Overfocusing on Prosecuting Aggression Risks Impunity for Ukraine’s Swelling Dock of Alleged War Criminals

[Mischa Gureghian Hall (X: @MischaGHall) is a Keck Research Fellow at the University of California, Los Angeles, researching international criminal justice and its intersections with international humanitarian and human rights law in conflict and post-conflict settings.]

The author is grateful to Dr. Jared McBride for his assistance in the translation of Ukrainian documents.

In an August 2023 essay, Russian-American journalist and activist Masha Gessen, making reference to Hannah Arendt’s notable 1946 letter to Karl Jaspers, wrote that “Russian atrocities in Ukraine explode the human ability to digest, legally and emotionally, the gratuitous nature of the crimes and their literally unimaginable number.” But in international legal circles, this sheer magnitude and empirically formidable criminality has become increasingly occluded by preoccupation with the prosecution of a singular offense, to the neglect of others. The oft-cited dictum of the International Military Tribunal (IMT) that the crime against peace, what we know today as the crime of aggression, constitutes the “supreme international crime” appears to be exerting a powerful—but perhaps harmful—rhetorical effect on the discourse surrounding international criminal justice in Ukraine. Discussion in Opinio Juris and other forums has overwhelmingly centered on comparative analysis of the jurisdictional immunities President Vladimir Putin and other high-ranking Russian officials may enjoy in a hypothetical trial for the crime of aggression before the International Criminal Court (ICC), an internationalized Special Tribunal for Aggression, or a ‘hybrid’ domestic court (see reviews of potential mechanisms by Tom Dannenbaum and Kevin Jon Heller). But as Heller highlighted in a recent post on this blog, such discussion presupposes that Putin is tried for aggression while still in office, a supremely improbable situation, absent a questionably legitimate model of in absentia trials, perhaps following the problematic example of the Special Tribunal for Lebanon.

It would appear that mainstream expert discourse on international criminal justice in Ukraine is largely wrapped up in hypotheticals, resulting in an oversaturated discussion of the crime of aggression and insufficient focus on other international crimes that are punctuating the conflict. This is not to detract from the gravity of aggression as an international crime and a cardinal threat to international peace and security. Russia’s aggressive war undermines the basic principles of the post-Second World War international order and demands its perpetrators be brought to justice. However, when discussing the need for accountability, aggression is necessarily concerned with proverbial ‘big fish.’ Article 8 bis (1) of the Rome Statute provides that the crime of aggression can only be perpetrated “by a person in a position effectively to exercise control over or to direct the political or military action of a State.” This ‘leadership requirement’ was articulated in the High Command case, where the U.S. Military Tribunal observed that the perpetrator of a crime against peace must be “in a position to shape or influence the policy that brings about [an aggressive war’s] initiation or its continuance after initiation, either by furthering, or by hindering or preventing it” (p. 488). The International Law Commission reiterated this ratione personae requirement of aggression in Article 16 of its 1996 Draft Code of Crimes.

A Rapidly Expanding War Crimes Docket

The crucial implication of the ‘leadership requirement’ is that no Russian officials who would satisfy this sui generis element of aggression will stand before any tribunal—international, hybrid, or otherwise—any time in the near future. Rather, the international community must turn its attention to the serious issue of the ever-expanding dock of Russian prisoners of war in Ukrainian custody accused of war crimes. While the ICC has made headlines for the Prosecutor’s bold issuance of an arrest warrant against President Putin, which has already made the Russian despot’s world significantly smaller, the Court’s limited resources and system of complementary jurisdiction make it suited to try only individuals most responsible for widespread atrocity crimes in Ukraine. Moreover, the Regulations of the ICC Office of the Prosecutor (Regulation 34), as supplemented by a 2016 Policy Paper (para. 42), specify that it shall direct its investigations towards pursuing accountability for those “most responsible” of international crimes in a given situation. This leaves a considerable accountability gap for violations of international humanitarian law in Ukraine committed by low-ranking soldiers and mid-level commanders. Addressing this dearth of responsibility and preventing impunity for all international crimes—not only aggression—must be the core mission of the international community with regard to criminal justice for atrocity crimes in Ukraine.

According to statistics published by the Office of the Prosecutor General of Ukraine (Table 1.21, Line 10), in the year of 2022, a total of 60,387 cases were opened under Article 438 of the Ukrainian Criminal Code, the provision criminalizing violations of the laws and customs of war. The most recent data of the Office of the Prosecutor General, covering the entirety 2023 (Table 1.21, Line 10), reports that 60,944 cases were opened regarding war crimes during the year. No statistics are available yet for 2024.This indicates that since 2022, a daunting 121,331 war crimes cases have been opened by Ukrainian prosecutors. Of these, 108 cases have been suspended under Article 280.2 of the Criminal Procedure Code of Ukraine due to the suspect’s location being unknown. In 223 cases, the suspects have been served a notice of suspicion, with the prosecutor subsequently submitting an indictment to the court in 84 of these matters. Thirty-eight further cases have been closed. This leaves a total of 60,265 war crimes cases opened in 2022 and 60,869 opened in 2023—a total of 121,134. This is not even addressing this issue of collaboration, criminalized under Article 111-1 of the Criminal Code, with 3,851 cases filed under this provision in 2022, followed by 3,207 in 2023, for a total of 7,058 (see Table 1.2, Line 10 in the respective years’ statistics). While not explicitly charged as war crimes, many such cases under Article 111.1 would be better described in international criminal law as co-perpetration of or aiding and abetting in war crimes (cf. Rome Statute, Art. 25(3)(a), (c)).

Hardships Facing the Ukrainian Justice System

The challenge of such a mammoth caseload cannot be understated. The UN Independent International Commission of Inquiry on Ukraine remarked on this issue in its latest conference paper, presented before the Human Rights Council in August 2023, albeit using data from February 2023, when the number of cases stood at just under 70,000. The Commission correctly observed that “[f]or any prosecution office anywhere in the world, this number of registered crimes would be a challenge to investigate and, if sufficient evidence exists, to prepare cases for trial and subsequent legal proceedings” (para. 844). For comparison, according to the United States Sentencing Commission, in 2022, U.S. federal courts saw 64,142 felony and Class A cases in total across all types of such offenses (p. 9). Ukraine’s over 121,000 open war crimes cases represent a prosecutorial and judicial challenge of monumental proportions that would stretch even the most competent judicial systems to breaking point.

These challenges are compounded by a judicial system feeling the devastating effects of active war. Even before the war, the Ukrainian judiciary was critically understaffed, with no new judges appointed to fill vacancies in first or second-instance courts since 2019 (see ILAC Rule of Law Report, p. 20; ICJ Briefing Paper, para. 2.11). Prosecutors are stretched thin, with those in larger cities and oblasts such as Kyiv assigned to war crimes-related cases far from their ordinary jurisdictions, and those in small, otherwise quiet regions of Central Ukraine now thrust into the prosecutions of international crimes they possess little training in (p. 30). But in sum, there are still only about 200 dedicated war crimes prosecutors operating in Ukraine, a woefully overburdened group in comparison to, for example, the 380-person staff of the ICC Office of the Prosecutor. In an interview with New Eastern Europe magazine, the Chairman of the Ukrainian Council of Judges remarked that underfunding represents a pervasive hindrance to the proper function of the judiciary, stating even that often “individual judges buy paper and stationery with their own money” due to the government’s inability to provide such essential items. Corruption further remains a major obstacle to the Ukrainian justice system, despite progress made by ongoing judicial reforms.

Yet beyond these challenges to the Ukrainian justice system as a whole, the colossal load of conflict-related cases flooding Ukrainian courts raises another issue common to all national jurisdictions but particularly pronounced in one operating amid war: a lack of compressive knowledge and competency in complex international legal standards relevant to the prosecution of war crimes amongst prosecutors and judges alike. Some progress has been made in this regard with the help of European States. In December 2022, some 90 Ukrainian judges traveled to the United Kingdom for legal training, specifically on international humanitarian law and its penal aspects, focusing on effective prosecutions. This training was run by Sir Howard Morrison, former Judge at the ICC and the International Criminal Tribunal for the former Yugoslavia, having served as President of the former’s Appeal Division until 2020. The United States has allocated some $30 million towards building capacity for war crimes prosecutions in Ukraine as part of the Atrocity Crimes Advisory Group, launched by the U.S., U.K., and European Union to support accountability efforts. More recently, U.S. officials announced a partnership with Ukraine’s National Police and State Border Guard Service centered around training on war crimes investigation and forensic techniques. Certain training programs have also been run to educate Ukrainian law students in international law (e.g., one operated this summer by the OSCE and the Council of Europe’s ongoing Human Rights Education for Legal Professionals program). International groups such as the International Bar Association have additionally launched trial monitoring programs aimed at ensuring domestic war crimes trials in Ukraine meet international standards.

Refocusing on Domestic Accountability Mechanisms for War Crimes

In the Cambridge Law Review, I have argued that universal jurisdiction prosecutions for war crimes can serve as a vital tool for ensuring accountability for grave violations of international humanitarian law which have tragically come to characterize the conflict in Ukraine. However, while universal jurisdiction prosecutions can alleviate some of the burden placed on the Ukrainian judicial system, particularly in complex cases, serious discussions of long-term solutions remain under-discussed. Amidst the sea of debate on a Special Tribunal for Aggression against Ukraine or a hybrid alternative, one of the most comprehensive proposals for international criminal accountability in Ukraine has been that of a Ukrainian High War Crimes Court put forward by the Public International Law and Policy Group (PILPG) last year. This proposal, which takes the form of Draft Law, would establish “a highly specialized court in the judicial system of Ukraine” (Art. 2(1)) with subject matter jurisdiction over the four crimes justiciable before the ICC—genocide, crimes against humanity, war crimes, and the crime of aggression (Art. 10). The Draft Law outlines these offenses in accordance with the Rome Statute, making certain recourses to definitions contained in Ukrainian law (e.g., the definition or rape under Article 152 of the Ukrainian Criminal Code).

Ukraine’s beleaguered existing judicial mechanisms are insufficient to bear the burden of prosecuting 100,000 alleged war criminals competently and fairly. As noted, the ICC is similarly incapable of handling this mammoth caseload—as would any internationalized tribunal modeled, for instance, on the Special Tribunal for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, or the Kosovo Specialist Chambers, which tried (or in the latter case is actively trying) only and handful of the most responsible perpetrators in their respective jurisdictional contexts. None of the over 121,000 alleged war criminals awaiting prosecution in Ukrainian prisons are accused of being such ‘most responsible’ perpetrators. Arguing in favor of a High War Crimes Court, PILPG experts posit that an extraordinary national tribunal can close the accountability gap for international crimes in Ukraine by “provid[ing] an important additional venue for prosecuting the large number of mid-level perpetrators who might otherwise escape justice.” Discourse on international justice mechanisms for Ukraine urgently demands more engagement along these lines, particularly with regard to building judicial capacity beyond that which any atrocity crime prosecution mechanism has handled to date.

In a speech at the World Forum in The Hague in May 2023, President Volodymyr Zelensky of Ukraine asserted that “only one Russian crime led to all of these crimes: this is the crime of aggression, the start of evil, the primary crime. There should be responsibility for this crime.” President Zelensky’s reasoning mirrors that of the IMT: that all international crimes born from a war of aggression are ultimately the product of that aggressive war. In 1946, the IMT was, in fact, constrained to only considering those crimes resting from aggression, finding that it “cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter” (p. 497). The very notions of war crimes and crimes against humanity before the IMT were rooted in these offenses’ origination in an aggressive war. Yet, in Ukraine, while it may be accurate to characterize war crimes as the poisoned fruits of the tree of Russian aggression, the danger of this narrative is that these fruits are left strewn across Ukraine while the international community is preoccupied with debating which axe is best suited to cut down the tree.

Photo: ‘Klov Palace‘ by Wadco2 licensed under CC BY-SA 3.0