The Russian invasion of Ukraine is an international crisis. Although geographical neighbours, the superpower has been eyeing the prospect of invading Ukrainian soil for some years. In February and March 2014, Russian troops invaded and subsequently annexed the Crimean Peninsula from Ukraine, while Russian-backed separatists seized part of south-eastern Ukraine starting a war in the region of Donbas.

Since 2014, tensions have continued to mount, with Russian President, Vladimir Putin orchestrating a large-scale military stockpile on the country’s border with Ukraine while questioning the nation’s sovereignty. Announcing his launch of Russian forces, Putin accused Ukraine of being dominated by a Neo-Nazi regime responsible for persecuting Russian-speaking minorities and that the ordering of Russian troops into Ukraine was for the sake of ‘peacekeeping duties’. This is an accusation without basis and wholly denied by Ukrainian President, Volodymyr Zelenskyy, who was born to Jewish parents and who had family members perish in the Holocaust during World War II.

Matters further escalated on 21 February 2022 when Russia recognised part of Ukraine’s territory as two self-proclaimed states in Donbas – the Donetsk People's Republic and the Luhansk People's Republic – controlled by pro-Russian separatists and without recognition by any other state.

On 24 February 2022, Russia began a military invasion of Ukraine. Putin branded the invasion ‘a special military operation’, and the world watched as the Russian military undertook missile strikes well into the nation’s western territory and on the nation’s capital, Kyiv.

The Russian army was met with substantial Ukrainian military and civilian resistance and the conflict has resulted in a mass exodus of Ukrainians to neighbouring countries such as Moldova and EU member states, Poland, Slovakia, Hungary and Romania. According to UNHCR, the UN Refugee Agency, there have been over three million Ukrainians fleeing the country since the invasion began, resulting in the largest refugee crisis in Europe since the Second World War. The UN Refugee Agency High Commissioner, Filippo Grandi, says that the figures may be as high as ten million.

As sanctions against Russian individuals, organisations and vessels were issued by NATO countries against the Kremlin and its oligarchs, reports began appearing of widely civilian-populated areas, including a maternity ward and a children’s hospital in the south-eastern city of Mariupol, as having been deliberately targeted by Russian missiles. Ukraine accused Russia of ‘a war crime without jurisdiction’. The atrocities prompted an international outcry, calling for Putin to be held accountable.

Pictured above: Residential block destroyed by Russian Missile Strike in Kyiv, Ukraine - 19 Mar 2022. 

International intervention

On 26 February, Ukraine filed an application at the International Court of Justice to initiate proceedings against Russia under the Convention on the Prevention and Punishment of the Crime of Genocide.

On 28 February, the International Criminal Court’s (ICC’s) chief prosecutor, Karim Khan QC, signalled his intention to seek to open a formal enquiry.

Khan stated that the probe was initiated after 39 countries that are parties to the Rome Statute petitioned the ICC to begin an investigation (Albania, Australia, Austria, Belgium, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom).

The ICC has, since April 2014, been undertaking a preliminary examination, as a prelude to a full, formal investigation, into the situation in Ukraine.

It became clear that the investigations were going to delve further than the recent events leading to the invasion of Ukraine: ‘These referrals enable my Office to proceed with opening an investigation into the Situation in Ukraine from 21 November 2013 onwards,’ Khan said in a statement. Khan made clear that he is opening the investigation because ‘there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.’

The ICC is a permanent international criminal court based in The Hague. Its legal basis is the Rome Statute and it encompasses the four core crimes: genocide, crimes against humanity, war crimes and crimes of aggression. There are 123 ICC member states. Russia and Ukraine are omitted as they signed the statute but did not ratify it.

Doubts regarding the ICC’s jurisdiction to consider the conflict have been raised. Despite neither Ukraine nor Russia being state parties to the Rome statute, the ICC does have jurisdiction to investigate the conflict as Ukraine issued a declaration under Article 12(3) of the ICC Statute granting jurisdiction to the court:

‘If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.’

This was also the case for the investigation undertaken in 2014, where Ukraine had sought similar intervention by the ICC:

‘The preliminary examination of the situation in Ukraine was opened on 24 April 2014 on the basis of an initial ad hoc declaration lodged by the Government of Ukraine accepting the jurisdiction of the Court, which was subsequently extended by a second declaration by Ukraine, lodged in 2015, to encompass ongoing alleged crimes committed on the territory of Ukraine from 20 February 2014 onwards.’

Ukraine’s declaration for the ICC to undertake action, along with the support and further calls from the 39 state parties seeking the same, would appear to be sufficient to grant the ICC jurisdiction over the investigation.

Early stages

Opening an ICC investigation is only the beginning of a notoriously arduous process. Finding witnesses willing to assist in a prosecution, gathering evidence and locating and arresting defendants is a Herculean task.

The ICC does not hear trials in absentia, so getting Putin to the ICC – even if an arrest warrant was issued and his location known – would be a task in itself. As the ICC’s history has demonstrated, it’s unlikely that Putin will be arrested while he remains in power – this also having been the case for former Yugoslav leader, Slobodan Milošević and former Liberian leader, Charles Taylor. In contrast, should Putin travel to ICC signatory countries, arresting him on their territory may be more successful. But this, again, would seem unlikely as sanctions issued as a result of recent events prevent Putin from attending the territories of the states which are parties to the Rome Statute.

Once the investigation stage of the process has been completed, the ICC’s Office of the Prosecutor will collect and examine the evidence and gather statements from victims and witnesses. An added challenge is likely to be the nature in which refugees flee their countries under emergency circumstances, without verification of identity. Displacement of populations, separation of family members, the breakdown of the infrastructure of civilian record-keeping and the duration of the investigation will all have a significant impact on the quality and quantity of evidence obtained.

Additionally, perpetrators of international crimes are commonly integrated into a coordinated collective, such as an army, militia or police force. But even if sufficient evidence has been collected to issue an indictment, prosecuting those higher up in the chain of command is challenging. Obtaining evidence that determines a link between the act committed by military forces on the ground and the criminal responsibility of who has given the order is not always easy.

International criminal case law has developed to establish the principles of joint criminal enterprise in war crimes as provided for in the case of Tadić in 1999 (Tadić, Duško (IT-94-1)) heard at the International Criminal Tribunal for the Former Yugoslavia. (See Marston Danner, A., Joint Criminal Enterprise and Contemporary International Criminal Law, Proceedings of the Annual Meeting (American Society of International Law) Vol. 98 (March 31-April 3, 2004), pp186-189).) 

Although the ICC’s case law has evolved to make foot soldiers jointly criminally responsible for the actions of their commanders, the evidential burden remains vast. This was demonstrated in the situation in Uganda, where Dominic Ongwen, who was originally abducted by the Lord's Resistance Army (LRA) rebel group, led by Joseph Kony, when he was nine years old, eventually became a feared commander and convicted of crimes against humanity and war crimes (ICC-02/04-01/15).

Ad hoc tribunal

The UN Security Council may seek to establish an ad hoc tribunal to consider the situation in Ukraine, as was the case for the mass killings in Rwanda (International Criminal Tribunal for Rwanda (ICTR)) and the atrocities committed during the conflict in the former Yugoslavia (International Criminal Tribunal for the Former Yugoslavia (ICTY)). Similarly, special courts have been established to prosecute domestic and international crimes. The Extraordinary Chambers in the Courts of Cambodia dealt with the regime of the Khmer Rouge, the Special Court for Sierra Leone was established to address serious crimes against civilians and UN peacekeepers committed during the country's decade-long civil war, and the Kosovo Specialist Chambers and Specialist Prosecutor's Office dealt with war crimes which took place between 1 January 1998 and 31 December 2000.

The 39 states in support of the ICC opening an investigation into the conflict in Ukraine has certainly increased the chances of the perpetrators being brought to justice. But since the ICC’s announcement on 28 February, it doesn’t appear to have slowed or deterred the conflict, with airstrikes on a hospital in Mariupol having taken place on 9 March (pictured top).

The ICC’s role is one of seeking accountability rather than contributing directly to a resolution, so its role in bringing a ceasefire to the violence or peace to the conflict is incidental. Certainly, the ICC’s intervention has added to Putin’s isolation. The outcry from civilians, who have fled their war-torn cities in Ukraine, and peacekeeping institutions, should be sufficient to ensure that the ICC maintains a clear plan of action to ensure that all avenues are exhausted to hold those responsible to account.

This article is up to date as of 21 March 2022.

Pictured top: An expectant mother standing outside the maternity hospital damaged by shelling in Mariupol, Ukraine on 9 March 2022. She survived the shelling and later gave birth to a girl in another hospital.