International Institutions Mobilize to Impose Accountability on Russia and Individual Perpetrators of War Crimes and Other Abuses

Ukraine has turned to international institutions to hold Russia and Russian officials accountable for violations of international law. In the month following the invasion, Ukraine initiated proceedings in the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR), both of which have issued preliminary orders directing Russia to cease military action. The International Criminal Court (ICC) prosecutor has also opened an investigation into events in Ukraine. Other avenues for accountability include investigations opened by various international entities, as well as domestic legal processes in Ukraine and other countries. Mounting evidence of Russian wartime misconduct has ramped up calls for legal accountability, though the prospects for obtaining such redress remain uncertain.

Russia's 2014 annexation of Crimea led Ukraine to file a case against Russia in the ICJ alleging that Russia's instigation of an armed insurrection in eastern Ukraine violated the Terrorism Financing Convention and the Convention on the Elimination of All Forms of Racial Discrimination.¹ While that case remains pending, Ukraine has turned to the ICJ again, instituting proceedings against Russia on February 26 alleging that Russia is misinterpreting and misapplying the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.² To establish a dispute over the meaning of the convention as required for the ICJ to have jurisdiction, Ukraine argued that Russia and Ukraine “disagree on whether genocide,” as defined in the convention, “has occurred or is occurring in the Luhansk and Donetsk oblasts of Ukraine and whether Ukraine has committed genocide.”³ Ukraine “profoundly disagrees” with Russia's “unsubstantiated allegation” of genocide, and it argued that Russia has unlawfully used the allegation as a false pretext to justify unilateral military action in Ukraine.⁴

Russia declined to participate in the oral proceedings on Ukraine's request for preliminary measures, but filed a letter alleging that the ICJ lacked jurisdiction.⁵ The letter argued that although Russian President Vladimir Putin's speech on the “special military operation” in Ukraine mentioned genocide, it was not an invocation of the Genocide Convention, and that the legal basis for Russia's military operation is self-defense pursuant to Article 51 of the UN Charter and customary international law.⁶

Acting quickly, the ICJ issued an order on March 16 imposing provisional measures against Russia.⁷ Citing numerous statements and documents from Russian officials referring to the commission of genocide by Ukraine, the Court rejected Russia's assertion that it lacked jurisdiction. The Court concluded that “the evidence in the case file demonstrates prima facie that statements made by the Parties referred to the subject-matter of the Genocide Convention in a sufficiently clear way to allow Ukraine to invoke the compromissory clause in this instrument as a basis for the Court's jurisdiction.”⁸

Having found jurisdiction, the Court determined that Ukraine was entitled to provisional measures. The Court found that “it is doubtful that the [Genocide] Convention, in light of its object and purpose, authorizes a Contracting Party's unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.”⁹ Thus, Ukraine has a “plausible right not to be subjected to military operations” on the basis of an alleged genocide, and provisional measures are necessary to “prevent[] any action which may aggravate or extend the existing dispute.”¹⁰ The court also noted that “the civilian population affected by the present conflict is extremely vulnerable” and that Russia's conduct “has resulted in numerous civilian deaths and injuries.”¹¹ The court ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine” and to “ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of” such military operations.¹² The vote on both of these measures was thirteen in favor, with two judges—those from China and Russia—voting against.¹³ The Court unanimously ordered that “[b]oth Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”¹⁴

This final provisional measure addressed to both parties prompted a separate declaration by Judge Ad Hoc Yves Daudet, appointed by Ukraine, who noted that in his view “this measure of non-aggravation of the dispute should have been directed solely at the Russian Federation, which I recall was designated by the United Nations General Assembly as the perpetrator of aggression against Ukraine.”¹⁵

Ukrainian President Volodymyr Zelensky called the order a “complete victory,” “binding under international law,” and declared that “[i]gnoring the order will isolate Russia even further.”¹⁶ The U.S. State Department also welcomed the Court's “significant ruling” and “call[ed] on” Russia “to comply with the order, immediately cease its military operations in Ukraine, and … establish unhindered humanitarian access in Ukraine.”¹⁷ For its part, Russia rejected the order, saying “both sides ha[ve] to agree to end the hostilities for the ruling to be implemented.”¹⁸

Ukraine also turned to the European Court of Human Rights (ECtHR), requesting on February 28, 2022 that that court also impose interim measures against Russia.¹⁹ As parties to the European Convention on Human Rights, both Ukraine and Russia are subject to the jurisdiction of the court.²⁰ Ukraine sought urgent interim measures “in relation to ‘massive human rights violations being committed by the Russian troops in the course of the military aggression.’”²¹ On March 1, 2022, the ECtHR granted Ukraine's request, directing Russia

to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.²²

Additionally, the court received a “number of requests for interim measures” against Russia from individuals, including people taking refuge, fearing for their lives, and in need of “humanitarian assistance and safe evacuation.”²³ For these individual requests, the court directed Russia to “ensure unimpeded access of the civilian population to safe evacuation routes, healthcare, food and other essential supplies, rapid and unconstrained passage of humanitarian aid and movement of humanitarian workers.”²⁴ On March 16, Ukraine requested additional relief from the court, including a prohibition on nuclear, chemical, or biological weapons, a cessation of any plans to assassinate civilian leaders, and an indication to Russia that Ukrainian civilians should not be forcibly deported to Russia or Belarus.²⁵ On April 1, the court found that many of the requested measures were already covered by its previous findings, but it did expand its previous order to add that “evacuation routes should allow civilians to seek refuge in safer regions of Ukraine.”²⁶

Shortly after the ECtHR's decisions, Russia announced that it would withdraw from the Council of Europe and from the European Convention on Human Rights. Russia's relationship with the Council has been fraught since 2014. In response to Russia's annexation of Crimea, the Parliamentary Assembly of the Council of Europe (PACE) suspended Russia's voting rights,²⁷ reinstating them only in 2019 through a compromise worked out by Germany and France.²⁸ After the Council began a process to suspend Russia's rights of representation in response to the country's invasion of Ukraine,²⁹ Russia on March 15 “informed the Secretary General of its withdrawal from the Council of Europe in accordance with the Statute of the Council . . . and of its intention to denounce the European Convention on Human Rights.”³⁰ The next day, the Council of Europe's Committee of Ministers adopted a resolution determining that Russia “cease[s] to be a member of the Council.”³¹ Pursuant to the Convention's provisions, Russia will cease to be a party to the Convention on September 16, 2022, six months after its expulsion from the Council.³² The ECtHR has determined that it remains competent to deal with applications against Russia for violations of the Convention that occur until September 16, 2022.³³

The ICC prosecutor has also opened an investigation into events in Ukraine. Although neither Russia nor Ukraine are parties to the ICC's Rome Statute, Ukraine consented to the Court's jurisdiction over “alleged crimes under the Rome Statute occurring on its territory” from November 21, 2013, to February 22, 2014, and for crimes committed from February 20, 2014, onward.³⁴ Building on a preliminary examination of events in Ukraine since 2014 concluded by his predecessor, ICC Prosecutor Karim A.A. Khan announced on February 28 that he would proceed with opening an investigation, including “alleged war crimes and crimes against humanity . . . committed in Ukraine” since 2014 and during the current conflict.³⁵ Khan noted that the “next step” was to seek authorization from the ICC's Pre-Trial Chamber, but pointedly noted that “[a]n alternative route set out in the Statute that could further expedite matters would be for an ICC State Party to refer the situation to my Office, which would allow us to actively and immediately proceed with the Office's independent and objective investigations.”³⁶ The prosecutor quickly received referrals from multiple states parties, prompting him to announce on March 2 that he would “immediately proceed with active investigations” into “any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person” after November 21, 2013.³⁷

Although the ICC has jurisdiction over genocide, war crimes, crimes against humanity, and the crime of aggression,³⁸ its powers may be limited in the Ukraine case. For example, as the ICC prosecutor has explained, because “neither Ukraine nor the Russian Federation are State Parties to the Rome Statute, the Court cannot exercise jurisdiction over this alleged crime [of aggression] in this situation.”³⁹ This jurisdictional deficit could be cured if the UN Security Council were to refer the Ukraine situation to the ICC, but Russia would surely veto such an effort.⁴⁰ Moreover, because Russia is not party to the Rome Statute, it “has no legal duty to turn over its people for prosecution.”⁴¹ The ICC, however, could “issue international arrest warrants obliging members to arrest suspects who have been indicted by the court” if suspects leave Russia.⁴²

The ICC investigation poses challenges for U.S. policy.⁴³ The United States has long objected to the ICC exercising jurisdiction over the nationals of states that are not party to the Rome Statute, and only last year, the Biden administration lifted sanctions that the Trump administration had imposed on ICC staff to protest the ICC's investigation into conduct of U.S. personnel in Afghanistan.⁴⁴ Nonetheless, on March 15, 2022, the U.S. Senate adopted a resolution, with bipartisan support, “encourag[ing] member states to petition the ICC” to investigate war crimes committed by Russian troops.⁴⁵

The Biden administration has also suggested it will support the ICC's investigations into Russian crimes. After U.S. President Joseph R. Biden Jr. called Putin a “war criminal” in what appeared to be a “visceral reaction” to Zelensky's address to Congress,⁴⁶ U.S. Secretary of State Antony Blinken announced on March 23 that:

[B]ased on information currently available, the U.S. government assesses that members of Russia's forces have committed war crimes in Ukraine.

Our assessment is based on a careful review of available information from public and intelligence sources. As with any alleged crime, a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases. The U.S. government will continue to track reports of war crimes and will share information we gather with allies, partners, and international institutions and organizations, as appropriate. We are committed to pursuing accountability using every tool available, including criminal prosecutions.⁴⁷

While noting that as a non-party to the Rome Statute, the United States does not have any “affirmative cooperation duties” to the ICC, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, said that the United States is “considering all the various options for accountability.”⁴⁸ The Biden administration has subsequently pledged to “build a case for war crimes . . . at the International Criminal Court or another venue.”⁴⁹ Other states that are parties to the Rome Statute have been more proactive, including, for example, Canada, which has sent a “specialized team of . . . investigators to the [ICC] . . . to gather evidence of potential Russian war crimes.”⁵⁰

Individual states are also pursuing accountability through their domestic legal processes. Prominent among them is Ukraine itself. The Ukrainian government created a legal task force on accountability to advise “on proposals for accountability including through the United Nations and regional organisations; advice and potential representation relating to civil and criminal cases (including under universal jurisdiction laws) to secure accountability and reparations in national jurisdictions; and strategic guidance on Ukraine's cooperation with the International Criminal Court.”⁵¹

Other countries have also opened investigations. For example, by March 16, Poland's prosecution service had gathered more than three hundred witness statements “describing specific crimes and misdeeds that took place in connection with Russia's attack on Ukraine.”⁵² Using the principle of universal jurisdiction, Germany's federal prosecutor's office also opened an investigation and has “begun gathering evidence about possible deliberate attacks on Ukraine's civilian population and infrastructure by Russian invaders,”⁵³ and French prosecutors have initiated a war crimes probe to investigate attacks on civilians and other crimes.⁵⁴

There are also efforts to coordinate national investigations with the ICC. On April 25, Khan announced that the ICC would participate in a joint investigation team established by Ukraine, Lithuania, and Poland under the auspices of the EU Agency for Criminal Justice Cooperation (Eurojust), marking the first time that the ICC has participated in such a mechanism.⁵⁵ Estonia, Latvia, and Slovakia subsequently signed onto the joint investigation team as well.⁵⁶

Some commentators and government officials have proposed the adoption of a special tribunal to adjudicate claims against Russian officials. Led by former UK Prime Minister Gordon Brown, a group of professors and former international court officials, among others, called for the establishment of a “special tribunal for the punishment of the crime of aggression against Ukraine,”⁵⁷ an idea also endorsed by the Council of Europe's Parliamentary Assembly.⁵⁸ In an address to the UN Security Council, Ukrainian President Zelensky suggested the establishment of an independent tribunal, similar to the Nuremberg trials, with the mandate to try Russian military officials for war crimes in Ukraine.⁵⁹ An ad hoc tribunal would have the advantages of potential ability to prosecute the crime of aggression, unlike the ICC, and “would allow the United States . . . to sidestep the ICC and avoid accusations of hypocrisy.”⁶⁰ However, the UN Security Council, which created international criminal tribunals for conflicts in Rwanda and the former Yugoslavia in the 1990s, will likely be unable to create a new tribunal because of Russia's veto power.⁶¹

Various other international institutions have established mechanisms to investigate reports of Russian war crimes and human rights abuses that may feed into criminal prosecutions. On March 4, the UN Human Rights Council (HRC) established an independent international commission of inquiry, made up of three human rights experts appointed by the HRC president, to investigate and collect evidence of Russian human rights abuses.⁶² Russia's delegate to the Council rejected the commission,⁶³ and weeks later, the UN General Assembly suspended Russia from the HRC.⁶⁴

Similarly, Ukraine, supported by forty-five other states, invoked the so-called “Moscow Mechanism” of the Organization for Security and Co-operation in Europe (OSCE), which triggered the establishment of an expert mission to investigate reports of human rights abuses in Ukraine.⁶⁵ On April 12, 2022, the OSCE released the experts’ report, which “found clear patterns of” international humanitarian law (IHL) “violations by the Russian forces on many of the issues investigated,” including “in particular their conduct of hostilities.”⁶⁶ The experts concluded:

It is not conceivable that so many civilians would have been killed and injured and so many civilian objects, including houses, hospitals, cultural property, schools, multi-story residential buildings, administrative buildings, penitentiary institutions, police stations, water stations and electricity systems would have been damaged or destroyed if Russia had respected its IHL obligations in terms of distinction, proportionality and precautions in conducting hostilities in Ukraine. The conduct of the siege of Mariupol is an extreme example. Much of the conduct of Russian forces in parts of Ukraine it occupied before and after 24 February 2022, including through its proxies, the self-proclaimed “republics” of Donetsk and Luhansk, equally violates IHL of military occupation.⁶⁷

The experts expressed some concerns about Ukraine's actions, in particular “about the treatment of prisoners of war, originally considered criminals, and treated in ways that are incompatible with Geneva Convention III.”⁶⁸ The report also addressed human rights violations, noting that the experts found “credible evidence suggesting that such violations, concerning even the most fundamental human rights (right to life, prohibition of torture and other inhuman and degrading treatment and punishment), have been committed, mostly in the areas under the effective control of Russia.”⁶⁹ U.S. Ambassador to the OSCE Michael Carpenter said that “the report documents the catalogue of inhumanity perpetrated by Russia's forces in Ukraine” and that its findings will be shared with the ICC, national courts, and any others that have jurisdiction.⁷⁰ In June, OSCE member states again invoked the Moscow Mechanism, triggering the establishment of a second expert mission to build on the April report.⁷¹

Condemnations of Russia and concern for accountability measures have increased as evidence of war crimes and other atrocities has come to light. In addition to accusations of deliberately targeting civilians and civilian institutions,⁷² evidence has emerged suggesting that Russian occupying forces tortured and murdered individual civilians. After Russia retreated from areas around Kyiv in late March, atrocities committed by Russian forces in the nearby town of Bucha became evident.⁷³ Reports of violence include “evidence of torture before death, beheading and dismemberment, and the intentional burning of corpses.”⁷⁴ The Ukrainian government released footage showing hundreds of corpses “strewn” around Bucha after Russia's retreat, with some victims clearly bound and shot in the head.⁷⁵ French President Emmanuel Macron called the images from Bucha “unbearable,” and European Parliament President Roberta Metsola stated that they revealed the “cold reality of Putin's war crimes.”⁷⁶ Blinken called the images a “punch in the gut” and implored the international community not to “become numb to” or “normalize” such atrocities.⁷⁷ When the images from Bucha were released, Russia's Ministry of Defense denied responsibility and suggested that they were staged, despite considerable video and satellite evidence to the contrary.⁷⁸ Putin later “awarded honors . . . to an army brigade that Ukraine has accused of committing war crimes in Bucha.”⁷⁹

Russia is also alleged to be committing war crimes through its forcible deportation of Ukrainians into Russia.⁸⁰ Liudmyla Denisova, Ukraine's ombudswoman for human rights, estimated that about 33,000 residents of the city of Mariupol were forcibly taken across the border into Russia,⁸¹ and alleged more broadly that through March 25, “402,000 people, including 84,000 children, had been taken against their will to Russia.”⁸² Ukrainians have reportedly been “taken to camps where Russian forces checked their phones and documents, then redirected some . . . to remote cities in Russia.”⁸³ Referencing reports about forced deportations, U.S. Ambassador to the United Nations Linda Thomas-Greenfield stated that it would be “unconscionable for Russia to force Ukrainian citizens into Russia and put them in what will basically be concentration and prisoner camps.”⁸⁴ In May, the U.S. ambassador to the OSCE confirmed that “[t]he United States assesses that Russia's forces have relocated at least several thousand Ukrainians for processing in these ‘filtration camps,’ and evacuated at least tens of thousands more to Russia or Russia-controlled territory,” and he noted that “[f]rom Mariupol alone, we assess that Russia's forces have forcibly displaced thousands of civilians into Russian territory.”⁸⁵ Ukrainian officials are investigating forced deportation of children in particular “as they seek to build a genocide indictment.”⁸⁶

Many parties, both governmental and non-governmental, are working to preserve evidence of international crimes in Ukraine. Human Rights Watch, for example, has documented cases of Russian military “laws-of-war violations against civilians in occupied areas,” including instances of repeated rape, summary execution, and other unlawful violence occurring between February 27 and March 14, 2022.⁸⁷ The United States, EU, and United Kingdom have established an Atrocity Crimes Advisory Group to “directly support the efforts of the War Crimes Units of the Office of the Prosecutor General of Ukraine (OPG) to document, preserve, and analyze evidence of war crimes and other atrocities committed in Ukraine, with a view toward criminal prosecutions.”⁸⁸ In announcing the group, the State Department noted that “[a]lthough the United States and our partners are supporting a range of international efforts to pursue accountability for atrocities, the OPG will play a crucial role in ensuring that those responsible for war crimes and other atrocities are held accountable.”⁸⁹

Ukraine's prosecutor general, Iryna Venediktova, said in April that her office was investigating 5,800 cases of Russian war crimes and had identified more than “500 suspects . . . including Russian politicians, military personnel and propaganda agents.”⁹⁰ Weeks later, Venediktova reported that the number of war crimes investigations had risen to 13,000.⁹¹ In May, Venediktova announced that the first “handful of cases have now been filed or are ready to be submitted,” including cases against Russian soldiers in Ukrainian custody.⁹² The first trial began in Kyiv on May 13,⁹³ and concluded with a guilty plea.⁹⁴