Understanding International Justice for Atrocity Crimes in Ukraine

By Peggy McGuinness and Ezra N. Rash

Understanding International Justice for Atrocity Crimes in Ukraine

6.7.2022

By Peggy McGuinness and Ezra N. Rash

Understanding International Justice_675

In grainy security camera footage, men walk with their heads down across a damp suburban street, flanked by heavily armed Russian soldiers. In a second video, soldiers force the men to the ground. At least eight of the men will not be seen alive again. Instead, their dead bodies appear on drone footage, filmed a day later, two Russian soldiers standing nearby.[1] These are among the thousands of images splashed across every form of media platform that depict apparent atrocities carried out by Russian troops following Russia’s invasion of Ukraine in February 2022. Other reports include repeated Russian bombings of apartment buildings and other civilian infrastructure, such as the March 16 bombing of a theater in Mariupol sheltering families, an event that killed hundreds.[2] According to a May 18 report from Human Rights Watch, Russian forces in northeastern Ukraine “subjected civilians to summary executions, torture, and other grave abuses that are apparent war crimes.”[3]

As evidence mounts of atrocities in Ukraine, discussions have turned increasingly to questions of justice for the victims: Can anyone be held accountable for these crimes? What exactly do war crimes entail? Are these acts “crimes against humanity”? Do they constitute acts of genocide? How, where, and by whom can perpetrators be prosecuted? The answers to these questions can be found in international law; specifically, in the law governing armed conflict and atrocity crimes.

State and Individual Accountability Under International Law
International law regulates the conduct of states within the international system. Legal rights and obligations of states are created through (1) treaties, which reflect state consent to be bound by law, and (2) customary international law, which is based on state practice carried out with a sense of legal obligation. Some customary international legal rules are recognized as so fundamental that they are non-derogable; they cannot be suspended for any reason, including during times of war. These jus cogens, or peremptory norms include the prohibitions against genocide, torture, and crimes against humanity.

States in breach of their international law obligations may face a variety of consequences, including political and economic sanctions applied by other states, punitive actions within international organizations, and, if a state has consented, adjudication before an international arbitral tribunal or court. Lawful countermeasures taken against states may, in some circumstances, also include the defensive use of force.

Since February, Russia has faced multiple legal and political sanctions in response to its invasion of Ukraine, including expulsion from the Council of Europe,[4] European Union efforts to phase out importation of Russian crude oil, freezing the assets of Russia’s central bank, and the seizures of assets of individuals and Russian businesses by dozens of states around the globe.[5] However, there is no mechanism to prosecute a state for international crimes. And since Russia is a permanent member of the Security Council, it may, and has, used its veto to block any binding legal action against it at the United Nations.

Until the Allied prosecutions of German Nazi leadership at Nuremberg following World War II, individuals were generally not subject to direct legal responsibility under international law. Whether an individual was prosecuted for a violation of the laws of war was a decision within the discretion of the state in which the person was located. Today, international law distinguishes between the responsibility of states for breaches of their international obligations and the international criminal responsibility of individuals for breaches of international law.

The Nuremberg precedent established that international law may (1) define the content of criminal law applicable to individual conduct, and (2) create prosecutorial mechanisms and courts to hold individuals responsible for criminal violations of international law. Importantly, the Nuremberg tribunal recognized that, even if domestic law does not criminalize an act that constitutes a crime under international law, an individual may be held criminally liable under international law.[6] Individuals may be held liable under international law even if they acted as a head of state, as a government official or under orders from a superior.[7] These principles were invoked in the U.N. Security Council resolutions, which created the war crimes tribunals for the former Yugoslavia (1993) and Rwanda (1994)[8] and later formed the basis for the creation of the permanent International Criminal Court in 2002.[9] The central rationale of international criminal law is to eliminate individual impunity for the most offensive and universally condemned criminal acts and provide a mechanism for justice and redress for the victims and survivors of war crimes and atrocities.

Distinguishing Genocide, Crimes Against Humanity, War Crimes and the Crime of Aggression

Genocide, crimes against humanity and war crimes are each separate legally defined categories of international crimes with distinct elements. The collective term “atrocity crimes” is used to refer to all three crimes, in recognition of their status as “the most serious crimes against humankind.”[10] Together with the crime of aggression, these are the core international crimes, as defined in the ICC-Rome statute.[11]

Genocide
The legal definition of genocide is codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The convention exhaustively lists five prohibited acts: (1) killing members of the group, (2) causing serious bodily or mental harm to members of the group, (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (4) imposing measures intended to prevent births within the group, and (5) forcibly transferring children of the group to another group.[12] These acts may constitute genocide if “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”[13] It is the specific intent element – to cause physical destruction of a national, ethnical, racial or religious group – that makes genocide both unique and difficult to prosecute.[14] The destruction of nationality, as opposed to the systematic extermination of national populations, is not considered genocide. Thus, even though Russia has openly stated its intention to “destroy Ukrainian statehood and identity,” this is unlikely to constitute genocidal intent under international law.[15]

Crimes Against Humanity
The ICC-Rome Statute defines a crime against humanity as the commission of certain acts, such as murder, extermination, enslavement, deportation, torture, and rape and sexual violence “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[16] Isolated acts are therefore not considered crimes against humanity (but may nonetheless constitute war crimes, as discussed below). Moreover, Article 7(2)(a) of the ICC-Rome statute requires “a course of conduct involving the multiple commission of acts . . . pursuant to or in furtherance of a State or organizational policy to commit such attack.”[17] Unlike the crime of genocide, there is no requirement that crimes against humanity target a particular group, only that the victims be civilians. Additionally, there is no specific intent element to prove.

War Crimes
International Humanitarian Law, also called the law of armed conflict, laws of war or the jus in bello, regulates the conduct of states during war. The Hague Conventions of 1907, the Geneva Conventions of 1949 and their protocols of 1977, together with customary international law, provide the core legal principles of the International Humanitarian Law: distinction between combatants and civilians, proportionality of the force used and military necessity of the use of force and its targets.[18] The law provides special protection against targeting for non-combatants, including injured armed forces, prisoners of war, medical and religious personnel, humanitarian workers, civil defense staff and civilians.[19]

War crimes are defined in Article 8 of the ICC-Rome Statute as “grave breaches of the Geneva Conventions of 1949” or “other serious violations of the laws and customs applicable in international armed conflict” or applicable “in an armed conflict not of an international character.”[20] War crimes only occur in the context of armed conflict, unlike genocide and crimes against humanity. War crimes can be committed against combatants or non-combatants, whereas crimes against humanity are committed against civilian populations. Individual acts can constitute a war crime, which need not be widespread or systematic. Any grave breach of the 1949 Geneva Conventions or serious violation of international humanitarian law can qualify as a war crime.

A grave breach of the Geneva Conventions can be the willful killing of civilians, torture, willfully causing “great suffering, or serious injury to body or health,” and “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”[21] Conduct that involves the “breach of a rule protecting important values” can also be considered serious enough to rise to the level of a war crime.[22]

Aggression
The U.N. Charter prohibits a member state from the threat or use of force against the territorial integrity or political independence of another state, unless the use of force is taken in self-defense or under the authority of the Security Council. The prohibition on aggression thus constitutes a core commitment of all U.N. member states. The ICC-Rome Statute was amended in 2010 to include the crime of aggression within its jurisdiction.[23] Based on the precedent of the Allied powers prosecuting the crime of aggression (which was called “crimes against peace”) against individual defendants at Nuremberg, the ICC-Rome Statute defines the crime of aggression as 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 . . . constitutes a manifest violation of the Charter of the United Nations.”[24] The evidence appears clear that Russia invaded Ukraine in violation of the prohibition against aggression, raising the question whether any individual leaders can be held criminally liable.

Investigation and Prosecution of War Crimes: National and International
War crimes may be investigated and prosecuted on both the international and domestic level. In general, a state may only prosecute through domestic courts (civilian or military) those war crimes that occur on its territory or which are committed by its citizens or residents. A state may also invoke the principle of universal jurisdiction to pass laws that permit its government to investigate and prosecute war crimes that occur outside of its territory and which do not involve its citizens or residents. At the international level, states may invoke the jurisdiction of the ICC (for those states that have consented) or create special, ad hoc tribunals for prosecution of international crimes.[25] These mechanisms of international criminal law reflect the primacy afforded to national prosecutions through the principle of complementarity: international prosecutions generally only step in where domestic governments are unwilling or unable to prosecute.[26]

Investigations and Fact-finding
Official, formal investigations can occur on the national and international level, and are frequently supplemented by the unofficial work of journalists, non-governmental organizations and “citizen reporters” whose documentation through photos, videos and first-hand accounts provide important information for future prosecutions. At the international level, on March 4 the U.N. Human Rights Council created a Commission of Inquiry into the war in Ukraine “to investigate all alleged violations and abuses of human rights and violations of international humanitarian law.”[27] And the ICC Office of the Prosecutor launched a formal investigation into potential crimes in Ukraine on March 2.[28]

On the ground in Ukraine, much of the fact-finding is being accomplished by Ukrainian human rights groups who have been documenting violations since the 2014 Russian annexation of Crimea. These civil society efforts serve to support the Ukrainian government’s national prosecutions as well as international investigations. In addition, international human rights NGOs, like Human Rights Watch, have been documenting and reporting on potential war crimes. In April 2022, Human Rights Watch published a report documenting summary executions, rape and unlawful violence and threats of violence against civilians, and the looting of civilian property. All these acts constitute grave breaches of the 1949 Geneva Conventions. Investigations generally take months to years to be completed and include interviewing witnesses and collecting forensic, photo and video evidence. (We have included here a list of websites that are collecting information on war crimes and atrocity crimes in Ukraine.)

National Prosecutions
National law and national courts are the primary mechanisms for the prosecution of war crimes. Under the Geneva Conventions, states are required to try those within their jurisdiction who have allegedly committed grave breaches of the conventions, and under the ICC-Rome Statute it is “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”[29] In the United States, the Uniform Code of Military Justice and the War Crimes Act of 1996 make a grave breach of the Geneva Conventions a crime under domestic law – but only “where the person who commits such breach or the victim of such breach is a member of the U.S. armed forces or a U.S. national.”[30] A bipartisan bill introduced to the Senate on May 16, 2022 would expand jurisdiction to any offender “present in the United States, regardless of the nationality of the victim or offender.”[31] This adoption of universal jurisdiction would allow the United States to prosecute any individuals for war crimes committed anywhere in the world against any nationality.

International Prosecutions
The ICC is the only permanent international criminal court. It investigates and prosecutes war crimes and atrocity crimes. Over 120 countries have joined the treaty that created the ICC, though the United States, Russia and Ukraine have not. Even though Ukraine is not a party to the treaty establishing the ICC, the government made two declarations accepting the court’s jurisdiction over crimes committed on Ukrainian territory.[32]

State parties to the ICC are obligated to arrest and surrender indicted suspects for whom the ICC has issued international arrest warrants.[33] Cases can be brought against those who order or condone war crimes, even if they did not personally carry out the act. This “command responsibility” is determined by the overall control test – the defendant must have “a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping the group or providing operational support to it.”[34] It is highly unlikely that Russia will turn over any high-level officials to the ICC. Thus, chances are slight that Putin or his senior leadership will be held accountable for any war crimes – or other atrocity crimes – committed in Ukraine. Because of this difficulty, some legal experts are calling for an international tribunal to try those individual Russian leaders responsible for the blatant crime of aggression against Ukraine, just as Nazi party leaders were prosecuted at Nuremberg.[35]

Prosecutions in Ukraine
At the domestic level, as of late May, Ukraine’s prosecutor general had opened over 9,000 investigations into war crimes and crimes against humanity. Ukraine’s prosecutor formed a joint investigation team with prosecutors from Lithuania and Poland, participation from the ICC prosecutor and support from the EU’s Agency for Criminal Justice Cooperation. This investigation bridges domestic, regional and international bodies.[36] A Ukrainian court has already convicted one detained Russian soldier for war crimes under its domestic war crimes statute, for the killing of a 62-year-old civilian on Feb. 28, 2022.[37] The soldier told Ukrainian investigators that he was ordered to kill the man, who was riding on a bicycle and talking on a phone, so that the civilian would not report his location. The court found the soldier guilty of “violating the laws and customs of war” and of committing premeditated murder. He was sentenced to life in prison.

All national war crimes prosecutions must meet international human rights obligations for fair trials and full procedural due process, whether they occur in Ukraine, Russia or any other country or territory. The International Convention on Civil and Political Rights, to which both Ukraine and Russia are parties, provides a right to “a fair and public hearing.”[38] The 1949 Geneva Conventions and the ICC-Rome Statute also require fair trials, the denial of which is a war crime per se.[39] The international community’s response to the Russian invasion of Ukraine and the subsequent reports of atrocities emerging from Ukraine create an opportunity to strengthen the systems of international law that deliver justice for these offenses. Successfully delivering justice in Ukraine, however long it may take, can serve to reinforce the architecture of international criminal law – building support for justice mechanisms in other parts of the world in which atrocities have taken place or are continuing. As we rightly focus attention on the atrocities in Ukraine, the international community must also continue to pursue justice for victims of atrocities in other conflicts and across the globe.

Some organizations investigating atrocities committed in Ukraine:

Peggy McGuinness is professor of law and co-director of the Center for International and Comparative Law at St. John’s University School of Law and a member of the Executive Committee of the NYSBA International Section.

Ezra N. Rash is a third-year law student at St. John’s University School of Law, where he serves as a fellow at the Center for International and Comparative Law.


[1] These details are from video evidence and eyewitness accounts obtained by the New York Times in its weeks-long investigation into atrocities committed in Bucha, a Kyiv, Ukraine suburb occupied by Russian forces. Yousur Al Hlou et al., New Evidence Shows How Russian Soldiers Executed Men in Bucha, N.Y. Times, May 19, 2022, https://www.nytimes.com/2022/05/19/world/europe/russia-bucha-ukraine-executions.html.

[2] Loveday Morris & Anastacia Galouchka, Inside the Terror at Mariupol’s Bombed Theater: ‘I Heard Screams Constantly,’ Wash. Post, Mar. 25, 2022, https://www.washingtonpost.com/world/2022/03/25/ukraine-mariupol-theater-deaths.

[3] Ukraine: Executions, Torture During Russian Occupation: Apparent War Crimes in Kyiv, Chernihiv Regions, Human Rights Watch, May 18, 2022, https://www.hrw.org/news/2022/05/18/ukraine-executions-torture-during-russian-occupation.

[4] Raf Casert & Jean-Francois Badias, Council of Europe Expels Russia from Human Rights Body, AP, Mar. 16, 2022, https://apnews.com/article/russia-ukraine-europe-93fbcec1badeb3a33ed1c0b3a0fbab9e.

[5] What Sanctions Are Being Imposed on Russia over Ukraine Invasion?, BBC (last updated May 16, 2022), https://www.bbc.com/news/world-europe-60125659.

[6] United Nations, Yearbook of the International Law Commission 1950 Volume II para. 97 (1950).

[7] Id.

[8] See S.C. Res. 827 (May 25, 1993) (establishing the International Criminal Tribunal for the former Yugoslavia); S.C. Res. 955 (Nov. 8, 1994) (establishing the International Criminal Tribunal for Rwanda).

[9] Rome Statute of the International Criminal Court, preamble, July 17, 1998, 2187 U.N.T.S. 90 (hereinafter ICC-Rome Statute).

[10] United Nations, Framework of Analysis for Atrocity Crimes 1 (2014). Note that the term “atrocity crimes” also encompasses ethnic cleansing, even though this has not been legally defined within international law yet. Id.

[11] ICC-Rome Statute, supra note 9, at art. 5.

[12] Convention on the Prevention and Punishment of the Crime of Genocide, Article II, Dec. 9, 1948, 78 U.N.T.S. 277, S. Exec. Doc. O, 81-1.

[13] Id.

[14] United Nations, Definitions: Genocide, UN Office on Genocide Prevention and the Responsibility to Protect, https://www.un.org/en/genocideprevention/genocide.shtml (last visited May 20, 2022).

[15] A. Dirk Moses, The Ukraine Genocide Debate Reveals the Limits of International Law, Lawfare, May 16, 2022, https://www.lawfareblog.com/ukraine-genocide-debate-reveals-limits-international-law.

[16] ICC-Rome Statute, supra note 9, at. Art. 7(1).

[17] Id. at art. 7(2)(a).

[18] United Nations, Definitions: War Crimes, UN Office on Genocide Prevention and the Responsibility to Protect, https://www.un.org/en/genocideprevention/war-crimes.shtml (last visited May 20, 2022).

[19] See, e.g., ICC-Rome Statute, supra note 9, at art. 8(2)(e).

[20] ICC-Rome Statute, supra note 9, at art. 8(2)(c).

[21] ICC-Rome Statute, supra note 9, at art. 8(2)(a).

[22] Prosecutor v. Tadić, Case No. IT-94-1-l, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 94 (Int’l Crim. Trib. For the Former Yugoslavia Oct. 2, 1995).

[23] I.C.C. Res. RC/Res.6 (June 11, 2010).

[24] ICC-Rome Statute, supra note 9, at art. 8 bis (1). Crimes against peace were also prosecuted at the Tokyo tribunal. Charter for the International Military Tribunal for the Far East, art. 5, Jan. 19, 1946.

[25] See, e.g., S.C. Res. 1757 (May 30, 2007) (establishing the Special Tribunal for Lebanon); Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, June 6, 2003.

[26] See ICC-Rome Statute, supra note 9, at para. 10 of the Preamble.

[27] G.A. Res. 49/1, para. 11 (Mar. 4, 2022).

[28] Press Release, International Criminal Court, Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation (Mar. 2, 2022).

[29] Id. at para. 6 of the Preamble.

[30] War Crimes Act of 1996, 18 U.S. Code sec. 2401(b).

[31] Charlie Savage, Russian Atrocities Prompt Bipartisan Push To Expand U.S. War Crimes Law, N.Y. Times, May 17, 2022, https://www.nytimes.com/2022/05/16/us/senate-bill-war-crimes-ukraine.html.

[32] Id.; see also Jaime Lopez & Brady Worthington, The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications, Just Security, Mar. 10, 2022, https://www.lawfareblog.com/icc-investigates-situation-ukraine-jurisdiction-and-potential-implications.

[33] Marlise Simons, The International Criminal Court Prosecutor Fast-Tracks an Investigation of Possible War Crimes in Ukraine, N.Y. Times, Mar. 3, 2022, https://www.nytimes.com/2022/03/03/world/europe/war-crimes-russia-ukraine-icc.html.

[34] Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Confirmation of Charges, s.211 (Dec. 1, 2014).

[35] See Parliamentary Assembly of the Council of Europe, PACE Calls for an Ad Hoc International Criminal Tribunal To Hold To Account Perpetrators of the Crime of Aggression Against Ukraine, Council of Europe, Apr. 28, 2022, https://www.coe.int/en/web/portal/-/pace-calls-for-an-ad-hoc-international-criminal-tribunal-to-investigate-war-crimes-in-ukraine; Statement Calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine (last visited May 20, 2022), https://justice-for-ukraine.com/the-declaration.

[36] European Union Agency for Criminal Justice Cooperation, ICC Participates in Joint Investigation Team Supported by Eurojust on Alleged Core International Crimes in Ukraine, Eurojust, Apr. 25, 2022, https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes.

[37] Valerie Hopkins, A Ukrainian Court Convicts a Russian Soldier of War Crimes and Sentences Him to Life in Prison, N.Y. Times, May 23, 2022, https://www.nytimes.com/2022/05/23/world/europe/russian-soldier-war-crimes-guilty.html.

[38] International Covenant on Civil and Political Rights, art. 14, Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171.

[39] Geneva Convention Relative to the Treatment of Prisoners of War, art. 130, Aug. 12, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135; ICC-Rome Statute, supra note 9, at art. 8(2)(a)(vi).

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