Legal and human rights aspects of the Russian Federation’s aggression against Ukraine
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 26 January 2023 (7th sitting) (see Doc. 15689, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Damien Cottier). Text
adopted by the Assembly on 26 January 2023 (7th sitting).
1. The Parliamentary Assembly reiterates
that the Russian Federation’s armed attack and large-scale invasion
of Ukraine launched on 24 February 2022 constitute an “aggression”
under the terms of Resolution 3314 (XXIX) of the United Nations
General Assembly adopted in 1974 and are clearly in breach of the
Charter of the United Nations. The attempted annexation of the Ukrainian
regions of Donetsk, Kherson, Luhansk and Zaporizhzhia, following
the illegal “referendums” organised by the Russian Federation in
these regions in September 2022, is a further escalation of the
aggression against Ukraine. It clearly violates the principle of international
law according to which no territorial acquisition resulting from
the use of force shall be recognised as legal. The Russian Federation
will be considered as continuing its aggression until the sovereignty,
territorial integrity, unity and political independence of Ukraine
within its internationally recognised borders are fully re-established.
The Assembly recalls that the ongoing aggression is a continuation
of the aggression started on 20 February 2014, which included the
invasion, occupation and illegal annexation of Crimea by the Russian Federation.
2. The Assembly notes that the aggression constituted a serious
violation by the Russian Federation of the Statute of the Council
of Europe (ETS No. 1), which justified the unprecedented decision
by the Committee of Ministers to exclude the Russian Federation
from the Organisation, in line with the unanimous position expressed
by the Assembly in its
Opinion
300 (2022).
3. The Assembly also notes that Belarus has participated in the
Russian Federation’s aggression against Ukraine, as it has allowed
its territory to be used by the Russian Federation to perpetrate
acts of aggression against Ukraine. Its role and complicity should
be condemned by the international community and its leaders should
be held to account.
4. The Assembly considers that the unprovoked acts of aggression
committed by the Russian Federation and Belarus, given their character,
scale and gravity, constitute manifest violations of the Charter
of the United Nations, in particular of the prohibition of the use
of force contained in Article 2(4). They lack any plausible legal justification
under jus ad bellum, such
as self-defence. These acts therefore meet the definition of the
crime of aggression as set out in Article 8 bis of the Statute of
the International Criminal Court (ICC) and under customary international
law. The Russian and Belarusian political and military leaders who
planned, prepared, initiated or executed these acts, and who were
in a position to control or direct the political or military action
of the State, should be identified and prosecuted. Without their
decision to wage this war of aggression against Ukraine, the atrocities
that flow from it (war crimes, crimes against humanity and possible
genocide), as well as all the destruction, death and damage resulting
from the war, including from lawful acts of war, would not have
occurred. As the United Nations Human Rights Committee has stated,
States engaged in acts of aggression as defined in international
law, resulting in deprivation of life, violate ipso facto the right to life guaranteed
by Article 6 of the International Covenant on Civil and Political
Rights.
5. The Assembly notes that the ICC does not have at present jurisdiction
over the crime of aggression committed against Ukraine, given that
none of the Russian Federation, Belarus or Ukraine are parties to
the ICC Statute and that the United Nations Security Council has
not referred the situation to the ICC Prosecutor. The likely exercise
and abuse of the right to veto by the Russian Federation at the
United Nations Security Council render such a referral highly implausible
in the present circumstances. The Assembly further notes that there
is no other international criminal tribunal competent to prosecute
and punish the crime of aggression committed against Ukraine. Domestic
prosecutions, in Ukraine and in other countries, on the basis of
the principles of territoriality or universal jurisdiction, face
many legal and practical challenges, including in terms of perceived
impartiality, legitimacy and immunities.
6. The Assembly therefore reiterates its unanimous call on member
States and observer States of the Council of Europe to set up a
special international criminal tribunal for the crime of aggression
against Ukraine, which should be endorsed and supported by as many
States and international organisations as possible, and in particular
by the United Nations General Assembly. The proposal to create a
special tribunal for the crime of aggression against Ukraine has
so far received the support of several national parliaments and
governments, the European Parliament, the European Commission, the
Parliamentary Assembly of the Organization for Security and Co-operation
in Europe and the Parliamentary Assembly of the North Atlantic Treaty Organization.
The Committee of Ministers has welcomed the ongoing efforts, in
co-operation with Ukraine, to secure accountability for the crime
of aggression. The Assembly considers that the Council of Europe
Heads of State and Government, at their 4th Summit in Reykjavik
in May 2023, should give their political support to the creation
of such a tribunal and provide the Council of Europe’s expert and
technical support to the process of its establishment, in close
co-ordination with other interested international organisations
and States. The Assembly considers that the Council of Europe should
have an active leading role in the establishment of the special
tribunal, participate in relevant consultations and negotiations
and provide concrete expert and technical support to the process
of establishing the special tribunal.
7. The Assembly strongly supports the creation of a special tribunal
that would have the following features:
7.1 its jurisdiction would be limited to the crime of aggression
committed against Ukraine and would extend ratione
temporis to the aggression started by the Russian Federation
in February 2014. Its jurisdiction would include the role and complicity
of the leaders of Belarus in the war of aggression against Ukraine;
7.2 its statute would contain a definition of the crime of
aggression in line with Article 8 bis of the ICC Statute and customary
international law;
7.3 its statute would clearly state that personal immunities
would not apply to incumbent State officials, in line with the practice
of other international criminal tribunals, and that functional immunities would
in any event not be applicable to the crime of aggression. The official
capacity as a head of State or government, a member of government
or parliament, an elected representative or government official should
in no case exempt the accused person from criminal responsibility
for the crime of aggression or justify a mitigated punishment. This
principle should apply to nationals of States that are not party
to the constitutive treaty or agreement, in particular those of
the aggressor State and its accomplice;
7.4 its statute would contain a list of fair trial rights
of the accused, as well as a reference to the principles of legality
and non bis in idem, in line
with international human rights law and the European Convention
on Human Rights (ETS No. 5, “the Convention”), as interpreted by
the European Court of Human Rights;
7.5 its role would be complementary to the ICC’s jurisdiction
and in no way limit or affect the latter’s exercise of jurisdiction
over war crimes, crimes against humanity and possible genocide committed
in the context of the ongoing aggression and its jurisdiction in
general. Both the ICC and the special tribunal should agree on practical
and legal issues such as sharing of evidence, custody of suspects,
developing common witness protection schemes and sequencing of trials
of individuals prosecuted by both courts;
7.6 its seat should be established in The Hague, with a view
to ensuring complementarity and co-operation with the ICC and other
international courts and institutions;
7.7 States and international organisations supporting the
special tribunal should provide to it sufficient human and financial
resources, ensuring its full independence and effective operational functioning
while taking into account in its structure the fact that it will
certainly not immediately or permanently be able to operate at full
capacity.
8. Pending the establishment of a special tribunal on the crime
of aggression against Ukraine, the Assembly calls on member States
and the Council of Europe to support and provide concrete expert
and technical assistance to the process of setting up an interim
international prosecutor’s office to investigate the crime of aggression,
in close co-operation with the Prosecutor General’s Office of Ukraine.
Member States should co-operate closely with this new office and
make sure in their internal legislation that close judicial co-operation
with it is ensured. Such an office could be based outside Ukraine,
ideally in The Hague.
9. In parallel to the creation of a special tribunal, the Assembly
calls on member States and observer States that have not yet ratified
the ICC Statute or the Kampala amendments to do so at the earliest
possible date. They should also take the necessary steps to amend
the ICC Statute’s jurisdictional regime, either by allowing referrals
to the ICC by the United Nations General Assembly when the United
Nations Security Council is blocked, or by removing the existing
limits on the jurisdiction over the crime of aggression in order
to make this crime consistent with the other crimes subject to its
jurisdiction. These changes would reinforce the overall consistency,
legitimacy and universality of international criminal justice, in
particular with regard to the crime of aggression. The proposal
to create a special tribunal to respond to the ongoing criminal
aggression against Ukraine and the long-term reform of the ICC Statute
enabling the ICC to prosecute and punish similar (future) aggressions
are not mutually exclusive and should be pursued in parallel.
10. The Assembly is outraged by the numerous reports of atrocities,
gross human rights violations and violations of international humanitarian
law committed by Russian forces or affiliated armed groups, and specifically
the horrendous role of the Wagner Group, in the course of hostilities
or in areas temporarily occupied by them during the ongoing war
of aggression. These include indiscriminate attacks against civilians and
civilian objects, including hospitals, schools, nuclear power plants,
the energy and water infrastructure and cultural heritage sites,
in breach of the principles of distinction, proportionality and
precaution. They also include summary executions of civilians; targeted
killings; torture and ill-treatment of civilians and prisoners of war;
enforced disappearances; abductions; rape and other forms of sexual
violence; unlawful confinement of civilians; forcible transfer and
deportation of Ukrainian citizens, including children, to the Russian
Federation or Russian-occupied areas; use of explosive weapons in
populated areas; looting; forced “passportisation” and conscription
of Ukrainian citizens; and trials and death sentences against prisoners
of war. There are strong indications that many of these violations
amount to grave breaches of the Geneva Conventions and war crimes and
that some may even qualify as crimes against humanity, as part of
a widespread or systematic attack against the civilian population
in Ukraine.
11. The Assembly utterly condemns these crimes and reiterates
its call on the international community to send a clear message
that perpetrators of war crimes and crimes against humanity will
be held to account and that impunity for such crimes is unacceptable.
This applies equally to low-ranking perpetrators and those who bear
command responsibility for the crimes. Both the Russian Federation
and Ukraine have a primary responsibility under international law
to investigate and prosecute such crimes and to bring the perpetrators
to justice.
12. The Assembly notes that there is mounting evidence that the
official Russian rhetoric used to justify the full-scale invasion
and aggression against Ukraine, the so-called “de-Ukrainianisation”
process, carries characteristics of public incitement to genocide
or reveals a genocidal intent to destroy the Ukrainian national group
as such or at least part of it. It recalls that the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide (“the
Genocide Convention”), to which both Ukraine and the Russian Federation
are parties, prohibits direct and public incitement to commit genocide
and the attempt to commit genocide. It also notes with the utmost
concern that some of the acts committed by Russian forces against
Ukrainian civilians could fall under Article II of the Genocide
Convention, such as killings and forcible transfer of children of
one group to another group for Russification purposes through adoption
by Russian families and/or transfer to Russian-run orphanages or
residential facilities like summer camps.
13. The Assembly recalls that all States Parties to the Genocide
Convention have a duty to punish genocide. As interpreted by the
International Court of Justice, they also have an obligation to
prevent genocide and a corresponding duty to act, which arises at
the instant when the State learns of, or should normally have learned of,
the existence of a serious risk that genocide will be committed.
14. The Assembly notes that international and domestic accountability
mechanisms already exist in order to investigate, prosecute and,
where appropriate, punish war crimes, crimes against humanity and
possible genocide committed during the ongoing war. These include
the ICC, which has jurisdiction over such crimes allegedly committed
on Ukrainian territory; the criminal justice system of Ukraine;
and the criminal justice systems of third States that have jurisdiction
on the basis of the principle of universal jurisdiction or the principles
of active or passive personality. The Assembly welcomes the referral
of the current situation in Ukraine to the ICC Prosecutor by 43
States Parties to the ICC Statute. It strongly supports the investigations opened
by the ICC Prosecutor, the Prosecutor General’s Office of Ukraine
and third countries and welcomes the setting-up of a joint investigation
team to co-ordinate relevant efforts.
15. The Assembly calls on member States and observer States of
the Council of Europe to:
15.1 fully
support the investigation launched by the ICC Prosecutor into the
situation in Ukraine, by sharing any evidence in their possession
and by providing in a sustainable manner adequate human and financial
resources to the ICC, enabling it to face its increased and unprecedented
workload;
15.2 assist the Ukrainian authorities and, in particular, the
Prosecutor General’s Office in their ongoing efforts to investigate
alleged international crimes committed in Ukraine, by strengthening
their capacities, by providing resources and expertise, including
forensic experts, and, where appropriate, by collecting, preserving
and sharing evidence from potential victims and witnesses who have
fled Ukraine, in accordance with human rights standards in order
to ensure its admissibility in criminal proceedings;
15.3 provide expert support to the Ukrainian authorities in
their efforts to investigate conflict-related sexual violence, which
is often underreported by victims;
15.4 make use of the principle of universal jurisdiction or
other principles (active or passive personality) to investigate
and prosecute alleged international crimes committed in Ukraine;
15.5 join or co-operate with the joint investigation team set
up by Ukraine and certain European Union member States under the
auspices of the European Union Agency for Criminal Justice Cooperation (Eurojust)
and with the participation of the ICC Prosecutor, with the aim of
exchanging evidence and information in connection with the ongoing
investigations into alleged crimes committed in Ukraine;
15.6 make use of Council of Europe and other international
instruments on mutual legal assistance to the widest extent possible,
for the purposes of collecting, transferring and using evidence
in connection with alleged crimes committed in Ukraine, and if necessary
envisage extending them;
15.7 support the work of Ukrainian and international non-governmental
organisations, as well as human rights defenders and journalists
on the ground, in the collection of evidence and documentation of
alleged international crimes or the provision of different types
of assistance to victims and witnesses, including with regard to
the forcible transfer of children to the Russian Federation and
Russian-occupied territories;
15.8 ensure increased co-ordination and coherence between all
accountability mechanisms and actors involved, with a view to preventing
duplication and enhancing efficiency;
15.9 ratify the Rome Statute of the ICC and its amendments,
including the Kampala amendments, if they have not yet done so.
16. The Assembly calls on the Ukrainian authorities to strictly
comply with their obligations under international humanitarian law
and to conduct thorough investigations of all alleged war crimes
and violations of international humanitarian law allegedly committed
by Russian or by Ukrainian forces and combatants, regardless of
the affiliation of the perpetrator or the victim. All trials before
Ukrainian courts should be conducted respecting the right of the
suspects to a fair trial under international human rights law and international
humanitarian law. To this end, the Assembly encourages the Ukrainian
authorities to co-operate with international trial observers and
to consider inviting international legal professionals to participate
in upcoming trials. Resulting convictions should be compatible with
the principle of legality enshrined in Article 7 of the European
Convention on Human Rights, which cannot be subject to derogation
in time of war.
17. The Assembly also calls on the Ukrainian authorities to put
a particular emphasis on activating all the relevant procedures
to gather information on and ensure the safe return of forcibly
transferred Ukrainian children back from the Russian Federation
and Russian-occupied territories.
18. The Assembly welcomes the adoption on 14 November 2022 by
the United Nations General Assembly of the resolution entitled “Furtherance
of remedy and reparation for aggression against Ukraine”, which recognises
that the Russian Federation must bear the legal consequences of
all its internationally wrongful acts in or against Ukraine, including
by making reparation for the injuries and losses caused by such
acts. This resolution further recognises the need for the establishment
of an international mechanism for the reparation of related damage,
loss or injury and recommends the creation by member States, in
co-operation with Ukraine, of an international register of damage.
19. In this context, the Assembly reiterates its call to all member
States of the Council of Europe to set up an international compensation
mechanism, including an international register of damage, in co-operation
with the Ukrainian authorities. The Assembly stresses the Council
of Europe’s comparative advantage due to the experience gained by
the European Court of Human Rights and the Committee of Ministers
in assessing and enforcing just satisfaction claims for serious
human rights violations and considers that the Organisation should play
a leading role in setting up and managing the future mechanism.
Such a mechanism would have the following features:
19.1 it would be established by a
multilateral treaty or agreement, open to all like-minded States,
with the support of the United Nations, the Council of Europe, the
European Union and other international organisations;
19.2 it would include as a first step a register of damage,
which would create a record of evidence and claims for damage, loss
or injury caused to all natural and legal persons in Ukraine, as
well as the State of Ukraine, as a result of violations of international
law arising from the Russian Federation’s aggression against Ukraine;
19.3 it would include at a later stage an international compensation
commission, mandated to review and adjudicate the claims submitted
and documented by the register, as well as a compensation fund, from
which compensation awards would be paid to successful claimants.
The founding treaty or agreement would regulate matters such as
the funding of the compensation fund, the enforcement of compensation
awards and how decisions by other international bodies and courts
on reparation and compensation in connection with the Russian aggression,
such as judgments of the European Court of Human Rights, could be
enforced through such a mechanism.
20. The Assembly, while reiterating its previous recommendations
addressed to the Russian Federation since the outbreak of its aggression
against Ukraine, calls on the Russian Federation to:
20.1 cease its aggression against
Ukraine immediately and unconditionally;
20.2 completely and unconditionally withdraw its occupying
forces, including its own military as well as proxies, from the
internationally recognised territory of Ukraine;
20.3 comply strictly with its obligations under international
law, including the Charter of the United Nations, international
human rights law and international humanitarian law;
20.4 immediately stop attacks against civilians and civilian
objects, including mass indiscriminate attacks, ensure full respect
for the principles of distinction, proportionality and precaution,
and authorise the International Committee of the Red Cross to have
full access for visits to prisoners of war;
20.5 immediately cease the forced deportation and transfers
of Ukrainian civilians, including children, to the Russian Federation
and Russian-occupied territories, allow their safe return and, in
the case of children, ensure that they are promptly reunited with
their families;
20.6 effectively investigate all allegations of war crimes,
crimes against humanity and possible genocide committed by Russian
forces and affiliated armed groups, and ensure as appropriate that
all perpetrators and those bearing command responsibility are properly
prosecuted and punished;
20.7 co-operate with the investigations and proceedings before
the ICC and the International Court of Justice (ICJ) and comply
with their decisions, including the ICJ order of 16 March 2022 indicating
that the Russian Federation should immediately suspend the military
operations that it commenced on 24 February 2022 in the territory
of Ukraine;
20.8 co-operate with the United Nations Independent International
Commission of Inquiry on Ukraine and comply with its recommendations;
20.9 co-operate with proceedings before the European Court
of Human Rights, in relation to acts or omissions capable of constituting
a violation of the Convention provided that they occurred up until 16 September
2022, in particular in the context of the interstate case Ukraine v. Russia (X) concerning alleged
mass and gross human rights violations committed by the Russian
Federation in Ukraine since 24 February 2022, and of any related
individual applications against the Russian Federation, and comply with
the interim measures indicated by the Court under Rule 39 of its
Rules of Court in the context of these proceedings.
21. The Assembly furthermore invites:
21.1 the European Court of Human Rights to further prioritise
the examination of interstate and individual applications against
the Russian Federation stemming from the ongoing war of aggression;
21.2 the members of the United Nations Security Council to
consider putting to a vote and not obstructing a Security Council
resolution seeking referral of the situation in Ukraine to the ICC Prosecutor
under Chapter VII of the Charter of the United Nations;
21.3 the United Nations General Assembly to support and endorse
the setting-up of a special international criminal tribunal for
the crime of aggression against Ukraine and of an international compensation
mechanism for the injury, damage and loss incurred by the State
of Ukraine as well as by natural and legal persons in Ukraine, due
to the Russian war of aggression;
21.4 the European Union to closely co-ordinate its efforts
with the Council of Europe to ensure a comprehensive system of accountability
for the Russian Federation’s aggression against Ukraine, including
the crime of aggression, war crimes, crimes against humanity possible
genocide and reparation of damages.
22. The Assembly calls on Belarus and the regime in place to refrain
from any further involvement in the aggression, including allowing
its territory to be used by the Russian Federation for perpetrating
acts of aggression against Ukraine, and to comply with its obligations
under international law.
23. The Assembly considers the inability of the United Nations
and its Security Council to counter the Russian aggression because
of an abuse of the right to veto to be an existential threat to
international rule-based order and the democratic security of Council
of Europe member States. In this respect, the Assembly supports
all efforts and discussions on unblocking the situation at the United
Nations and making the United Nations more efficient, including
a call to request an advisory opinion from the International Court
of Justice on potential limitations of the right to veto implicit
in the Charter of the United Nations and general principles of law.
24. The Assembly should continue to follow developments relating
to the Russian Federation’s aggression against Ukraine and its legal
and human rights aspects. Once hostilities have ended, the Assembly
should consider holding one of its part-sessions in Kyiv, as an
expression of solidarity with Ukraine.
