High War Crimes Court of Ukraine for Atrocity Crimes in Ukraine

[Dean Michael Scharf is the Co-Founder of the Public International Law & Policy Group (PILPG) and the Co-Dean of the Case Western Reserve University School of Law. Dr. Paul R. Williams is the Co-Founder of the Public International Law & Policy Group (PILPG), Rebecca I. Grazier Professor in Law and International Relations at American University, and a world-renowned peace negotiation lawyer who has assisted over two dozen parties in major international peace negotiations. Dr. Yvonne Dutton is a Senior Legal Advisor at the Public International Law & Policy Group (PILPG), a Professor of Law at the Indiana University Robert H. McKinney School of Law, and a former federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York. Professor Milena Sterio is the Managing Director of the Public International Law & Policy Group (PILPG), the Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law, and heads PILPG’s Thought Leadership Initiative.]

Introduction

The International Criminal Court will prosecute a handful of high-level perpetrators of atrocity crimes committed in Ukraine, but does not have jurisdiction over the crime of aggression.  There are proposals to establish a hybrid international or regional tribunal to prosecute high-level Russians for the crime of aggression currently under discussion. Because these international mechanisms are designed to prosecute a small number of perpetrators, there is recognition that most of the perpetrators will need to be prosecuted by domestic courts in Ukraine.  

Although Ukraine has announced the investigation of atrocity crimes committed in its territory during the present conflict, atrocity crimes committed by foreign nationals are extremely difficult to prosecute effectively and fairly at the national level without international assistance.  This is especially true during or in the aftermath of an armed conflict.  In the past, a number of internationalized domestic tribunals have been created with international assistance, including the Bosnia War Crimes Chamber, the Kosovo Specialist Chambers, and the Iraqi High Tribunal. These mechanisms are characterized as “internationalized domestic tribunals.” 

Working with Ukrainian and international experts, including in particular the law firm Weil, Gotshal & Manges (Weil), the Public International Law & Policy Group (PILPG) has prepared draft legislation for a High War Crimes Court of Ukraine modeled on that creating the High Anti-Corruption Court of Ukraine, akin to structure for the domestic tribunal for aggression proposed by Owiso Owiso earlier this year, to prosecute atrocity crimes committed in Ukraine since November 2013.  Of course, such a mechanism could only be created with input from key stakeholders in Ukraine and approval by the Ukraine parliament. To facilitate further discussion of this proposal, PILPG and Weil, in partnership with Ukrainian legal experts, have prepared a discussion draft intended to inform the formulation of a domestic prosecutorial mechanism that will complement the efforts by existing domestic courts, the ICC, and any future hybrid international tribunal for the crime of aggression.  The draft has been finalized through a series of international working group meetings and is now publicly available.

The draft legislation includes several key features which are critical to its fair, efficient, and effective functioning.  Specifically, the High War Crimes Court for Ukraine would (1) be modeled on the existing High Anti-Corruption Court for Ukraine; (2)  have jurisdiction over both the core international crimes and related domestic crimes committed in Ukraine since November 2013; (3) have personal jurisdiction over foreign and Ukrainian nationals; (4) includes international advisors  in key investigatory, prosecutorial, and adjudicatory roles; and (5) be funded by both Ukraine and the international community.   This essay provides a justification for this initiative and discusses the main elements of the draft legislation.

Justification for a High War Crimes Court of Ukraine

It is true that various courts are already indicating their readiness to prosecute the atrocities being committed in Ukraine.  First, Ukraine is investigating crimes being committed in its territory and has pledged its intention to prosecute perpetrators.  There have already been a handful of convictions of Russian soldiers based on guilty pleas. Second, other states have also commenced investigations, with the intention of prosecuting perpetrators based on domestic legislation permitting the state to exercise universal jurisdiction over certain atrocity crimes.  Third, the International Criminal Court (ICC) has opened an investigation into the Ukraine situation and is cooperating with other states to investigate atrocities being committed in Ukraine.  Lastly, the UN General Assembly and others are exploring the creation of a special tribunal to prosecute the crime of aggression exclusively.  Despite all of these extremely valuable contributions to the cause of justice for victims in Ukraine, this post highlights why a High War Crimes Court is both necessary and desirable to address the crimes committed in Ukraine. 

First, a High War Crimes Court of Ukraine is necessary due to the extent of the crimes being committed in Ukraine being so vast that the existing accountability mechanisms are unlikely to have sufficient capacity and expertise to fairly and effectively try many of the perpetrators of atrocity crimes.  As for Ukraine, in 2021, the parliament adopted a bill (awaiting a final reading and presidential signature) to incorporate the core international crimes into its domestic legislation, giving it jurisdiction over those crimes as of the date of implementation.  There is no doubt Ukraine has general expertise and experience in investigating and adjudicating crimes of this nature.  However, the strain which would be placed on the domestic prosecution service to investigate and prosecute crimes of this scope and gravity is apparent, and will necessarily give rise to concerns over sufficiency of personnel, resources, and breadth of expertise in international criminal law.  Further, the prosecution of foreign nationals in ordinary Ukrainian courts in the context of an ongoing war will undoubtedly raise international concerns about fairness.

As to the states which intend to prosecute using universal jurisdiction–such as Lithuania, Spain, Sweden, Germany, and Poland–the reality is that they ultimately are likely to prosecute no more than a few cases each.  Universal jurisdiction is a useful tool, but not frequently used for various reasons, including the need to obtain jurisdiction over the accused who have not committed the crimes on the territory where they are being prosecuted.  Also, although they could prosecute without any nexus, states often mount universal jurisdiction prosecutions only where their nationals are victims, such as when the United States prosecuted Somali pirates for attacking an American vessel.  

Similarly, the ICC will not likely be able to prosecute more than a handful of perpetrators who have committed crimes in Ukraine.  Although Ukraine has accepted the ICC’s jurisdiction with respect to crimes in its territory since 2014, the ICC cannot prosecute the crime of aggression because Russia is not a party to the ICC Statute and its Aggression Amendment, and Russia will veto any effort by the Security Council to refer the crime of aggression relating to Ukraine to the ICC.  The ICC does have jurisdiction over the crimes of genocide, crimes against humanity, and war crimes committed in Ukraine since 2014 because Ukraine lodged a declaration accepting the ad hoc jurisdiction of the ICC from February 2014 onward.  This does not mean, though, that the ICC can prosecute every perpetrator of every crime committed in Ukraine since November 2013–or even since February 2022.  The ICC is intended to be a court of last resort that operates complementary to domestic prosecutions, rather than as the primary court to adjudicate atrocity crimes.  Thus, it was not designed to be solely responsible for the high number of alleged perpetrators of these crimes in Ukraine.  The Court’s mandate also helps to explain why the Court does not have the resources to prosecute every perpetrator of atrocities in Ukraine.  Indeed, the Court’s budget constraints are well-publicized, and it is because of those constraints that many states have recently stepped up to provide the ICC with money and personnel to aid in investigating atrocities being committed following the Russian invasion.  

A High War Crimes Court of Ukraine can fill this capacity gap.  With proper resources and funding, it can provide an important additional venue for prosecuting the large number of mid-level perpetrators who might otherwise escape justice.  PILPG proposes a High War Crimes Court, a domestic mechanism, modeled upon the High Anti-Corruption Court of Ukraine.  The High Court would have broad jurisdiction over both the core international crimes, as well as relevant domestic crimes to cover the kinds of crimes being perpetrated in Ukraine. And while it is intended to be a court to assist in the prosecution of mid-level offenders, it is not prohibited from prosecuting the crime of aggression, a leadership crime (though it would be precluded by the doctrine of head of state immunity from prosecuting Vladimir Putin).  Moreover, the precise contours of who is included in the leadership clause of the definition of the crime of aggression is unsettled.  The proposed High War Crimes Court will be available to prosecute these offenders should the need arise. Including both international and domestic personnel in key positions at the High War Crimes Court will help to close the capacity gap.  International personnel can assist by providing international criminal law expertise, while domestic personnel would add local knowledge about local laws and culture for a robust tribunal. 

Legitimacy 

A High War Crimes Court of Ukraine will bolster legitimacy to the accountability efforts for several reasons.  First, a High War Crimes Court incorporates the expertise of both the international community and local actors.  As a result, the domestic audience can be assured that any key decisions are made with input from Ukrainian experts.  Moreover, the international community is more likely to accept the outcomes of the proceedings as legitimate due to the presence of international personnel, which may shield the tribunal from claims of bias or other criticisms suggesting that justice is not being dispensed fairly.  Another benefit of international personnel with expertise is that they can share specialized professional knowledge with their domestic colleagues, helping to create a knowledge cascade.  Overall, past experience has demonstrated that the presence of personnel from the international community with expertise in international criminal law can positively impact the legitimacy of a tribunal.

This post also proposes funding the tribunal from both international and local sources to maximize legitimacy.  International funding from outside states creates political distance between financial backers and judicial operators, removing potential perceived bias or pressure to rule in favor of a particular funder and promotes judicial integrity.  This international funding stream, relying in part on voluntary contributions, was successful for other tribunals such as the ICTY, ICTR, SCSL, ECCC, and STL.  While some may negatively perceive such a funding system involving voluntary contributions because it may allow funders to exercise potential influence over proceedings, access to additional funding outside of a domestic bureaucracy can assist the tribunal to remain financially lucid.  The additional fixed funding from the Ukrainian government’s budget underscores the domestic ownership of the tribunal.  And the presence of an oversight board for external funding will ensure transparency.    

Creating a High War Crimes Court of Ukraine will necessarily involve effort and require resources.  However, as noted, this post proposes sharing the burden of this expense amongst various parties who are both interested in and affected by Russia’s aggression and the suffering caused as a result of the atrocity crimes being committed against innocent Ukrainians and other victims.  Further, the international community’s response thus far indicates a willingness to aid Ukraine in its fight against its Russian aggressors, including to hold perpetrators of atrocities accountable.  As discussed, the creation of a High War Crimes Court offers significant benefits that cannot be overlooked as Ukraine and the international community consider how to address the many crimes that are being committed in Ukraine. 

Elements of the Draft Legislation

Working with Ukrainian and international experts, including the law firm Weil, PILPG has prepared draft legislation for a High War Crimes Court of Ukraine modeled on that creating the High Anti-Corruption Court of Ukraine.  The draft is currently being further refined under the guidance of an expert working group consisting of Ukrainian and international lawyers.  The draft legislation highlights the aforementioned features, making it poised to be further tailored to the specific needs of Ukrainian lawmakers.  The input of domestic lawmakers and policymakers is critical to determine which features are the most beneficial and the extent to which they ought to be built. 

First, as written, this High War Crimes Court would have a mix of domestic and international personnel which should help to boost legitimacy with both domestic and international audiences, while remaining constitutional as it would not be an extraordinary court or special tribunal, otherwise prohibited under Article 125 of Ukraine’s Constitution.  Article 125 does not allow for extraordinary and special courts, but PILPG and Weil’s proposed law for a tribunal would operate wholly within the domestic Ukrainian judicial system, only adding the assistance of international experts for guidance.  Through the Verkhovna Rada’s passage of this law, Ukraine may have a similarly operating court to the High Anti-Corruption Court that is governed by Ukrainian law, but uniquely specialized, becoming a court of first instance for atrocity crimes.  The draft legislation creates a distinct judicial body with subject matter jurisdiction over atrocity crimes, those being the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, all of which are defined within the legislation as well as related crimes under the Criminal Code of Ukraine.  The Trial and Appeals Chambers will be composed of Ukrainian judges assisted by International Advisors, with international judges also permitted to be international observers.  The Chief Prosecutor would be Ukrainian, but ​​assisted by international experts on staff.  The draft follows the funding structure discussed above.  By dividing the funding between international and domestic sources in this way, PILPG attempts to combat anticipated arguments claiming bias and illegitimacy.   

Lastly, PILPG suggests locating the tribunal in Ukraine (unless there is a need to be elsewhere due to security concerns), which should allow the domestic audience and victims in Ukraine to participate in and follow proceedings.  This audience, therefore, might be more likely to view proceedings in the High War Crimes Court as more legitimate than they might view proceedings with which they may not be able to become as familiar due to distance and other cultural differences. After all, justice not only needs to be done, but also seen to be done.

Conclusion

Overall, to assist with the investigation and prosecution of alleged atrocity crimes, in light of the strain that such developments will place on a domestic prosecution service, and to balance the needs related to legitimacy, PILPG proposes a High War Crimes Court of Ukraine to the Ukrainian and international communities alike.  A High War Crimes Court of Ukraine can offer the international expertise needed to mitigate perceived local bias, while ensuring that the process does not lose local ownership and remains connected to those most affected by the conflict.  It also fills the looming accountability gap to eventually prosecute mid level offenders, as neither the ICC nor existing domestic judiciary will be able to in a timely manner.