B Explanatory memorandum
by Mr Damien Cottier, rapporteur
1 Introduction
1. The present report has been
prepared for a debate under urgent procedure, following a request
by the Committee on Legal Affairs and Human Rights to the Bureau
of the Parliamentary Assembly to fast-track the report entitled
“Legal and human rights aspects of the Russian Federation’s aggression
against Ukraine”.
2. On 26 April 2022, the Committee on Legal Affairs and Human
Rights constituted an
ad hoc sub-committee
on carrying out a fact-finding visit to Ukraine for the purpose
of gathering information on possible war crimes and crimes against
humanity committed during the war of aggression launched by the
Russian Federation against Ukraine. The
ad
hoc sub-committee carried out its mission between 27
and 29 June 2022. The sub-committee’s delegation was composed of
ten members of the committee, including myself as chairperson.
Note Following
its visit and discussions with Ukrainian authorities on 28 June,
the sub-committee decided to prioritize work along the following
three axes: (1) accountability for the crime of aggression; (2)
the prosecution of war crimes, crimes against humanity and possible
genocide; and (3) the establishment of a compensation mechanism
to fund post-war reconstruction in Ukraine.
Note I therefore decided to treat
these 3 axes as a priority in the report. They are interrelated
components of a comprehensive system of accountability for violations
of international law arising out of the Russian aggression against
Ukraine. Other topics covered in the original motion may be examined
in parallel or future reports.
3. In the preparation of this report, the committee held three
hearings with experts. On 6 September 2022, we heard from Mr James
Goldston, Executive Director of Open Society Foundations, Justice
Initiative, and Professor Dapo Akande, Professor of Public International
Law, Blavatnik School of Government, University of Oxford.
Note On 12 October 2022, the committee held
a second hearing, with the participation of Mr Jonathan Agar, Special
Assistant to the Prosecutor of the International Criminal Court
(ICC), and Ms Tamar Tomashvili, Associate Professor of Law, Free
University of Tbilisi, Georgia. Finally, on 12 December 2022, we
heard from Ms Iryna Mudra, Deputy Minister of Justice of Ukraine,
and Professor Burkhard Hess, Director of the Max Planck Institute
Luxembourg for International, European and Regulatory Procedural
Law. I should also mention that in my capacity as Chairperson of
the Committee and Rapporteur, I had a meeting with Mr Andrii Kostin, Prosecutor
General of Ukraine, on the occasion of his first visit to the Council
of Europe on 14 October 2022. I would like to thank all these people
for their valid input.
2 Accountability for the crime of aggression
2.1 The
crime of aggression committed against Ukraine and the importance
of prosecution
4. The Nuremberg Tribunal, in
its judgment of 30 September 1946 famously declared: “To initiate
a war of aggression is not only an international crime; it is the
supreme international crime, differing only from other war crimes
in that it contains within itself the accumulated evil of the whole”.
In other words, the crime of aggression is the international crime
from which all others flow. The crime of aggression was codified
in Article 8 bis of the ICC Statute (2010 Kampala Amendments)
Note but
has also been part of customary international law for a long time.
Note
5. The Russian Federation’s large-scale invasion of Ukraine launched
on 24 February 2022 clearly constitutes an “aggression” under the
terms of Resolution 3314 (XXIX) of the United Nations General Assembly (UNGA)
adopted in 1974.
Note It amounts to an act of “invasion
or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting
from such invasion or attack”. The attempted annexation of the four
partly occupied regions of Donetsk, Kherson, Luhansk and Zaporizhzhia,
following the so-called referendums held in September 2022, could
also qualify as an act of “annexation by the use of force of the
territory of another State or part thereof”, and is an example of
the continuing escalation of the Russian Federation’s aggression.
The ongoing aggression is in fact a continuation of the aggression
started on 20 February 2014, which included the occupation and illegal
annexation of Crimea. All these acts committed against Ukraine,
given their character, gravity and scale, constitute a manifest violation
of the Charter of the United Nations, in particular of Article 2(4)
which prohibits the threat or use of force against the territorial
integrity or political independence of any State. They lack any
plausible
jus ad bellum justification,
for instance individual or collective self-defence by Russia under
Article 51 of the UN Charter. The acts of aggression committed by
the Russian Federation against Ukraine clearly meet the threshold
of the definition of the crime of aggression under customary international
law and Article 8
bis of the ICC
Statute. Aggression is a continuing crime until such time as the
sovereignty, territorial integrity and political independence of
the victim State is re-established. Criminal responsibility for
this crime is attributable to those who planned, prepared, initiated
or executed the acts of aggression, and who were in a position to
control or direct the political or military action of the aggressor
State (so-called leadership requirement). This should cover the
highest political and military leaders of the country, possibly
including the members of the National Security Council who on 21
February 2022 publicly approved the Russian President’s course of
action.
Note The question of whether members
of the Russian Parliament and political parties that have voted
for illegal decisions validating the aggression and attempted annexation
meet the leadership requirement is more difficult to answer and
needs to be examined further.
Note
6. In addition, Belarus’ complicity in the aggression against
Ukraine, widely condemned by the international community,
Note could
give rise to a crime of aggression by Belarusian leaders. Article
8
bis(2)(f) of the ICC Statute
defines “the action of a State in allowing its territory, which
it has placed at the disposal of another State, to be used by that
other State for perpetrating an act of aggression against a third
State” as a self-standing act of aggression. Here too the highest
political and military leaders who were in a position to control
or direct the behaviour of the country should face criminal responsibility
for their decisions.
7. The importance of prosecuting the crime of aggression lies
in the fact that it is an “umbrella crime” from which the other
crimes (war crimes, crimes against humanity and possible genocide)
flow. None of these crimes would have occurred without the political
decision by Russian leaders to wage an unlawful and unjustified
war.
Note An additional reason to prosecute
the crime of aggression would be that the responsibility for this
crime extends also to all the deaths, suffering and destruction
resulting from the unlawful war, including for acts compliant with
international humanitarian law, which may not qualify as war crimes
(for example deaths of Ukrainian combatants who are lawful targets
under IHL).
Note
8. Moreover, the crime of aggression, including the attempted
annexation of the occupied regions, is an attack on the international
legal order as a whole. It is a flagrant violation of the prohibition
on the use of force and its corollary principle of the illegality
of territorial acquisition resulting from the threat or use of force.
Note States
have an obligation not only not to recognise as lawful the situation
created by the aggression and not to render aid or assistance in
maintaining it, but also to co-operate to bring it to an end through
lawful means.
Note For all these reasons,
it is essential that Ukraine and the international community find
proper legal avenues to prosecute and punish this crime.
9. Finally, prosecuting the crime of aggression may have an important
function of prevention of such crimes in the future in the same
or other countries. The mere existence of clear legal pathways and
criminal prosecution in case of violation of the prohibition of
the use of force might encourage political and military leaders
to think twice before they decide to commit an act of aggression.
It might also reinforce the arguments and position of those, within
the institutions, the military, the media, civil society, etc. who
oppose such a course of action. On the contrary, if such a clear
violation of international law is not prosecuted, this might reinforce the
confidence of political and military leaders who think that aggression
is still a possible option without too many personal risks.
2.2 Filling
a jurisdictional gap: the need to create an ad hoc international
criminal tribunal for the crime of aggression against Ukraine
10. The ICC has at present no jurisdiction
over the crime of aggression against Ukraine. Unlike the other three
crimes in the ICC Statute (war crimes, crimes against humanity and
genocide), the crime of aggression cannot be prosecuted when committed
by nationals of non-State parties or on the territory of non-State parties.
Note Ukraine, Russia
and Belarus are not parties to the ICC Statute. While Ukraine has
made two declarations (in 2014 and 2015) submitting itself to the
jurisdiction of the ICC, this ad hoc acceptance of jurisdiction
can only cover war crimes, crimes against humanity and genocide.
Note The jurisdictional
regime for the crime of aggression agreed in Kampala was the result
of a political compromise and excludes this possibility. The only
other option under the ICC Statute to exercise jurisdiction would
be through the referral to the ICC Prosecutor by the United Nations
Security Council (UNSC) acting under Chapter VII of the UN Charter.
Note This
would likely be vetoed by the Russian Federation in the UNSC. In
any event, members of the UNSC could still try to pass a resolution
for referral, in order to demonstrate that all possible avenues
to grant the ICC jurisdiction over the crime of aggression have
been exhausted. It has even been argued that the UNGA could have
the power to refer the situation to the ICC by virtue of the “Uniting
for Peace” resolution, if the UNSC failed to exercise its responsibilities
under Chapter VII due to the Russian veto.
Note But
this option could be challenged as the possibility of referrals
by the UNGA is currently not foreseen in the ICC Statute.
Note
11. The alternative to accountability before an international
court is prosecution before domestic courts. Russia and Belarus
have codified the crime of aggression under their domestic criminal
legislation, but for obvious reasons there is currently no prospect
for prosecution. Certain countries have opened investigations into
the crime of aggression against Ukraine, on the basis of the principle
of universal jurisdiction or the protective principle.
Note The
Ukrainian legislation itself criminalises the planning, preparation,
unleashing or waging of an aggressive war,
Note but
the Office of the Prosecutor General and Ukrainian authorities are
well aware that personal immunities of foreign State leaders and
government officials (the so-called troika: head of State, head
of government and minister of Foreign Affairs) are applicable under
international law and would likely constitute a bar to domestic
prosecution. Besides the possible legal obstacles to domestic prosecution
of the crime of aggression,
Note there are also reasons related
to objective impartiality and legitimacy which seem to militate
in favour of an international prosecution instead of a purely domestic
prosecution by the victim or other State’s courts.
Note
12. In this context, shortly after the launch of the full-scale
armed attack on Ukraine in February 2022, a number of prominent
figures from the legal and political spheres proposed the creation
of a special tribunal for the punishment of the crime of aggression
against Ukraine, by an
ad hoc “coalition
of the willing” and inspired by the Nuremberg precedent. According
to this proposal, States would agree to grant jurisdiction arising
under national criminal codes and general international law to such
a dedicated tribunal.
Note
13. The Assembly was the first international body to make a similar
proposal. In its
Resolution
2436 (2022) “The Russian Federation’s aggression against Ukraine:
ensuring accountability for serious violations of international
humanitarian law and other international crimes” (report of the
Committee on Legal Affairs and Human Rights, rapporteur: Mr Aleksander
Pociej; urgent debate), adopted on 28 April 2022, the Assembly unanimously
called on all member and observer States of the Council of Europe
to urgently set up an
ad hoc international
tribunal with a mandate to investigate and prosecute the crime of
aggression allegedly committed by the political and military leadership
of the Russian Federation, through a multilateral treaty between
like-minded States endorsed by the UN General Assembly and with
the support of the Council of Europe, the EU and other international
organisations.
Note
14. The Assembly’s call was later followed by the European Parliament,
the OSCE Parliamentary Assembly and NATO Parliamentary Assembly.
Note National
parliaments have also supported the idea.
Note
15. On 12 September 2022, an event on “Ensuring coherence in accountability
for the Russian aggression against Ukraine: the
ad hoc Special Tribunal for the
crime of aggression against Ukraine and the Compensation Commission
for Ukraine” was organised by the Permanent Representation of Ukraine
to the Council of Europe and was held under the auspices of Ireland’s
Presidency of the Committee of Ministers, with the participation in
person of the Deputy Minister of Justice of Ukraine. At this event,
Ukraine’s proposal to establish an ad hoc special tribunal for the
punishment of the crime of aggression against Ukraine was presented
to delegations. According to this proposal, the special tribunal
would be complementary and not interfere with the jurisdiction of
the ICC, as it would only have jurisdiction to investigate and prosecute
the crime of aggression committed by the political and military
leadership of Russia. It could be established on the basis of a
multilateral treaty between States or on the basis of an agreement
with an international organisation (for example the EU or the Council
of Europe). The definition of the crime of aggression would be in
line with that provided in Article 8
bis of
the Rome Statute of the ICC. The official position of a defendant,
whether as Head of State or other official, would not exempt them
from individual criminal responsibility. The special tribunal and
competent national courts (Ukrainian) would have concurrent jurisdiction,
but the special tribunal should have primacy, meaning that it could
request that the national court deferred a case to its competence
if the interest of justice so required.
Note President Zelenskyy also pleaded
for the creation of a special tribunal for the crime of aggression when
addressing the UNGA in September 2022
Note and the Assembly
during its October 2022 part-session.
Note
16. Following a discussion of the Ukrainian proposals at its meeting
of 14 and 15 September 2022, the Committee of Ministers adopted
a
decision in which it “stressed the urgent need to ensure a comprehensive system
of accountability for serious violations of international law arising
out of the Russian aggression against Ukraine to avoid impunity
and to prevent further violations”. It “noted with interest the
Ukrainian proposals to establish an ad hoc special tribunal for
the crime of aggression against Ukraine and welcomed ongoing efforts, in
co-operation with Ukraine, to secure accountability for the crime
of aggression (…)”.
Note The
Committee of Ministers called on member States and the Council of
Europe to remain actively seized of the matter and actively engage
in further developing a comprehensive system of accountability.
17. This issue was also raised by the High-Level Reflection Group
of the Council of Europe in its report of 5 October 2022, in which
it stressed “the importance of ensuring a comprehensive system of
accountability for serious violations of international law, arising
from the Russian aggression against Ukraine”, and asked the Council
of Europe to remain engaged and contribute to the international
efforts in this regard.
Note In my view, the 4th Summit
of the Council of Europe Heads of State and Government that will
be held in Reykjavik in May 2023 would be an excellent occasion
to give the necessary political impetus and support to the creation
of the special tribunal.
Note
18. The European Commission, on 30 November 2022, explicitly supported
the idea of setting up a special tribunal for the crime of aggression
against Ukraine, in order to fill the existing jurisdictional gap
and ensure full accountability for all crimes. The Commission is
for the time being considering alternative options involving backing
by the UNGA: either a special international tribunal based on a
multilateral treaty, or a specialised court integrated in a national
justice system with international judges (a hybrid court).
Note These options still need to be further
detailed by the Commission and then examined by the EU Council.
Note Following the position of the European
Commission, France immediately announced that they had started working
with European and Ukrainian partners on the proposal to establish
a special tribunal on Russia’s crime of aggression against Ukraine.
Note The Netherlands has on its turn
said that it would be willing to host the special tribunal in The Hague.
Note The German Foreign Minister has
also recently called for the establishment of a special tribunal.
Note On 19 January 2023,
the European Parliament adopted a new resolution calling for the
creation of a special international tribunal to prosecute Russian
leaders and its allies for the crime of aggression.
Note
19. At the United Nations level, a draft resolution of the UNGA
proposing the establishment of an international tribunal on the
crimes of aggression committed against Ukraine was circulated by
Ukraine, but it has not yet been put to a vote.
Note
2.3 Legal
and practical challenges for the establishment and functioning of
an ad hoc international criminal tribunal for the crime of aggression
against Ukraine
2.3.1 Legal
basis
20. Various alternatives are currently
being examined with a view to setting up a special tribunal on the
crime of aggression against Ukraine. The possibility of establishing
an ad hoc tribunal by the UNSC under Chapter VII of the UN Charter
(like the ones created for the former Yugoslavia/ICTY and Rwanda/ICTR)
is to be excluded, given Russia’s veto power within the UNSC. Some
have argued that due to the blockage of the UNSC by a permanent
member, the UNGA could establish such a tribunal acting under the
“Uniting for Peace” mechanism.
Note However, it could
be challenged as too broad an interpretation of UNGA powers. Also
a resolution adopted by the UNGA does not in principle create international
obligations binding on States. In any event, the UNGA could recommend
the creation of a special tribunal for the crime of aggression,
for example through an agreement between Ukraine and the United
Nations.
21. The main viable options are: (a) an international tribunal
based on a multilateral international treaty concluded by States,
including Ukraine, (as was for example the tribunal of Nuremberg);
and (b) a special tribunal set up through an agreement between Ukraine
and an international organisation, for example the UN, or the Council
of Europe. For the first option, such a tribunal could and should
also be endorsed and supported (logistically, technically and financially)
by as many international organisations as possible For the second option,
the statute of the agreed tribunal could also be open for signature
and ratification by States and other international and regional
organisations. Regarding its nature (international/hybrid), there
are different possible options and degrees of integration of the
tribunal within the Ukrainian system, with a wide range of precedents such
as the Kosovo* Specialist Chambers, the Special Court for Sierra
Leone and the Extraordinary Chambers in the Courts of Cambodia.
NoteNote The integration
of a hybrid court within the Ukrainian system appears to raise some
issues, as Article 125 paragraph 6 of the Ukrainian Constitution
prohibits the establishment of extraordinary and special courts
and as according to Article 127 paragraph 3, only a citizen of Ukraine
may be appointed to the office of judge. Ukrainian representatives
have made it clear that a change of the constitution in wartime
would be very difficult to achieve. Although a hybrid court (comprising
Ukrainian and international judges or only international judges
but applying Ukrainian legislation) could perhaps be created outside
the Ukrainian system, I believe that the fully international option
would be preferable, also for the reasons that I will explain below
concerning personal immunities.
Note
22. In any event, as things stand, the Assembly should leave the
question of the legal basis (multilateral treaty agreement with
an international organisation or a combination of both) open. Although
the Council of Europe could legally provide a forum for both options,
for example reaching an agreement with Ukraine or providing the
institutional framework for the negotiation of a multilateral treaty
Note (perhaps
in the form of a partial enlarged agreement open to non-Council
of Europe member States), the final legal form of the instrument should
be decided pragmatically, aiming to involve the largest possible
number of States, ideally representative of different regions of
the world.
2.3.2 Jurisdiction
23. Some have argued that States
cannot simply transfer their universal or territorial jurisdiction
over the crime of aggression to a newly established international
tribunal.
Note However, other authors
have rejected the theory of “delegation” of jurisdiction to international
tribunals, arguing that this fails to consider the international legal
personality of international organisations and courts independent
from founding States.
Note When creating international
criminal courts to exercise jurisdiction over certain crimes and
apply international law, States are not necessarily constrained
by their own laws and domestic jurisdiction rules.
24. The special tribunal should have jurisdiction only over the
crime of aggression. It should not go beyond this, in order not
to interfere with the ICC’s jurisdiction over other international
crimes. The future statute of the special tribunal should include
the definition of the crime of aggression codified in Article 8
bis of the ICC Statute, which is
considered to reflect customary international law, or even preferably
contain a direct reference to the Rome Statute, which would ensure
the complementarity and co-operation with the ICC.
Note
25. As regards temporal jurisdiction, the question arises as to
whether it should start in February 2014 with the attempted illegal
annexation of Crimea, followed by the occupation of parts of the
Donetsk and Luhansk regions, or in February 2022 with the full-scale
invasion of Ukraine. Although the UNGA resolutions have not mentioned
the 2014 events when condemning the aggression, it seems clear that
at least the attempted annexation of Crimea also meets the high
threshold of the definition of the crime of aggression. The Assembly has
indeed considered the current aggression as a continuation of the
war of aggression waged since 20 February 2014.
Note The circumstance that the
ICC jurisdiction over the crime of aggression was only activated on
17 July 2018 should not be an obstacle, as the crime of aggression
already existed before under customary international law.
2.3.3 Immunities
26. There seems to be a consensus
on the fact that personal immunities of the so-called troika (incumbent heads
of State, heads of government and ministers of foreign affairs)
Note are
not applicable to international criminal courts or tribunals under
customary international law.
Note The rationale
behind personal immunities from foreign courts lies in the principle
of sovereign equality of States, according to which one sovereign
state cannot adjudicate on the conduct of another State. Such principle
has no relevance when it comes to international courts. Moreover,
there is also support for the position that functional immunity
or immunity
ratione materiae (namely
for acts committed in official capacity) from criminal jurisdiction
does not apply to international crimes, including the crime of aggression.
Note
27. Nevertheless, the question remains whether the new special
tribunal would be sufficiently “international” to avoid the applicability
of personal immunities. According to some authors, the international
court or tribunal should be sufficiently detached from national
jurisdictions and sufficiently reflect the will of the international community
to collectively enforce crimes against customary international law.
Note Although
there are different views on whether this could be achieved through
an agreement with the UN (following the example of the Special Court
of Sierra Leone), or with the involvement of an
ad hoc group of States or a regional organisation,
Note it seems to me
that the issue of immunities could be better addressed (and solved)
in a treaty or agreement establishing a fully (not hybrid) international
tribunal, preferably with the endorsement of different international
organisations (UN, CoE, EU, …). Such endorsement would be important
for showing that the tribunal reflects the will of the international
community as a whole. In any event, the statute of the tribunal should
explicitly contain a provision similar to Article 27 of the ICC
Statute, stipulating that the official capacity of the accused shall
in no case exempt him/her from criminal responsibility or mitigate
punishment. This would obviously apply to nationals of non-parties
to the treaty (namely aggressor States), as is the case now under the
ICC jurisdictional regime for situations referred by the UNSC (for
example President Al Bashir from Sudan) or crimes other than aggression
(for example crimes against humanity committed by a Russian national
on the territory of a state party or a state having accepted the
ICC jurisdiction).
2.3.4 Co-operation
from aggressor States and effectiveness
28. It has been argued that a special
international tribunal would be unable to secure the co-operation
from the aggressor States and the presence of the accused. In this
respect, there are important differences with previous special international
or internationalised tribunals which were established after the
end of the relevant conflicts (Nuremberg and Tokyo, Sierra Leone,
Cambodia and Kosovo). However, the issuance of indictments and of
arrest warrants against Russian leaders would already severely limit
their freedom of movement and lead to further political isolation.
They could also act as a deterrent for further crimes.
Note Indictments
and arrest warrants would also have their own intrinsic value for
victims.
Note The co-operation with the ad hoc tribunal, including
the surrender of political or military leaders, could also be part
of a future peace agreement with Russia, or at least conceivable
in the event of a regime change.
2.3.5 Rights
of the accused
29. The Statute of the future tribunal
should contain a list of fair trial and due process rights of the
accused, in line with the rights guaranteed under the European Convention
on Human Rights (ETS No. 5) and the International Covenant for Civil
and Political Rights. Trials
in absentia should
be avoided, in line with the practice of other international criminal
tribunals, including the ICC.
Note They would indeed
raise human rights and legitimacy concerns. The Statute should also
guarantee the principle of
non bis in
idem, as well as the principle of legality. With regard
to the principle of legality, the definition of the crime of aggression
should reflect the state of customary international law (for example
in line with Art. 8 bis of the ICC Statute), in order to avoid any challenge
of retrospective or unforeseeable application to the accused person’s
disadvantage.
Note
2.3.6 Complementarity
with the ICC and long-term implications for international criminal
justice
30. The different proposals on
the special tribunal for the crime of aggression have given rise
to concerns that such a tribunal would compete with the ICC or undermine
its legitimacy. It should be emphasized that the special tribunal’s
jurisdiction would be limited to the crime of aggression committed
against Ukraine, and that the ICC’s jurisdiction over war crimes,
crimes against humanity and genocide in Ukraine would not be affected in
any way. A narrow material jurisdiction would have budgetary advantages
(compared to the investigation of war crimes) but the funding of
the special tribunal should in no way lead to diverting resources
away from the ICC. Furthermore, the two courts should negotiate
a co-operative relationship agreement that would cover issues such
as avoiding competing investigations, arrest warrants, custody of
suspects, sharing of evidence, sequency of trials, etc.
Note If the new special
tribunal had its seat in The Hague, this would obviously facilitate such
co-ordination and complementarity with the ICC. A direct reference
to the Rome Statute of the ICC in its Statute would have the same
effect.
31. More importantly, the creation of a special tribunal should
be pursued in parallel with the strengthening of international criminal
justice system for the future. In order to address the selectivity
concerns that such a special tribunal for the aggression against
Ukraine raises, States supporting this initiative (including Ukraine) should
as a minimum ratify the ICC Statute and the Kampala amendments.
NoteNote In
addition, they should step up efforts to amend the ICC jurisdictional
regime for the crime of aggression and make it more universally applicable,
either by removing its existing limitations (Article 15 bis of the
Statute) or by introducing the general possibility of UNGA referrals
to the ICC Prosecutor in case of blockage of the UNSC.
Note They should be prepared
to accept that the accountability regime for the crime of aggression
at the ICC needs to be more equal and universal, including vis-à-vis
permanent members of the UNSC. Such a commitment would help address the
selectivity concerns raised against the special tribunal for Ukraine
and contribute to the overall consistency of international criminal
justice.
32. Both options (amending the ICC Statute and setting up a special
tribunal) should be pursued in parallel, since amending the ICC
Statute may take time and be rather complex.
Note Pending the extension
of the ICC's permanent jurisdiction over the crime of aggression,
the setting up of a special tribunal to address the ongoing crime
of aggression against Ukraine seems to be the best possible option.
3 Accountability
for war crimes, crimes against humanity and possible genocide
3.1 Alleged
crimes committed
3.1.1 War
crimes and crimes against humanity
33. Since the outbreak of the war
of aggression, the Assembly has expressed on several occasions its
horror at reports of serious violations of IHL committed by the
Russian Federation and Russian troops in Ukraine, including: attacks
against civilian targets; indiscriminate use of artillery, missiles
and bombs in densely populated areas; attacks on humanitarian corridors;
hostage-taking and abductions; the use of rape and torture as weapons
of war; torture, ill-treatment and death sentences against prisoners
of war; and forced deportation of Ukrainians, including children,
from temporarily occupied territories. It has for instance referred
to specific atrocities in cities and towns temporarily under the
control of Russian troops (for example Bucha and the vicinity of
Kyiv), missile attacks targeting Ukrainian cities (for example on
10 October 2022) or the death sentences against three Ukrainian
Armed Forces soldiers of foreign origin.
Note
34. During our
ad hoc sub-committee’s
mission to Ukraine on 28 June 2022, we were shocked by
what we saw and heard in Bucha and Irpin, two towns that had been
only briefly under Russian control at the beginning of the full-scale
invasion. The sub-committee found that there were clear indications
that Bucha had been the theatre of cold-blooded murder of civilians
on a massive scale. In Irpin, we saw the massive destruction of
residential buildings and civilian infrastructures. The damage had
been obviously caused by the use of heavy weapons by Russian forces,
in what appeared to be a clear violation of international humanitarian law.
Note
35. In her “Memorandum on the human rights consequences of the
war in Ukraine” of 8 July 2022, the
Council
of Europe Commissioner for Human Rights wrote of being
confronted with compelling evidence of patterns of violations of
the right to life, including arbitrary killings and enforced disappearances,
as well as violations of the right to property, including massive
destruction of civilian infrastructure; violations of the prohibition
of torture and ill-treatment, in particular gender-based violence
and war-related sexual violence; and violations of the right to
liberty and security, including abductions and arbitrary or
incommunicado detention. Identifiable
patterns of certain types of violations of IHL, including attacks
of a widespread or systematic character, “point to the possible
qualification of many such violations as war crimes or crimes against humanity”.
Note More recently,
she has expressed particular concern about the forcible transfers
of Ukrainian children to Russia, and stressed that the forcible
transfer of protected persons to the territory of the occupying power
and the changing of children’s personal status, including nationality,
by an occupying force are both prohibited under the Fourth Geneva
Convention.
Note
36. There have been numerous international reports documenting
the war crimes and crimes against humanity that appear to have been
committed by Russian forces during the ongoing war of aggression.
For example, the second
OSCE Moscow
Mechanism “Report on Violations of International Humanitarian
and Human Rights Law, War Crimes and Crimes Against Humanity Committed
in Ukraine (1 April-25 June 2022)” published on 14 July 2022, concluded
that there have been indiscriminate attacks against civilians and
civilian objects (houses, hospitals, schools, kindergartens, nuclear
power plants, cultural heritage, places of worship, etc.) in numerous
towns and villages; their magnitude and frequency is “credible evidence
that hostilities were conducted by Russian armed forces with disregard
to their fundamental obligation to comply with the basic principles
of distinction, proportionality and precaution that constitute the
fundamental basis of IHL”. The events concerning the towns of Bucha
(summary executions of civilians with signs of torture
Note)
and Irpin were found to be emblematic examples of grave breaches
of IHL under the Geneva Conventions, which constitute war crimes.
As regards prisoners of war, the report refers to the case of three
Ukrainian Armed Forced members, two British and one Moroccan, who
were found to be mercenaries and sentenced to death following a
farce trial by the so-called Donetsk People’s Republic’s Supreme
Court. They should have been entitled to prisoner of war status
according to the Third Geneva Convention and not be punished simply
for participating in the conflict. Other reported violations of
IHL concerned treatment of detainees (“filtration” process of civilians,
Note torture), administration
of the occupied territory (“passportisation”), enforced disappearances
(including of children transferred to Russia for adoption), respect
for private property (looting), deportations or forcible transfer
of civilians to the territory of the occupying power,
Note conscription
of Ukrainian nationals (including of Crimeans), blocking the provision
of relief, use of non-combatants as human shields, and use of cluster munitions
and other weapons in populated areas. Many of these violations of
IHL could amount to war crimes under the ICC Statute and give rise
to individual criminal responsibility.
Note The mission also
concluded that some patterns of violent acts violating international
human rights law, such as targeted killings, enforced disappearance
or abductions of civilians, could qualify as a “widespread or systematic
attack directed against any civilian population”, and that any single
violent act of this type, committed as part of such an attack and with
the knowledge of it, constitutes a crime against humanity.
Note
37. The
UN Independent International Commission of Inquiry
on Ukraine, set up by the UN Human Rights Council, has
also concluded that war crimes, violations of human rights and IHL
have been committed in Ukraine, mostly by Russian armed forces.
In its report focused on the events during late February and March 2022
in the four regions of Kyiv, Chernihiv, Kharkiv, and Sumy, published
on 18 October 2022, the Commission documented the following violations:
indiscriminate attacks with explosive weapons (cluster munitions, unguided
rockets, and air strikes) in populated areas; attacks on civilians
trying to flee; patterns of summary executions, unlawful confinement,
torture, ill-treatment, rape and other sexual violence in areas
temporarily occupied by Russian forces; forcible transfers and deportations
to Russia; as well as violations of the rights of children.
Note The Commission
also documented two cases in which Ukrainian forces apparently shot,
wounded and tortured captured Russian soldiers, which could qualify
as war crimes.
Note
38. The
UN Office of the High Commissioner
for Human Rights (OHCHR) has recently published a report
detailing how Russian troops killed civilians in Ukrainian towns
and villages across the Kyiv, Chernihiv and Sumy regions from 24
February until 6 April 2022. In Bucha, the OHCHR – through the UN
Human Rights Monitoring Mission in Ukraine (HRMMU) – documented
the killing of 73 civilians and was in the process of corroborating
an additional 105 alleged killings. In total, the Mission documented
the violent deaths of 441 civilians in the three regions in the
initial 6 weeks of the Russian invasion alone. The killings fall
into two categories: summary executions, either in detention or
on the spot; and lethal attacks against individual civilians, usually
while they were moving on foot, by bicycle or in vehicles. The report
also found that men and boys were overwhelmingly targeted, comprising
88% of all victims of summary executions. According to the report,
“the circumstances of the summary executions provide strong indications
that these killings may amount to the war crime of willful killing,
a grave breach of the Geneva Conventions”.
Note In its latest update
on the situation in Ukraine (1 August-30 October 2022), the HRMMU
has also reported increasing attacks on energy and water infrastructure,
resulting in significant electricity and water shortages across
the country; destruction of educational and medical objects; killings
of civilians (for example 447 bodies exhumed near Izium), conflict-related
sexual violence (86 cases documented since 24 February), forced
transfers of children to Russia or Russian-occupied territory, “filtration
processes” of persons; torture and ill-treatment of prisoners of
war; arbitrary detention and enforced disappearances of civilians;
as well as the application of Russian legislation and granting of
Russian citizenship to Ukrainian citizens in the four purportedly
annexed regions. The vast majority of these violations of IHL and
human rights law are attributable to Russian armed forces and affiliated armed
groups. The HRMMU also reported some serious violations by Ukrainian
armed forces, such as torture or ill-treatment, although on a much
lower scale.
Note
39. International and Ukrainian non-governmental
organisations have also been documenting a wide range
of violations of IHL and possible war crimes and crimes against
humanity in the context of the ongoing war.
NoteNoteNoteNoteNoteNoteNoteNote
40. Finally, it should be stressed that all prisoners of war are
entitled to receive regular visits from delegates of the International Committee of the Red Cross
(ICRC) under the Third Geneva Convention. ICRC-Delegates
are then usually able to check their conditions and treatment, share
news with their families, and provide personal items like blankets,
warm clothes, hygiene products or books. While recent visits were allowed
by the Russian authorities, which is an important progress, the
ICRC must be granted unimpeded access to see all prisoners of war
repeatedly and in private, wherever they are held. Not allowing
such visits to all prisoners constitutes a violation of IHL.
41. I would like to pay tribute to the courage and commitment
of all national and international actors, from governmental, intergovernmental,
or non-governmental organisations which help evaluate and document atrocities
or work to support affected populations with humanitarian aid in
such difficult circumstances.
3.1.2 Genocide
42. Allegations that Russia is
committing genocide in Ukraine have also been made, mostly by political leaders
and national parliaments.
Note Some claims appear
to use the term in a more political or rhetorical sense. But others
appear to be based on the legal definition of genocide under international
law. For instance, a report produced by New Lines Institute and
Raoul Wallenberg Centre for Human Rights published in May 2022 finds that
there are reasonable grounds to conclude that Russia bears State
responsibility for (a) direct and public incitement to commit genocide
in breach of Article III (c) of the 1948 Genocide Convention and
(b) a pattern of atrocities from which an inference of intent to
destroy the Ukrainian national group in part can be drawn, in breach
of and Article II of the Genocide Convention.
Note The
report establishes the existence of a serious risk of genocide,
triggering the legal duty of all States to prevent genocide under
Article I of the Genocide Convention.
Note
43. As regards the charge of incitement to genocide, the above-mentioned
report relies on the official Russian propaganda denying the existence
of a Ukrainian national group, the “denazification” campaign,
Note the construction
of a Ukrainian existential threat for Russia and the conditioning
of the Russian public to commit and condone atrocities.
Note The
persons disseminating the incitement messages would be attributable
to the State as they are all
de jure or
de facto organs, including the head
of State, key members of the State Duma, or State media outlets
owned by or under the control of the Kremlin.
44. The report then goes on to argue that the genocidal intent
(“intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”
Note), the
mens rea that distinguishes genocide
from other international crimes, can be attributed to a State through
evidence of a general plan or can be inferred from a systematic
pattern of atrocities targeting the protected group. The five genocidal
acts under Article II can also point towards genocidal intent when
viewed in their totality. The report provides many examples of atrocities against
civilians that could qualify as genocidal acts in breach of Article
II (for example mass killings, deliberate infliction of life-threatening
conditions, forcible transfer of children, rape and sexual violence
Note) committed by Russian forces. According
to the report, genocidal intent can be inferred from a pattern of
these atrocities targeting Ukrainians.
Note
45. This analysis has been criticised by some scholars who find
that it does not fully reflect the case law of the International
Court of Justice (ICJ) on the threshold of genocide.
Note It will obviously be for
the competent international and other courts to adjudicate on the
Russian Federation’s State responsibility under the Genocide Convention
(in case Ukraine or other States bring new proceedings against Russia
before the ICJ under the Convention) and/or the potential criminal
responsibility of Russian officials for such a crime in each individual
case (given the ICC’s current jurisdiction on the Ukrainian situation).
But there seems to be mounting evidence that the Russian rhetoric
Note used to justify the full-scale
invasion contains elements that are characteristic of public incitement
to commit genocide. Moreover, some of the atrocities repetitively
committed by Russian forces in different areas of Ukraine may possibly
indicate an intent to destroy the Ukrainian national group, at least
in part.
Note It should also be noted that Article III
(d) of the Genocide Convention prohibits the
attempt to
commit genocide as a self-standing punishable act. If parliaments
and governments of States Parties to the Genocide Convention establish
the existence of a serious risk that genocide is being or will be committed,
this should activate the legal obligation on those States “to employ
all means reasonable to them, so as to prevent genocide as far as
possible” under Article I of the Convention.
Note This duty of prevention should at least
imply taking individual and collective action to ensure accountability
for the atrocities already committed by Russian forces in order
to deter further crimes, for instance through domestic prosecutions
or by supporting the ICC jurisdiction.
3.2 Existing accountability mechanisms
and the need for effective co-ordination
46. On 2 March 2022, the
ICC Prosecutor, Karim Khan, announced
that he had opened an investigation into the situation in Ukraine
on the basis of referrals received from 39 States Parties to the
ICC Statute (including 34 Council of Europe member States).
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 The
ICC Prosecutor carried out three visits to Ukraine and deployed
an investigative team on the ground.
Note He also plans
to open a field office in Kyiv in 2023. He has sent several communications
to the Russian Federation, but has received no reply.
47. Jonathan Agar, Special Assistant to the ICC Prosecutor who
participated in a hearing before our committee, explained that in
his address to the UNSC on 22 September 2022, the ICC Prosecutor
had mentioned as a priority of his investigation the alleged deportations
and transfer of Ukrainian civilians, including children, to Russia.
In terms of co-operation with other accountability actors, Mr Agar
highlighted the “extremely good co-operation” and “strong relationship”
with the Ukrainian Prosecutor General, the participation of the
ICC Prosecutor in the Joint Investigation Team set up by several
countries under the auspices of Eurojust
Note and the engagement with NGOs.
Note In this context, it is important
to note that Ukrainian legislation was amended in 2022 to facilitate
the work of the ICC Prosecutor on the ground (for example interviewing
victims). Although States Parties to the ICC Statute and the EU
helped with national secondments and voluntary financial contributions,
Note voluntary
contributions cannot be a substitute for regular and sustainable
funding of the ICC, which is facing an unprecedented workload. The
Assembly of States Parties to the ICC Statute recently approved
a limited increase in the regular budget of the Court for 2023.
Note
48. We must not forget that the ICC’s jurisdiction is complementary
to that of states, meaning that it will pursue cases only when States
are unwilling or unable to investigate or prosecute themselves.
Note In
this respect, both Russia and Ukraine, as parties to the Geneva
Conventions and Additional Protocol I, have obligations to effectively
investigate allegations of war crimes.
Note This obviously applies also to
each party’s own soldiers and commanders.
49. The Ukrainian Criminal Code criminalises
the violation of laws and customs of war (Article 438), including
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 be binding by the Parliament of Ukraine as
well as giving an order to commit such actions. It also criminalises
genocide (Article 442) as a wilfully committed act with the purpose
of total or partial destruction of any national, ethnic, racial,
or religious group by extermination of members of any such group
or inflicting grave bodily injuries on them, creation of living conditions
calculated for total or partial physical destruction of the group,
prevention of births, or forceful transfer of children from one
group to another. These provisions allow Ukraine to prosecute an
individual for crimes that can qualify as war crimes and genocide
under international law. However, since the Criminal Code does not
include crimes against humanity, the Office
of the Prosecutor General does not have jurisdiction over
this crime. We heard from Tamar Tomashvili (Associate Professor
of Law, Free University of Tbilisi) that the Ukrainian authorities
could, as a result of their lack of domestic jurisdiction, possibly
hand over the investigation of crimes that could amount to crimes
against humanity under international law (for example forced deportations)
to the ICC.
50. As of 4 January 2023, the Office of the Prosecutor General
had registered 60 734 incidents involving violations of the laws
and customs of war.
Note As of 21 November 2022, there were
217 suspects notified, 61 persons indicted and 12 persons already
convicted.
Note At the hearing before our committee,
Ms Tomashvili informed us that episodes of deliberate policy of
forced deportation of Ukrainian children and initiation of adoption
processes in Russia could also be investigated as genocide (forcible
transfer of children of one group to the other).
Note Moreover, she underlined the numerous
challenges that the national investigations in Ukraine could be
facing, including the need for specific expertise given the nature
of the crimes; case prioritisation policy; capacity building of
all stakeholders, including judges and defense lawyers; development
of IT tools; difficulties in accessing evidence in war zones or
territories under temporary occupation; and access to intelligence
information from Ukraine and allied partners and its use in criminal
proceedings to support command responsibility charges.
51. We have also been informed that pre-trial and trial proceedings
against Russian soldiers and state officials may be conducted
in absentia. During my meeting with
the Prosecutor General Mr Kostin in October 2022, we discussed the
issue of whether mutual legal assistance and extradition requests
from Ukraine to third countries could face obstacles precisely because
of this. It is of the utmost importance that prosecutions and trials
conducted in Ukraine comply with the main aspects of the right to
a fair trial guaranteed by Article 6 of the European Convention
on Human Rights, including the European Court of Human Rights standards
related to trials
in absentia.
The Council of Europe, through its project “Human Rights Compliant
Criminal Justice System in Ukraine” has been providing expertise
to Ukrainian authorities in this field.
Note
52. During the sub-committee’s visit in Kyiv, we noted the difficulties
in reporting cases of rape and other forms of sexual violence. According
to the information received, around 30 cases had been opened at
the time.
Note A
Unit for Conflict-Related Sexual Violence was recently established
within the Prosecutor General Office and a strategy with a victim-oriented
approach was prepared. The question of international support for the
Ukrainian authorities on this important matter arises, in particular
from member States with expertise to share in this field and from
the Council of Europe.
Note
53. Another issue that raises concerns is the extent to which
possible war crimes committed by Ukrainian combatants are being
investigated by Ukrainian authorities. The former PG assured members
of the sub-committee that investigations were ongoing, and that
a separate department was dealing with those crimes. Mr Kostin said
that the crimes committed by Ukrainian forces fell within the competence
of military prosecutors. Currently, there does not seem to be any
officially published information on the volume of ongoing and terminated
investigations based on accusations against Ukrainian combatants
for violations of IHL since 24 February 2022. It is important that
both sides of the conflict extend their investigations to suspects
on their own side.
54. With regard to Russia, its Criminal Code also punishes war
crimes (Article 356) and specifies that members of Russian military
units shall bear criminal responsibility for their crimes committed
in the territories of foreign states (Article 12(2)). However, despite
the growing volume of allegations of war crimes against Russian
troops, there is no information that Russian authorities have been
investigating or prosecuting any such cases.
55. There are other investigations and inquiries apart from those
led by the ICC Prosecutor and the PG of Ukraine. Already at the
end of March 2022, a
Joint Investigation
Team (JIT) was set up by Poland, Lithuania and Ukraine
under the auspices of Eurojust. It is aimed at exchanging evidence
and information in connection with the ongoing investigations on
alleged core international crimes committed in Ukraine. It also
allows investigators to operate in the partner countries, with the
consent of the state involved. The ICC Prosecutor has joined the
JIT,
Note as well as Estonia, Latvia, Slovakia
and Romania.
Note In this context, the Eurojust Regulation has
been amended to envisage the creation of a dedicated database to
store evidence of core international crimes and to give Eurojust
a new mandate to analyse such evidence, with a view to establishing
links, identifying investigative gaps and advising prosecutors.
Note At the same time, several
third countries have opened investigations
into crimes committed in the territory of Ukraine, under the principle
of universal jurisdiction or the principles of active or passive
personality.
Note According
to Ms Tomashvili, 18 States had opened national investigations.
In her view, JIT members and third States should gather evidence
from Ukrainian refugees who could be potential victims or witnesses
of these crimes and assist Ukraine in investigations on the ground.
There is a strong need for international co-ordination in order
to prevent that evidence or testimonies collected in one country
fail being used in proceedings in another country due to lack of
knowledge or because of long and complex mutual legal assistance
proceedings.
56. Finally, it is worth mentioning the role of the UN Independent International Commission of
Inquiry on Ukraine set up by the UN Human Rights Council
on 4 March 2022. Its wide mandate includes investigations of all
alleged violations and abuses of human rights and violations of
IHL, and related crimes, in the context of the aggression against
Ukraine by the Russian Federation. It can identify, where possible,
individuals and entities responsible for such abuses and violations,
in view of any future legal proceedings. The Commission will submit
a comprehensive written report in March 2023. It has already documented
several crimes and announced that it will make recommendations concerning
forms of accountability that supplement criminal accountability,
including measures such as reparation.
57. There are many accountability actors involved in Ukraine and
there is a clear need of co-ordination to improve effectiveness
and avoid duplication. The recent developments concerning the JIT
and the co-operation between the ICC Prosecutor and the PG of Ukraine
seem to go in the right direction. The suggestion of establishing
hybrid courts for war crimes committed in Ukraine, adding another
accountability layer to the existing ones, does not seem to have
an added value in the current context. Nevertheless, there is room
for more international assistance. States and international organisations
should support Ukrainian authorities by providing more resources,
expertise and capacity building. The Council of Europe will continue
providing expert support to the Ukrainian authorities in their investigation
and prosecution of war-related human rights violations within the
new Council of Europe Action Plan for Ukraine, entitled “Resilience,
Recovery and Reconstruction” (2023-2026). Steps should also be taken
to ensure more co-ordination and coherence between all international,
regional and national accountability actors involved. In this regard,
initiatives such as the establishment of an Atrocity Crimes Advisory
(ACA) Group for Ukraine by the EU, the United Kingdom, and the United
States,
Note and of a Dialogue Group on Accountability
for Ukraine following the Ukraine Accountability Conference held
in July 2022
Note should be commended and further
developed.
4 State accountability for human rights
violations and other violations of international law
58. While Russian leaders, perpetrators
and commanders may be held individually criminally responsible for the
different crimes mentioned above, the Russian Federation as a State
should also be held to account for all the violations of international
law committed by its organs or by private entities whose acts are
attributable to the State. Comprehensive accountability also implies
establishing the international responsibility of the Russian Federation
for all the violations of international law (including IHL and international
human rights law) arising out of the aggression, which can be determined
by international courts and other international mechanisms. At the
moment there are at least two inter-state international judicial
proceedings that are key in this respect. One takes place before
the European Court of Human Rights (
Ukraine
v. Russia (X) (No. 11055/22), and concerns allegations
of mass and gross human rights violations committed by the Russian
Federation in the context of the ongoing war on the territory of
Ukraine since 24 February 2022. It is recalled that the Court remains
competent to deal with applications against Russia concerning actions
or omissions amounting to violations of the European Convention
on Human Rights occurring up until 16 September 2022. It is to be welcomed
that 23 Council of Europe member States have requested leave to
intervene as third parties in the inter-State case concerning the
events since 24 February, as a sign of support to Ukraine.
Note In the context of these proceedings,
the Court indicated a number of interim measures to the Government
of the Russian Federation, which have unfortunately been ignored.
The Court has also received a number of interim measures requests
and applications submitted by individuals affected by the ongoing
war.
Note
59. The other judicial proceedings are before the ICJ and concern
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 lodged by Ukraine aims at showing that
Russian claims that Ukraine is responsible for genocide in the Luhansk
and Donetsk regions are unfounded, thus establishing that the Russian
Federation has no lawful basis to take military action based on
those claims.
Note In
the context of these proceedings, 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. Without prejudging the merits of the dispute, the ICJ
stated that it was not in possession of any evidence substantiating
the Russian allegation that genocide had been committed.
Note
60. It will likely take many years for both international courts
to deliver judgments determining the scope of Russia’s international
responsibility for these violations, including possible measures
of reparation and just satisfaction. With regard to the European
Court of Human Rights proceedings, it will be challenging for the Court
to proceed with the cases without the participation and co-operation
of the respondent State, which has stopped responding to the Court.
But this obstacle and the risk of Russia not implementing the future
judgments should not prevent the Court from documenting and determining
the aggressor State’s responsibility for human rights violations
and delivering justice for the Ukrainian State and its citizens.
In relation to human rights violations committed after 16 September
2022 in areas under the de facto control
of the Russian Federation, the Council of Europe should consider
alternative mechanisms to monitor the human rights situation in
the occupied territories, which are within Ukraine’s internationally
recognised borders and are therefore part of the Convention legal
space. At the same time, the Council of Europe should support the
work of other international human rights mechanisms (UN, OSCE) which
are still accessible to people in these areas. The Assembly should
look into these issues in future reports, in order to avoid the
creation of “black holes” in these territories and contribute to
the ongoing reflection on the role of the Council of Europe in “conflict
areas”.
5 Compensation for the damage caused
by the aggression and related violations of international law committed
by the Russian Federation
5.1 Proposals for the establishment of
an international compensation mechanism
61. Justice and comprehensive accountability
for the aggression and its consequences cannot be achieved without
full reparation for the damage caused to Ukraine and its citizens.
During our sub-committee’s visit in Kyiv, the Ukrainian authorities
presented us with a proposal for a compensation mechanism for the
damages arising out of the aggression, based on the precedent of
the UN Iraq/Kuwait compensation commission (UNCC
Note). In September 2022, they presented
a detailed proposal to the Committee of Ministers, including as
a first step the establishment of a register of damage that would
record information about claims for damages and serve as a repository
of evidence of damage caused. The Committee of Ministers
noted
with interest the Ukrainian proposal and recalled that the Russian
Federation bears responsibility for the act of aggression and that
it is under an obligation under international law to ensure full
reparation for the damage, loss or injury, whether material or moral,
caused by Russia’s violations of international law. In October 2022, the
Assembly called on member States to set up a comprehensive international
compensation mechanism, including an international register of damage,
in co-operation with the Ukrainian authorities, as part of a comprehensive
system of accountability for violations of international law arising
from the aggression.
Note
62. At the United Nations level, on 14 November 2022, the UNGA
adopted a resolution entitled “Furtherance of remedy and reparation
for aggression against Ukraine”, co-sponsored by Ukraine and nearly
50 States.
Note The
UNGA recognised the need for the establishment of an international
mechanism for reparation for damage, loss or injury arising from
the Russian Federation’s internationally wrongful acts. It recommended
the creation by member States, in co-operation with Ukraine, of
an international register of damage, loss or injury caused to all
natural and legal persons concerned, as well as the State of Ukraine.
The register would not be part of the UN but is to be created by
member States. Although the mechanism for the creation would be
new (through an agreement among States), the use of such a register
is not unprecedented; it follows the example of the UN Register
of Damage (UNRoD) that was created by the UNGA for the damage caused
by the construction of the wall in the Occupied Palestinian Territory.
Note
63. Ms Iryna Mudra, Deputy Minister of Justice of Ukraine, presented
the Ukrainian proposal for a compensation mechanism to our committee
at a hearing held on 12 December 2022 in Paris.
Note She explained that the compensation
mechanism would provide for the establishment of: a) a compensation
commission dedicated to consider compensation claims; b) a compensation
fund, from which the compensation would be paid; and c) an effective
procedure for the enforcement of the commission’s decisions. The
proposal is based on an incremental or step-by-step approach, with
the creation in the short-term of an international register of damage
that would establish the infrastructure for a future compensation
mechanism and would have the mandate to record claims and evidence
for losses, injuries and damages, assess the
prima
facie admissibility of claims (territoriality, temporality,
causality) and, ultimately, record the admissible claims in the
register. The register would be independent of the UNGA and would
be established and operate within the framework of an international
organisation. It would be based in a European city. It would not
be intended as a claims commission with an adjudicatory role at
this stage, but it is envisaged that the mandate of this international body
could be subsequently expanded to include that function.
64. As regards its legal basis, the register would be an international
organisation founded by an international multilateral treaty, open
to all States and regional organisations. It would be financed through
voluntary contributions of participating States and international
institutions. The future commission would be tasked with reviewing
and assessing the claims submitted by natural persons, legal persons,
State-related entities and the State of Ukraine. It is interesting
to note that according to this proposal, enforceable monetary judgments
of international tribunals, including the ICJ and the European Court
of Human Rights, should also be paid through this compensation mechanism.
That is one of the reasons why the Ukrainian authorities believe
that the Council of Europe could take a leading role in setting
up such a mechanism and encouraging its member States to join it.
Ms Mudra added that the Council of Europe could provide expertise
to the register or even act as platform for its operation, if there
is sufficient financial support.
65. In my opinion, the Council of Europe should as a minimum support
setting up the compensation mechanism, including the register of
damage, by calling its member States to join it and become parties
to the founding agreement. It could also become itself party to
the agreement or provide legal and technical expertise. But it could
even go further and take a leading role. Having regard to the experience
of the Council of Europe, in particular of the Court and the Department
of execution of judgments, in processing just satisfaction claims and
monitoring the payment of awards arising from gross and serious
human rights violations, the Organisation would be well placed to
host the register of damage or provide its institutional architecture,
as long as it is properly resourced by States. At the same time,
since the future compensation commission would have the mandate
to adjudicate claims for damages suffered as a consequence of the
Russian aggression, namely from 24 February 2022 on, it would not
be limited like the Court to damages resulting from human rights
violations committed until 16 September 2022, date on which the
Convention ceased to apply with regard to Russia. It should have
a wide mandate, encompassing all the damage arising out of violations
of international law committed by Russia, including its aggression
as well as any violations of international humanitarian law and international
human rights law. The commission could therefore fill an important
gap in ensuring accountability and full reparation for Ukrainian
victims and Ukraine.
66. There are issues that will need to be addressed when establishing
the proposed Compensation Mechanism. For instance, the articulation
between this mechanism and domestic proceedings in Ukraine, as well
as with the different international tribunals or bodies competent
to deal with different aspects of the aggression (ICJ, European
Court of Human Rights, ICC, or the future special tribunal for the
crime of the aggression). Another issue is whether individual claims
should be prioritised over claims filed by the Ukrainian State,
or whether claims could be adjudicated on an individual or “class
action” basis.
Note
5.2 Enforcement of compensation awards
and payment: finding the sources of funding
67. Once the proposed compensation
commission would start processing and assessing claims, its awards would
have to be paid to successful claimants. Ms Mudra informed us that
she would not address the issue of how to finance the compensation
fund, as they wanted to focus at this stage on claims collection
and adjudication. She pointed however to some legal options that
were being explored apart from seizing Russian frozen assets. These
included financial instruments proposed by the parties to the future
agreement and international financial institutions; using the revenues
from oil and gas export deals of the Russian Federation (similar
to the Iraq-Kuwait scheme); and the establishment of a simplified
procedure of enforcement of awards by the courts of the participating
States with the possibility of lifting the sovereign immunity of
Russia.
68. Professor Burkhard Hess also gave some suggestions on how
to possibly use assets that have been seized or even frozen ant
that belong to the Russian Federation and some of its citizens (so-called
“oligarchs” or with links with the State) for compensation purposes.
Of course, the easiest way would be to organise it with the consent
of the Russian authorities through a peace-agreement, an agreement
on a compensation mechanism or a treaty. Professor Hess underlined
that it may be difficult to overcome the different legal obstacles,
in the absence of Russian consent, but he referred generally to
the possibility of justifying the expropriation and transfer of
assets as
countermeasures taken
by States opposing this war of aggression.
Note As
regards the Russian Central Bank’s assets, he mentioned a recent
judgment by the Swedish Supreme Court which had recognised an exception
to State immunity from enforcement in the event that the assets
were used for investment and therefore for commercial purposes.
Note As
regards the private assets of Russian citizens (“oligarchs”), he
recalled that in certain cases the European Court of Human Rights
had accepted the non-conviction-based confiscation of assets acquired
under dubious circumstances by suspected organised criminals or
corrupt officials as compatible with the Convention, provided that
the principles of lawfulness, public interest and proportionality
were respected, along with procedural guarantees.
Note Such a path is difficult and legally narrow.
It requires in the legislation of most member States solid elements
of proof of wrong-doing also in order to ensure the protection of
Article 1 of Protocol No. 1 to the European Convention on Human Rights
(ETS No. 9). And this raises in any case the question of the use
of such assets that should, normally, be given back to the population
who were affected by its illegitimate use.
69. The Assembly has so far supported the non-conviction-based
confiscation of illegal assets and the reversal of the burden of
proof in the specific context of the fight against organised crime
and corruption, underlining the need for appropriate safeguards.
Note With
regard in particular to the assets of Russian citizens and State
enterprises subject to targeted sanctions for their responsibilities
in the war of aggression against Ukraine, although the Assembly
has called on member States to use these assets, once they are confiscated definitively,
to compensate Ukraine and its citizens for the damage caused by
its war of aggression, this decision was taken in a different context,
the report focussing on the use of illicit assets in the fight against organised
crime and corruption.
Note This
possibility raises important and difficult legal questions that
should obviously be solved while respecting national legal remedies
and the guarantees of the Convention.
70. The European Commission is also working on possible legal
avenues to use the frozen assets of Russian Central Bank reserves
and Russian citizens (“oligarchs”) to compensate Ukraine for the
damage caused. In the short term, they are considering creating
a structure to manage these funds and invest them, and then using
the proceeds for the benefit of Ukraine. In the long term, once
the sanctions are lifted, these funds could be used as guarantee
to ensure that Russia pays full compensation for the damages caused.
Note To me this avenue of using frozen
assets as guarantee, beginning with those belonging to State institutions like
the Central Bank, seems legally more promising than the possibility
to, legally, seize them and use them in the context of the reconstruction
of Ukraine without an agreement with the Russian Federation.
71. In this context members States should also consider that seizing
and using such assets without a very strong legal framework would
weaken the confidence in, thus the strength of, the financial system
of European and more generally Western countries. Additionally,
their institutions, citizens and businesses would be at risk of
seeing their own property seized and misused in countries like the
Russian Federation, or maybe in other countries, for political purposes.
72. Different legal options will need to be explored to ensure
the enforcement and payment of compensation awards, while respecting
the individual rights guaranteed by the European Convention on Human
Rights and international human rights law. A possible future multilateral
treaty or agreement establishing a compensation mechanism and/or
a future peace agreement will need to regulate these and other matters
in detail.
6 Conclusions
73. The Russian Federation’s unjustified
armed attack and large-scale invasion of Ukraine launched on 24 February
2022 constitutes an aggression and a clear breach of the United
Nations Charter. This aggression constituted a serious violation
by the Russian Federation of the Statute of the Council of Europe,
which justified the unprecedented decision by the Committee of Ministers
to exclude the Russian Federation from the Council of Europe on
16 March 2022, in line with the position expressed by the Assembly.
74. The Assembly has already adopted a number of texts on the
different political and legal aspects of Russian Federation’s aggression
against Ukraine. It should now express clearly that the acts of
aggression committed by the Russian Federation leaders meet the
definition of the crime of aggression under international law. The
Russian political and military leaders who planned, prepared, initiated
or executed these acts should be identified and prosecuted for this
crime. Without their decision to wage this war of aggression, the
atrocities that flow from it (war crimes and other crimes) as well
as the destruction and death resulting from the war would not have
occurred. This should also apply to Belarusian leaders who allowed
their territory to be used by the Russian Federation for perpetrating
the aggression. Given that the ICC does not have at present jurisdiction over
the crime of aggression committed against Ukraine, the Assembly
should reiterate its unanimous call on member States and observer
States of the Council of Europe to set up a special international
criminal tribunal for such crime, which should be supported and
endorsed by as many States and international organisations as possible,
and in particular by the United Nations General Assembly. The Council
of Europe Heads of State and Government, at the 4th Summit in Reykjavik
in May 2023, should give their political support to the creation
of such a tribunal. The jurisdiction of this tribunal should be
limited to the crime of aggression committed against Ukraine, and
in no way limit or affect the ICC’s jurisdiction over other crimes
committed in the context of the ongoing aggression.
75. Member States should at the same time ratify the Rome Statute
of the ICC and its Kampala amendments on the crime of aggression
if they have not already done so. In addition, and in parallel to
the creation of a special tribunal for the current aggression, they
should take the necessary steps to amend the ICC Statute’s jurisdictional
regime on the crime of aggression, to make it more universally applicable.
76. The Assembly should also condemn the numerous atrocities and
violations of international humanitarian law committed by Russian
forces or affiliated armed groups in Ukraine in the course of hostilities
or in areas temporarily occupied by them. Many of these atrocities
(for example indiscriminate attacks against civilians, summary executions
of civilians, torture and ill-treatment, enforced disappearances,
sexual violence, forcible transfer and deportation of Ukrainian
citizens, etc.) can be qualified as war crimes or crimes against
humanity. There is also mounting evidence that the Russian official
rhetoric to justify the aggression carries characteristics of public
incitement to genocide or reveal an intent to destroy the Ukrainian
national group as such or at least part of it, according to the
definition of genocide under the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide. All States Parties to this
Convention have a duty to prevent and punish genocide. Member States
should support the current investigation launched by the ICC Prosecutor
into the situation in Ukraine, which covers allegations of war crimes,
crimes against humanity or genocide. They should also assist the
Ukrainian authorities and, in particular, the Prosecutor General’s
Office, in their efforts to investigate international crimes committed
in Ukraine, by providing resources, expertise and capacity building.
While making full use of the principle of universal jurisdiction
and existing mutual legal assistance mechanisms, they should ensure
increased co-ordination and coherence between all accountability
actors involved.
77. Finally, there can be no comprehensive accountability for
the serious violations of international law arising out the Russian
Federation’s aggression against Ukraine without full reparation
of the damage caused to Ukraine and its citizens. The Assembly should
therefore call for the setting up of an international compensation
mechanism, including an international register of damage which would
create a record of evidence and claims on damage, loss or injury
caused to all natural and legal persons in Ukraine, as well as the
State of Ukraine, by violations of international law arising from
the Russian aggression. The Council of Europe should play a leading
role in setting up and managing the future mechanism. Decisions
by international courts on reparation of damage caused by the current
aggression, such as judgments of the European Court of Human Rights,
could also be enforced through this mechanism.
78. The Council of Europe as a whole and its member States should
contribute to ensure, together with other international organisations,
that the Russian Federation, its leaders and officials are held
accountable for the serious violations of international law committed
in Ukraine in the context of the ongoing aggression.
