This material was published on the Re:Russia platform, The Insider reproduces it in full with the permission of the publication.
We are witnessing a real historical precedent. Now he looks like an elephant from an Indian parable, which is groped by the blind. Lawyers see that a crime may have occurred here, they see possible defendants and therefore believe that this is a legal conflict. Politicians perceive this process as primarily political. Journalists and the general public see it as a high-profile story and voluntarily or involuntarily seek to simplify and primitivize it. Thus, we have a very complex legal process in fact and a political process in fact, which has been turned into a hype story.
There has never been a situation like the present one in history. Yes, some heads of state were prosecuted for crimes at the national and international level, but among these states there were no major powers and permanent members of the UN Security Council. And even more so, there was no country – the winner in the Second World War, which could be called one of the founders of the current world order. There was no founding country of the United Nations itself, under whose auspices all international criminal prosecutions are conducted and all international criminal courts and tribunals are established.
Court or Tribunal: What's the difference?
Ukrainians want a tribunal. Over Putin or over Russia. They are quite reasonably going to pursue the prosecution of the Russian authorities for aggression, invasion and occupation.
It is important to understand that the tribunal is most often a court in connection with specific events, ad hoc, that is, “one-time”, created specifically for this particular case. So, the Nuremberg Tribunal is a trial in relation to specific events and the responsibility of a specific, limited circle of people from a specific country. And the court is, as a rule, a permanent institution that considers certain categories of cases – and will consider them regardless of who, where, when and how the crime was committed. This is the legal difference between a tribunal and a court. (To be fair, there is a caveat to exceptions: for example, there is a permanent International Tribunal for the Law of the Sea and a Special Court for Sierra Leone dealing with specific events.)
It is fundamentally wrong to compare the current case with the Nuremberg trials and return to its practices. The historical distance between them is huge. The Nuremberg Tribunal can only be seen as a kind of forerunner of modern international criminal justice. The final political decision on its creation was made at the Yalta Conference on February 4–11, 1945, and the charter was taken at the London Conference in August 1945. At that time, there was no UN yet, and in fact the creation of the tribunal was based on previously adopted international conventions governing the methods of warfare.
Ad hoc tribunals have also been established for events in the former Yugoslavia and Rwanda. But then the idea of a permanent court arose. The International Criminal Court was created to consider not some special cases, but a whole category of crimes, the most serious and at the same time difficult to achieve for justice. Now we are in a different historical context.
The establishment of a special tribunal for Russia will not enhance the role of the International Criminal Court and its international recognition. It will create a tool for the legal assessment of Russia's actions in Ukraine in a certain period of time. Such a scenario may look preferable for countries that are not interested in strengthening the ICC and fear that it will bring charges against itself. For example, this is the United States, which not only did not ratify the ICC treaty, but even imposed sanctions against its prosecutors who were investigating the crimes of the American military in Afghanistan.
But the ICC is just extremely interested in this. For him, the investigation against Russia is the first global challenge and test of viability in 20 years of existence. For him, this is a choice whether he will become one of the main international organizations and a kind of “global guardian” or will he be content with petty dictators from third countries (this does not detract from the gravity of their crimes and the significance of these countries).
Jurisdiction issue
For many, it is quite reasonable to ask whether the International Criminal Court has jurisdiction in this particular case. It will ultimately be decided when and if someone is brought to justice.
Let's start with what the ICC is. It is an international criminal court established by the United Nations that, for the first time in the world, is capable of investigating and trying defendants in the four categories of the most serious crimes: crimes of aggression, crimes of genocide, crimes against humanity and war crimes.
Ukraine, like Russia, has not ratified the Rome Statute that established the ICC. But Kyiv recognized the jurisdiction of the ICC, using a special procedure (this happened in 2015), thereby expressing a desire for the court to investigate international crimes committed on Ukrainian territory. Therefore, the ICC believes that it has the right to consider cases related to the Russian-Ukrainian war.
Probably, there may be other points of view, and the Kremlin obviously has them. Russia signed the Rome Statute in 2000 but did not ratify it and cooperated with the ICC as an observer. In 2016, Putin withdrew his signature by signing a decree on Russia's intention not to become a party to the Rome Statute. The separatists' defense during the Malaysian Boeing case in the Netherlands argued that the court had no jurisdiction. But the court justified why this is not so. So-called jurisdiction is not self-evident for a Dutch court in relation to criminal acts that took place outside the Netherlands. But since flight MH17 was shot down over Ukraine and Ukraine transferred the resulting right of pursuit to the Netherlands, for that reason alone the Netherlands has jurisdiction in this case. This means that persecution in the Netherlands is possible regardless of the nationality of the victims.
In the case of a Russian-Ukrainian conflict, the court will also have to justify why it has jurisdiction here. And this is extremely important in understanding this process not as a political one, but as a legal one.
The essence of the accusations: facts and evidence
The International Criminal Court was established 20 years ago, and all types of crimes it has jurisdiction are listed in the Rome Statute, which came into force in 2002. And the very fact of its existence suggests that, in fact, everyone is warned: you can’t take children from one country and transport them to another country during an armed conflict, break ties with parents and deprive children of their individuality. This is written both in the 1949 Fourth Geneva Convention for the Protection of Civilian Persons in Time of War, applicable to armed conflicts, and in the UN Convention on the Rights of the Child. Russia recognizes both of these documents.
The first one says:
The Parties to the conflict will take the necessary measures to ensure that children under 15 years of age who are orphaned or separated from their families as a result of war are not left to their own devices and to facilitate in all circumstances their maintenance, the performance of their religious duties and their education. Their upbringing, if possible, will be entrusted to people of the same cultural traditions. The Parties to the conflict will facilitate the admission of these children to a neutral country for the duration of the conflict, subject to the consent of the Protecting Power, if any.
At the same time, the same convention considers the forcible transfer and deportation of civilians as a separate crime:
1. The executor ordered the movement of the civilian population.
2. Such an order was not justified by the security of the civilians concerned or by military necessity.
3. The perpetrator was in a position to enable him to effect such a transfer by issuing such an order.
4. The act took place in the context of and was connected with a non-international armed conflict.
5. The perpetrator was aware of the factual circumstances that testified to the existence of an armed conflict.
It also contains the article “Genocide through the forced transfer of children”:
1. The perpetrator carried out the forcible transfer of one or more people.
2. Such person or persons belonged to a particular national, ethnic, racial or religious group.
3. The perpetrator had the intent to destroy, in whole or in part, that national, ethnic, racial or religious group as such.
4. The transfer was made from one human group to another.
5. Such person or persons were under 18 years of age.
6. The performer knew or should have known that this person or persons were under 18 years of age.
7. This act took place in the context of a clear line of similar conduct directed against that group, or was conduct which in itself could lead to such destruction.
Was all this or not, the court will decide. But the prosecutor saw sufficient grounds for such accusations. The fact that thousands of Ukrainian children were taken to Russia was literally confirmed by top officials in their own words. They were guided by security considerations or something else, the transfer was temporary or had the purpose of leaving them in Russia, whether their individuality was preserved (citizenship, documents about the place of birth, parents, and so on) or vice versa – these are circumstances to be proved.
The second confirmed fact is the destruction of civilian objects. The Ministry of Defense of the Russian Federation claims that it does not strike at civilian targets. The shelling of energy infrastructure is justified by its military purpose, the destruction of civilian buildings – by the presence of enemy troops in them or by the actions of the enemy himself. Like it or not, is also the subject of proof in court. Therefore, the International Criminal Court dealt primarily with these two most significant cases.
During the year, the ICC collects a gigantic array of evidence of various crimes related to this armed conflict. Whether there were rapes by Russian military personnel in Ukraine, murders of civilians, torture, extrajudicial executions – all this has yet to be proven or refuted. But, obviously, the arrest warrants for Putin and Ombudsman Maria Lvova-Belova are definitely not the last ones.
It is essential that the ICC will not be able to consider Russia's war in Ukraine in the context of aggression. The Rome Statute does not allow him to do this – this requires that the crime of aggression be committed by a country that recognizes the jurisdiction of the court, and this crime must be committed against a country that also recognizes its jurisdiction. That is, if the Germans again capture Strasbourg, Alsace, the ICC will consider this crime of aggression.
Many in Ukraine want genocide to be the subject of the tribunal. But genocide is even more difficult: it requires evidence of a specific intent, which is difficult to obtain. Genocide is the purposeful total or partial destruction of any national, racial or religious group. Over the past 30 years, only two cases have been recognized as genocide in the framework of international justice: Srebrenica in Yugoslavia and Rwanda in 1994. In principle, such a recognition cannot be ruled out in relation to the Russian-Ukrainian conflict, especially since it is not over yet. But achieving such recognition will be much more difficult.
"Virtual arrest" and its consequences
The main obstacle and problem is that there will be a trial only when someone is arrested. And here we are faced with a paradox. Today, when a warrant has been issued for the arrest of two representatives of the Russian authorities, where and how can they and should they be detained? Or will it not happen?
For example, Slobodan Milosevic was arrested in Serbia and for a long time they were going to try it there. And only then, obviously under external pressure, they were transferred to The Hague. Omar al-Bashir, the President of Sudan, was arrested in 2019 as a result of a coup, since then he has remained in Sudan, where he received two years in prison for possession of foreign currency (!), And is still awaiting a decision on his extradition to The Hague.
An interesting nuance: as we have already said, the United States has not ratified the International Criminal Court Treaty either, and its warrant can only be valid on the territory of those countries that have ratified this treaty. That is, in fact, the United States does not have an obligation to extradite a person whose arrest warrant was issued by the ICC. Although no one can prevent US law enforcement agencies from making an arrest – for example, after the ICC puts a card on the wanted list in the Interpol system (in the case of Putin and Lvova-Belova, this is likely to happen in the near future). It is a separate question how Interpol will react to this and whether Putin and Lvova-Belova will end up in its open search database.
The same Omar al-Bashir, who was put on the wanted list by the International Criminal Court even before the coup, was going to take part in a meeting of the UN General Assembly in New York and asked for an American visa. Americans are required to issue visas to heads of state to attend UN events, but they deliberately delayed the procedure, and al-Bashir canceled the trip. Obviously, the threat of arrest existed, he understood this and waited for guarantees. But for Nelson Mandela, who was wanted in the United States for the terrorist attacks during apartheid, they made an exception. He was given a visa and allowed to take part in the meeting of the UN General Assembly in 1994.
Xi Jinping pointedly invited Putin to pay a return visit to China immediately after the ICC announcement. It turns out that at least two permanent members of the UN Security Council are ignoring the orders of the ICC, and this undermines its authority. If we add here the policy of the White House, which also does not treat the ICC with too much respect, it turns out that only Great Britain and France remain its supporters from among the permanent members of the Security Council, that is, a minority even among the five permanent members.
In other words, the prospects for an international investigation de facto depend on the relationship between the powers and acquire a political veil. At the same time, the issued warrant forces countries to redefine their position with respect to the ICC, and this is its significance.
The arrest warrant, in our opinion, can be withdrawn. There was no such precedent, but, as we have already said, such a situation as a whole has no precedent. In the end, it may turn out that international lawyers did not advise Vladimir Putin well enough about what is acceptable and what is unacceptable. However, so far we do not observe in the Kremlin the desire to cooperate with the ICC, to explain, demonstrate and prove something. However, it is absolutely clear that the return of children can alleviate the situation.
Of course, from a legal point of view, the objects of persecution by international justice bodies have the opportunity to legitimately defend themselves only within the process, but in this situation it is also possible to defend themselves by political means. Including some actual actions: you can return the children, compensate for the damage, start negotiations, you can, in the end, stop hostilities at any time.
Whom to judge? Leaders, performers and instigators
In the international court and tribunals, the ruling elite, that is, the leaders, should be prosecuted first of all. But this does not mean that the perpetrators – those who pulled the trigger, robbed and raped, following orders – will go unpunished.
The Rome Statute expressly states this in Article 33 "Orders of the Chief and the Prescription of the Law":
1. The fact that a crime within the jurisdiction of the Court was committed by a person on the orders of a government or superior, whether military or civilian, does not relieve that person from criminal liability unless:
a) that person was legally bound to carry out the orders of that government or that superior;
b) that person did not know that the order was unlawful; And
c) the order was not manifestly illegal.
2. For the purposes of this article, orders to commit the crime of genocide or crimes against humanity are manifestly unlawful.”
A few dozen people were persecuted in Nuremberg, but thousands of Germans went through a denazification program over the years on charges of involvement in the same crimes. That is, the usual national judicial system was also involved there.
It was the same with Yugoslavia: the courts in Serbia also tried those accused of various war crimes. This was even more so in Rwanda, where hundreds of thousands of people were prosecuted by national courts. Moreover, courts of elders were specially created there, through which a huge number of Hutus who participated in the Tutsi genocide passed. The international tribunal did not deal with all this.
Obviously, within the framework of international investigations, the crimes of either thousands or even hundreds of Russian servicemen will not be analyzed. Они, возможно, понесут наказание, но в какой-то другой ситуации и в другой инстанции. Однако такие инстанции будут опираться на решения МУС.
Например, может быть, в будущем военные преступники будут преследоваться российскими судами — если предположить смену политического режима в России, многое будет зависеть от позиции новых властей: предпочтут ли они продолжать изоляцию России и ее маргинализацию в мировом масштабе — или станут инициировать внутренние процессы исторической переоценки всего происходившего в Украине с 2014 года?
Впрочем, возможна и такая ситуация, когда МУС может вынужденно ограничиться более мелкими фигурантами, если не будет в состоянии преследовать руководителей.
Кто-то уже сейчас подвергается уголовному преследованию в Украине. И не исключено, что будет подвергаться и в других странах — на основании принципа универсальной юрисдикции. Если кто-то из подозреваемых поедет, к примеру, в Италию или Испанию, там его могут задержать и судить по обвинению в преступлениях, которые были совершены в Украине. Такое тоже возможно. Но международное расследование как таковое будет сконцентрировано прежде всего на руководителях.
Еще один нюанс касается наемников ЧВК «Вагнер». Международный суд может не признать их комбатантами. А это значит, что на них не будут распространяться права комбатантов. Если военнослужащие двух армий воюют друг с другом, носят форму, знаки различия, соблюдают правила и методы ведения войны, их нельзя судить за то, что они убивали друг друга. А если они не комбатанты, тогда они не имеют права ни носить оружие, ни стрелять в кого-либо, и в этом случае они подвержены уголовному преследованию за участие в военных действиях как таковое.
Разумеется, если будут представлены доказательства, что частные военные компании являются структурными подразделениями Министерства обороны Российской Федерации, к примеру, будет соответствующий приказ Минобороны или главы Генштаба, это меняет дело. Но пока с юридической точки зрения мы этого не видим; эти условные добровольцы не обладают правами военнослужащих и по российскому законодательству. Международный суд будет смотреть в том числе, являлись ли они военнослужащими по российскому законодательству, были ли им положены отпуска, соответствующие выплаты.
Международный уголовный суд, так же, как и трибунал, даже если это будет специальный трибунал, обязательно будет рассматривать предпосылки для возникновения агрессии. Так, гаагский суд, рассматривавший дело о «Боинге», довольно подробно, на нескольких страницах описывал предпосылки конфликта на востоке Украины 2014 года: «сепаратисты», «ЛДНР» и т.д. В этом смысле судом будет дана оценка всего конфликта.
Но в случае с пропагандистами, которые годами накачивали россиян антиукраинской повесткой, мы можем рассуждать только гипотетически и базироваться на единственной аналогии — это печально знаменитое «Свободное радио и телевидение тысячи холмов» в Руанде. Руандийская станция никогда не использовала прямые призывы к геноциду тутси — только эзопов язык, призывы к широкой аудитории хуту «рубить эти высокие деревья» и «уничтожать этих тараканов», — и в итоге хуту реально рубили тутси при помощи мачете.
Во время трибунала, рассматривавшего геноцид в Руанде, анализировались конкретные слова, тексты, учитывалась популярность радио. Если бы это было радио, которое почти никто не слушал, тут не было бы юридического предмета. Именно его популярность стала безусловным доказательством вины.
В чем отличие от нынешней ситуации? Пропагандистские призывы в Руанде сопровождались массовой стихийной резней — радио, по сути, выступало в качестве их инициатора, организатора. «Радио тысячи холмов» было к тому же коммерческим, не имело отношения к государству. (Это, к слову, наложило отпечаток на последующее отношение в Руанде к медиа. Любые негосударственные СМИ находятся там с тех пор под мощным контролем, испытывают перманентный прессинг со стороны регулятора.) В российско-украинском случае нет такой прямой связи между пропагандой и военными действиями и нет этой логики, потому что войну ведут военнослужащие, подчиняющиеся приказам своих командиров, а не радиоведущим.
Других похожих примеров нет, а значит, Международному уголовному суду придется создавать прецедент. Сюжет с российской пропагандой требует тщательного юридического анализа, потому что этот прецедент потом может быть использован против других журналистов, к примеру военкоров.