Accountability Measures for Atrocities Committed in the Ongoing Ukraine-Russia Armed Conflict

"Waving the Ukrainian Flag" by Christiaan Triebert is marked with CC BY-NC 2.0.

The unfolding humanitarian crisis in Ukraine is preceded by a long history of severely strained relations with Russia. The territory of Ukraine, a former Republic of the Union of Soviet Socialist Republics, has been a particular sticking point between the two states.

Protests in 2013 against then-President Yanukovych’s pro-Russia stance and opposition to closer ties with the European Union escalated into the Maidan Revolution in 2014. Russia intervened militarily in Ukraine, annexed Crimea, and simultaneously two states in the Donbass region of Ukraine, the Donetsk People’s Republic and the Luhansk People’s Republic, declared independence.

The Chief Prosecutor of the International Criminal Court (ICC) opened a preliminary investigation into the Maidan Revolution in 2014, initially focusing only on crimes against humanity, but later extending the scope to other, unspecified, crimes within the ICC’s jurisdiction.

It was only confirmed in a 2020 report on preliminary examinations that a reasonable basis to open an investigation existed, and the Prosecutor identified the commission of crimes against humanity and war crimes to be investigated.

On 28 February, the ICC Chief Prosecutor announced again that a reasonable basis to investigate events in Ukraine exists, this time also basing his decision on new ‘available information’. The Prosecutor’s request for authorisation to investigate was further endorsed on 2 March when 39 state parties referred the matter to the ICC.

This enabled the Prosecutor to accelerate opening an investigation into ‘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’ since 21 November 2013.

What led to this rapid acceleration is the 24 February commencement of a 'special military operation' in Ukraine by Russian President Vladimir Putin. The day before the announcement, Russia celebrated ‘Defender of the Fatherland Day’, a national holiday honouring its military.

In Putin’s 23 February national address, he stated that the government’s primary responsibility is to preserve Russia’s security and national interests, in keeping with its martial history and ‘great traditions of [its] ancestors’. His speech was interspersed with clips showing the Russian armed and air forces, and its navy in action, one of which illustrates a weapon with global reach.

“Collective efforts by the international community, as well as the work of the ICJ, ICC, and the Commission of Inquiry, are crucial in ensuring that impunity will not reign for the commission of war crimes, crimes against humanity, and genocide. ”

In his 24 February speech, Putin reiterated that NATO’s expansion of its ‘infrastructure closer to Russia’s borders’, particularly to Ukraine, is a ‘very real threat to [Russian] interests’ and ‘the very existence of our state and to its sovereignty’. He said NATO member states, in supporting Ukraine, are essentially supporting a far-right nationalistic and neo-Nazi government.

Putin explained that the purpose of the ‘special military operation’ is to protect the people of Donetsk People’s Republic and Luhansk People’s Republic against neo-Nazism and genocide committed by the ‘junta’ Ukrainian government, insisting that Ukraine must be demilitarised and de-nazified, and those who perpetrated genocide against civilians in Donbass be tried.

He emphasized that ‘Russia remains one of the most powerful nuclear states’ and that, should another state interfere, ‘Russia will respond immediately, and the consequences will be such as you have never seen in your entire history’.

Russia’s ‘special military operation’ in Ukraine has since been recognised as an international armed conflict, drawing near-universal condemnation as an infringement of international law. The devastation caused by the conflict is immense, with over one and a half million people displaced in less than two weeks.

States are making a tremendous combined effort to prevent further escalation of the humanitarian crisis. Russia’s nuclear capabilities is a particular concern, heightened after its taking control of the Chernobyl and Zaporizhzhia nuclear power plants, the latter being the largest in Europe. This threat of nuclear war could have catastrophic global consequences.  

In addition to the ICC investigation, Ukraine filed an application instituting proceedings at the International Court of Justice (ICJ) on 26 February. In the application, Ukraine denies Russia’s claim that genocide has been and is being committed in the Luhansk and Donetsk oblasts, instead arguing that ‘Russia [is] planning acts of genocide in Ukraine’ and ‘intentionally killing and inflicting serious injury on members of the Ukrainian nationality’.

Ukraine argues that ‘[t]hese acts must be viewed together with President Putin’s vile rhetoric denying the very existence of a Ukrainian people, which is suggestive of Russia’s intentional killings bearing genocidal intent.’

Ukraine is further requesting urgent provisional measures from the ICJ given the evolving nature of the conflict. These include that Russia immediately suspend all military operations, not take action that ‘may aggravate or extend the dispute’, and provide a report indicating measures it implemented once the Court grants the order.

On 7 and 8 March, the ICJ was scheduled to hold public hearings on Ukraine’s provisional measures request. However, the Russian Federation indicated that it will not participate in oral proceedings. Despite this, oral arguments were made by the Ukrainian representatives, where it was pointed out that ‘[t]he fact that Russia’s seats are empty speaks loudly. They are not here in this court of law. They are on a battlefield, waging aggressive war against my country. This is how Russia solves disputes.’ At the time of writing the Court has not yet made an order in this regard.

That these two main forms of accountability for violations of international law are carried out in tandem by both Courts is an important indication of the gravity with which the events in Ukraine are viewed by the international community.

The purpose of the ICJ proceedings is to hold Russia as a state accountable for breaching provisions of the Genocide Convention, and the ICC investigation is specifically to identify persons with the greatest responsibility for carrying out the international crimes, and ultimately holding them individually criminally responsible.

However, these two accountability measures come with serious challenges. Proving accountability for international crimes requires a colossal volume of complex evidence. Gathering information and evidence are heavily dependent on the cooperation and assistance of states, regional and international organisations.

In an effort to assist the ICJ and the ICC with this challenge, the United Nations Human Rights Council announced the establishment of an ‘Independent International Commission of Inquiry to investigate all alleged violations of human rights in the context of the Russian Federation’s aggression against Ukraine’.

The Commission is also mandated ‘to make recommendations, in particular on accountability measures, all with a view to ending impunity and ensuring accountability.’  

To achieve justice for victims of the ongoing humanitarian crisis, it is crucial that all investigators, prosecutors, and judges perform their duties with integrity, independence and impartiality throughout. All parties to the conflict must ensure their actions are in conformity with the rules and regulations of international law.

Collective efforts by the international community, as well as the work of the ICJ, ICC, and the Commission of Inquiry, are crucial in ensuring that impunity will not reign for the commission of war crimes, crimes against humanity, and genocide.