Prosecuting Russia
As the war in Ukraine rumbles on, the West is slowly responding with either aid for the Ukrainian people or sanctions against Russia. Priti Patel finally announced that there will be sanctuary for 100,000 Ukrainian citizens who are displaced by the conflict while certain Russian banks will be denied access to Swift (a vital tool in global finance).
In the longer term thoughts will turn to the legal ramifications of Vladimir Putin’s actions and the obvious institution to think about in this regard is the International Criminal Court (ICC).
The Chief Prosecutor, Karim Khan, is from the UK and only assumed office in June of last year. This invasion could prove a tough early test for the barrister and in his statement he noted:
"I remind all sides conducting hostilities on the territory of Ukraine that my office may exercise its jurisdiction and investigate any act of genocide, crime against humanity, or war crime committed within Ukraine,"
Earlier on today, the Ukrainian ambassador to the UN, Sergiy Kyslytsya, read out a text message from a Russian soldier that appeared to confirm that Putin’s forces were targeting civilians and it would not be surprising to learn that this is only the tip of the iceberg.
Meanwhile Amnesty International have gathered evidence suggesting that the Russian military are targeting civilian infrastructure such as hospitals.
The problem is that this might all end up being too big a step for Khan who already appears to be a much more conservative prosecutor than his predecessor, Fatou Bensouda.
In fact, it was under Bensouda that an investigation found that there was reason to believe that war crimes and other crimes had been committed in the previous conflict in Crimea and Donbas. The next step would be to formally request judges at the ICC allow the chief prosecutor to launch a full investigation but when Khan was last asked about this in December 2021, he could offer no update. In the same way, there has been no movement by the Chief Prosecutor in relation to alleged war crimes committed by Israel since the ICC concluded that it does have jurisdiction over the Occupied Palestinian Territory.
If Khan remains on the sidelines then there is another option open to those more willing to see Russia face the consequences of their actions.
Universal jurisdiction is a principle that would allow a state to claim criminal jurisdiction over a person, no matter where that crime was committed. The most famous instance where universal jurisdiction was exercised was when the former Chilean dictator, Augusto Pinochet, was arrested in London.
The U.S. ambassador to the UN, Linda Thomas-Greenfield, appears determined to ensure that Russia pays for its crimes and if the ICC does not step up itself then universal jurisdiction could potentially allow for the arrest of high-ranking officials if they set foot on U.S. soil.
If other countries, like the UK, followed suit then suddenly top-level Russian officials would find their travel plans to be very limited and their country would become yet more of a pariah on the international stage.
To the extent that Ukraine can be helped by the West, the short-term solutions are not legal; they are political, economic and military. However that is not to say the law does not play a role. Once the dust has settled, there has to be a hope for justice to prevail.
In the podcast this week we consider the human rights ramifications of a little-known terrorist offence. Section 13(1) of the Terrorism Act 2000 prohibits the displaying of images that might lead people to think you support a terrorist organisation. The Supreme Court was asked whether this was a crime of strict liability and whether the law was a breach of the right to freedom of expression.
Episode link: http://uklawweekly.com/2022-uksc-2/
Make a difference today,
Marcus