Legal and human rights aspects of the Russian Federation’s aggression against Ukraine
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 26 June 2024 (19th and 20th sittings) (see Doc. 15998, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Davor Ivo Stier). Text
adopted by the Assembly on 26 June 2024 (20th sitting).See
also Recommendation 2279
(2024).
1. The Parliamentary Assembly reiterates
its strongest condemnation of the Russian Federation’s ongoing illegal
and unjustified war of aggression against Ukraine. Its full-scale
invasion launched more than two years ago is a flagrant, continuous
breach of the Charter of the United Nations and constitutes an act
of aggression, also according to the United Nations General Assembly.
The Assembly has already determined that this war, which in fact
started in 2014 with the occupation and attempted illegal annexation
of Crimea, is in itself a crime of aggression under international
law which entails the individual criminal responsibility of the
Russian Federation’s political and military leadership.
2. The Assembly further reiterates its unwavering support for
the independence, sovereignty and territorial integrity of Ukraine
within its internationally recognised borders and its non-recognition
of the attempted illegal annexation by the Russian Federation of
any parts of Ukrainian territory, including the Autonomous Republic of
Crimea and the city of Sevastopol, as well as parts of the Donetsk,
Luhansk, Kherson and Zaporizhzhia oblasts of Ukraine. This attempted
annexation 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 fact that the Russian presidential
election of 17 March 2024 was also held in the illegally occupied
territories of Ukraine, through the forced imposition of Russian
law, is another example of the blatant disregard that the Russian authorities
have for the political independence and political rights of Ukraine
and its people, as well as for the most basic principles of international
humanitarian law, including the obligations for an occupying power
that arise under the fourth Geneva Convention relative to the Protection
of Civilian Persons in Time of War, by which the Russian Federation
has been bound for decades.
3. The Assembly is appalled by the continuous and numerous reports
of atrocities and violations of human rights and international humanitarian
law committed by Russian military forces and their proxies in Ukraine,
in the course of hostilities or in the temporarily occupied areas.
These include indiscriminate attacks against civilians and humanitarian
and medical personnel, as well as against civilian objects such
as medical facilities, schools, electric power plants, other critical
infrastructure, and cultural and religious heritage; the illegal abduction,
detention, enforced disappearance, torture, ill-treatment and extrajudicial
killings of Ukrainian citizens; the torture, ill-treatment and summary
executions of Ukrainian prisoners of war; the unlawful transfer or
deportation of Ukrainian children; all forms of conflict-related
sexual violence; the use of chemical weapons and cluster bombs;
attacks causing widespread, long-term and severe damage to the environment;
looting; and the forced “passportisation” and conscription of Ukrainian
citizens.
4. Many of these violations amount to specific war crimes under
the Geneva Conventions, Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I) and the Statute of the International
Criminal Court (ICC). Others, such as torture and ill-treatment,
appear to be carried out in a systematic and widespread manner and
may therefore also qualify as crimes against humanity. Most of these
atrocities violate, at the same time, multiple international human
rights treaties ratified by the Russian Federation which continue
to apply in times of war. All these acts have caused death, destruction,
environmental damage and massive displacement of the population
within and outside Ukraine.
5. In line with its previous resolutions, notably its
Resolution 2482 (2023) “Legal
and human rights aspects of the Russian Federation’s aggression
against Ukraine”, the Assembly considers that the Russian official
and public media rhetoric used to justify the unlawful aggression
may constitute direct and public incitement to genocide or reveal
a genocidal intent to destroy the Ukrainian “national group” as
such or at least part of it, within the meaning of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide (the Genocide
Convention). This rhetoric, which often comes from the highest level
of the Russian State authorities but also from religious leaders
supporting the aggression within the Russian Orthodox Church hierarchy,
uses narratives such as the denial of Ukrainian identity or the
“denazification” or “de-Satanisation” of Ukrainians. The genocidal
intent can also be inferred from the patterns of atrocities observed
against Ukrainians, such as killing, causing serious bodily or mental
harm, deliberately inflicting conditions of life that are calculated
to bring about the group’s physical destruction and the forcible
and co-ordinated transfers of children to another group. This constitutes
a growing body of evidence that the Russian Federation is attempting
to commit genocide against Ukrainians or is at least publicly inciting
to it, as part of the propaganda displayed to justify the war of aggression.
These actions do not only entail State responsibility and individual
criminal responsibility for the Russian Federation and its State
officials, but also trigger for all States Parties to the Genocide
Convention an obligation to prevent genocide, in accordance with
their means and their capacity to influence those suspected of preparing
or committing genocide.
6. As regards the role of the Wagner Group and its participation
in the war, the Assembly notes that its status under international
humanitarian law has long been disputed. Following the failed mutiny
of June 2023 and the suspicious deaths of its leaders Yevgeny Prigozhin
and Dmitry Utkin in a plane crash two months later, the current
existence and structure of the group have evolved, with some of
its fighters being incorporated into the Russian armed forces or
recruited by other private Russian military and security companies
or paramilitary groups. In any event, the Wagner Group continues
to operate in various forms and its members who committed or continue
to commit war crimes and other atrocities in Ukraine should be prosecuted
and held to account before Ukrainian courts or the ICC. The Russian
Federation bears full international responsibility for these actions,
in view of the acknowledged links and financial and operational
support extended to the group during its participation in the war,
including the use of pardoned convicts as fighters and co-ordination
on the ground with the regular forces. The Russian Federation cannot
claim plausible deniability to escape international responsibility
for the Wagner Group’s actions.
7. The Assembly welcomes the fact that several national parliaments,
as well as the Parliamentary Assembly of the Organization for Security
and Co-operation in Europe (OSCE) and the European Parliament, have
qualified the Wagner Group as a terrorist organisation or called
for its designation as such, in line with the position laid down
in Assembly
Resolution
2506 (2023) “Political consequences of the Russian Federation’s war
of aggression against Ukraine”. Given that some of the Wagner Group’s
crimes appear to have been committed with the purpose of provoking
terror among the civilian population in Ukraine, its actions fall
within some of the definitions of terrorism in existing international
texts, in addition to their qualification as war crimes. This would
confirm the Russian Federation’s status as a State sponsor of terrorism
and have a deterrent effect on those States, particularly outside
Europe, and private entities that would be tempted to co-operate
with the Wagner Group or its successors.
8. More than one year after the 4th Summit of Heads of State
and Government of the Council of Europe (16 and 17 May 2023) and
the Reykjavik Declaration adopted there, the Assembly stresses once
again the need to ensure a comprehensive system of accountability
for all violations of international law and international crimes
arising out of the Russian aggression, in order to achieve a just
and lasting peace for Ukraine. There cannot be peace without accountability,
as implied by the Statute of the Council of Europe (ETS No. 1),
which in its preamble underlines “the pursuit of peace based upon
justice and international co-operation”. The Assembly therefore
welcomes and supports all the initiatives and steps taken so far
within the Council of Europe towards accountability, which are designed
not only to help deliver justice and reparations to Ukraine and
its people, but also to fight against impunity, re-establish respect
for the rule of law and prevent further attacks on the international
legal order. It further welcomes other initiatives taken outside
the Organisation, such as the ministerial conference “Restoring
Justice for Ukraine” held in The Hague on 2 April 2024 and the Summit
on Peace in Ukraine held in Bürgenstock (Switzerland) on 15 and
16 June 2024. Any peace process should be based on the principles
of a just and lasting peace as outlined in President Zelenskyy’s
Peace Formula, to which the Assembly and the Heads of State and
Government of the Council of Europe have already expressed their
support.
9. The Assembly commends the efforts and ongoing investigations
carried out by the existing international and domestic accountability
bodies competent to deal with some of the international crimes and
violations of human rights committed in the context of the aggression,
including the Ukrainian authorities and Prosecutor General’s Office,
the Office of the Prosecutor of the ICC, the Joint Investigation
Team (JIT), the International Centre for the Prosecution of the
Crime of Aggression against Ukraine (ICPA), the Independent International Commission
of Inquiry on Ukraine established by the United Nations Human Rights
Council, the OSCE Moscow Mechanism and third States’ authorities
acting on the basis of the principle of universal jurisdiction.
10. The Assembly notes, however, that there is still no appropriate
accountability mechanism to deal with the “supreme international
crime” that is the crime of aggression committed by the Russian
Federation’s political and military leadership against Ukraine,
which enabled all other crimes and caused immeasurable suffering
even beyond the violation of international humanitarian law. More
than two years after the full-scale invasion and the first call
by the Assembly, in April 2022, to set up a special international
criminal tribunal for the crime of aggression against Ukraine, consultations
among member States and other interested States and partners in
the “Core Group” are still ongoing.
11. The Assembly notes with great satisfaction that participants
in these consultations have expressed an interest in the idea of
establishing a special tribunal by an agreement between the Council
of Europe and Ukraine, which could be supported by an enlarged partial
agreement open to non-member States and other international organisations.
The Assembly considers that this is the best feasible option, in
terms of legal basis and political legitimacy. It would clearly
fall within the mandate of the Council of Europe, as reflected in
its Statute and in accordance with the priorities set out at the
Reykjavik Summit. By creating such a tribunal, the Council of Europe
would ensure justice for a crime that was and is still being committed
against one of its member States by a former member State. However,
it should not be understood as a merely European response to a European
problem. The Council of Europe would place itself at the service
of the international community as a whole, in order to uphold the
international legal order and the prohibition of aggression. The special
tribunal should therefore have features that would make it as international
as possible and encourage cross-regional support, taking into account
the need to maximise its international legitimacy and to minimise any
possible legal challenges, in particular with regard to the possible
reliance of key suspects on personal immunities.
12. The Assembly stresses again that the Russian Federation must
bear the legal consequences of all of its internationally wrongful
acts committed in or against Ukraine, including by making reparation
for the injuries and losses caused by such acts to Ukraine and its
citizens. The Assembly recalls in this regard its previous resolutions
on this subject, notably its
Resolution
2539 (2024) “Support for the reconstruction of Ukraine”,
as well as the United Nations General Assembly Resolution A/RES/ES-11/5
of 14 November 2022 “Furtherance of remedy and reparation for aggression
against Ukraine”, which recognises the need for the establishment
of an international mechanism for reparation. It commends the setting-up
of the Register of Damage Caused by the Aggression of the Russian
Federation against Ukraine (the Register) in May 2023 and welcomes
the opening of the process of submission of claims on 2 April 2024.
It reiterates that the Register is intended to constitute the first
component of a comprehensive international compensation mechanism.
13. In the light of these considerations, as regards the special
tribunal for the crime of aggression against Ukraine, the Assembly:
13.1 welcomes the decision of the
Committee of Ministers of 30 April 2024 which gives a mandate to the
Secretary General of the Council of Europe to prepare any necessary
documents for the Core Group on a possible draft agreement between
the Council of Europe and the Government of Ukraine on the establishment
of a special tribunal for the crime of aggression of the Russian
Federation against Ukraine, including its statute, and on a possible
draft enlarged partial agreement governing the modalities of support
to such a tribunal, its financing and other administrative matters;
13.2 notes that this decision was taken by an overwhelming
majority, which demonstrates a clear political will in favour of
a leading role of the Council of Europe in this process, in line
with the Assembly’s own recommendations;
13.3 calls on the Core Group to come to an agreement on the
model and legal form chosen for the special tribunal as soon as
possible, taking into account the need to maintain the current momentum
and in view of possible political developments;
13.4 calls on all member States to support this process and
participate in the final agreement reached, including in the possible
enlarged partial agreement;
13.5 calls on other States, including observer States and States
whose parliaments enjoy observer or partner for democracy status
with the Assembly, the European Union as well as any other potentially interested
regional organisations, including the Organization of American States
and the African Union, to support this process and the creation
of a special tribunal;
13.6 calls on the United Nations General Assembly to support
this process, by adopting a resolution that would endorse the special
tribunal, once established, in line with its previously expressed
position that the full-scale invasion of Ukraine constitutes an
act of aggression and that accountability for the most serious crimes
committed needs to be ensured;
13.7 calls on the States participating in the ICPA and the
JIT, as well as all member States, to foresee co-operation agreements
that allow them to share the evidence collected on the crime of
aggression with the future special tribunal;
13.8 expresses its gratitude to the Netherlands for its offer
to host the special tribunal on its territory;
13.9 considers that the special tribunal should in any event
have the following features:
13.9.1 its jurisdiction should
be limited to the crime of aggression committed against Ukraine and
should extend ratione temporis to
such aggression starting in February 2014;
13.9.2 its jurisdiction should include the role and complicity
of the leaders of Belarus;
13.9.3 its statute should contain a definition of the crime of
aggression fully in line with Article 8 bis of
the ICC Statute, which reflects customary international law;
13.9.4 personal immunities of key suspects shall not apply before
the special tribunal; its statute should leave the issue of personal
immunities to the interpretation of the judges of the special tribunal,
having regard to the practice of other international criminal tribunals
and the precedents in international law;
13.9.5 functional immunities shall not apply before the special
tribunal;
13.9.6 its statute should contain a list of fair trial rights
of the accused, in line with international human rights law;
13.9.7 its statute could foresee the possibility of in absentia proceedings before the
trial stage, for instance hearings for the confirmation of charges
in the absence of the suspect;
13.9.8 its role should be complementary to the ICC’s jurisdiction
and its statute should regulate the co-operation and sharing of
evidence between the special tribunal and the ICC;
13.9.9 its statute should contain rules regarding co-operation
with participating and other States, which could be complemented
with specific co-operation agreements.
14. With regard to other international crimes, such as genocide,
crimes against humanity and war crimes, the Assembly:
14.1 calls on all member States,
as well as observer States and States whose parliaments enjoy observer
or partner for democracy status with the Assembly, to support the
investigations by the Office of the Prosecutor of the ICC on any
of these crimes committed in Ukraine, by sharing any evidence in their
possession and making available expertise, including forensic expertise,
and calls on all States Parties to the ICC Statute to provide, in
a sustainable manner, adequate human and financial resources to
the court;
14.2 welcomes the arrest warrants issued by the ICC in respect
of Vladimir Putin, Maria Alekseyevna Lvova-Belova, Sergei Ivanovich
Kobylash, Viktor Nikolayevich Sokolov, Sergei Kuzhugetovich Shoigu and
Valery Vasilyevich Gerasimov in the context of the situation in
Ukraine and calls on all member States and other States to enforce
these warrants should any of these suspects come within their jurisdiction;
14.3 strongly condemns the attempts of the Russian authorities
to prosecute the judges and the Prosecutor of the ICC who were involved
in the issuing of these warrants, as a flagrant interference with the
judicial independence and mandate of the ICC;
14.4 invites the Prosecutor of the ICC to consider examining
the reported allegations of genocide against Ukrainians, generally
in respect of the situation in Ukraine and more specifically regarding
the transfer of Ukrainian children;
14.5 invites the Prosecutor of the ICC to consider examining
the individual criminal responsibility of members of the Wagner
Group who participated in the commission of international crimes
in Ukraine and in different countries in Africa which fall within
the jurisdiction of the court;
14.6 encourages all member States as well as other States to
continue giving assistance to the Ukrainian authorities and Prosecutor
General’s Office, including through capacity building, expertise
and resources, with a view to strengthening their capacities to
investigate and prosecute these crimes, in line with international
human rights law and the European Convention on Human Rights (ETS
No. 5, the Convention);
14.7 calls on the Ukrainian authorities to continue to comply
with their obligations under international humanitarian law and
to continue to conduct thorough investigations into all allegations
of war crimes and violations of international humanitarian law,
irrespective of the nationality of the perpetrator;
14.8 calls on the Ukrainian authorities to respect the right
to a fair trial and other rights under the Convention for all individuals
charged with war crimes and other crimes related to the aggression,
while noting that Ukraine continues to derogate from certain rights
under the Convention by virtue of Article 15 and the application
of martial law;
14.9 calls on Ukraine and other member States to ratify the
ICC Statute, including the Kampala amendments on the crime of aggression;
14.10 calls on all member States to join or co-operate with
the JIT set up by Ukraine and several European Union member States
under the auspices of the European Union Agency for Criminal Justice Cooperation
(Eurojust);
14.11 encourages all member and observer States to make use
of Council of Europe and other international instruments on mutual
legal assistance in relation to the crimes committed in Ukraine,
and to sign and ratify the new Ljubljana-The Hague Convention on
International Cooperation in the Investigation and Prosecution of
the Crime of Genocide, Crimes Against Humanity, War Crimes and Other
International Crimes, which opened for signature on 14 February
2024;
14.12 invites the United Nations Human Rights Council to consider
establishing an independent international commission of inquiry
to investigate alleged violations of international human rights
law and international humanitarian law committed by members of the
Wagner Group and affiliated entities in Ukraine and concerned countries
in Africa, establish the facts, collect, consolidate and analyse
evidence of such violations and preserve evidence, including in
view of co-operation in any legal proceedings;
14.13 calls on member States and observer States to consider
bringing new proceedings under the Genocide Convention (on the basis
of Article IX) against the Russian Federation before the International Court
of Justice, for concrete allegations of genocide committed in Ukraine,
including incitement to genocide and attempt to commit genocide;
14.14 calls on member and observer States that have not yet
done so, as well as the European Union, to consider designating
the Wagner Group, other similar Russian paramilitary groups and
those entities that finance them as terrorist organisations and
applying to them their anti-terrorist legislation and measures,
without prejudice to the consideration of their crimes as possible
war crimes and other international crimes;
14.15 referring, in particular, to the resolutions of the OSCE
Parliamentary Assembly and the North Atlantic Treaty Organization
(NATO) Parliamentary Assembly, calls on member States, as well as
other States, to consider the possibility of designating the Russian
Federation, which implements the genocidal theory and practice of
“ruscism”, as a State sponsor of terrorism.
15. Finally, with regard to compensation for the damage caused
by the aggression, the Assembly, referring to its
Resolutions 2434 (2022),
2482 (2023) and 2539 (2024):
15.1 calls
on Council of Europe member States and eligible non-member States
to join the Register if they have not yet done so;
15.2 reiterates its call for the establishment of an international
compensation mechanism to address the damage caused to all natural
and legal persons affected, as well as the State of Ukraine, by
the Russian Federation’s internationally wrongful acts arising out
of its aggression against Ukraine. Such an international compensation
mechanism should:
15.2.1 include an independent international
claims commission mandated to examine and adjudicate claims, including
those registered by the Register;
15.2.2 include an international compensation fund, from which
compensation awards would be paid to successful claimants;
15.2.3 be established by a separate international instrument,
open to all like-minded States and relevant international organisations,
including the United Nations and the European Union;
15.2.4 be established in concertation with the Register, which
participates in and facilitates the work aimed at the establishment
of such a mechanism, and which should be transferred to the mechanism
in accordance with its statute;
15.2.5 be in principle established under the auspices of the
Council of Europe, given that the Register is a Council of Europe
enlarged partial agreement and that the Organisation is playing a
leading role in this area, while not excluding other options should
they ensure more cross-regional support;
15.2.6 cover the damage caused by the aggression since February
2014, in particular in relation to breaches of international law
confirmed by international courts and adjudicative bodies such as
the European Court of Human Rights;
15.2.7 cover the damage caused by private military and security
companies or paramilitary groups and proxies which have participated
in the aggression on behalf of the Russian Federation, including
in particular the Wagner Group in all its forms;
15.3 considers that the seizure and repurposing of Russian
State assets, currently frozen by Council of Europe member States
and non-member States, would constitute lawful countermeasures under international
law against the Russian Federation’s aggression against Ukraine,
which constitutes a manifest breach of an erga
omnes obligation. Such countermeasures would be intended
to induce compliance by the Russian Federation with its international
legal obligations, including its obligation to cease the aggression
and make reparations to Ukraine; in view of the enormous amount
of damage caused by the Russian aggression, they would be proportionate
as well as reversible in that the seized funds can be offset against
the claim in reparations owed to Ukraine;
15.4 welcomes the fact that some States, including recently
the United States of America, have already adopted legislation allowing
for such measures for the benefit of Ukraine, on the basis of countermeasures;
15.5 urges member States and any other States to adopt similar
measures at national level, with a view to transferring these assets
to a future international compensation fund while respecting the
rights of all affected third parties under the Convention and other
international human rights law instruments;
15.6 reiterates its call on member States to also repurpose
the frozen assets of Russian citizens subject to targeted sanctions
for their responsibilities in the war of aggression, as requested
in
Resolution 2434 (2022);
15.7 calls on member States, the G7, the European Union and
all relevant stakeholders to continue working towards comprehensive
compensation for all the damage caused by the war of aggression
and the overall process of support to Ukraine, including by applying
other alternative or complementary proposals that are being discussed
or agreed upon, such as the confiscation of private assets following a
criminal conviction for sanctions violations, introducing windfall
taxes on the interest or profits derived from frozen Russian State
assets, or using these assets as collateral for loans to Ukraine.
16. The Assembly calls on all member and observer States, as well
as the European Union and the G7, to set up a register of entities
assisting the Russian Federation in evading or circumventing restrictive
measures.
17. The Assembly finally reiterates all its previous resolutions
addressed to the Russian Federation since the launch of the full-scale
invasion of Ukraine and calls again on the Russian Federation to
cease the aggression and withdraw completely and unconditionally
its occupation forces from the internationally recognised territory
of Ukraine. It urges the Russian Federation to abide by its obligations
under the Charter of the United Nations, the Genocide Convention,
international humanitarian law and international human rights law,
particularly in the occupied territories of Ukraine, and to co-operate
with all international investigative and judicial bodies dealing
with the consequences of the aggression. In this regard, the Assembly
urges the Russian Federation to comply with the recent judgment
of the European Court of Human Rights in the interstate case of Ukraine v. Russia (re Crimea), concerning
multiple violations of the Convention beginning in February 2014,
and in particular with the obligation to ensure, as soon as possible,
the safe return of the relevant prisoners transferred from Crimea
to penal facilities located on the territory of the Russian Federation.
