7 March 2022
by Kirill Koroteev, head of international practice at Agora International Human Rights Group
Source: Pavel Chikov, Telegram
In connection with the international armed conflict between Russia and Ukraine (as defined by the 1949 Geneva Convention), a number of trials and procedures have been launched on the international level. Kirill Koroteev, head of international legal practice at Agora International Human Rights Group, explains what is happening and where. News updates will be published as information becomes available.
In the United Nations, its organs and its organizations:
1. The UN Security Council was unable to pass any decisions inasmuch as they were all blocked by the veto of Russia, as a permanent member.
2. The General Assembly met for a special session and approved a resolution condemning Russia’s actions as aggression and demanding the immediate cessation of military actions. However, unlike Security Council resolutions, General Assembly resolutions are not binding (although the Russian Supreme Court has recognized them as universally recognized provisions of international law, binding in Russia by force of Article 15, Part 4, of the Russian Constitution).
3. Right now, at the UN International Court of Justice in the Hague, there are two Ukraine vs Russia cases:
— Ukraine vs Russia (application of the Conventions on the Elimination of Racial Discrimination and on Financial Terrorism) concerns the events of 2014: the status of Crimean Tatars and ethnic Ukrainians on the Crimean peninsula, as well as Ukraine’s assertions of Russia’s support for military actions in the DPR/LPR [Donetsk People’s Republic/Luhansk People’s Republic].
— Ukraine has filed a new case against Russia on the application of the Genocide Convention. Ukraine asserts that Russia is interpreting the concept of genocide incorrectly, using it unlawfully as grounds for the use of force against Ukraine. On 6 and 7 March, there will be oral hearings on the application of urgent measures in this case.
The UN International Court of Justice considers states’ disputes with each other as to whether given international treaties in force between these states have been violated. Usually, this requires the consent of the state-respondent to consideration of the case, but under several treaties Russia has recognized the International Court’s jurisdiction to consider cases against it.
4. The International Atomic Energy Agency (IAEA) regularly calls on Russia for restraint, inasmuch as the conflicts are taking place in close proximity to nuclear power stations whose safety is of concern to the IAEA. The leadership is in constant contact with the Russian and Ukrainian authorities.
A few years ago, Ukraine recognized the ICC’s jurisdiction not only regarding events in the Donbass but in general over the country’s entire territory. For a long time this situation was at the “pre-investigation review” stage, but the statement recognizing its jurisdiction allowed the Prosecutor to begin an investigation on his own initiative. This would have required the consent of the ICC judges.
However, three dozen states have appealed to the Prosecutor to investigate recent events on Ukrainian territory. Inasmuch as the Prosecutor now has an appeal from these states, he is no longer acting on his own initiative and has begun a full-fledged investigation.
With respect to the Russian army’s actions in Ukraine, the ICC can consider cases regarding three types of crimes: 1. war crimes, 2. crimes against humanity, 3. genocide.
The definitions of these concepts are set forth in the Court’s Statute (https://www.un.org/) and among other items include the killing of civilians, intentional attacks on individual noncombatant civilians, large-scale destruction and seizure of property not provoked by military necessity, and so on.
Within the investigation’s framework, the Court will also be assessing the actions of Ukraine’s armed forces.
The ICC is a criminal court, therefore trials are always held in the defendant’s presence. This creates objective obstacles. Therefore, for example, despite the investigation into the 2008 events in Georgia, not a single defendant has yet shown up in the Hague. Although Russia did not ratify the ICC Statute, its citizens may be brought before the Court if they have committed crimes on the territory of countries that do recognize the Court’s jurisdiction.
The Committee of Ministers of the Council of Europe has barred Russia’s participation in the Committee itself, in the Parliamentary Assembly, and in the Congress of regional and local authorities of the Council of Europe for its violation of the organization’s fundamental principles. Russia remains a member of the Council of Europe with obligations to pay dues and observe the European Convention on Human Rights and the decisions of the European Court, but without the right to vote in political bodies.
The Parliamentary Assembly is gathering for an emergency session on 14-15 March to discuss the situation in Ukraine.
The European Court of Human Rights [ECtHR] is awaiting consideration of several complaints by Ukraine against Russia regarding events in Crimea and the Donbass, as well as the Netherlands’ complaint against Russia for the downed Boeing MH17. The complaint regarding Crimea was deemed admissible, and the complaints on the Donbass and Boeing have been through hearings but there has yet to be a decision. In addition, there are thousands of individual complaints regarding these events up for the Court’s consideration. In January 2022, a large package of more than 400 such cases was communicated to the Russian authorities.
A new intergovernmental complaint has been submitted regarding the events of February-March 2022, as have many individual complaints. With respect to all these complaints, the president of the ECtHR Robert Spano has ordered Russia, in an emergency measure, to refrain from strikes against civilians and civilian structures and not to impede civilians’ access to food and medicine.
Translated by Marian Schwartz