The Role of International Tribunals in the Response to the Invasion of Ukraine

The Role of International Tribunals in the Response to the Invasion of Ukraine

Legal Sidebari

The Role of International Tribunals in the
Response to the Invasion of Ukraine
Updated March 22, 2023
The Ukrainian government and much of the international community contend that actions taken by
Russian forces following its February 2022 invasion of Ukraine violate international law. At the outset of
the invasion, a number of officials expressed concern that actions during the invasion 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 claimed that the situation in Ukraine led to human rights violations. Since
the initial invasion, Ukrainian officials and third-party observers have reported evidence of alleged
atrocity crimes perpetrated by Russian personnel on a regular basis. 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
On February 27, 2022, 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
that “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. ICJ cases ordinarily take years to resolve; however, Ukraine sought 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 asked the ICJ to direct Russia to suspend its military operations
immediately. In March 2022, the ICJ granted Ukraine’s request for provisional measures while reserving
final judgment on jurisdiction and the merits. The Court ordered Russia to (1) suspend its military
operations and (2) ensure military and irregular armed units cease actions to further the military
operations. The Court also directed both states to “refrain from any action which might aggravate or
extend the dispute.”
Although the U.N. Charter provides that each member state “undertakes to comply” with ICJ decisions,
the Court lacks the independent ability to enforce its rulings, including its provisional measures. 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.
Russia initially did not participate formally in the ICJ proceedings or appear for oral argument regarding
the request for provisional measures, but it eventually filed preliminary objections to the ICJ’s jurisdiction
(which have not been made public) in October 2022. The ICJ issued an order directing Ukraine to respond
to those objections by February 3, 2023. On September 7, 2022, the United States filed a declaration of
intervention in support of Ukraine’s interpretation of the Genocide Convention. To date, more than 30
countries, including the United States, have also filed declarations of intervention with the ICJ. When an
ICJ case concerns a treaty, like the Genocide Convention, other parties to the treaty have a right to
intervene in the proceedings, but any portion of the final ICJ judgment that interprets the treaty in
question legally binds the intervening countries. In its Declaration of Intervention, the United States
asserts that the Genocide Convention does not authorize Russia to commit aggression against Ukraine
under the pretext of preventing or punishing genocide.
This case is not the first filed with the ICJ 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 alleged 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.
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.” 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

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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 become parties to the Rome
Statute establishing the ICC. Neither Ukraine nor Russia are parties, and 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 with Russia.) However, the
ICC may exercise jurisdiction over non-parties for most crimes 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 self-initiated or initiated at the request of a party to the Rome Statute.
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’s February 28, 2022 announcement, 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 preliminary investigation to include alleged new crimes that
may occur during this conflict.
In March 2023, the ICC issued arrest warrants for Russian President Vladimir Putin and Russia’s
Commissioner for Children’s Rights for charges arising from what the ICC Prosecutor described as the
forced deportation and transfer of “at least hundreds of children taken from orphanages and children’s
care homes.” Under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute, it is war crime to
unlawfully deport or forcibly transfer certain groups, such as children, that are protected under the
Geneva Conventions of 1949. The ICC does not have an international police force that would enable it to
secure physical custody of President Putin, but all parties to the Rome Statute have an obligation to
cooperate with the ICC in its prosecution. Commentators have noted that these dynamics could limit
President Putin’s ability to travel to state parties to the Rome Statute.
Apart from these arrest warrants, most invasion-related prosecutions have taken place in Ukraine’s
domestic courts under its domestic law. According to recent media reports, there have been at least 26
convictions in Ukrainian courts for war crimes or related offenses, and more than 70,000 incidents of
atrocities have been reported. While Ukraine has successfully pursued some cases in its domestic courts,
the gap between the number of alleged offenses and number of convictions has led some observers to
question whether Ukraine’s judicial system has the capacity to provide accountability.
The ICC’s jurisdiction is “complementary” to each country’s domestic criminal jurisdiction—meaning
the ICC only is to intervene in cases that Ukraine is not equipped to prosecute or able to pursue. In its role
as a “court of last resort,” the ICC could backstop Ukraine’s criminal justice system, but there is at least
one prominent limit to the ICC’s jurisdiction. Under Article 15 bis of the Rome Statute, the ICC does not
have jurisdiction over Russian nationals for the crime of aggression.
As discussed in this Legal Sidebar, the crime of aggression, in its broadest sense, is the act of starting an
armed conflict that is prohibited under the U.N. Charter. The crime is defined to capture the conduct of a
country’s senior-most decisionmakers that control and direct military action, which potentially could

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include Russian President Vladimir Putin. Ukraine prohibits aggression in its domestic criminal code, and
media outlets report that Ukrainian prosecutors have filed over 600 aggression charges against Russian
nationals. There are practical and legal limitations, however, to prosecuting aggression in domestic courts.
For example, one country’s head of state and senior foreign officials generally are immune from
prosecution in another country’s domestic courts, but that immunity may not apply equally in
international tribunals.
According to some observers, limitations on domestic prosecutions coupled with the ICC’s inability to
prosecute Russian nationals for the crime of aggression results in a risk that no court—international or
domestic—can prosecute high-level Russian officials for aggression. To address this issue, Ukrainian
President Volodymyr Zelenskyy has called for the creation of a new special (or ad hoc) international
tribunal that would focus on the crime of aggression and supplement the efforts of the ICC and Ukraine’s
domestic courts. Some observers argue that a special tribunal would fill an important gap in the
international legal regime. Others contend it would have limited usefulness because any legal advantages
would be untested and the new tribunal likely would lack the ability to collect evidence in Russia or
secure physical custody of high-level Russian officials.
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 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”). At the time of filing, 47 countries were parties to the
Convention, including Russia and Ukraine, but Russia has since withdrawn from the Convention, as
discussed below.
Two types of claims may be lodged with the ECHR: inter-state disputes and disputes brought by
individuals against a state. 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 violations of international humanitarian law (also called the law of armed conflict or law
of war), 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.
In March 2022, the Court granted Ukraine’s request for provisional measures and directed Russia to
“refrain from military attacks against civilians and civilian objects, including residential premises,
emergency vehicles and other specially protected civilian objects.” The ECHR later expanded its interim
measures by directing Russia to allow civilians to use evacuation routes. 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, although enforcement may be difficult, especially in inter-
State disputes. If the Court finds a violation of the ECHR, it is to declare a violation; award compensation
where appropriate; and potentially indicate other remedial actions that the respondent State must take.
In addition to its February 2022 application for interim measures, Ukraine has taken other legal actions
against Russia. Currently, Ukraine has four inter-state claims against Russia before the ECHR (and more
than 8,500 individuals have 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

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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; 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 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.
On March 15, 2022, Russia communicated its withdrawal from the Council of Europe and intent to
denounce the Convention. The Council of Europe passed a resolution stating that Russia “ceases to be a
member” as of March 16, 2022. Any state may denounce the Convention and thereby cease to be bound
by it. States who cease to be part of the Council of Europe also cease to be bound by the Convention.
However, the Convention continues to apply to the withdrawing state for all acts that occur before the
denunciation becomes legally effective. Russia’s withdrawal from the Convention took effect on
September 16, 2022, but the Court may still consider cases filed against Russia that involve allegations of
ECHR violations if the alleged violations occur before withdrawal became effective.
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.
Acknowledgment
Former CRS attorney Nina H. Hart co-authored prior versions of this product.

Author Information

Stephen P. Mulligan

Legislative Attorney

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