary contributions if they “will . . . affect the independence of the Court.” This avoids States picking and choosing which investigations and cases they prefer to support. The ASP could then appropriate additional much-needed funding to support the ICC’s entire docket, including, for example, underwriting and equipping the ICC’s fugitive-tracking unit to benefit all cases.
- Create a Global Standing Investigative Mechanism
The United Nations should establish a global standing investigative mechanism, with its first mandate being Ukraine (including aggression, which is not now within the ICC’s jurisdiction in Ukraine). By way of background, faced with U.N. Security Council vetoes that prevented the ICC or another tribunal from gaining jurisdiction in Syria, the U.N. General Assembly created the International, Independent, and Impartial Mechanism for Syria. A Mechanism for Myanmar and an Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL followed. These mechanisms cannot prosecute, but they collect evidence as the crimes occur, to make prosecution feasible one day. Unlike U.N. commissions of inquiry or fact-finding missions (like the one already established for Ukraine) that examine a broad cross-section of human rights abuses and do so at a lower standard of proof, investigative mechanisms collect and analyze evidence to a criminal justice standard, to build dossiers against low to high-ranking officials for participating in atrocity crimes. These mechanisms work with international and/or domestic authorities to enable them to prosecute atrocity crimes falling within their jurisdiction.
At present, each time a new mechanism is established, funding and staffing must be found, and a mandate defined. These startup hurdles delay justice. A permanent investigative mechanism, however, would be ready to go from the onset of atrocities, rather than after the fact. Regardless of whether the General Assembly and/or the Human Rights Council is best suited to create a new global investigative mechanism, the benefits would be manifest for Ukraine and globally. A new investigative mechanism could be designed to work on Ukraine first and then become permanent, to enhance the ability of the ICC and national jurisdictions to confront mass atrocities even in countries where the ICC does not have jurisdiction, like Yemen, North Korea, and Mozambique.
- Remove Domestic Legal Obstacles to Accountability and Support National Efforts
States promoting accountability for crimes committed in Ukraine should consider dismantling obstacles to doing so in their own legal systems. In the United States, strong rhetoric and refreshingly bipartisan support for the ICC from the Biden administration and Capitol Hill must be matched with tangible policy redirections if either are to be taken seriously, not to mention resurrecting U.S. moral standing to demand accountability in Ukraine. On top of tangibly assisting the ICC’s work in Ukraine, the United States should repeal or otherwise greatly reduce existing anti-ICC legislation, including the American Service-Members’ Protection Act (also known as the Hague Invasion Act, as it permits the United States to “free” U.S. or allied personnel detained by the Court). This legislation has complicated relations with U.S. allies and prevented the United States from robustly pursuing its own interests in justice and accountability in many conflicts, including Ukraine. It is true that U.S. law has long permitted in-kind support to the ICC on a case-by-case basis and that support likely extends to any Ukraine cases, as the recent disclosure of the 2010 Office of Legal Counsel opinion broadly confirms. Nevertheless, U.S. law still bars certain types of critical law enforcement assistance and other types of cooperation, not to mention the provisions of funds or a clear pathway to finance U.S. support to the ICC. Recent reports suggesting that the Biden administration is working on a significant pivot on U.S. policy in relation to the ICC are welcome and long overdue. As the Ukraine conflict has made plain, the antiquated “zero sum” thinking of the U.S. Department of Defense and other cynics has grown increasingly untenable in global affairs.
Relatedly, Congress should adopt legislation prohibiting crimes against humanity, which has languished on Capitol Hill for more than a decade. Spurred by the atrocities in Ukraine, Senator Dick Durbin (D-IL) is reintroducing such legislation (as well as new provisions on war crimes) “in the coming days,” finally giving Congress the opportunity to fill a serious gap in U.S. law. Otherwise, if an individual involved in extermination, mass rape, or religious persecution in Ukraine or elsewhere wound up in the United States (having slipped through immigration), there is a good chance that the only option available to U.S. prosecutors would be charges of immigration fraud and deportation. Closing this loophole will finally ensure the United States will not be a safe haven for the perpetrators of atrocity crimes.
Conclusion
Advances in global justice did not suddenly stop with the establishment of the International Criminal Court in 1998. Progress has been made in filling normative gaps in international humanitarian law with the adoption of new treaties, including the Convention on Cluster Munitions, the Ottawa Convention on anti-personnel landmines, and the Treaty on the Prohibition of Nuclear Weapons. Likewise, the prospect of a new global treaty on crimes against humanity and an interstate cooperation treaty for Mutual Legal Assistance are positive developments, assuming the political will can be found to ensure their adoption. At the last meeting of the U.N. General Assembly’s Sixth Committee, an overwhelming majority of States that commented endeavored to take a new crimes against humanity treaty forward, but found themselves blocked by Russia and China, an unacceptable result.
Norms without institutional support, however, have little hope of enforcement. Just as the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda blazed a trail in the 1990’s for the creation of the ICC, peace-loving states should see the current crisis as a catalyst for action. They should seize the opportunity to enhance and strengthen the architecture of global justice, so that justice can succeed in Ukraine, as well as in other atrocity zones worldwide.