National and international rights must complement each other. However, the primary role is always played by the nation-state. In the case of war crimes committed by the Russians in Ukraine, the facts must be resolved by a Russian court. But when the Russian court does not, the question is how to deal with it.
Conventions regulating the conditions and rules for the protection of persons who are not taking part in the fighting (civilians, medics) or taken from the fighting (prisoners of war, wounded, sick), during armed conflicts under international law. It has been ratified by 196 countries of the world, which have implemented it in national law. They agree that there are crimes for which “universal” jurisdiction applies – they are so serious that any country in the world can prosecute them.
After the start of the Russian invasion of Ukraine, the topic became relevant in the spring, when the atrocities appeared from Busha. In July, Ukrainian President Volodymyr Zelensky spoke about the verdict in crimes related to the Russian attack on Ukraine and the resulting need for a special court. He said this at a conference where representatives of more than 40 countries and the International Criminal Court discussed cooperation in the investigation of war crimes committed during the conflict.
“The existing judicial institutions cannot bring all the perpetrators to justice. Therefore, there is a need for a special court to look into the crimes of Russian aggression against Ukraine,” Zelensky said in a video recording broadcast during a conference in The Hague, the Netherlands.
Last week, mass graves were discovered in Izchem. The condition of the bodies found by investigators indicates that some people were tortured before they died. Accordingly, Foreign Minister Jan Lebavsky (pirates) on Saturday he called In order to speed up the establishment of a special international court.
“I want to speak with foreign partners about the possibility of establishing an international court, already this week as part of my participation in the United Nations General Assembly in New York,” he wrote in a statement sent to the iROZHLAS.cz server. He also reiterated his support for launching an international investigation during his speech at the Security Council on Thursday, where he spoke as the first Czech in nearly 30 years.
complexity of creation
However, turning the statement into reality is challenging and complex both organizationally and with respect to forced time delays. This happens despite the fact that this institute has a legal basis, there are a number of precedents. But political will is essential, and it may turn out to be one of the big obstacles.
“Calls for a special criminal court are meaningful, but they largely depend on whether and what kind of support can be negotiated, not only within Europe, there is likely to be support there, but especially outside it. The question is whether other countries She will join, as noted by Martin Fix, an expert in international law, iROZHLAS.cz.
Historically, courts have been established in two ways – by decision of the United Nations Security Council or by agreement of states, as in the case of the International Criminal Court.
It is an international treaty that primarily enshrines the powers of the International Criminal Court, defines the crimes within its jurisdiction, and also regulates the organs of the Court and the procedural rules of procedure before the Court. It is under its authority to prosecute the most serious crimes: war crimes, crimes against humanity, genocide and the crime of aggression committed after 2002 (start of activity).
The court can consider crimes committed by anyone, anywhere, if requested by the United Nations Security Council. However, prosecution does not commence until the state itself is unable or unwilling to prosecute a particular person before its national courts.
As of this year, 123 countries in the world are contracting parties. It has been ratified by all European Union countries.
In the past, a quartet of ad hoc courts was created. The Nuremberg trials were conducted against the main representatives of Nazi Germany, and the United States, the Soviet Union, France and Great Britain were behind its creation. The Tokyo court punished the leaders of Japan after World War II and once again led the victorious powers. The establishment and functioning of the International Criminal Tribunals for the former Yugoslavia and Rwanda were a resolution of the United Nations Security Council.
In addition, the first permanently operating international criminal institution was established in The Hague – the International Criminal Court (ICC). It is universal, and does not apply to any specific conflict. However, it is somewhat limited by the fact that states are bound by a treaty, and therefore their consent is required to initiate an investigation.
However, in the context of the current war in Ukraine, Western countries are trying to bring Russia, or rather its representatives, to justice for the start of the war and the crimes committed in Ukraine. However, Russia has not signed the founding treaty of the International Criminal Court – the Rome Statute, which means that its residents cannot be prosecuted.
The possibility of establishing a criminal court by the United Nations Security Council is also declining. While Russia has veto power in this body, without a change in political leadership or the rules of operation of the UN Security Council, a court cannot be established on the basis of a resolution.
Another way must be found. “It is not just a desire to punish. But also the need to defend some fundamental values, especially international peace and security. These efforts additionally have a deterrent effect,” said Adv. Ficks.
A new court?
Can a new Special Judicial Court be established? Vieques noted that even if a European country made such a proposal, this did not necessarily mean that it would have support for it. The expert in international law added that “the court has the greater legitimacy and chance of success, and the more countries support its establishment.”
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“We are already analyzing the legal options we have to prosecute the current Russian leadership. At the moment, there is no way to prosecute Putin, Lavrov and other high-ranking Russian officials for the crime of aggression. The International Criminal Court (ICC) can only deal with the consequences, that is, war crimes and crimes.” Against humanity. We are now looking for a way to prosecute the specific perpetrators who started this war. Our goal is only one – to punish all war criminals,” Lebavsky explained to iROZHLAS.cz.
In order for this to happen, the consent of several countries is needed, which will jointly sign the founding treaty. It sets the basic parameters – what the court will rule on, at what time and geographic scope, and what facts of international crimes it will deal with.
Upon its establishment, states undertake to cooperate in punishing crimes specifically with the new institution. In the event that a person against whom the International Criminal Court has issued an arrest warrant appears on its territory, he will be handed over to trial. However, obligations for this cooperation do not arise for third countries that do not sign the Convention.
“If it happens that all countries (except Russia) join such a court, it practically means that the Russian officials who should be brought to trial will not be able to leave Russia. Because the moment they travel, other countries will have the duty to arrest them and hand them over to trial,” he presented An example is a lawyer.
However, there is still potential for the establishment of so-called hybrid courts, in which war crimes are prosecuted at the national level. However, a basic question is addressed: how to reach the person to be sued. In the current situation, such courts should be established in Russia. “This is unimaginable without a change in the political situation there,” Vikes added.
the interest of nations
Taking into account all the legal aspects, there is of course a time lag, and how long it can take to establish an international court. For example, at the Permanent Court in The Hague, it is an ongoing process, as the number of countries evaluating and ratifying the founding treaty is constantly increasing. It is different for the special international tribunals that arise from United Nations Security Council resolutions.
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It drives the whole process of creating a new court of law. It will define the mechanisms by which the Court will operate, and establish the rules and proportionality on the basis of which judges will be selected. At the same time, it will determine where the enterprise will be located.
However, the investigation is ongoing and could be conducted at the national level. The international law expert emphasized that criminal justice operates on the idea that crimes should primarily be prosecuted at the national level. “Efficiency can be higher from the viewpoint that national authorities have the full potential to investigate and prosecute, and have all the executive branches or coercive means under them. Many of them are a huge problem at the international level.”
For example, the Czech Criminal Code contains a classification of crimes. At the moment, it is already possible to cite examples when the police launched an investigation into this matter. The Prague Prosecutor’s Office wrote to the iROZHLAS.cz server that interrogations of persons with information on war crimes in Ukraine are underway in the Czech Republic.
The office also noted an online questionnaire launched by the police, in which a report can be submitted in four languages - Czech, English, Ukrainian and Russian. Representative Martin Bailey commented, “The information provided by the questionnaire will be evaluated by the police authority, and this information may be critical to clarifying war crimes, and to identifying and prosecuting the perpetrators under the so-called universal jurisdiction.”
Whether or not a joint tribunal is established at the international level, its subsequent decision-making will be based on the evidence collected. Therefore, it is necessary to collect certificates on an ongoing basis until there are enough of them.
The iROZHLAS.cz website has reported that dozens of people have responded to a police call to report war crimes since August. “The aim of the questionnaire that has been created is basically to speed up the whole process and reduce the burden on witnesses, who are usually traumatized by the events they have gone through,” explained Barbora Kudlashkova of the press department of the National Headquarters for Combating Organized Crime.
She alluded to the fact that many of the acts were problematic to verify – with regard to the complexity of the information or the credibility of witnesses.
Therefore, the investigation is also being conducted by the Ukrainian Prosecutor General’s Office, which has already made some decisions. “Ukraine has the right to do this. Lawyer Faykes explained that crimes took place on its territory and were carried out against its residents, etc. And where there is a possibility – they have the possibility of investigation, they have access to evidence – the process is already underway.”
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