War Crimes in Ukraine

Wednesday 12th October 2022 – Putin and the Crime of Aggression

Russia’s indiscriminate missile assault of Ukrainian cities that began on Monday in retaliation for Ukraine’s successful attack on the Crimean Bridge continued yesterday (11^th October).  More civilians died, more civilian infrastructure was destroyed and more Russian war crimes were both committed and discovered.  Addressing the leaders of the G7 nations on that day, President Zelensky said “[f]or such a new wave of terror there must be a new wave of responsibility for Russia – new sanctions, new forms of political pressure and new forms of support for Ukraine.”  For its part, the bloc committed to continuing to provide “financial, humanitarian, military, diplomatic and legal support … for as long as it takes”.

New forms of support that the West could and we argue should now provide to Ukraine is to move immediately to hold President Putin personally accountable for the harm that he has caused to that country, its people and to the cause of international peace and security.  The way to hold him accountable, as we said in our piece of yesterday, is for the international community to establish right now an ad hoc Special Tribunal to investigate President Putin, as well as other Russians holding leadership positions, such as Sergey Lavrov, Putin’s long serving Foreign Minister, for perpetrating the Crime of Aggression.  If, as is highly likely, sufficient evidence of that international crime emerges from that investigation, then President Putin together with his political cronies and apologists should be prosecuted before judges of that Special Tribunal and, if convicted, sentenced to terms of imprisonment.  The Tribunal must have the ability to try, convict and sentence those indicted by it for the Crime of Aggression in absentia.

The G7 yesterday promised President Zelensky that legal support would be forthcoming and, in our submission, that promise could and should rightly be met by the establishment now of the Special Tribunal for the Punishment of the Crime of Aggression against Ukraine.  President Putin, his politburo and the people of Ukraine need to know that the international community will not stand idly by and let President Putin escape personal liability and accountability for his heinous crimes and shameful hubris.  At Pavocat, we will continue to work diligently to ensure that those responsible for the Crime of Aggression against Ukraine are brought to justice and properly punished for the incalculable harm that they have and are continuing to cause.

Tuesday 11th October 2022 – Putin and the Crime of Aggression

It is difficult to imagine how Russia’s unlawful invasion and part occupation of Ukraine, and its equally unlawful annexation of Ukrainian territory could get worse, but it has.  Yesterday (10^th October), the Russian military, presumably upon the direction of President Vladimir Putin, launched significant, indiscriminate and lethal missile strikes against the civilian populations of a number of Ukrainian cities in retaliation for Ukraine’s successful attack on the Crimean Bridge, the road-and-rail bridge linking Russia to Crimea.  The use of the bridge by Russia is crucial to the resupply of its troops in Ukraine and by any measure it constitutes a legitimate military target.

President Putin has labelled the attack on the Crimean Bridge as an act of terrorism and an armed attack upon Mother Russia, which is perverse.  It is Russia who has unlawfully invaded and occupied territory within Ukraine, and the Ukrainians are using force only in self-defence.  The protagonist here is Russia and its allies, and the guiding mind and will of it all belongs to President Putin.  He is the man responsible for this war and he should be held accountable for his actions by the international community.  Not to pursue President Putin personally for the harm that he has caused to Ukraine and its people, as well as the damage that he has done to the world order, would be manifestly wrong.  He must be investigated, prosecuted and if necessary convicted in absentia, and if at all possible incarcerated for what remains of his life.

The question remains, as ever, how can this be achieved?  The answer is that President Putin should be investigated and indicted now for the Crime of Aggression, as defined by the Rome Statute, which created the International Criminal Court (“ICC”).  The Crime of Aggression, at its core, involves “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.  Since Nuremburg, the Crime of Aggression has been preserved for those leaders who cause their country to attack another.  It is a leadership crime and a crime of the highest magnitude, as the Court at Nuremburg made clear upon dealing with those Nazis who caused the devastation of World War II: “[t]o initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Although the ICC has on its face the ability to investigate and prosecute the Crime of Aggression, it cannot do so in respect of President Putin.  The reason for this is that it is unable to exercise its jurisdiction regarding that crime if the act of aggression is committed by a state that is not party to the Statute of that Court, unless the Security Council refers the matter to the Court.  Russia is not a member of the ICC and as one of the Five Permanent Members of the Security Council it possesses a right of veto, which it would use to defeat any attempts by the ICC to go after Putin and his political cronies within and outside of the Kremlin.

What needs to happen, and what Pavocat is again calling for and supporting, is the immediate establishment by the international community of a Special Tribunal for the Prosecution of the Crime of Aggression against Ukraine.  This Special Tribunal, which would have an exclusive and limited focus on the Crime of Aggression, would fill the gap that presently exists in international criminal law.  It would exist to bring to justice those who instigated the war in Ukraine, including but not limited to President Vladimir Putin.  If this does not happen, then Putin will likely evade responsibility and accountability for what he has done, and this would amount to an indelible stain on the reputation of those states that believe in the sanctity and integrity of international peace and security.

To this end, we at Pavocat urge His Majesty’s Government to take the lead in this initiative and to do something of legal and moral significance along with providing much needed military support to Ukraine.  The British Prime Minister, her Foreign Secretary, the Minister of Justice and the Attorney General should all act now to ensure that the Special Tribunal is established, for otherwise they may well find themselves on the wrong side of history.

Thursday 21st April 2022 – Lessons learnt from the conflict in Ukraine

The behaviour of Russia’s armed forces during its invasion of Ukraine (e.g., in Bucha, Mariupol, Kramatorsk, Kharkiv, etc.) clearly demonstrates a military culture, which (1) lacks the normal checks and balances of a credible and effective military justice system; and (2) is not concerned about accusations or the consequences of carrying out wartime actions that are in violation of international law, including war crimes and crimes against humanity.  The consequence is that civilians are being targeted and acts of brutality and wanton destruction are being perpetrated by Russia’s armed forces, because its military chain of command either expects, encourages or is indifferent to such behaviour.

The international community therefore needs to be proactive in encouraging service personnel at every level to resist orders that contravene international humanitarian law (IHL), and in supporting them when they do so.  This clearly applies not just to the conflict in the Ukraine but to all theatres of war.

This encouragement can be initiated by ensuring that (1) all military personnel and their commanders are properly trained in IHL; and (2) a credible military justice system is in place to monitor and verify compliance with international law, to investigate major or serious breaches, and to punish those found guilty.

Pavocat therefore calls upon the international community to support, encourage and, if necessary, compel nations that are currently non-compliant to adopt and implement modern and effective IHL training, and to establish formal military justice systems.  The aim is to ensure that all service personnel are trained in, and comply with,  IHL whether at war or on peace-keeping missions.

Through the Pavocat-Stellenbosch Academy, Pavocat provides university-accredited practical training internationally in these subjects and can advise, train, mentor, monitor and verify service personnel, at any level or rank, anywhere in the world.  The Pavocat IHL System™ covers the full spectrum of IHL services, including: generic training, mission specific pre-deployment training, and real operations (i.e., embedded observers at the strategic, operational and tactical levels of command).  Pavocat can review, create and implement military justice systems and military legal systems, and, if necessary, can provide an independent war crimes investigation service.

Pavocat’s services span all aspects IHL and support the chain of command at every level  – both military and political – to ensure that armed forces not only know how to do the right thing but do it right.

Friday 8th April 2022 – Call for International Legal Response

What more needs to happen in Ukraine to cause the international community to mobilise and to get its act together in terms of organising a coherent legal response to Russia’s barbarism in that country? 

Serious and grave breaches of international humanitarian law, which amount to war crimes and which appear to have been committed by Russian armed forces, have again this week shocked and appalled the civilised world.  As Russia retreats from territory that it has unlawfully occupied in Ukraine, evidence of the murder, torture and rape of civilians is emerging, as is the sheer scale of the devastation that Russia is leaving behind.  The scenes coming out of Bucha, Borodyanka and Yahidne tell a tale of inhumanity that the international community must react to or face the consequences and responsibility of not doing so.

At the time of writing this note, news out of the city of Kramatorsk in the east of Ukraine is that Russia has fired missiles at the railway station where hundreds of civilians were trying to flee the region.  The final death toll is likely to be significant, as is the number of civilians physically and mentally injured.  This attack is in law indiscriminate and disproportionate, and is yet another war crime perpetrated by Russia against innocent men, women and children.

It is blindingly obvious that President Vladimir Putin, his close political and military advisers, and those who are actually waging the war on the ground in Ukraine do not fear at all the legal consequences of their actions.  The talk of international criminal law and the jurisdiction of the International Criminal Court (“ICC”) is of no concern to them, because they really do not believe they will ever appear before that court or for that matter any other court.  Russia is not a member of the ICC and it does not recognise its competence over its armed forces, which, it must be said, is the view also taken by the United States and China that together make up three of the permeant five members of the UN Security Council.

Those Russians who are responsible for this conflict and the conduct of it clearly perceive themselves to be immune from legal accountability.  This perception needs to be shattered now not later, because otherwise atrocities will continue to occur, and the responsibility for doing so rests with the international community.  Fear of accountability and prosecution needs to be installed rapidly and the real pressing question is how to go about doing so.  The answer is to us all too obvious and, regrettably, we have been advocating it to deaf ears for weeks. 

The international community must come together immediately and agree an integrated, coordinated and above all else a coherent Legal Strategy and Action Plan, which must be augmented with an equally dynamic International Influence Campaign that corrects the lies being peddled by Moscow and its supporters.  That plan should result in the immediate creation of a new international organisation called, by way of mere example, the International Legal Assistance HQ for Ukraine (“ILAHQ”), which should be located in a European capital or even on Ukrainian territory that is deemed to be sufficiently safe.  The role of the ILAHQ would be to coordinate all international legal efforts against Russia, including, but by no means limited to, the systematic and organised gathering of information, intelligence and evidence of war crimes and the location of those who are accused of committing them, thereby ensuring that those efforts are properly targeted, consistent and above all else effective.  The scope of the ILAHQ activities is near infinite and they would go a significant way to overcoming the disparate and therefore ineffective nature of what is presently occurring in the international legal sphere.

Enough is enough.  Time truly is of the essence.  And the time for real and meaningful action is upon us.  The mere symbolism and imagery of creating something like the ILAHQ would undoubtedly send a powerful message to Moscow that this is not business as usual and that the international community is utterly determined to ensure that those responsible for the crime of aggression and war crimes are brought to face justice.

We continue to call upon the UK’s Minister of Justice, Dominic Raab, and its Attorney General, Suella Braverman QC, to step up to the plate and show real leadership and statesmanship in this area.  The Minister should at once convene a summit of his counterparts in other countries, so that work can begin in earnest. 

Thursday 7th April 2022 – Ukraine must investigate alleged war crimes by its own servicemen if it is to retain the moral high ground

Disturbing news was reported today of the suspected killing of Russian Prisoners of War (“PoWs”) by members of the armed forces of Ukraine.  Russian soldiers falling into the hands of their Ukrainian counterparts are PoWs and they are rightly protected by the third of the four Geneva Conventions of 12th August 1949 (“GCIII”); all of which apply to the current conflict in Ukraine. 

Article 13 of GCIII makes it plain that:

“Prisoners of war must at all times be humanely treated.  Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present convention.”

In short, murdering PoWs is a war crime and there is no excuse that justifies its occurrence.  Comments made today by some Ukrainian officials that imply that Russia’s alleged contraventions of the Law of War in their country outweigh any possible breaches by Ukraine are highly unattractive and are singularly unhelpful.  Russia is waging a brutal and unlawful war in Ukraine, for which those responsible must eventually be brought to justice.  Ukraine must not lose (and it must be seen not to lose) the moral and ethical high ground by seeking to excuse or justify atrocities allegedly committed by those who serve its cause. 

Reasonable grounds exist to suspect that Ukrainian soldiers shot and killed one or more Russian PoWs.  As such, it is imperative that the Prosecutor General of Ukraine, Iryna Venediktova, launches, if she has not done so already, an immediate investigation into the events reported by, for example, the BBC.  If sufficient evidence exists to warrant arrests at this juncture, then those arrests must be made and those arrested soldiers detained pending further inquiry.  If, following a thorough and objective investigation, Ukraine’s military or civilian prosecutors judge that sufficient evidence exists to warrant bringing the soldier or soldiers to trial, then Ukraine must not hesitate to do so. 

Such reprehensible behaviour needs to be firmly and swiftly nipped in the bud by Ukraine’s military commanders, because otherwise its soldiers may begin to think that it is somehow acceptable to abuse PoWs.  It is not.  PoW captivity is not punishment for participation in the conflict but is intended only to prevent those Russian soldiers re-joining the fight. 

The World needs to see that Ukraine, unlike Russia, is complying with international humanitarian law and that it will not tolerate and that it will punish infractions of that law.  Not to do so would hand Russia a PR victory that it does not deserve.

Monday 4th April 2022 – Call for International Legal Response

Russia’s military aims and ambitions in Ukraine may have been checked, but it is abundantly clear that its barbarism has not.  As Russia retreats from areas in the North of Ukraine to concentrate on bolstering its unlawful efforts in the East of the country, shocking evidence is emerging by the hour from towns such as Bucha that Russia’s armed forces have perpetrated war crimes on a scale not seen in Europe since the end of WWII.  The evidence, which is depicted today on most credible international news outlets, points to the wanton killing of civilians and the deliberate targeting of civilian and essential infrastructure by Russia, whose culpability is compounded further by its ludicrous assertion that the abundance of evidence of war crimes has been fabricated by Ukraine to undermine on-going peace talks; talks which, it must not be forgotten, have only been necessitated because of Russia’s unlawful military invasion.

European and World leaders have queued up today to condemn the Russian atrocities and to label President Putin and his commanders as war criminals.  President Zelensky has accused Russia of perpetrating genocidal acts in his country, and Mateusz Morawiecki, the Polish Prime Minister, agrees with him. 

What is abundantly clear is that the international community needs to do far more – right now – to dissuade President Putin’s regime from committing further war crimes.  The truth is that President Putin himself together with his military commanders and soldiers do not fear the consequences of their actions, because they are confident that they will remain outside of the reach of the International Criminal Court (“ICC”).  Russia is not a member of the Court and President Putin will not try to, nor will he, extradite his soldiers to stand trial in The Hague.  Those who committed, ordered or where complicit in the atrocities in Ukraine will likely evade justice if they remain in Russia.

The international community undoubtedly needs to do more in this space, but what can it and what should it do?  At Pavocat, we have been pressing for some weeks (see our previous comments) for the adoption of a coherent and integrated International Legal Strategy and Action Plan that leads to the immediate establishment of an International Legal Assistance HQ for Ukraine (“ILAHQ”) in a European capital, which would coordinate all international legal efforts to hold President Putin and his cronies accountable for their crimes.  Not only would the ILAHQ overcome the present and detrimental lack of legal coordination and serve to impose some ‘grip’ on the situation, but the mere impact of the creation of such an international body would focus minds in Russia and in other capitals that appear to be supportive of President Putin’s attempts to bring Ukraine unwillingly into Russia’s political and military orbit. 

The establishment of the ILAHQ would illustrate a determination and a resolution on the part of the international community to pursue those Russian’s with Ukrainian blood on their hands, which is simply not achieved by backing the existing international criminal justice architecture, which for various reasons, including Russia’s right of veto in the UN Security Council, is arguably ineffective insofar as Russia is concerned.

We continue to call upon Dominic Raab, the UK’s Minister of Justice, to convene immediately an International Legal Summit attended by his counterparts in likeminded states, at which (1) the absolute need for a greater and better coordinated legal response is debated; and (2) a resolution is passed to establish within days the ILAHQ referred to above.  Time is of the essence, because innocents continue to lose their lives and be abused at the hands of men who are oblivious to the personal consequences of their actions.

Wednesday 9th March 2022 – Lack of International Legal Response

Yesterday, President Zelensky made history by being the first president of a foreign state to address the House of Commons and his address was rightly met by rapturous applause from all sides of the House.  He invoked with passion both Shakespeare and Churchill, and in so doing he reminded us all in Britain of the strength, determination and resolve required to check the ambitions of a dictator, such as President Vladimir Putin.  In his response to President Zelensky, the British Prime Minister, Boris Johnson, made it plain to the House that “we will employ every method – diplomatic, humanitarian and economic Mr Speaker – until Vladimir Putin has failed in this disastrous venture and Ukraine is free once more”. 

But every method is not being employed, because, once again, no mention whatsoever was made by the Prime Minister of the law and the absolute need for an immediate integrated and coordinated international legal response to President Putin’s act of aggression towards Ukraine.  On this, see our post of yesterday, which was a day on which the UK and the USA coordinated their actions in respect of denying the import of Russian oil.  The need and merit for a coordinated response in respect of economic sanctions across the international community has been recognised and actioned, but why has this not happened in respect of the law? 

President Putin, his advisers and his military commanders need to be held accountable, and the legal narrative surrounding the invasion of Ukraine needs to be joined up to be effective.  To deny or fail to address the need for an International Legal Campaign is a wasted opportunity.  It also undermines the assertion that the British government will employ every method at its disposal to free Ukraine from Putin’s yoke.

Great Britain should immediately take and be seen to be taking the lead in this area, and the experts at Pavocat will assist the British Government in any way that they can.

Tuesday 8th May 2022 – Proposal for a co-ordinated International Legal Campaign

Since the very start of the war in Europe, we have been saying that the international community needs to work together in a coordinated manner to seek to bring President Putin, his close political advisers and his military commanders to justice for their respective crimes against Ukraine, its people and the rules-based order that has sustained peace and security since the end of WW2.  We have repeatedly said that we applaud individual efforts, such as the launching of a war crimes investigation by the ICC, the initiative advanced by Gordon Brown and others to establish a war crimes tribunal to prosecute President Putin for his decision to invade Ukraine, and the commitments of various states, such as the USA, Canada and the British, to capture evidence of alleged war crimes committed by Russia’s armed forces within Ukraine.  But the fact remains that the various international legal efforts to hold President Putin and others to account for their unlawful actions is entirely uncoordinated – there is no grip and no integration, which serves only to weaken the effectiveness of the international community’s response.

What is urgently required is an integrated and coordinated International Legal Campaign, the objective of which is to (1) contribute to the strategic aim of removing President Putin and replacing him with someone who, for the sake of Russia, its people and Europe more generally, is prepared to abide by international law and the law of war; and (2) ensure that President Putin, his cronies and his military commanders face the legal consequences of their respective actions.  We are concerned that our Prime Minister’s 6-point plan for dealing with President’s Putin’s aggression towards Ukraine is currently silent on the all too obvious need for an integrated International Legal Strategy and Action Plan, which would inherently include a dynamic and effective International Influence or Advocacy Campaign that would control the international legal narrative and direct it effectively against Russia’s leadership.

Someone needs to get a grip of this situation right now and we suggest that it is the British Government.  What better way to assert international leadership and relevance in a post-Brexit world.  To this end, we again appeal to Dominic Raab, the UK’s Secretary of State for Justice together with Suella Braverman QC, the Attorney-General and the Senior Law Officer of the Crown, to seize the initiative and convene virtually an International Legal Summit of their likeminded counterparts across the globe.  This could and should be done within 48 hours and could lead to the following type of plan:

• UK to convene as soon as possible the aforementioned International Legal Summit (within 48 hours);
• Participants at the Summit to designate one State as the Lead Nation with the responsibility of co-ordinating all international legal efforts against President Putin’s Russia (product of the Summit);
• The Lead Nation to establish – with combined funding – an International Legal Assistance HQ (“ILAHQ”) in its capital comprised of a Secretariat and international experts drawn from various disciplines, such as law, public relations, influence etc (ILAHQ established within 48 hours of the close of the Summit and operational within 14 days);
• ILAHQ to develop and swiftly implement an effective International Strategy and Plan of Action (“SAP”) to target in a highly coordinated manner the international community’s legal response directed against President Putin and others (SAP to be produced and agreed within 7 days of the ILAHQ commencing operations).

The imagery of the establishment of the ILAHQ in a European capital city will be telling, because it demonstrates the resolve and determination of the international community to bring individuals to justice swiftly for their crimes and for the damage that the war in Ukraine will do the economies of the world.