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International calls to investigate, prosecute and punish suspected crimes, including those of war and against humanity, committed in Russia’s invasion of Ukraine have grown on this 40th day of conflict.
On a visit to Butcha, where the Ukrainian government says it counted nearly 300 civilian bodies in streets and mass graves over the weekend — more than 400 in the Kiev region — President Volodymyr Zelensky declared that the scene is one of crimes that must “be recognized by the world as genocide”.
In the wake of the commotion generated by the images, world leaders demanded the opening of procedures to hold President Vladimir Putin and other Russian officials accountable. In addition to the findings announced by existing UN bodies, one of the proposals under debate is the creation of an extraordinary tribunal for the conflict.
The initiative would not be new in recent history: examples of special courts, created exclusively for certain political events, are the Nuremberg, which judged the crimes committed by the Nazis during the Second World War, and the criminal courts for the former Yugoslavia and to Rwanda in the 1990s.
Suspicions of violations of international treaties for the situation of conflicts are already the subject of an investigation by the ICC (International Criminal Court) in The Hague (Netherlands), opened in early March after the request of 39 countries – Japan and North Macedonia joined the petition afterwards.
In the case of the war in Ukraine, the court investigates three types of crimes:
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War crimes: they include, among others, attacks on the population or on civilian objects (such as residential buildings and hospitals) that are not part of the objective of a military action;
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Crimes against humanity: widespread or systematic attacks directed against any civilian population;
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Genocide: acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
Understand: the investigation opened by British prosecutor Karim Khan covers allegations of these three types of crimes committed by anyone in any part of Ukrainian territory since November 2013, when Russia disputed the territory of Crimea – annexed by Putin the following year. Remember, the ICC judges individuals, not countries.
But why the proposal to create another court if the conflict is already being investigated by the Hague Court?
There is another type of crime of competence that is not included in the investigation underway at the International Criminal Court: the crime of aggressionthat is, the seizure of political or military control of a state — in which case it would simply be the act of invasion of Ukrainian territory by Russia.
This is a newer crime in court. And specifically for the case of aggression, the Rome Statute (1998) establishes that the court does not have jurisdiction to hear cases committed by or in countries that are not part of the statute – in the case of Russia.
For the other crimes, this restriction does not exist because the link is with the country where the acts are committed (in this case, Ukraine).
Other measures:
What Russia says: He denies responsibility for the deaths in the city, claims that Ukraine is being manipulated and asked for a meeting of the UN Security Council to discuss the episode. The meeting will take place this Tuesday.
Do not get lost
We invited Professor Lucas Carlos Lima, coordinator of the Research Group on International Courts and Tribunals at UFMG, to clarify the role of international courts.
What are the controversies behind the proposal to create an extraordinary tribunal for Ukraine? Significant precedents for this type of court, such as those at Nuremberg and the former Yugoslavia, worked under the strain of delivering justice and punishing crimes, on the one hand; and with the fact that they are courts created exclusively to judge certain conflicts (unlike the ICC), being accused of being “courts of exception”.
In the case of Ukraine, the controversies are diverse. From the fact that the main proponents are European nations involved in other cases of invasion (there is talk of the participation of Gordon Brown, then British Prime Minister during the invasion of Iraq) to which body would have the power to create it, once that the Security Council (which created that of Rwanda and that of the former Yugoslavia) would be blocked by the Russian veto.
The criticism that could be made is the risk of “selective justice”, diminishing the legitimacy of the court.
In relation to the investigation opened by the ICC, what scope and how long would it take for an eventual conviction? In the International Criminal Court there is a specific procedure that goes through the investigation, pre-trial, the trial itself and a final appeal phase. At the current stage of investigation, it is critical to secure as much evidence as possible.
This does not mean that arrest warrants cannot be issued in the face of certain evidence. But we are certainly talking about a period of years until final decisions are issued regarding possible war crimes and crimes against humanity committed on Ukrainian territory.
Another court in The Hague, the International Court of Justice, has already issued an injunction ordering Russia to stop the military action, which has not been complied with. What could be the consequences for Russia? By ruling that its order imposing an obligation has been breached, the court may lay down consequences for Russia, even with the payment of damages.
What happened this Monday (4)
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New attacks in the Black Sea region left at least 8 dead, Ukraine said;
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Mayor of Mariupol said 90% of the city is destroyed;
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Orbán called Zelensky an adversary in his post-reelection speech;
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Journalist who recorded Russian attack in Odessa was expelled from Ukraine.
picture of the day
What to see and hear to stay informed
Zelensky’s virtual speech at the Grammy ceremony, on Sunday night, and the testimony of Ukrainian soldiers fighting in the trenches, in two videos from TV Folha:
