The Russian Federation’s aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 28 April 2022 (15th sitting) (see Doc. 15510, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Aleksander Pociej). Text
adopted by the Assembly on 28 April 2022 (15th sitting).See
also Recommendation 2231
(2022).
1. The Parliamentary Assembly is appalled
by the ongoing war of aggression waged by the Russian Federation
against Ukraine. This war is being conducted with a brutality that
is unprecedented in Europe since the Second World War. The use of
heavy weapons in densely populated areas has caused thousands of civilian
casualties, the almost complete destruction of the city of Mariupol
and severe damage to civilian infrastructures such as hospitals,
schools, kindergartens, water and electricity supplies and residential buildings
in Kharkiv and many other cities and towns throughout Ukraine.
2. The Assembly is horrified by reports of atrocities against
civilians allegedly committed by Russian troops in towns and villages
temporarily under their control, in particular in Bucha and other
towns in the vicinity of Kyiv.
3. The Assembly is appalled by widespread reports of the use
of rape and torture as weapons of war, both of which are recognised
as war crimes in international criminal law.
4. The granting by the President of the Russian Federation on
18 April 2022 of an honorary title to the 64th motorised
infantry brigade, which was posted in Bucha at the time of the reported
atrocities, sends a devastating message to the victims’ families
and cynically encourages Russian troops to continue committing similar
actions which may amount to war crimes and crimes against humanity
with impunity.
5. The Assembly draws attention to the “Russkiy mir” (that is,
“Russian world”) ideology that has taken hold in the Russian Federation
and has become a State ideology, which the Kremlin has turned into
a tool for promoting war. This ideology is being used to destroy
the remnants of civil democracy, to bring up new militarised generations
in the Russian Federation and to justify its external aggression.
6. The Assembly therefore urges the international community to
send a clear message to the contrary, namely that perpetrators of
war crimes and crimes against humanity, and possible genocide, will
be held to account. The same must apply to the perpetrators of the
crime of aggression, namely the political and military leadership
of the Russian Federation who are responsible for launching the
ongoing war.
7. The Assembly notes that relevant legal instruments already
exist in order to prosecute war crimes and crimes against humanity,
and possibly genocide, namely:
7.1 the
International Criminal Court (ICC), which in 2014 was granted jurisdiction
by Ukraine to investigate war crimes and crimes against humanity
on its territory;
7.2 the criminal justice systems of Ukraine and any other
States that have granted their courts universal jurisdiction for
such crimes.
8. Leading politicians, academics and human rights lawyers have
proposed the creation, by a group of States willing to take the
lead, of an ad hoc international criminal tribunal to prosecute
the crime of aggression. This cannot presently be addressed by the
ICC without a resolution by the United Nations Security Council, which
the Russian Federation would probably block by using its veto.
9. In addition to the criminal responsibility of individual perpetrators
of international crimes, the European Court of Human Rights and
the International Court of Justice (ICJ) can hold the Russian Federation accountable
for human rights violations committed by Russian troops and, in
the case of the ICJ, other violations of international law for which
the ICJ has jurisdiction.
10. The Assembly recalls the legal duty to prevent and punish
genocide under the 1948 United Nations Convention on the Prevention
and Punishment of the Crime of Genocide to which all 46 member States
of the Council of Europe are Contracting Parties. As interpreted
by the ICJ, this obligation and a corresponding duty to act arise
at the instant that one has learned of, or should normally have
learned of, the existence of a risk that genocide may have been
committed.
11. The Assembly therefore calls on all member and observer States
of the Council of Europe to:
11.1 support
the ICC Prosecutor in his task of investigating and prosecuting
suspected perpetrators of war crimes, crimes against humanity and,
possibly, genocide, by providing political support and adequate
human and financial resources and by making available any evidence
in their possession, including open-source intelligence, information
and data, satellite imagery and intercepts of communications;
11.2 make use of their universal jurisdiction, to the extent
foreseen in their legislation, to investigate international crimes
and prosecute the perpetrators;
11.3 join or otherwise support the Joint Investigation Team
(JIT) already set up by Ukraine, Poland and Lithuania with the support
of Eurojust, for the purpose of co-ordinating their investigations
and pooling their results through direct co-operation between the
competent authorities of the participating States;
11.4 closely co-ordinate their investigations with those of
the ICC Prosecutor; those States participating in the JIT could
include the ICC Prosecutor in the JIT;
11.5 fully co-operate with the ICC Prosecutor, the members
of the JIT and any other States making use of their universal jurisdiction,
including by handing over to them any persons on their territory
against whom arrest warrants are issued;
11.6 urgently set up an ad hoc international criminal tribunal,
which should:
11.6.1 receive a mandate to investigate and
prosecute the crime of aggression allegedly committed by the political
and military leadership of the Russian Federation;
11.6.2 apply the definition of the crime of aggression as established
in customary international law, which has also inspired the definition
of the crime of aggression in Article 8 bis of
the Rome Statute of the ICC;
11.6.3 have the power to issue international arrest warrants
and not be limited by State immunity or the immunity of heads of
State and government and other State officials;
11.6.4 be set up notably by a group of like-minded States in
the form of a multilateral treaty endorsed by the United Nations
General Assembly and with support to be provided by the Council of
Europe, the European Union and other international organisations;
11.6.5 have its headquarters in Strasbourg (France), in view
of possible synergies with the European Court of Human Rights, which
is dealing with numerous related individual and interstate applications;
11.7 sign and ratify the Rome Statute of the ICC and the Kampala
amendments introducing Article 8 bis on
the crime of aggression;
11.8 avail themselves of the opportunity under Article 33 of
the European Convention on Human Rights (ETS No. 5, the “Convention”)
to refer to the European Court of Human Rights, individually or through
joint legal action, any alleged breach of the Convention and its
protocols by the Russian Federation occurring until 16 September
2022, when the Russian Federation will cease to be a Party to the
Convention;
11.9 use the assets of Russian citizens subject to targeted
sanctions for their responsibilities in the war of aggression launched
against Ukraine by the Russian Federation, once they are confiscated definitively,
to compensate Ukraine and its citizens for any damage caused by
the Russian Federation’s war of aggression.
12. The Assembly further invites:
12.1 the European Court of Human Rights to consider prioritising
cases stemming from the Russian aggression against Ukraine and making
use of the possibility to undertake an investigation under Article 38
of the European Convention on Human Rights;
12.2 the Commissioner for Human Rights of the Council of Europe
to closely follow the human rights situation in Ukraine and to identify
and swiftly denounce, in her targeted reports or statements, any patterns
of serious human rights violations or violations of international
humanitarian law she detects;
12.3 the ICC and its Prosecutor to:
12.3.1 prioritise
the investigation and prosecution of war crimes and crimes against
humanity committed during the ongoing war of aggression launched
by the Russian Federation against Ukraine;
12.3.2 swiftly conclude investigations in the most glaring cases
and issue indictments and arrest warrants against the suspected
perpetrators;
12.3.3 co-operate closely with the national prosecutorial authorities
exercising their universal jurisdiction following the principle
of complementarity and participate in the co-ordination of relevant
investigations through the JIT set up by several States with the
support of Eurojust;
12.4 the Independent International Commission of Inquiry set
up by the UN Human Rights Council to investigate all alleged violations
of human rights in the context of the Russian aggression against Ukraine
and to co-operate and co-ordinate its activities closely with the
Prosecutor of the ICC and the national prosecutorial authorities
investigating international crimes under their universal jurisdiction;
12.5 the United Nations General Assembly to:
12.5.1 support
setting up an ad hoc international criminal tribunal to prosecute
the crime of aggression allegedly committed by the political leaders
and military commanders of the Russian Federation against Ukraine
and encourage United Nations member States to step up their efforts to
provide full support to the establishment of such a tribunal;
12.5.2 request an Advisory Opinion from the International Court
of Justice on possible limits to the veto rights of permanent members
of the United Nations Security Council that could be based on the
general legal principles of the prohibition of the abuse of rights
and the duty of member States of international organisations to
exercise their membership rights in good faith.
13. The Assembly finally calls on the Russian Federation to:
13.1 cease hostilities against Ukraine
and immediately, completely and unconditionally withdraw its military
forces from the territory of Ukraine within its internationally
recognised borders, and comply strictly with its obligations under
human rights and international humanitarian law;
13.2 ensure accountability for crimes committed by its forces
and all entities for which it bears responsibility according to
its obligations under international humanitarian law and human rights
law, including the Geneva conventions, the International Covenant
on Civil and Political Rights and the European Convention on Human
Rights, which is still binding on the Russian Federation until 16 September
2022, also bearing in mind the binding nature of the judgments of
the European Court of Human Rights, those already pending supervision
of execution and those still to be adopted.
