Legal Sidebari

The Role of International Tribunals in the
Response to the Invasion of Ukraine
March 8, 2022
The Ukrainian government and much of the international community contend that actions taken by
Russian forces during Russia’s invasion of Ukraine violate international law. A number of officials have
also expressed concern that actions during the invasion may amount to war crimes and crimes against
humanity; others, including the Secretary General of the United Nations (U.N.) and the U.S. Secretary of
State have claimed that the situation in Ukraine is leading to increased human rights violations. This
Sidebar addresses the role of international tribunals in addressing issues involving international
humanitarian and human rights law.
Individual and Russian Accountability for Actions in
Ukraine
Several international tribunals may play a role in addressing Russia’s actions in Ukraine, chiefly the
International Court of Justice (ICJ), International Criminal Court (ICC), and European Court of Human
Rights (ECHR). This section provides an overview of current and prior disputes involving Ukrainian
allegations against Russia or individuals connected to Russian actions in Ukraine.
International Court of Justice
Two days after the Russian invasion began, Ukraine filed an application with the ICJ to initiate
proceedings against Russia under the Convention on the Prevention and Punishment of the Crime of
Genocide (“Genocide Convention”). Article II of that Convention defines genocide as certain wrongful
acts—such as killing, causing serious bodily harm, or deliberately inflicting conditions calculated to bring
about physical destruction—when committed with the intent to destroy a national, ethnic, racial, or
religious group. In its ICJ filing, Ukraine contends that Russia premised its invasion on fabricated claims
of Ukrainian genocide against Russians or Russian-speakers in Ukraine, which Ukraine “emphatically
denies.” Ukraine argues “Russia has turned the Genocide Convention on its head—making a false claim
of genocide as a basis” to justify its own “grave and widespread” human rights violations.
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Discussed in this Legal Sidebar, the ICJ is the U.N.’s principal judicial organ, but it does not have
jurisdiction over all disputes between U.N. members. Unless a country submits to the ICJ’s compulsory
jurisdiction, which Ukraine and Russia have not, the court has jurisdiction only on a treaty-by-treaty
basis. Ukraine and Russia have submitted to the ICJ’s jurisdiction for disputes under the Genocide
Convention, which may explain why Ukraine has presented its case as a question of the Genocide
Convention’s interpretation. ICJ cases ordinarily take years to resolve; however, Ukraine also seeks
provisional measures, which can be granted swiftly because they have priority on the ICJ’s docket.
Provisional measures are temporary but binding measures designed to preserve the parties’ rights while a
case is pending. Among other provisional requests, Ukraine asks the ICJ to direct Russia to suspend its
military operations immediately. Oral argument on the request for provisional measures was held on
March 7, 2022. Russia did not appear for that argument, nor has it submitted objections or responsive
pleadings thus far.
This case is not the first against Russia arising out of its military actions in the region. In 2017, Ukraine
filed an ICJ application asserting that Russia’s annexation of Crimea, and subsequent acts of “cultural
erasure” of ethnic Ukrainians and the Tatar community, violated the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD). Ukraine also alleges in its 2017 case that
Russia violated the International Convention for the Suppression of the Financing of Terrorism by
supporting violent separatist groups in eastern Ukraine. The ICJ granted (or “indicated” in the language of
the ICJ statute) a portion of Ukraine’s request for provisional measures in 2017. The court held in 2019
that it had jurisdiction to hear the claims under both treaties, and the merits case is ongoing.
Additionally, in 2008, Georgia instituted ICJ proceedings after Russian forces entered its territory leading
to a five-day war. The suit alleged Russia committed ethnic cleansing in Georgia’s South Ossetia and
Abkhazia regions in violation of the CERD. The ICJ initially indicated provisional measures against
Russia, but later held it lacked jurisdiction because Georgia did not satisfy the CERD’s preconditions to
filing suit.
Although the U.N. Charter provides that each member state “undertakes to comply” with ICJ decisions,
the court may lack the independent ability to enforce its rulings. Member states can request the Security
Council to take enforcement action, but Russia and any other permanent member of the Security Council
can veto those proposals.
International Criminal Court
On February 28, 2022, the Prosecutor of the ICC announced that his office “decided to proceed with
opening an investigation into the Situation in Ukraine.” Specifically, the Prosecutor indicated that the
evidence collected with regard to the 2014 conflict between Russia and Ukraine showed there was a
“reasonable basis” to believe that war crimes and crimes against humanity had been committed in
Ukraine and, given the escalation of the conflict in February 2022, the “investigation will also encompass
any new alleged crimes.”
The ICC has jurisdiction to investigate four categories of crimes that fall within the ambit of international
humanitarian law: (1) genocide; (2) crimes against humanity; (3) war crimes; and (4) the crime of
aggression. Unlike many other tribunals, the ICC focuses on holding individuals accountable for these
crimes, as opposed to a nation-state. Individuals found guilty of any of these crimes face penalties
including imprisonment, fines, and forfeiture.
The ICC’s jurisdiction generally extends only to those countries that have agreed to become parties to the
Rome Statute establishing the ICC. Neither Ukraine nor Russia are parties to the Rome Statute. Thus, in
general, the ICC lacks jurisdiction over actions within the territories of either country. (Contrast this to
cases involving parties to the Rome Statute, such as the investigation into alleged crimes against
humanity and war crimes committed in Georgia, which became a party in 2003, during the 2008 conflict

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with Russia.) However, the ICC may exercise jurisdiction if the specific requirements of Article 12(3) are
met. First, a country must submit a declaration with the Registrar of the ICC accepting the exercise of the
ICC’s jurisdiction “with respect to the crime in question.” Second, the case must be one that the
Prosecutor (a) self-initiated or (b) initiated at the request of a country.
In this case, Ukraine filed a declaration in 2014 accepting the ICC’s jurisdiction for the period of
November 21, 2013, to February 22, 2014, and also requested that the ICC investigate alleged crimes
against humanity committed in its territory during this time period. Based on this declaration and referral,
the Prosecutor opened a preliminary investigation. Ukraine filed a second declaration in 2015, extending
its acceptance of the ICC’s jurisdiction from February 25, 2014, to an undetermined date. In 2020, the
ICC Prosecutor concluded her preliminary examination of the evidence, stating there is a “reasonable
basis at this time to believe that a broad range of conduct constituting war crimes and crimes against
humanity within the jurisdiction of the Court have been committed in the context of the situation in
Ukraine.” As indicated by the ICC Prosecutor, given Ukraine’s open-ended acceptance of the Court’s
jurisdiction and the 2022 escalation of the conflict in Ukraine, the Prosecutor intends to expand the
ongoing investigation to include alleged new crimes that may occur during this time.
European Court of Human Rights
On February 28, 2022, Ukraine applied to the ECHR for interim measures in response to “massive human
rights violations being committed by the Russian troops in the course of the military aggression against
the sovereign territory of Ukraine.” The Court granted these measures, directing Russia to “refrain from
military attacks against civilians and civilian objects, including residential premises, emergency vehicles
and other specially protected civilian objects.”
The ECHR adjudicates claims involving alleged violations of the Convention for the Protection of Human
Rights and Fundamental Freedoms, known as the European Convention on Human Rights
(“Convention”). Currently, 47 countries are parties to the Convention, including Russia and Ukraine. Two
types of claims may be lodged with the ECHR: inter-state disputes and disputes brought by individuals
against a state. Both types of disputes involve allegations that a state has violated human rights protected
by the Convention. The human rights protected by the Convention are distinct from international
humanitarian law violations that may be heard by other tribunals, including the ICC. Human rights
protected by the Convention include, among others, the right to life and a prohibition on torture and
inhuman or degrading treatment. Although human rights violations are distinct from international
humanitarian law violations, actions that violate Convention-protected rights may occur during the same
events that also give rise to alleged war crimes or crimes against humanity charges. In cases alleging an
imminent risk of irreparable harm, the ECHR may issue interim measures directed to the state allegedly
committing human rights violations. Ukraine has requested and been granted interim measures in light of
the February 2022 invasion. In the public notice on the interim measures, the Court indicated that it
considers Russia’s actions to present “a real and continuing risk of serious violations of the Convention
rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and
inhuman or degrading treatment or punishment), and 8 (right to respect for private and family life).” The
interim measures directing Russia to refrain from actions that may violate human rights are legally
binding.
In addition to its February 28 application for interim measures, Ukraine has taken other legal actions
against Russia that may provide some insight regarding how a future complaint might be framed.
Currently, Ukraine has four inter-state claims against Russia before the ECHR (and over 7,000 individuals
have also filed claims against Russia). Of particular relevance is Ukraine’s March 2014 complaint
involving Russia’s invasion of Crimea. In that dispute, Ukraine alleged Russia’s conduct amounted to
“administrative practices” (i.e., a pattern of acts that are officially tolerated) that violated numerous
Convention provisions, including the right to life; prohibition on torture, inhuman or degrading treatment;

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prohibition on unlawful detention; freedom of religion; and prohibition of discrimination. The Court
granted Ukraine’s request for interim measures, directing Russia to “refrain from measures which might
threaten the life and health of the civilian population on the territory of Ukraine.” In addition, in a
decision released in January 2021, the Court found the complaint partially admissible (i.e., the complaint
met the requirements for the Court to consider the merits of almost all of Ukraine’s allegations). No
decision on the merits has been issued.
Events in Ukraine may unfold differently in 2022 than in 2014, leading to different factual circumstances
and different allegations. Nonetheless, a complaint alleging wide-scale human rights violations may
benefit from the judicial approach taken by the ECHR in Ukraine’s 2014 complaint and other cases (e.g.,
Georgia v. Russia (I)). These cases hold that the complaining nation need not exhaust domestic remedies
before the ECHR may consider the case if the complaining nation sufficiently alleges administrative
practices that amount to systemic violations of the Convention. They also hold that the complaining state
need not prove every single instance of human rights violations as would be required in individual cases,
which may reduce certain evidentiary obstacles that can arise in cases involving allegations of large-scale
human rights violations.
Other International Tribunals
Other international tribunals may also play a role in disputes addressing alleged violations of human
rights occurring during Russia’s military action, particularly the right to property. For example, after the
2014 annexation of Ukraine, several Ukrainian investors brought claims against Russia under a 1998
bilateral investment treaty between Ukraine and Russia, seeking compensation for expropriated property
at the Permanent Court of Arbitration and in other arbitration fora. Investors have been awarded
significant amounts of compensation in some cases (e.g., Everest Estate LLC et al. v. Russia; PJSC
Ukrnafta v. Russia; Stabil LLC v. Russia). Other disputes remain ongoing.

Author Information

Nina M. Hart
Stephen P. Mulligan
Legislative Attorney
Legislative Attorney





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