Russia is waging an aggressive war against Ukraine, in violation of the rules of war. The enemy army is killing civilians, and obliterating entire cities with rocket and artillery strikes. Mariupol, Severodonetsk, Izyum and Soledar were almost completely destroyed by the invaders. The extent of the war crimes committed by Russians will be definitively understood only after the complete liberation of all the occupied territories. Currently, Ukrainian law enforcement officers are investigating more than 65,000 such crimes, and the number only includes what had been recorded during the full-scale aggression. Meanwhile, since 2014, up to 30,000 crimes related to the armed conflict have been registered.

In this article, we will tell you what war crimes are, why they are difficult to investigate, and why Ukraine is promoting the idea of creating a Special Tribunal for the Crime of Aggression.

What Are War Crimes?

A war crime is a serious violation of the provisions of international humanitarian law aimed at protecting the civilian population from the arbitrariness of war. The commission of such crimes is subject to criminal liability at the international and national levels. Their list is contained in Article 8 “War Crimes” of the Rome Statute of the International Criminal Court.

According to the mentioned document, war crimes include, among others, premeditated murder, torture or inhumane treatment, intentional infliction of severe suffering or bodily injury or damage to health, attacks on the civilian population, illegal deportation or displacement, destruction or damage to property, killing or wounding of combatants.

It is also a war crime to use prohibited weapons, including to attack civilian targets. Here we can provide examples of Mariupol, Severodonetsk and Soledar, where Russia used the tactics of “artillery rampart”, bombed and fired non-precision weapons. As a result, these cities were destroyed.

In addition to the definition of war crimes, the Rome Statute regulates the activities of the International Criminal Court (ICC), which is a permanent body and has the authority to exercise jurisdiction over persons suspected of atrocities affecting the world community. On March, 2, the ICC Prosecutor's Office announced the beginning of the investigation of war crimes, crimes against humanity, and genocide committed on the territory of Ukraine. However, this court is able to prosecute only the highest-ranking officials.

“When we talk about the jurisdiction of the ICC, we must understand that it is able to prosecute only “big fish”, that is, top officials. This court will not deal with individual combatants or other people who have committed war crimes on the territory of Ukraine. Therefore, investigations of the vast majority of war crimes and crimes against humanity are subject to national jurisdiction, and prosecution is carried out within the framework of national legislation,” explains Pavlo Romaniuk, Legal Adviser at Civil Network OPORA.

How is Ukraine Investigating War Crimes?

In Ukraine, responsibility for committing war crimes is provided for in Article 438 of the Criminal Code of Ukraine (CCU) — “Violation of the laws and customs of war”. According to it, war crimes are defined as cruel treatment of prisoners of war or civilians, expulsion of the civilian population for forced labor, plunder of national values in the occupied territory, the use of means of warfare prohibited by international law, other violations of the laws and customs of war provided for by international treaties ratified and made bound by the Verkhovna Rada, as well as the issuance of an order to commit such actions.

In 2019, a separate specialized department appeared at the Office of the Prosecutor General of Ukraine supporting investigations of war crimes. As of January, 31, the General Prosecutor's Office of Ukraine conducts procedural management of investigations into 65,141 war crimes. Among the highest profile cases, we can single out missile strikes on the civilian infrastructure of Ukraine. Thus, on January, 24, the General Prosecutor's Office of Ukraineindicted the commander of the 52nd Guards Heavy Bomber Aviation Regiment of the Russian Army.

According to the investigation, he gave criminal orders to attack peaceful Ukrainian cities. In particular, it was the order to launch a missile strike on Dnipro city on January, 14, this year, which killed 46 people. He also ordered the shelling of Kremenchuk (the Amstor shopping mall), and Serhiyivka in Odesa region with rockets, as a result of which 42 people were killed.

Russians who have committed war crimes in Ukraine will be severely punished. According to the Criminal Code, war crimes are punishable by imprisonment for a term of 8 to 12 years. However, if they are combined with premeditated murder, they are punishable by imprisonment for a term of 10 to 15 years, or life imprisonment.

As for the missile attacks on Dnipro, Kremenchuk, and Serhiyivka, the Prosecutor General's Office qualifies these actions as premeditated murder, so the responsibility for them may be the highest — life imprisonment.

However, it will be difficult to ensure that people who have committed war crimes are directly prosecuted in Ukraine. This is due to the fact that Ukrainian law enforcement officers do not have physical access to the vast majority of suspects because they do not stay on the territory of Ukraine. That is why such war criminals are prosecuted in absentia.

According to Pavlo Romaniuk, these people should still be held criminally liable under Ukrainian legislation. There is a legal and political component here. “The legal component is that we can apply a conviction in absentia here. This will allow Ukraine to include war criminals to the databases of Interpol and Europol. Then, we will be able to work to ensure that these people, if they cross the border with some European or other country, are extradited to Ukraine. For this, it may be necessary to conclude a number of interstate or multilateral agreements, for example, between the EU and Ukraine. This is necessary so that these people are extradited to Ukraine rather than returned to Russia," says OPORA's legal advisor.

Pavlo Romaniuk explains that the political component of responsibility is to limit the possibility of these people entering the territory of certain countries by including them in the sanctions lists. To do this, a person does not even have to be convicted of a war crime — it is enough to have information about their involvement in its commission.

Another problem is that it is very difficult to cope with the investigation of such a number of crimes, which keeps growing. That is why the expert community is now actively discussing the idea of strengthening the national system with an international element. This is a hybrid mechanism of justice, or, as it is also called, “special” mechanism.

Its objective is to involve foreigners with experience in the investigation of international crimes to the level of investigation or court. The introduction of this approach will contribute to increasing the legitimacy of the Ukrainian judicial process, the capacity of the Ukrainian law enforcement and judicial system, and will increase the trust of the international community for it.

In addition to war crimes, Ukrainian law enforcement officers also investigate crimes related to the propaganda of war (Art. 436 of the Criminal Code) and to planning, preparation, initiation and waging of a war of aggression (Art. 437 of the CCU). Together with war crimes, they belong to the group of crimes against peace, human security and international legal order.

The Prosecutor General's Office is currently investigating 45 such cases. Ukrainian legislation treats the propaganda of war as public calls for aggressive war or military conflict, as well as the production or distribution of materials with calls for such actions. Responsibility for this is corrective labor for a period of up to two years, arrest for a period of up to six months, or up to three years of imprisonment.

It is worth mentioning the “crimes of aggression” on a separate note. In the Criminal Code, this type of offense is enshrined in Article 437. Law enforcement officers are currently investigating 66 such crimes. The planning, preparation or initiationof an aggressive war or military conflict, as well as participation in a conspiracy aimed at committing such actions, is punishable by imprisonment for a term of 7 to 12 years. For the conduct of aggressive war or aggressive hostilities, imprisonment is provided for a period of 10 to 15 years.

However, there is no definition of crimes against humanity in Ukrainian legislation.

Why Do We Need a Special Tribunal to Punish the Top Leadership of Russia?

Vladimir Putin and the leaders of Russia can be prosecuted for the crime of aggression, rather than for war crimes, as they launched a full-scale war against Ukraine. According to Resolutions of the UN General Assembly No. 3314 "Definition of Aggression" dated December 14, 1974, aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other way incompatible with the UN Charter.

Also, the definition of the crime of aggression is contained in the Rome Statute: "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, by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations."

Pavlo Romaniuk explains that this crime is actually the “mother” of all other crimes identified in international criminal law. Crimes against humanity, genocide, and war crimes are always preceded by the crime of aggression. “This is the position of Ukraine, including the basis for advocacy. Our country is trying to prove to the world that Russia has launched an unprovoked aggressive war against Ukraine. And this aggression began not in 2022, but in 2014, when Russia occupied Crimea and part of the Donetsk and Luhansk regions of Ukraine. This way we want to prove that Russia has committed the crime of aggression,” the lawyer says.

As experience shows, Ukrainian diplomatic efforts yield results. On January, 24, the Parliamentary Assembly of the Council of Europe recognized that Russia's aggression against Ukraine began in 2014. "Since February 2014, the Russian Federation has been waging an aggressive war against Ukraine, which it resumed on February, 24, 2022, with a massive invasion of Ukraine," — it is said in the resolution. On January, 25, the European Court of Human Rights recognized that Russia had occupied part of the Donbas since May, 2014.

In addition, on January, 26, PACE adopted a resolution calling on member and observer countries of the Council of Europe to establish a special international tribunal in The Hague on the crime of aggression against Ukraine. The document emphasizes that unprovoked aggression against Ukraine is carried out by Russia and Belarus, and they are responsible for the atrocities committed in Ukraine (war crimes, crimes against humanity, and possible genocide).

The idea of creating a special international tribunal was also supported in the European Parliament. In addition, on January, 12, at an open debate of the UN Security Council, Deputy Minister of Foreign Affairs of Ukraine, Emine Dzhaparova, announced the submission to a vote in the UN General Assembly of a resolution on the establishment of a special tribunal for the crime of Russian aggression. “We call on all responsible states to support the resolution on the establishment of the tribunal, which we intend to submit to the General Assembly for consideration,” she said. On January, 26, in Prague, representatives of 20 countries got together at the meeting of the group on the creation of the Special Tribunal regarding the crime of Russian aggression against Ukraine. According to the Minister of Foreign Affairs of Ukraine, Dmytro Kuleba, the group's work was focused on ways to achieve justice.

According to Pavlo Romaniuk, in order to bring the top leadership of Russia and Belarus to justice for the crime of aggression, it is really necessary to create a special tribunal. This is due to the fact that the jurisdiction of the International Criminal Court over the “crime of aggression” is limited to the States parties to the Rome Statute.

Since neither Ukraine nor Russia as parties to the conflict have ratified the Rome Statute, the jurisdiction of the International Criminal Court does not currently apply to the crimes of Russia's aggression against Ukraine. In this regard, the ICC Prosecutor's Office is authorized to investigate all categories of international crimes that have occurred on the territory of Ukraine since November, 20, 2013 (crimes of genocide, crimes against humanity, and war crimes), except for the crime of aggression,” says OPORA's legal adviser.

In addition, according to the roving ambassador of the MFA of Ukraine, Anton Korynevych, Putin and Lukashenko cannot be prosecuted for the crime of aggression in the national courts of Ukraine due to the personal immunity of heads of state and heads of governments before the criminal jurisdiction of a foreign state. The ICC also cannot make decisions regarding crimes of aggression against Ukraine due to the jurisdictional limitations of the Rome Statute. Therefore, that is why Ukraine effectively suggests to establish a Special Tribunal because there is no mechanism available nowadays to prosecute perpetrators of the crime of aggression against Ukraine.

“That is why we believe that the Special Tribunal should be a tribunal only for this one type of crime. And only for the situation in Ukraine. We do not intend to invent any universal mechanism or to create any alternative practices. We do think that the ICC has primary responsibility for justice worldwide, when we talk about mass atrocity international crimes. Thus, one of our ideas is to create a special tribunal that would be complementary to the ICC, which would not interfere or create obstacles in the jurisdiction and work of the ICC. Instead, he will complement his important work with jurisdiction over the crime of aggression,” the diplomat said.

Meanwhile, some uphold a position where, as an alternative to the Special Tribunal, changes to the Rome Statute are suggested. In particular, those are the changes to the article on aggression. If we introduce retrospective punishment for the crime of aggression, as well as extend jurisdiction to states that have not ratified the Statute, then we do not need to build a new institution from scratch. For example, on December, 5, at the Assembly of the Rome Statute, Prosecutor of the ICC, Karim Khan, spoke about this. However, the approach raises certain concern calling for a difficult and long way to cover.