ICC Rights Watch

Russian Departure from the European Council and EUCHR Leaves Behind Questions About How to Handle Cases

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

STRASBOURG, France – After Russia’s departure from the European Court of Human Rights (EUCHR), questions about how to handle cases pending before the Court and the alleged dilution of standards that initially allowed Russia to join the Court remain. 

 
Kremlin forces in Russian-occupied Donetsk drive tanks during a rehearsal for the Victory Day parade, marking the anniversary of the Soviet victory over Nazi Germany in WWII. Courtesy of Alexander Ermochenko and Reuters.
  

In 2002, the Court issued its first judgment against Russia to assist a Russian national conscripted to work on the Chernobyl nuclear plant disaster after brutal radiation exposure. But by 2012, 22,358 complaints had been filed against Russia. With a backlog of more than 120,000 cases, the Court was already facing a docket crisis, only exacerbated by Russia’s expulsion. In 2022, 2,129 judgments and decisions and 17,450 applications were pending against Russia.

The war in Ukraine only raised the count, and ECHR began publishing interim verdicts. Many view these procedural changes as undermining the Court’s ability to handle cases in its jurisdiction. That said, the interim ruling was the first international court to prove Russia’s occupation in Donbas since 2014 and considered the evidence from the occupied territories, including the downing of flight MH17 and actions by the Donetsk People’s Republic (DPR), Lugansk People’s Republic (LPR) and members of the Russian military.

But now, after the Russian exit, many question how the Court can handle the previously pending cases without jurisdiction, and these uncertainties are only exacerbated by Russia’s departure from the Council of Europe as well. Critics claim Russia was a thorn in both by weakening democratic standards in exchange for only mild internal reform in Russia. 

These tensions have pervaded since Russia considered membership in 1994. And since 2014 and the annexation of Crimea, the relationship has been a sour one, with Russia refusing to pay dues. When Ukraine filed complaints against Russia’s acts, Russia did not listen to the ensuing Court orders. In 2022, after the full-scale invasion, the Kremlin did not listen to the Court order to stop hostilities. This situation deeply challenges the assumption that it is better to include rogue actors in international legal associations. Since Russia backed out, it is unclear if inclusion led to more harm or good, but it is clear that the Council and associated court were not successful in spreading liberal democracy to Russia as it had hoped.

Russia’s departure has not stopped the Council of Europe from acting on behalf of its victims in Ukraine and previously in Georgia. A key issue in these deliberations is identifying and defining conflict borders, which looks largely at where each state has control of its territory. Relying on past Georgian precedent, the ECHR did not have the jurisdiction to define borders because the “fog of war” prevented recognition of control during active hostilities. But earlier this year, the ECHR was able to rule that Russia controlled the DPR and LPR territories as of 2014 and assigned responsibility for the MH17 flight among other acts. Despite this ruling and revelation of the DPR and LPR alignment with Russia, the Kremlin continues to deny involvement. The ECHR ruling was certainly a political win for Ukraine, confirming the invasion began in 2014, not February 2022. It debunked Russian claims about independent separatist movements justifying the invasion. Russia’s objection to the ECHR’s subject matter jurisdiction over complaints concerning armed conflict was also rejected.

For now, the ECHR is considering issues of extraterritorial jurisdiction. The ECHR is considering any exceptional circumstances including jurisdiction ratione loci and jurisdiction ratione personae. The ECHR will consider occupation and annexation of another’s territory, whether unlawful or lawful and state agent’s authority over individuals in the territory. This is a win for Ukraine in that it legally declares when the war began, extending it to eight years earlier. The question that now remains is how to address violations that occurred after September 16, 2022, when Russia left the ECHR. It will remain responsible for acts carried out before that date, but no one is expecting compliance in the near future. If it seeks to return one day, a different question will emerge, but until then, the ECHR seems to be limited temporally by which violations it can examine. 

 

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.



Court House News – One year after Russian expulsion from top European human rights body, Ukraine war rages on – 15 Sep. 2023

European Committee on Legal Co-operation – Supporting Ukraine in the execution of judgments of the European Court of Human Rights   

Atlantic Council – ECHR ruling confirms Russian invasion of Ukraine began in 2014 – 14 Feb. 2023

Gibson Dunn – Russia in the European Court of Human Rights – Recent Decisions May Impact Rights of Investors – 30 May 2023 

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024



Ukraine Revamps Constitutional Court System Amid Corruption Charges to Prosecute Russian Aggressors

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

KYIV, Ukraine – The Constitutional Court, Ukraine’s highest legal power, was in crisis before Russia’s invasion in 2022. Now the country, in the middle of armed conflict, must remake its legal institutions if it wants to prosecute Russian aggressors captured in its territory. 

 
The inside of Ukraine’s Constitutional Court House. Photo courtesy of Ukrainian Constitutional Court House website.
  

From judges with conflicts of interest to alleged presidential interference, to backtracking corruption efforts, Ukraine must find a way to rectify its courts quickly. After a series of failed judicial reform bills, President Zelensky reconvened the Commission on Legal Reform. During the initial days of the Russian invasion, the Constitutional Court delayed major rulings, but now the Court seeks to prosecute individual Russians and perhaps even Russia as a whole for the crime of aggression. 

While negotiations on an ad hoc tribunal for the crime of aggression have garnered the majority of the media attention, Ukrainian prosecutors have forged ahead and begun domestic investigations while the international community determines the crime of aggression question. The Ukrainian criminal code prohibits the crime of aggression under Article 437. This includes “‘the planning, preparation, initiation and conduct’ of aggressive war, as well as ‘participation in conspiracy aimed at commission’ of such actions.” The Ukrainian code does not require the prosecuted individual to be in a position of leadership, unlike the Rome statute so even ordinary fighters and soldiers can be found guilty of aggressively waging war and the associated actus reus. 

The first conviction of the crime of aggression in the Ukrainian courts happened in May 2022, when 21-year-old Russian tank commander, Vadim Shishimarin was jailed for life after shooting an unarmed civilian, 62-year-old Oleksandr Shelipov, a few days after the invasion began. By July 2022, Ukraine’s prosecutor-general, Iryna Venediktova, and her office were investigating more than 21,000 war crimes and crimes of aggression allegedly committed by Russian forces. By March 2023, at least 26 war crimes suspects had been convicted by Ukrainian courts.

Before Russia’s invasion, national courts rarely saw aggression cases. Now, prosecutors are beginning to align Article 437 of the Ukrainian criminal codes to a more narrow scope, similar to the Rome statute. In the past, legislative attempts to bring Article 437 up the Rome standard failed. These prosecutions offer an interesting case study, as they show legal advocates conforming the code to international standards when the legislation and courts themselves have deprioritized doing so. Even with the Office of the Prosecutor General of Ukraine (OPG) sending guidance on standardized prisoner of war (POW) immunity, prosecutors seemed to be conforming to international humanitarian norms on combatant immunity fairly seamlessly.

Despite its corruption crisis, in February of this year, the Court issued a decision on an Article 437 case. It clarified who could be found guilty of the crime of aggression, further aligning Ukraine with international standards, rather than the criminal code’s broad definition. When the decision was released, 99 criminal aggression cases were registered, including cases against typical defendants, like military commanders, foreign intelligence service workers, and high-level state officials, but also including 30 “instigators of war” such as Russian singers and university rectors. While many–if not most–of these will take place in absentia, whether the Court can successfully rule on an atypical defendant’s crime of aggression poses an interesting challenge for the Court.

Additionally, Ukraine’s domestic prosecutors have an important opportunity to set a precedent for how the crime of aggression could be handled at national levels. This could set customary international law norms in an area that has seen little activity in the past century, which could be key to protecting the right to life. It is interesting to note that the list of potential defendants does not include notable suspects in aggression cases like President Putin himself and other members of the Troika. The Court seems committed, at least right now, to preserving the immunity of the Troika before its courts. It seems generally accepted that these personal immunities cannot be surpassed at a national level and will need some kind of extraordinary judicial response. 

 

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Cites:

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

Harvard Ukrainian Research Institute- Ukraine’s Constitutional Court Crisis, Explained

Just Security –  Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, 



ICC Seeks to Prosecute a Military Mastermind

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – Since March of 2023, the ICC has sought to arrest Russian President Vladimir Putin and the Commissioner for Children’s Rights, Ms. Maria Lvova-Belova. However, as Russia is not an ICC signatory, it is unlikely that Putin or Lvova-Belova will be extradited for trial soon. 

 
President Vladimir Putin delivers a statement at the Kremlin in Moscow on July 5, 2024. Courtesy of Alexander Nemenov and Agence France-Presse.
  

Both are allegedly responsible for war crimes related to unlawful deportation and transportation of population, specifically children, from Russian-occupied areas of Ukraine as far back as 2022 in violation of Rome Statute Articles 8(2)(a)(vii) and 8(2)(b)(viii). Incidents identified by the prosecutor’s office include deporting children removed from orphanages and child care homes. Many of these children were allegedly given up for adoption in the Russian Federation, and Russian law was changed via presidential decree to expedite citizenship. These acts demonstrate an intention to remove these children from their home country permanently, which violates the Fourth Geneva Convention. Moscow has denied the allegations and called the warrants outrageous.

Pre-Trial Chamber II considered, based on the Prosecution’s applications in February 2023, that there were reasonable grounds to that each suspect may bear responsibility for the unlawful deportation of population and the unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, particularly in prejudice of Ukrainian children. The Court had evidence of individual criminal responsibility for both under Article 25(3)(a) of the Rome Statute and against Putin for failure to properly control civilian and military subordinates under Article 28(b). The warrants were considered in secret to protect the witnesses and investigation.

Prosecuting a military mastermind is no easy task and could undermine the Court; however, as the crimes addressed are allegedly ongoing, there is some hope that despite the unlikelihood of extradition, public awareness of the warrants may prevent further crimes. The Chamber considered this to be in the interest of justice and allowed the Registry to publicize the warrants’ existence, the suspect’s names, the warrants’ crimes, and the modes of liability the Chamber established.

The UN Commission of Inquiry of Ukraine found that Russian authorities took over 16,200 children out of Ukraine into Russia. The same Commission found evidence of rapes, torture, and killings, and has been investigating as far back as 2013 before the illegal annexation of Crimea. While the ICC can bring a prosecution against political leaders for waging an aggressive war, the Court seems to be focusing on civilian and children’s rights for now. Additionally, while the warrants recognize these acts as war crimes, commentators are making the case that the conduct also constitutes genocide and crimes against humanity. The decision to pursue these as war crimes may be an indication of evidence related to intent. With both the alleged crimes and evidence collection ongoing, the charges may be amended.

The Court has no power of enforcement instead relying on the 124 nations that are signatories to the Rome Statute to arrest those indicted of war crimes or crimes against humanity if they visit their territories. And yet, the Court issued the warrants. The decision to pursue charges against Putin sends a strong signal to low-level perpetrators that none are immune from prosecution and may serve as a deterrent. Plus, while Putin is not the first sitting head of state to be indicted, he is the first leader of a P5 country to be indicted. The ICC arrest warrants have impacted Putin internationally. He did not attend the BRICS summit in August 2023 in South Africa. Besides hindering potential international travel for Putin, the warrants make meeting with Putin less appealing. The stakes for engaging with Putin are becoming increasingly high for foreign governments. Combined with sanctions, the ICC warrants make it harder to ignore Russian actions in Ukraine and the brutality of its war. Even as many celebrate the ICC’s announcement, the Ukrainian government and like-minded partners continue to press for international support for the establishment of the tribunal to hold Russia accountable for the full breadth of crimes committed, specifically the crime of aggression.



This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

United States Institute of Peace – How the ICC’s Warrant for Putin Could Impact the Ukraine War – 23 March 2023

ICC – Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova – 17 March 2023

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 March 2023

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Foreign Affairs – Would Prosecuting Russia Prolong the War in Ukraine? – 12 July 2023



International Community Calls for a New Court to Prosecute the Crime of Aggression

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

Shortly after Russia launched its unlawful, full-scale invasion of Ukraine in February 2022, many began advocating for a new tribunal to prosecute Russian leadership for the crime of aggression. With 30 core states discussing the creation of a new adjudicative body, proponents are pushing for a way to address Russia’s breach of the international order and create deterrence in the future. 

 
A woman mourns at her son’s grave after he died fighting in the war on Ukrainian Independence Day in Kharkiv, Ukraine. Courtesy of Bram Janssen and Associated Press.
  

First recognized by the International Tribunal at Nuremberg, the crime of aggression, as defined by Article 2(4) of the UN Charter, prohibits the use of force, barring narrow exceptions. It imposes criminal liability on those in violation. Largely dormant throughout the Cold War, the International Criminal Court’s (ICC) Rome Statute sought to bring the crime under its jurisdiction but controversy at the time has left both the definition and activation apparently in limbo. Even with the additional Kampala amendments created in 2018 after the atrocities in Uganda, the grey zone remains. This has led many to call for a separate tribunal, akin to the one established at Nuremberg, to handle aggression cases stemming from the Russo-Ukrainian War. Beyond WWII, cases prosecuting aggression are scant. The UN Security Council set up courts to try the perpetrators of atrocities in Yugoslavia and Rwanda in the 90’s but with Russia as a permanent member, this is not a viable option. 

Further bolstering their demands, the Rome Statute has a major loophole: only parties to the Rome Statute fall under ICC jurisdiction. This means Russia, a non-party, cannot be tried by the Court currently. Additionally, domestic courts afford many members of The Russian Troika, including Putin, immunity. Coupled with the lack of precedent for prosecuting this crime generally, the ad hoc tribunal is becoming more compelling. 

Three major legal solutions have emerged. The first is a multilateral treaty between Ukraine and willing states, similar to the International Military Tribunal at Nuremberg. The second is a Ukraine-UN tribunal created via resolution. The last is a domestic-international hybrid chamber based in Ukraine. The first two circumvent the troika prosecution problem, and the deputy head of Ukraine’s Presidential Office has rejected the third option as unconstitutional. Many are opposed to a tribunal that would present the crime of aggression as something bilateral, between Ukraine and Russia alone, but much of this hinges on the level of international participation.

Because the crime of aggression carries a unique gravity, many are advocating for a clearly defined and replicable solution to serve a deterrent effect. In the meantime, many efforts to gather and preserve evidence of aggression are ongoing. EU member states have already agreed to support establishing a Centre for Prosecution in the Hague with American endorsement. This staggered approach has come with benefits already. As “the mother of all crimes”, whatever option the world chooses will likely become precedent in the future, further complicating the matter. As worries of selective justice and tribunal legitimacy continue, how to prosecute the crime of aggression is a legal question we may finally get an answer to; however, it will also be impossible to separate these two nations’ complex, centuries-long history without prosecution, definition, and resolution. As accountability efforts continue, Ukraine must determine which normative expectations it seeks to abide by and consider negotiating the Rome Statute and Kampala Amendments or developing a tribunal system prepared to adjudicate over the troika.

 

Note: This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023



ICC Office of the Prosecutor Launches New Policy to Bolster Principles of Complementarity and Cooperation

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On April 25, 2024, in accordance with several new policies released recently, the International Criminal Court (ICC) Office of the Prosecutor launched a new Policy on Complementarity and Cooperation. The Policy is the product of a global consultation process that began in October of last year that engaged States parties, civic society, academic institutions, and affected communities.

 
ICC Prosecutor Karim A.A. Khan during a visit to Bangladesh. | Photo courtesy of ICC.
  

The goal of the Policy is to fortify the ICC’s application of the Rome Statute’s principles of complementarity and cooperation. The principle of complementarity calls for collaboration between national criminal jurisdictions and the ICC. In essence, while states have primary authority to investigate and prosecute international crimes, the ICC may step in on a case-by-case basis to ensure that these crimes are justly addressed.

The new Policy is aimed toward strengthening the ICC’s relationship with other criminal jurisdictions to serve the ultimate goal of investigating and prosecuting global atrocities. To effectuate this, the Policy proposes a two-track strategy that will promote cooperation and partnership with states as well as frequent complementary action, while remaining faithful to the ICC’s mandate to independently and impartially handle Rome Statute crimes.

This approach reflects the important balance the ICC seeks to maintain between its duties and that of other jurisdictions. If this equilibrium is disrupted, however, the principle of complementarity, which is bolstered by this new Policy, allows the ICC to take action. This notion is forthright in the body of the Policy which states, “if States step up, the Office will step out. But equally, the reverse is also true. If states do not step up, the Office will not hesitate to fulfill its mandate.”

The Policy, which is referred to as a “renewed partnership for accountability,” suggests four pillars for enhanced cooperation and complementarity: (1) creating a community of practice, (2) technology as an accelerant, (3) bringing justice closer to communities, and (4) harnessing cooperation mechanisms.

Each of the new ICC policies launched in recent months have put victims and survivors of crimes at the forefront, and this one is no exception. The Deputy Prosecutor, Mame Mandiaye Niang, expressed that the Policy’s partnership-centered approach stands to deliver more for victims by way of further increased vigilance to global atrocities.

To aid in the implementation of the Policy, the Office of the Prosecutor has established a trust fund specifically dedicated to complementarity and cooperation. Contributions to this fund will support complementarity activities, such as providing information and assistance to national authorities in the implementation of their Rome Statute obligations. Further methods of deepening the ICC’s relationships with other jurisdictions will be supported by the trust fund as well, including a Complementarity and Cooperation Forum and other accountability efforts.

For Further Information, please see:

ICC – ICC Office of the Prosecutor launches policy on Complementarity and Cooperation – 25 Apr. 2024

ICC – Policy on Complementarity and Cooperation – Apr. 2024

Legal Information Institute – Complementarity defined – ND