C Explanatory memorandum
by Aleksander Pociej, Rapporteur
1 Introduction
1. Following a request by the
Committee on Legal Affairs and Human Rights of 4 April 2022, the
Assembly decided, on 25 April 2022, to hold an urgent debate on
the issue at stake in this report during its April 2022 part-session.
2. In its
Opinion
300 (2022) of 15 March 2022, the Assembly unanimously considered
that the Russian Federation could no longer be a member State of
the Council of Europe, in the context of the procedure launched
by the Committee of Ministers under Article 8 of its Statute. It
considered, among other things, that the Russian Federation’s armed
attack on Ukraine was in breach of the Charter of the United Nations,
qualified as a “crime against peace” under the Charter of the International
Military Tribunal (Nuremberg Charter), and constituted an “aggression”
under the terms of Resolution 3314 (XXIX) of the United Nations
General Assembly adopted in 1974. It was also a serious breach of
Article 3 of the Statute of the Council of Europe (ETS No. 1). The
Assembly was deeply disturbed by evidence of serious violations
of human rights and international humanitarian law by the Russian
Federation, including attacks against civilian targets; indiscriminate
use of artillery, missiles and bombs, including cluster bombs; attacks
on humanitarian corridors intended to allow civilians to escape
from besieged towns and cities; hostage-taking; and reckless attacks
on nuclear facilities. In this regard, it expressed support to all
efforts aimed at ensuring that those responsible are held accountable for
their actions, including the decision by the Prosecutor of the International
Criminal Court (ICC) to investigate the situation in Ukraine and
the establishment of a special investigation commission by the United
Nations Human Rights Council, and stated that it would evaluate
the proposals to establish a special international criminal tribunal
for war crimes committed during the war in Ukraine started by the
Russian military aggression. The Assembly also welcomed other efforts
to document possible crimes under international law committed in Ukraine,
including through the publication of commercial satellite imagery,
the analysis of this imagery and other forms of open-source intelligence
by private actors.
3. In an extraordinary meeting on the following day, 16 March
2022, the Committee of Ministers, in the context of the procedure
under Article 8 of the Statute of the Council of Europe and taking
into consideration the Assembly’s Opinion, decided that the Russian
Federation ceased to be a member of the Council of Europe with immediate
effect.
Note
4. Since then, and despite numerous calls by the international
community on the Russian Federation to stop its war against Ukraine
and withdraw all forces from its territory, the Russian Federation’s
aggression has continued to escalate, causing a humanitarian crisis
unprecedented in Europe since the Second World War, with at least
5 381 civilian casualties and over 10 million people, almost a quarter
of the Ukrainian population having been displaced either within
Ukraine or having fled to neighbouring countries.
Note
2 Possible serious violations of international
humanitarian law committed by Russian forces since 24 February 2022
5. Different Council of Europe
bodies and other international organisations have reacted to allegations
of serious violations of international humanitarian law and human
rights law committed on the Ukrainian territory by the Russian armed
forces.
6. On 3 April 2022, Tiny Kox, President of the Assembly, expressed
shock and horror at reports of civilian killings by Russian forces
discovered after their withdrawal from Bucha and other towns around
Kyiv.
Note Following the first Council of Europe
official visit to Ukraine since hostilities begun (6 April 2022),
he strongly condemned “the atrocities against innocent civilians,
including horrifying sexual violence, committed by the Russian army
in the towns around Kyiv”. Mr Kox assured that the Council of Europe
would provide all possible assistance “to facilitate the investigation
into these war crimes, and to ensure that those responsible for
them are brought to justice”.
Note
7. The Secretary General of the Council of Europe was also appalled
“at horrific images of atrocities from the town of Bucha and other
towns near Kyiv following the withdrawal of Russian forces”. She
called “for an urgent, full and independent investigation into these
horrendous crimes” and assured the Ukrainian authorities that the
Council of Europe remains ready to assist them.
Note
8. The Council of Europe Commissioner for Human Rights promptly
reacted to allegations of human rights and international humanitarian
law violations during the ongoing war, issuing a number of statements.
To mention a few, on 6 April 2022, she expressed that the images
of lifeless bodies of civilians in Bucha provide “a haunting illustration
to shocking reports of violations of human rights and breaches of
international humanitarian law, such as summary executions, abductions,
torture, sexual violence, and attacks against the civilian infrastructures,
committed in areas of Ukraine previously under the control of Russian
troops”. The Commissioner added that “the terrible acts committed
against the civilian populations of Bucha, Borodianka, Trostianets,
and many other hitherto peaceful Ukrainian cities and towns (…)
may constitute war crimes and must not go unpunished”.
Note On 8 April, she condemned the attack
with missiles on a railway station in Kramatorsk, killing and injuring
civilians who were waiting to be evacuated to safer regions, and
stated that such attacks could also constitute war crimes.
Note
9. The European Court of Human Rights, on 1 and 4 March 2022,
indicated a number of interim measures to the Government of the
Russian Federation in relation to the military action commenced
on 24 February 2022 in various parts of Ukraine, considering that
“it gives rise to a real and continuing risk of serious violations
of the Convention rights of the civilian population, in particular
under Articles 2 (right to life), 3 (prohibition of torture and
inhuman or degrading treatment or punishment) and 8 (right to respect
for private and family life) of the European Convention on Human
Rights”.
Note On 1 April 2022, the Court, in response
to additional requests made by Ukraine considered that the previous
interim measures should apply to “any and all attacks against civilians,
including with the use of any form of prohibited weapons, measures
targeting particular civilians due to their status, as well as the
destruction of civilian objects under the control of Russian forces”.
In addition, the Court expanded the measure concerning access of
the civilian population to safe evacuation routes, and added that
“the evacuation routes should allow civilians to seek refuge in
safer regions of Ukraine” (therefore excluding the possible forced
transfers of civilians to the Russian Federation).
Note
10. The President of the Congress of Local and Regional Authorities,
on 6 April 2022, referred to the case of the mayor of the village
of Motyzhyn, Olga Sukhenko, who was reportedly kidnapped on 23 March
with her husband and their son, and later found in a grave. Similar
crimes have been reported in Hostomel and other towns in the Kyiv
oblast against mayors killed for having refused to co-operate with
the Russian troops.
Note
11. The Human Rights Monitoring Mission in Ukraine (HRMMU) of
the Office of the United Nations High Commissioner for Human Rights
(UN OHCHR), in its update on the human rights situation in Ukraine
(period 24 February-26 March 2022), observed that “the conduct of
hostilities by the Russian armed forces has been characterized by
the broad use of explosive weapons with wide area effects in populated
areas, including shelling from heavy artillery and multiple launch
rocket systems, missile, and air strikes”. It found that “there are
strong indications that serious violations of international humanitarian
law and gross violations of international human rights law have
occurred, in particular with regard to the principles of distinction
and the prohibition of indiscriminate attacks”.
Note The report refers to allegations
of specific violations of human rights and international humanitarian
law committed by Russian forces, such as:
- the explosion of cluster munition at a hospital in Vuhledar
(Donetsk region) on 24 February, killing at least 4 civilians and
injuring 10, and damaging ambulances and the hospital;
- the use of non-precision guided missiles bearing cluster
munitions in several districts of Kharkiv on 25 February, killing
at least 9 civilians and injuring 37;
- the damage to or destruction of 81 civilian objects in
Kharkiv city, including 40 apartment buildings, as of 26 March;
- air strikes on hospitals in different cities, including
the one on Mariupol hospital No. 3 on 9 March, injuring 17 civilians
(including healthcare workers, children, and pregnant women, one
of whom died at a very late stage of pregnancy);
- the attack on the area of the Zaporizhzhia nuclear power
plant in Enerhodar city on 4 March;
- the air strike on the Drama Theatre in Mariupol on 16
March, where between 800 and 1 200 civilians were taking shelter,
with possibly hundreds of civilian casualties;
- forcible evacuations of Mariupol residents to the territory
controlled by Russian affiliated armed groups and further into the
Russian Federation;
- killing of civilians in moving cars during evacuations
or during peaceful assemblies;
- the arrests and detention of 24 public officials and civil
servants of local authorities, including the mayor of Melitopol,
who was taken away on 11 March and later exchanged against Russian
prisoners of war;
- cases of conflict related sexual violence, including one
in Kyiv region currently being investigated as a violation of the
laws and customs of war;Note
- arrests and possible enforced disappearances of 21 journalists
and civil society activists who had been vocal against the Russian
attack in Kyiv, Luhansk, Kherson, and Zaporizhzhia regions;
- targeted attacks against journalists;
- lack of access to basic goods and necessities for civilians
in areas such as Chernihiv, Izium, Kharkiv, Mariupol, Okhtyrka and
Volnovakha.Note
12. Since the publication of the HRMMU report, new allegations
of war crimes, such as those following the discovery of civilians
lying dead with their hands tied in Bucha, have been brought to
the attention of the UN High Commissioner for Human Rights.
Note In response to the recent reports,
the UN General Assembly voted on 7 April 2022 to suspend the Russian
Federation from the UN Human Rights Council, expressing grave concern at
the ongoing human rights and humanitarian crisis in Ukraine, particularly
at the reports of violations and abuses of human rights and violations
of international humanitarian law by the Russian Federation.
Note
13. On 13 April 2022, a mission of experts from the Organization
for Security and Co-operation in Europe (OSCE) published a report
entitled “Report On Violations of International Humanitarian and
Human Rights Law, War Crimes and Crimes Against Humanity Committed
in Ukraine Since 24 February 2022”. The mission was composed of
three experts selected by Ukraine.
Note It found clear patterns of international
humanitarian law violations by the Russian forces in their conduct
of hostilities, as well as in the occupied parts of Ukraine. Although
some violations were also identified regarding Ukraine (notably
on the treatment of prisoners of war), violations committed by the
Russian Federation were by far more serious in nature and scale.
The report refers, among others, to enforced disappearances, summary
executions, pillage, deportations, use of indiscriminate weapons
in densely populated areas, attacks against hospitals, schools and
places of worship. It looks in more detail into the attacks on Mariupol
Maternity House and Children’s Hospital on 9 March, and on Mariupol theatre
on 16 March, considering that they must have been deliberate. The
mission also concluded that some patterns of violent acts in breach
of international human rights law, such as targeted killing, enforced disappearance
or abductions of civilians, including journalists and local officials,
were likely to qualify as a “widespread or systematic attack directed
against a civilian population” (under the definition of crimes against humanity).
For instance, according to the experts, the alleged extrajudicial
killing of all local men aged 16-60 in Bucha, if confirmed, would
clearly constitute a crime against humanity. In relation to allegations
of rapes, including gang rapes, committed by Russian soldiers, the
experts recalled that rape or other forms of sexual violence may
constitute or a crime against humanity or a war crime.
14. Leading international human rights non-governmental organisations
such as Human Rights Watch (HRW) and Amnesty International (AI)
have also documented possible war crimes and violations of international
humanitarian law in Ukraine by Russian forces, including cases of
rape, summary executions, indiscriminate attacks and civilians living
under siege.
Note In relation to Bucha, AI Secretary
General said: “These reports from Bucha are showing a wider pattern
of war crimes including extrajudicial executions and torture in other
occupied areas of Ukraine”.
Note
15. According to the Russian official narrative, some of the alleged
atrocities were “staged” by Ukrainian authorities after the Russian
troops withdrew from the areas concerned. For instance, the Russian
Foreign Ministry claimed that while Bucha was under Russian control
“not a single local resident [had] suffered from any violent action”
and President Putin said that the images showing bodies on the streets
were “fake”. However, satellite images of Bucha have shown bodies
lying in the street nearly two weeks before the Russians left the
town, exactly in the same locations where they were later found,
directly contradicting the Russian version.
Note On 18 April 2022, President Putin
granted an honorary title to the 64th motorised
infantry brigade which was stationed in Bucha at the time of the
reported atrocities.
Note I am outraged by
the
cruel message this sends to the victims’ families and to Russian
troops elsewhere in Ukraine, namely that such atrocities may be committed with impunity
and may even be rewarded.
16. Although it is not part of my mandate to subsume the above
allegations under the different articles of the Geneva Conventions
of 1949 or other rules of customary international humanitarian law,
it is important to stress already now that many of these acts could
qualify as war crimes, giving rise to individual criminal responsibility of
the perpetrators and their commanders. These would include grave
breaches of the Geneva Conventions and/or the Additional Protocol
I of 1977 (applicable to international armed conflicts), ratified
by both the Russian Federation and Ukraine, such as: wilful killing,
torture or inhuman treatment, wilfully causing great suffering or serious
injury to body or health, unlawful deportation or transfer, extensive
destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly,
Note wilfully
making the civilian population or individual civilians the object
of attack, wilfully launching an indiscriminate attack affecting
the civilian population or civilian objects in the knowledge that
such attack will cause excessive loss of life, injury to civilians
or damage to civilian objects.
Note Although
sexual violence and rape are not explicitly included as a grave
breach either in the Geneva Conventions or in the Additional Protocol
I, they can be considered as inhuman treatment or wilfully causing
great suffering or serious injury to body or health.
Note Other
acts, such as preventing the delivery of humanitarian aid to encircled
cities (for example Mariupol) could qualify as war crimes under
the Statute of Rome of the International Criminal Court (ICC Statute).
Note
17. Some of these violations of international humanitarian law
could at the same time constitute crimes against humanity under
Article 7 of the ICC Statute or under international customary law,
if there is evidence that they were committed as “part of a widespread
or systematic attack directed against any civilian population, with
knowledge of the attack”.
Note Whether certain acts would additionally
fulfil the definition of genocide under Article 6 of the ICC Statute
(namely committed “with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group”) is an open issue
that would require further consideration and legal analysis.
Note For this purpose, it is important
to investigate and document patterns of destructive behaviour that
would allow inferences as to the existence of genocidal intent.
Note In any event, although the Russian
Federation is not a Party to the Rome Statute, the ICC has jurisdiction
over crimes against humanity and genocide if committed on the territory
of Ukraine since 21 November 2013 (see paragraphs 19 and 20 below).
18. Finally, it is important to stress that the possible violations
of international humanitarian law committed by Russian officers
and commanders engage the responsibility of their State under international
human rights law, including the European Convention of Human Rights
(of which the Russian Federation is still a Contracting Party until
16 September 2022, see paragraphs 41-44 below), the International
Covenant on Civil and Political Rights
Note and
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. According to the case law of the European
Court of Human Rights and the International Court of Justice, human
rights law treaties continue to apply in times of war, and both
international humanitarian law and international human rights law
should be interpreted in a complementary and coherent way.
Note For instance,
killings of civilians, torching and looting of houses in occupied
areas amount to violations of Articles 2, 3 and 8 of the Convention
and Article 1 of Protocol No.1 by the State exercising jurisdiction
over those areas.
Note Therefore, the Russian
Federation should continue to be held accountable before the existing international
human rights mechanisms, including for human rights violations committed
by its forces during the ongoing war.
3 Avenues for accountability for serious
violations of international humanitarian law and other international
crimes (including war crimes, crimes against humanity, genocide
and crime of aggression)
3.1 Ongoing international investigations
and proceedings
19. Neither Ukraine nor the Russian
Federation is a Party to the International Criminal Court Statute.
Note But Ukraine
has made two declarations under Article 12(3) of the Statute, which
enables a State not Party to the Statute to accept the exercise
of jurisdiction by the ICC. The first one explicitly covered alleged
crimes committed between 21 November 2013 and 22 February 2014.
The second declaration (8 September 2015) extended the acceptance
of the ICC’s jurisdiction indefinitely,
Note therefore covering
acts committed in the territory of Ukraine in connection with the
ongoing war, including war crimes, crimes against humanity and genocide.
The only exception is the crime of aggression. If it is committed
by nationals or on the territory of a State non-Party to the ICC
Statute, it can only be submitted to the ICC’s jurisdiction by a
referral to the ICC Prosecutor by the UN Security Council acting
under Chapter VII of the UN Charter.
Note This
would likely be vetoed by the Russian Federation.
20. On 28 February 2022, the ICC Prosecutor, Karim Khan, confirmed
that there was a reasonable basis to proceed with opening an investigation
on alleged war crimes and crimes against humanity committed in Ukraine,
in relation to the events already assessed during the preliminary
examination launched in 2014. He indicated that the investigation
shall also encompass “any new alleged crimes falling within the
jurisdiction of [his] Office that are committed by any party to
the conflict on any part of the territory of Ukraine”.
Note On 1 March 2022, the Prosecutor
informed the ICC judges of an upcoming request to obtain judicial
authorisation under Article 15(3) of the Statute. In addition, on
2 March 2022, he announced that he had opened an investigation into
the situation in Ukraine on the basis of referrals received from
39 ICC States Parties (including 34 Council of Europe member States),
a possibility foreseen by Article 14 of the ICC Statute, which does
not require judicial authorisation.
Note The
scope of the situation being investigated encompasses 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
from 21 November 2013 onwards.
Note For the time being, the ICC Prosecutor
has deployed an investigative team to Ukraine, which has commenced
evidence-collection activities, and established a dedicated portal
for provision of information.
Note He has met with Ukrainian authorities
on the ground, and transmitted a formal request to the Russian Federation
to meet their competent authorities.
Note
21. In line with Assembly
Opinion
300 (2022), I fully support the recent decisions by the ICC Prosecutor,
as well as the joint action by Council of Europe member States which
allowed the Prosecutor to expedite matters and delivered a strong
message of support for the ICC. However, I find it problematic that
the previous ICC Prosecutor had completed her preliminary examination
on Ukraine in December 2020 (six years after launching it), and
no authorisation for the investigation was requested from ICC judges
in the course of 2021. In fact, the previous ICC Prosecutor, Fatou
Bensouda, referred to significant operational challenges and capacity constraints
because of lack of resources. I believe that in order to meet the
challenges faced in the current investigation and fulfil its essential
role in ensuring accountability, the ICC and its Prosecutor’s Office
should receive the necessary financial and political support from
States Parties to the Rome Statute, particularly from Council of
Europe member States, for instance through voluntary contributions
and secondment of personnel. States must also be ready to provide
the ICC with relevant data and evidence with a view to documenting potential
crimes. Although prosecutions and trials against individuals before
the ICC will take time, the immediate launch of a comprehensive
investigation (possibly soon followed by the issuance of arrest
warrants) sends an important message – namely that there is no impunity
for international crimes. This will also contribute to the further
international delegitimisation of the Russian political and military
leadership. It must be hoped that the launch of the investigation
also has some deterrent effect on Russian troops and commanders
on the ground.
Note
22. The Russian Federation’s aggression also led the UN Human
Rights Council to adopt on 4 March 2022 a resolution establishing
an Independent International Commission of Inquiry to investigate
all alleged violations of human rights in the context of the aggression.
Note The Commission
shall be constituted by three human rights experts, to be appointed
by the President of the Human Rights Council for an initial duration
of one year, with the mandate to, among other things, investigate
all alleged violations and abuses of human rights and violations
of international humanitarian law, and related crimes, in the context
of the Russian Federation’s aggression against Ukraine, and establish
the facts, circumstances, and root causes of any such violations
and abuses; collect, consolidate and analyse evidence of such violations
and abuses, including their gender dimension, and systematically
record and preserve all information, documentation and evidence, including
interviews, witness testimony and forensic material, in view of
any future legal proceedings; identify, where possible, those individuals
and entities responsible, with a view to ensuring that they are
held accountable; and make recommendations, in particular on accountability
measures.
23. The President of the Human Rights Council has appointed Erik
Møse, former Norwegian judge of the European Court of Human Rights,
Jasminka Džumhur, Human Rights Ombudsperson of Bosnia and Herzegovina,
and Pablo de Greiff, the first UN Special Rapporteur on the promotion
of truth, justice, reparation and guarantees of non-recurrence,
as the three independent members of the Commission of Inquiry. Mr Møse will
be the Chair person of the Commission. The Commissioners are requested
to present an oral update on their work to the Human Rights Council
in September 2022 and a comprehensive written report in March 2023.
24. In my view, this kind of investigative mechanism can play
an important complementary role by gathering and preserving evidence
that can be shared with the ICC and other jurisdictions. Member
States of the Council of Europe, including Ukraine, should support
this investigation, by providing it with relevant information they may
possess or come to possess on potential abuses and crimes.
25. Finally, it is worth mentioning the ongoing proceedings before
the International Court of Justice, instituted on 26 February 2022
by Ukraine against the Russian Federation concerning a dispute relating
to the interpretation, application and fulfilment of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide. The application
aims at showing that claims that Ukraine is responsible for genocide
in the Luhansk and Donetsk regions are unfounded and establishing
that the Russian Federation has therefore no lawful basis to take
military action based on those false claims. On 16 March 2022, the
ICJ indicated provisional measures to the Russian Federation 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 organisations and persons which may be subject to
its control or direction, take no steps in furtherance of such operations.
It further indicated that both parties should refrain from any action
which might aggravate or extend the dispute before the Court or
make it more difficult to resolve.
Note Although
these proceedings are not aimed at establishing individual accountability
for concrete human rights or international humanitarian law violations,
they are useful insofar as they discredit one of the main arguments
used by Russian leaders to justify the so-called “special military
operation”, to stop an alleged “genocide” of Russian-speaking population
in Eastern Ukraine. In this respect, the ICJ, in its order of 16
March, without prejudging the merits of the dispute, already stated
that it was not in possession of any evidence substantiating the
allegation of the Russian Federation that genocide had been committed.
3.2 Alternative international mechanisms:
proposal to set up a special tribunal on the crime of aggression
26. As I mentioned above, the crime
of aggression (codified in Article 8
bis of
the Rome Statute,
Note which entered into force
on 17 July 2018) is not subject to the ICC’s jurisdiction if committed
by nationals or on the territory of a State not Party to the ICC
Statute. Since neither Ukraine nor the Russian Federation are parties to
the Rome Statute, the only possibility of exercising jurisdiction
over this crime would be through a referral to the ICC Prosecutor
by the UN Security Council. In the likely case that the Russian
Federation would exercise its veto in the Security Council against
such a referral, the ICC would be prevented from investigating and prosecuting
crimes of aggression against Ukraine. In order to fill this gap
and complement the actions underway before the other international
tribunals, a number of prominent figures from the legal and political spheres,
including Sir Nicolas Bratza, former President of the European Court
of Human Rights, Gordon Brown, former Prime Minister of the United
Kingdom, Professors Philippe Sands and Philip Leach, Professors Egbert
Myjer and Angelika Nussberger, former Judges of the European Court
of Human Rights, have proposed the creation of a special tribunal
with a limited focus on the crime of aggression. According to this
proposal, the Special Tribunal should be constituted to investigate
the acts of violence committed by the Russian Federation against
Ukraine and to determine whether they constitute a crime of aggression.
According to this proposal, States should agree to grant jurisdiction
arising under national criminal codes and general international
law, and confer on such a tribunal jurisdiction to investigate and
prosecute both the perpetrators of the crime of aggression and those
who have substantially contributed to or shaped the commission of
that crime.
NoteNoteNote
27. The Assembly, in its
Opinion
300 (2022), already considered that the Russian Federation’s armed
attack on Ukraine qualifies as a “crime against peace” under the
Nuremberg Charter and constitutes an “aggression” under the terms
of Resolution 3314 (XXIX) of the United Nations General Assembly
adopted in 1974. The UN General Assembly has also considered with
an overwhelming majority that the Russian Federation committed an
aggression in violation of Article 2(4) of the UN Charter.
Note While
the Russian Federation is not a party to the ICC Statute, which
codifies the crime of aggression referring to the definition set
out in UNGA Resolution 3314 (XXIX), customary international law
also provides for individual criminal responsibility for those who
plan, prepare, initiate or execute a war of aggression. During the
Nuremberg trials, the crime against the peace (what we now call
crime of aggression) was considered a leadership crime, a crime
primarily committed by planners and designers, those occupying high-level
positions in the Nazi party, government or military leaders.
Note The leadership nature of the crime
is now reflected in the Article 8
bis of the
ICC Statute, which limits its applicability to persons in a position
effectively to “control or direct” the political or military action
of a State. Some have argued that while war crimes are likely to
be attributed to individual soldiers and commanders, it could be
easier to identify and prosecute the leaders who planned and waged
the war of aggression against Ukraine, holding them responsible
for all the deaths and destruction resulting from the aggression,
including of Ukrainian soldiers (who are in principle lawful targets
under international humanitarian law).
NoteNote This charge could apply not only
to Russian leaders and high-ranking officials, but also to those
from Belarus, a State whose involvement in the Russian Federation’s
aggression against Ukraine has been widely condemned by the international
community.
Note
28. One of the main challenges for the operation and effectiveness
of such a tribunal would be the presumable lack of co-operation
by the aggressor State(s), which is still waging war. The Nuremberg
and Tokyo Military Tribunals established after the Second World
War were based on the consent of the vanquished Axis States. The
Russian Federation would certainly veto the creation of an
ad hoc tribunal by the UN Security Council
acting under chapter VII of the UN Charter, such as those set up
for the former Yugoslavia (ICTY) and Rwanda (ICTR) in the 90s. The
other possibility would be to establish a special tribunal based
on an agreement between the State in which the offences were committed
and the United Nations, following the example of the Special Court
for Sierra Leone, established in 2002.
Note In
some post-conflict situations, “hybrid” judicial mechanisms, with
both international and national judges, were created within the
domestic legal system, for example the Extraordinary Chambers in
the Courts of Cambodia, established in 2003, the War Crimes Chamber
of the State Court of Bosnia-Herzegovina, established in 2005, or
the Kosovo Specialist Chambers and Specialist Prosecutor’s Office,
established in 2015.
Note The establishment
of such special or “hybrid” court should ideally be based on a recommendation
by the UN General Assembly, which would give it wide international
legitimacy.
Note
29. Some have recently argued that a “hybrid” tribunal within
the Ukrainian judicial system could also be set up with the support
of the Council of Europe. Ukraine could for instance ask the Committee
of Ministers to recommend, pursuant to Article 15(a) of the Statute,
that member States adopt a “common policy” with regard to supporting
such a tribunal. This would give the Council of Europe express authority
to conclude an agreement with Ukraine on the establishment of such
a tribunal.
NoteNoteNote The competence of the Council of
Europe to assist Ukraine in the establishment of a criminal accountability
mechanism could be justified by the fact that the ongoing aggression
amounts to a serious breach of the Statute of the Council of Europe
and that in response to large-scale human rights violations committed
on the territory of one of its members, member States have a collective
responsibility to further the aims of the Organisation and safeguard
its common ideals and principles, in line with Article 1 of the
Statute. In addition, the Preamble of the Statute establishes a
clear link between the pursuit of peace and justice, supporting
the idea that justice and accountability for gross human rights
violations are key to the restoration of peace.
30. However, given the scale of the current aggression and the
international dimension of the conflict, I believe that the best
option would be for a group of States to create a special international
tribunal for the punishment of the crime of aggression against Ukraine
(which could have its seat within or outside Ukraine) on the basis
of a multilateral treaty, granting it jurisdiction over the crime
of aggression as defined in customary international law.
Note Council of Europe member and observer
States could take the lead in this process, by launching the negotiations,
providing political and financial support to the tribunal, and possibly
being involved in the appointment of its members according to the
procedures established in the treaty. Once adopted, it could be
supported by the United Nations General Assembly, the Council of
Europe, the European Union or other regional organisations. Although
the current Russian leadership would probably not co-operate, States
parties to the agreement would have the obligation to arrest and
surrender any Russian high-ranking official sought by the tribunal
who might be present on their territory. Heads of State and other
government officials (from non-parties to the treaty) could not
rely on immunities
vis-à-vis such
an international tribunal, in line with the practice of the ICC
and other international courts, an advantage that a strictly national
or even a “hybrid” court might not have.
NoteNoteNote
31. I am aware of the selectivity concerns raised against the
creation of a special tribunal, based on the argument that past
aggressions by other States went unpunished. However, I think that
we should seize this moment of unprecedented political response
by the international community in order to reinforce (not weaken) international
criminal justice, including by creating novel and ad hoc mechanisms that could fill
the gaps of the existing and somehow imperfect ones.
32. Should a change in the Russian leadership happen in the future
leading to a possible request for re-accession to the Council of
Europe, I believe that the Russian Federation should be requested
to undertake to co-operate fully with all pending international
criminal proceedings stemming from the aggression, including by surrendering
(former) State officials who may be indicted by the ICC or the special
tribunal.
33. In order to address the issue of the abuse by the Russian
Federation of its veto rights as Permanent Member of the UN Security
Council, in particular to stop a possible resolution by the Security
Council to seize the ICC of its own crime of aggression under Article
8 bis of the Statute of Rome,
the UN General Assembly could ask the International Court of Justice
for an Advisory Opinion on whether the right to veto may be restricted
in cases of obvious abuse of rights, when the sole purpose of the
veto is to escape accountability for the veto power’s own crime
of aggression.
3.3 National investigations and prosecutions
34. According to its Statute, the
ICC is complementary to national criminal jurisdictions.
Note The rule
is that it should intervene when national jurisdictions are unwilling
or unable genuinely to carry out an investigation or prosecution.
The Ukrainian Criminal Code proscribes planning, preparing and waging
an aggressive war (Article 437), violations of the rules of warfare
(Article 438) and genocide (Article 442). Article 438 contains a provision
prohibiting, among others, the cruel treatment of prisoners of war
or civilians, and the “use of methods of warfare prohibited by international
instruments, or any other violations of the rules of warfare recognised
by international instruments consented to as by binding by the Parliament
of Ukraine, and also giving an order to commit such actions”. This
allows Ukraine to prosecute an individual for violations of IHL
treaties to which it is a party. As of 14 April 2022, the Office
of the Prosecutor General has registered 6 305 alleged war crimes (under
Article 438) and 43 alleged crimes of aggression (under Article
437) during the full-scale invasion.
Note It has identified 570 suspects, representatives
of the military and political leadership of the Russian Federation. With
regard to the ability of Ukrainian authorities to bring those responsible
to justice, I note that the Code of Criminal Procedure (Article
262) allows trials
in absentia in
exceptional circumstances. In addition, a task force is being created
in the Prosecutor’s General Office for the search and confiscation
of assets and property of suspected war criminals from the Russian
Federation abroad.
Note
35. Although Russian legislation also criminalises aggressive
war (Article 353 of the Criminal Code) and war crimes (Article 356),
it is unlikely that prosecutions of Russian leaders and officers
will take place before Russian courts, at least in the current circumstances.
In line with the official narrative of denial, the Russian Investigative
Committee opened an investigation on the “deliberately false information”
about Russian armed forces in Bucha.
Note It also launched criminal proceedings
on various alleged cases of Ukrainian shelling.
36. It is important to recall that the Geneva Conventions and
their Additional Protocol I require States to enact legislation
to punish “grave breaches” (war crimes), to search for persons who
allegedly committed such crimes and to bring them before their courts
or to extradite them to another State for prosecution (
aut dedere aut judicare).
Note This obviously applies to each
party’s own soldiers and commanders. In this regard, the OSCE Mission
of experts recommended that both Ukraine and Russia extend their
investigations to suspects belonging to their own party.
Note
37. Proceedings in third countries may also be launched to investigate
and prosecute some of the crimes committed in Ukraine. Many countries
allow for the prosecution of war crimes and crimes against humanity under
the principle of universal jurisdiction (for example Lithuania,
the Netherlands, Germany, Spain, the Czech Republic), sometimes
limiting its scope to cases where there is a particular link, for
instance when the suspect is present or residing in their territory.
The German Federal Prosecution office opened an investigation into
suspected war crimes by Russian troops in Ukraine and began collecting
evidence.
Note France opened three investigations
into alleged war crimes committed against its nationals in Ukraine,
on the basis of the principle of passive personality (nationality
of the victims).
Note
38. As regards the crime of aggression, certain countries may
also exercise universal jurisdiction (for example the Netherlands
and Lithuania) or prosecute aggression on the basis of the protection
of their interests (Poland). In this context, it has been reported
that both Poland and Lithuania opened investigations covering the
Russian aggression against Ukraine.
NoteNote Although most of these proceedings
will lead to trials and convictions only when and if the suspects
come within their territory or are extradited, the steps taken by national
jurisdictions deserve to be encouraged, as they can usefully complement
the efforts of Ukrainian and international investigators.
39. Domestic prosecutions can also benefit from assistance and
coordination in a regional context. For instance, Eurojust supported
the setting up of a joint investigative team (JIT) into alleged
core international crimes committed in Ukraine. The authorities
of Lithuania, Poland and Ukraine signed a JIT agreement on 25 March
2022 to enable the exchange of information and facilitate investigations
into these crimes. Participation in the JIT may be extended to other
EU member States, third countries and other parties. The Office
of the Prosecutor of the ICC has already been invited to join the
JIT, with a view to ensuring co-ordination in the collection and
analysis of evidence.
NoteNoteNote
4 Strengthening the Council of Europe’s
response and assistance to ensure accountability
40. To complement the (existing
and novel) accountability mechanisms described above, the Council
of Europe should continue its core work aimed at the protection
of human rights, the rule of law and democracy in Ukraine. To the
extent possible, this should continue and even be stepped up during
the ongoing conflict, and in any case continue in the post-conflict
scenario. In this context, the Council should revise its priorities and
respond to the new challenges emerging from the Russian Federation’s
aggression, responding as much as possible to the needs expressed
by the Ukrainian authorities and civil society. Some of the existing
Council of Europe mechanisms, given their unique human rights expertise
and mandate, could contribute in different ways to ensure accountability
for human rights violations and violations of international humanitarian
law. The Council of Europe could also contribute to the setting-up
and operation of the future ad hoc tribunal
to investigate and prosecute the crime of aggression, by making
its expertise available in such fields as the negotiation of multilateral
agreements in the legal field and the logistics involved in setting
up international bodies. I should like to suggest that the headquarters
of the new ad hoc tribunal
shall be in Strasbourg so as to facilitate synergies with the Council
of Europe and, in particular, with the European Court of Human Rights. As
we will see, it is dealing with numerous cases of human rights violations
related to the Russian aggression against Ukraine.
4.1 Proceedings before the European Court
of Human Rights (present and future interstate and individual cases)
41. The European Court of Human
Rights has received interim measures requests from the Ukrainian Government
and individuals concerning the current Russian military operations
on the Ukrainian territory. The Court has granted some of these
measures on 1 and 4 March and on 1 April 2022 (see paragraph 9 above).
Note New
requests for interim measures, individual and interstate applications
may still be lodged against the Russian Federation, provided they
relate to acts or omissions which occurred before 16 September 2022
(date on which the Russian Federation will cease to be a High Contracting
Party to the Convention). All these new cases concerning the ongoing
war will be added to the number of interstate and individual cases
pending before the Court concerning the previous stages of the conflict
started in 2014, mainly in relation to Crimea and eastern Ukraine.
Note
42. There are two main challenges in the processing and adjudication
of these cases. Firstly, it remains to be seen whether the Russian
Federation will engage at all in these proceedings, following the
cessation of its membership with the Council of Europe on 16 March
2022 and as State Party to the Convention as of 16 September 2022.
For the time being, it seems that the Russian Federation has stopped
responding to the Court. In the context of the last interim measures
requests from the Ukrainian Government, on 24 March 2022, the Court
invited the Government of Russia to provide their comments and to
reply to specific requests, to no avail. Secondly, the Court will
have to decide on complex jurisdictional issues, particularly in
those cases where the alleged violations of the Convention occurred
during military operations and active hostilities. For these cases,
under the current state of the Court’s case law (2021), a State
does not exercise “jurisdiction” within the meaning of the Convention
in respect of extra-territorial military operations during the “active
phase of hostilities” of an international armed conflict, having
regard to “the very reality of armed confrontation and fighting
between enemy military forces seeking to establish control over
an area in a context of chaos”.
Note Although
this conclusion was reached in relation to the eight day war between
Georgia and the Russian Federation in South Ossetia in August 2008
(involving bombing and artillery shelling), the Court will have
to decide in cases concerning the current conflict whether particular
military attacks against civilians and civilian objects or the alleged
impeded access to safe evacuation routes (both issues being precisely
covered by the interim measures), came within the “jurisdiction”
of Russia and therefore triggered the application of the Convention
vis-à-vis the Russian Federation.
43. Although this report is not the appropriate place to discuss
whether the Court’s current case law is fully satisfactory, one
cannot exclude that the case law will evolve and/or distinguish
the present conflict situation from the
Georgia
v. Russia (II) precedent. In any event, I believe that
in the current unique circumstances the Court should give priority
to interstate and individual cases arising out of the current conflict,
and resources should be mobilised to that effect, including through
voluntary contributions from member States to the Court’s budget.
Note The risk of the Russian Federation
not implementing the judgments of the Court (in violation of its international
obligations under Articles 46.1 and 58.2 of the Convention), as
is the case now with regard to the already granted interim measures,
should not prevent the Court from establishing and documenting the aggressor
State’s responsibility for human rights violations and delivering
justice (even symbolic) for the Ukrainian victims.
44. It is clear however that once the Convention will cease to
apply in respect of the Russian Federation, the European Court will
have no jurisdiction over possible violations committed by Russian
authorities as of that date in the occupied territories, therefore
creating a “grey zone” or “black hole” in the Convention legal space. This
issue goes beyond the purposes of this report, but in my view the
Council of Europe should consider alternative mechanisms to fill
the gap and maintain its ability to monitor the human rights situation
in those territories, which are within Ukraine’s internationally
recognised borders. The same would apply to other territories of
Council of Europe member States under the de facto control of Russia
(for example in the Republic of Moldova and Georgia).
Note
4.2 Commissioner for Human Rights
45. The Commissioner for Human
Rights, Dunja Mijatović, is working on addressing the impact of
the war on human rights, both in Ukraine and in other Council of
Europe member States which are receiving people in need of protection.
As part of this work, the Commissioner interacts with human rights
defenders and gathers information on patterns of violations of human
rights, in accordance with her mandate.
46. However, the Commissioner is not mandated and, therefore,
not equipped to work on securing evidence of violations of international
humanitarian law. She has nevertheless stressed the importance of
accountability for serious violations of human rights and grave
breaches of international humanitarian law committed in Ukraine.
Note The Commissioner is also in contact
with the office of the Prosecutor of the ICC to see how to support
his work.
47. I believe that the Commissioner should continue to raise awareness
about patterns of human rights violations committed in Ukraine during
the ongoing war and to support initiatives aimed at documenting
them, including through regular contact with the authorities, the
institutions and her network of human rights defenders and civil
society in Ukraine.
4.3 Co-operation activities
48. On 22 March 2022, Iryna Venediktova,
Prosecutor General of Ukraine, and Christos Giakoumopoulos, Director
General for Human Rights and the Rule of Law of the Council of Europe
met at the Polish-Ukrainian border to discuss immediate assistance
to Ukraine in the context of the human rights and rule of law consequences
of the Russian Federation’s aggression. Mr Giakoumopoulos highlighted
that the Directorate General, within its mandate and expertise,
would continue providing support to the Ukrainian authorities in
their endeavours to uphold human rights and the rule of law in the
context of the current challenges of the war. In this regard, the
Director General and the Prosecutor General of Ukraine exchanged
on priorities of action and immediate co-operation measures,
inter alia with respect to gross
human rights violations.
Note
49. On 5 April 2022, the Directorate General conducted expert
consultations with the representatives of the Ministry of Justice
of Ukraine. The goal of these consultations was to discuss the draft
law ‘On Support for Criminal Proceedings and Enforcement of Punishments,
Which Are Precluded as a Result of Armed Aggression, Temporary Occupation
of the Territory of Ukraine’, prepared under the aegis of the Ministry. Deputy
Minister of Justice Oleksandr Banchuk outlined the most urgent needs
for the Ministry, including possible assistance of the Council of
Europe in documenting gross human rights violations, to be performed
in co-ordination with the Office of the Prosecutor General of Ukraine.
These consultations are conducted within the framework of the Council
of Europe Project “
Human
Rights Compliant Criminal Justice System in Ukraine”, which is part of the Council of Europe Action Plan
for Ukraine 2018-2022.
Note
50. The Council of Europe should mobilise its resources and co-operation
programmes to assist the Ukrainian authorities, for instance by
providing expertise and training on documenting human rights violations and
giving advice on the different legislative and judicial reforms
which may be needed for the effective and human-rights compliant
investigation and prosecution of serious crimes committed during
the war.
Note
5 Conclusions
51. In sum, in light of all the
reports and statements by international bodies and non-governmental observers,
there is a growing body of evidence showing that Russian armed forces
may have committed serious violations of international humanitarian
law since the beginning of the 2022 aggression against Ukraine.
These include attacks against civilians and civilian objects, indiscriminate
shelling against residential areas and civilian infrastructure,
such as hospitals, schools and shelters, use of cluster munitions,
attacks on humanitarian corridors, and more recently, extrajudicial
executions, rape and sexual violence in towns temporarily occupied
by Russian troops. Many of these atrocities may amount to grave
breaches of the Geneva Conventions and/or the Additional Protocol
I of 1977, therefore qualifying as war crimes. They may also constitute
violations of international human rights law, including of the European
Convention of Human Rights, (still binding on Russia until 16 September
2022), and crimes against humanity, if there is evidence that they were
committed as “part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack”.
All these possible violations of international law result from the
use of force by the Russian Federation, which is in itself unlawful
and could fulfil the definition of the crime of aggression under Article
8 bis of the ICC Statute or
customary international law. It should be noted that the International
Court of Justice, in its order indicating provisional measures concerning
the dispute between Ukraine and the Russian Federation under the
Genocide Convention, has not found any evidence for a “genocide”
being committed by Ukraine against the Russian-speaking population
in the Donbass region, which was one of the arguments used by the
Russian Federation to justify its military intervention in Ukraine.
52. There must be no impunity for violations of international
law, human rights and international humanitarian law, which shall
be applied simultaneously and in a complementary way during an international armed
conflict. Council of Europe member States individually and through
the Organisation as a whole should support (including by providing
human and financial resources) the ongoing investigations and proceedings arising
out of the ongoing aggression before different international accountability
mechanisms, including the International Criminal Court, the International
Court of Justice, the European Court of Human Rights, and the special
Independent International Commission of Inquiry set up by the UN
Human Rights Council. They should also encourage and participate
in the establishment of a special international tribunal with a
view to prosecuting and punishing the crime of aggression allegedly
committed by the political and military leaders of the Russian Federation
against Ukraine, as proposed by different initiatives/experts on
the basis of different models. This would open the possibility of
bringing to justice high-ranking Russian as well as Belarusian government
officials responsible for waging and participating in the war of
aggression against Ukraine. This would supplement existing mechanisms
which have no jurisdiction over this crime.
53. The Council of Europe and its member States should support
all national proceedings initiated to investigate or prosecute the
alleged crimes committed in Ukraine, including first and foremost
by the competent Ukrainian authorities. The Council of Europe could
also provide expertise and assistance in documenting gross human
rights violations for the benefit of the competent Ukrainian authorities.
Member States which have opened investigations into the crimes committed
in Ukraine under the principle of universal jurisdiction or on other
grounds should contribute to the collection and preservation of
evidence, in co-ordination with international and other national
jurisdictions. To prevent any overlaps and contradictions, the ICC
Prosecutor should be given a strong co-ordinating role, along with
the necessary human, technical and financial resources.
54. In the draft resolution and recommendation, I have formulated
some specific recommendations to member and observer States, other
relevant international actors and the Committee of Ministers, with
a view to ensuring the highest possible degree of accountability
for serious violations of international humanitarian law and other
international crimes committed during the Russian Federation’s aggression
against Ukraine.
