Russia must be judged in international courts — former judge

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2014/08/03 • Analysis & Opinion, Featured

by Maria Shchur

Ukraine can and should demand  justice for Russia’s aggression in two international courts: the International Court of Justice, under the auspices of the UN, and the International Criminal Court. No matter how long it takes, Ukraine must pursue this issue in order to prove its case in court. The fact that an undeclared war is taking place is irrelevant, because international documents deal with the question of determining aggression and they fully cover the current events in Ukraine. These are the views of Volodymyr Vasylenko, Ukrainian diplomat, international law expert, and former judge at the International Criminal Tribunal for the former Yugoslavia.

Will the war between Ukraine and Russia end up in the courts?

Any war comes to an end, but it does not end in international courts. In the classical sense, it needs to end through peace negotiations between the two countries, where all the issues relating to the military operations and the resulting damages are addressed.

Ukraine has to make claims against the Russian Federation on a bilateral level for the damages caused by the Russian Federation starting in February 27, 2014, when, in fact, Russia’s armed aggression against Ukraine began with the seizure of government facilities in Simferopol and Crimea by Russian special forces. To do that, all the damages suffered by Ukraine must be calculated and presented (as claims) on a bilateral level, with the proposal that the Russian Federation resolve these issues through the UN International Court of Justice, which considers interstate disputes. The consent of both countries is required for this court to consider a dispute between two countries.

Volodymyr Vasylenko

Russia may not agree.

It will not agree willingly. Russia, the aggressor state, is hostile toward Ukraine. Russia seized part of our territory. Have you ever seen an invader voluntarily give up stolen property?

The UN Security Council could force Russia to do it. However, Russia has veto power, so nobody can force it.

Effective sanctions by Western powers — US and EU — could force it. They have the ability to destroy Russia’s economy.

We were talking about Ukraine’s economic damages from Russian aggression, but there are still crimes in the area of human rights. Can Ukraine gather the facts and present them to the court to be considered as war crimes?

When it comes to aggression as an international crime, then it is a question of responsibility on two levels. The first level of responsibility is responsibility of the state as such. The issues regarding this responsibility, including questions pertaining to the return of seized territory to Ukraine,  are questions for the UN International Court of Justice.

The second level of responsibility is the responsibility of specific individuals of the aggressor state, who are responsible for preparing, organizing, planning, conducting, and launching an aggressive war. Today we have the possibility at least to open the case in the International Criminal Court in The Hague against personnel of the armed forces of the Russian Federation and those military units that are controlled and directed by Russia for actions committed in Ukraine.

It is the second court, which does not handle interstate disputes, that is competent to hear cases of crimes against peace, war crimes, crimes against humanity committed by specific individuals who belong to the top leadership of a country.

Ukraine may, in accordance with Paragraph 3 of Article 12 of the Rome Statute of the International Criminal Court, accept the jurisdiction of this court over the situation that occurred as a result of military aggression by Russia during the period from February 27 to date. It can raise questions about the prosecution of those responsible, namely Vladimir Putin, president of Russia, Sergey Shoygu, minister of defense, and other senior officials criminally responsible for committing such crimes.

Do you know if this is being done — is Ukraine preparing such claims, preparing the necessary materials?

A draft resolution initiated by Oleh Liashko has been registered in the Verkhovna Rada of Ukraine for it to recognize the jurisdiction of the International Criminal Court over the situation. I expect this resolution will be passed. Then the Ministry of Foreign Affairs of Ukraine should formally notify the International Criminal Court that Ukraine recognizes its jurisdiction over the situation caused by Russia’s armed aggression against Ukraine.

In this regard, it is important, naturally, to gather evidence of such crimes. Right now there is more than enough evidence. It is important to document it. I expect that the appropriate services in Ukraine, especially the Security Service of Ukraine (SBU), are pursuing this matter. For this to be effective, it is necessary to create a special agency in Ukraine –“Government commissioner for combating Russian aggression and eliminating its consequences” — to deal with all questions on the compensation of Ukraine for losses resulting from Russia’s aggression. This work should be pursued on a regular, systematic basis. Then it will give positive results.

Russia is conducting an undeclared war against Ukraine. Several organizations, such as the well-known Human rights organization Human Rights Watch, believe that this is an internal Ukrainian conflict.

I understood your question. Either ignoramuses or Russian agents and provocateurs are working at Human Rights Watch. Because it does not matter whether or not the war was declared. The state that begins armed conflict first, regardless of whether it declares war or not, is the aggressor state. There is a United Nations General Assembly Resolution, adopted in 1974, on the “Definition of Aggression.” In Article 3 of this document it is clearly stated that the armed attack of one country against another country, and the occupation of the territory of another country — even if the armed attack originates from a military base located inside the (victimized) country and regardless of whether the war is declared — this armed attack is an act of aggression. This is discussed in item “A” of Article 3.

There is item “G” in this article, where it states that the use of irregular military groupings, mercenaries, and armed bands against the territorial integrity of a country that is attacked is also considered an act of aggression. So all this nonsensical double-talk by the Human Rights Watch or other Kremlin agents is totally baseless and contrary to existing international law.

Translated by Anna Mostovych

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  • sandy miller

    obivously either the human rights organization doesn’t really understand the situation therefore they need to have an unbiased or organization explain it them them more clearly. I don’t know how the rest of uscan understand it but they can’t? Is there something wrong? Who are these people anyway? Are they biased? They needd to be checked out?