30 Jun Language Matters: The Role of the Presumption of Innocence in Seeking Justice During the Russia-Ukraine Conflict
[Michelle Coleman is a Lecturer in Law at the Hillary Rodham Clinton School of Law, Swansea University and the author of book The Presumption of Innocence in International Human Rights and Criminal Law (Routledge 2021).]
Language Matters: The Role of the Presumption of Innocence in Seeking Justice During the Russia-Ukraine Conflict
Since the beginning of the Russia-Ukraine war there have been calls for criminal accountability arising out of actions taken during the conflict. States, politicians, organisations, and individuals have made requests for investigation into international crimes, declarations that certain crimes have been committed, and declarations that specific people have committed atrocity crimes. While making these statements might be written off as political rhetoric, a demonstration that the situation is being taken seriously, or an indication that the world is watching, there is a risk that they can hinder future prosecutions.
Some statements made about criminality being committed in the armed conflict in Ukraine could violate the presumption of innocence of future defendants. The presumption of innocence is a fundamental human right that helps ensure that individuals accused of crimes receive fair and impartial trials that deliver justice. If the presumption of innocence is violated, even by a statement made before charges are brought against a person, the outcome of the trial can be dismissal. Thus, world leaders and other public authorities must use caution when discussing potential criminal liability for actions taken with the Russia-Ukraine conflict.
Statements Made Outside the Trial Context Can Violate the Presumption of Innocence
The presumption of innocence has both procedural and non-procedural aspects. The procedural aspect is what most people are familiar with – that a person cannot be found guilty of a crime unless the burden and standard of proof have been met – and has relevance inside the courtroom during trial. The non-procedural aspect however, has application inside and outside of the courtroom. The non-procedural aspect of the presumption of innocence protects those who have not been convicted of a criminal offence from being prejudged or punished in the absence of a guilty verdict. In essence, it means that a person cannot be treated as if they have committed a crime until have been convicted of the offences alleged against them.
Part of the non-procedural aspect includes how the alleged crime and suspected person are discussed. Statements of guilt by public authorities can violate the presumption of innocence in a future case even if the statement was made before charges were brought against the impugned individual. This is because when public authorities make a statement that a person is guilty of a crime it implies that the criminal proceedings against the accused have been pre-judged and that the outcome of the trial against them has already been determined.
It is, however, not just any comment about the accused or crime that will violate the presumption of innocence. Otherwise, it would be difficult to report on or discuss crime, to prosecute or defend cases, or even to let people know that someone has been victimized. Violations of the presumption of innocence by public comment are therefore limited to instances when a ‘public authority’ makes a ‘public statement of guilt’.
The European Court of Human Rights and the International Criminal Court have broadly defined the meaning of ‘public authority’. Not surprisingly those who are directly involved in the prosecution are included – judges, prosecutors, police, and investigators. However, public authorities are not limited to those who have a direct connection with the criminal case. For example, a member of the ICC Office of the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division was considered a public authority. In national jurisdictions public authorities include people who are legislators and those employed by the government. In international jurisdictions the term can extend to employees of the relevant international court, quasi-governmental authorities, and the United Nations, in addition to the people identified as public authorities within national jurisdictions.
A public statement of guilt is a statement made publicly (usually in a speech, press release, or media quote) that specifically says or implies that a particular individual is guilty of a criminal offence. An obvious statement would be something like ‘X committed war crimes.’ Statements that are couched as accusations or opinions are not specific enough to violate the presumption of innocence, which is part of why language including ‘alleged’, ‘accused’, and ‘suspected’ are often used when public officials discuss crime. Further, courts look to the context in which a statement was made to see if there is another way that the statement can be interpreted. For example, in Krause v Switzerland, the Swiss Chancellor stated that the Petra Krause ‘committed common law explosive offences and that she must accept responsibility for it’. This statement on its face seems to state specifically that Krause is guilty of the charges even though, at the time the statement was made, she had not been convicted. Taking the context and the whole statement into account, however, the European Commission on Human Rights found that there was no violation of the presumption of innocence because the whole of the statement could be interpreted as merely informing the public about the investigation and prosecution.
Finally, the right to the presumption of innocence is necessarily connected with criminal procedure. The right cannot be violated if the person is never formally charged with a criminal offence. Thus, the statement must specifically identify the crime that is eventually brought against the individual. An example of this can be found in the Mbarushimana Case at the International Criminal Court. There, the Prosecutor publicly referred to the defendant as a ‘genocidaire’. This clearly means that the Prosecutor has judged Mbarushimana to have committed genocide, a crime within the jurisdiction of the ICC, and very well could have been a violation of the presumption of innocence. However, the Pre-Trial Chamber found that the presumption of innocence was not violated because the statement did not imply a prejudgment as Mbarushimana had not been charged with genocide at the ICC or any other court.
If a statement is made that violates the presumption of innocence the consequences are serious — the criminal case brought against them may be dismissed or the conviction overturned. Following on from the Mbarushimana decision, in future trials, it is possible that the ICC Prosecutor may decide not to charge crimes that were included in a public statement of guilt. These results can be very unsatisfactory to our sense of justice as they prevent a full presentation and evaluation of the evidence and whatever the resulting judgment might have been.
What Does This Mean in the Russia-Ukraine Context?
Many of the statements made by public authorities about the armed conflict in Ukraine are not specific enough to rise to cause a violation in the presumption of innocence in a future trial. As discussed above, the statement must involve a specific person and a specific crime and must implicate that person as the perpetrator of that crime. Calls for investigations generally do not threaten the accused’s presumption of innocence. (For example here, here, and here.) In fact, these kinds of statements are usually necessary for all kinds of crime as awareness needs to be raised and proper authorities need to be notified that there may be need for investigation. Karim Khan, the Prosecutor of the International Criminal Court, is well aware of the requirements. His statements couch the situation in appropriate terms that inform the public about what his office is doing to investigate any alleged criminality and ask for support in those activities. They leave open the question of whether crimes have been committed at all and by which side to the conflict.
Other public statements are somewhat more specific by suggesting that evidence of war crimes exists or that specific types of behaviour constitute war crimes. These statements stop short of identifying individual suspects and instead focus on the fact that certain types of conduct has occurred. Statements of this sort will not be an issue for the non-procedural presumption of innocence at any later trial because the alleged criminal behaviour is not connected to any specific individuals. It is important to note, however, that a public authority saying that there is evidence of a crime or that a crime has been committed, cannot be taken as conclusive proof of the activity having taken place. The prosecutor would still have to prove what, if any, criminal activity occurred in a future trial, or a violation of the procedural aspect of the presumption of innocence may result.
More problematic than either of these types of statements are those that call specific people ‘war criminals’ or conclude how easy it would be to prove a conviction against them. In response to a Russian missile attack on a shopping mall, the G7 stated “We stand united with Ukraine in mourning the innocent victims of this brutal attack. Indiscriminate attacks on innocent civilians constitute a war crime. Russian President Putin and those responsible will be held to account.” Separately, several world leaders including US President Joe Biden and UK Prime Minister Boris Johnson have referred to Russian President Vladimir Putin as a ‘war criminal’. Biden, for example, said of Putin, ‘I think he is a war criminal’. The implication of this statement is clear, Biden has pre-judged Putin as being guilty of war crimes, even if his statement is couched as opinion. This conclusion is particularly reasonable as Biden has reiterated the point on several occasions. This may constitute a violation of the presumption of innocence and create a problem should Putin ever be tried for war crimes arising out of the Ukrainian invasion. Much would have to happen for that outcome to occur: Putin would have to be captured and put on trial, he would have to be charged with at least one war crime, and the court would have to interpret the context in which the statement was made. However, the possibility still exists, and if Putin were on trial for war crimes it is possible that the charges against him could be dismissed for Biden’s statement. The lesson that can be taken from this is that public authorities should not get used to discussing other potential perpetrators in such specific terms as it could stop future trials.
Ukrainian President Volodymyr Zelensky’s comments about Russian war crimes and genocide present a somewhat unique issue for the presumption of innocence. His role in the situation is complex as he is both a public authority and a victim of the situation. As a victim he can say what he wants, however, as a public authority his statements of guilt about individual Russians may violate their presumption of innocence. So far, this has not been an issue as he has avoided identifying specific suspects meaning his statements do not rise to the required level of specificity.
World leaders and other public authorities are obliged in their official capacity to publicly comment on a variety of different types of situations. This can be for several reasons: in furtherance of international relations and politics, to support victims, or to show that the world is monitoring the situation. There is a way those comments can be made, and those purposes achieved, without violating the presumption of innocence. Using words like ‘alleged’, ‘suspected’, or ‘possible’ does not diminish what has happened or imply that the situation is not being taken seriously, they only serve to leave the question of criminal liability open for the courts to decide.
Courts are loathe to find a violation of the presumption of innocence because of a public statement of guilt, but that does not mean that it is impossible. If we are serious about criminal prosecution for any international crimes that have been or may be committed during the conflict in Ukraine, caution must be used when talking about these incidents publicly. Making accusations and thinking about and discussing where individuals may be tried is fine within certain bounds. What is impermissible are statements that explicitly or implicitly indicate that a decision about an individual’s criminal responsibility has already been made. The language used in making accusations is important. When a statement of guilt is made by a public authority it can violate the presumption of innocence in a future trial. If this were to happen it would be frustrating to everyone as it could limit charges that can be brought or prevent trials from occurring at all.
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