OPINION

Ukraine: The risk of judging war crimes during war

From the very first days of the conflict, Ukraine launched a legal offensive, while the International Criminal Court also "took up arms" alongside Ukraine. Legal expert and activist Céline Bardet recalls the historical precedent of Libya and warns about the capacity of the ICC and Ukrainian justice to establish clear safeguards so as to judge in complete independence in times of war.

Karim Khan, the prosecutor of the International Criminal Court (ICC), is visiting Bucha (Ukraine) with Iryna Venediktova. On the back of a person accompanying them, one can read "War crimes prosecutor".The speed of the reaction of the prosecutor of the International Criminal Court, Karim Khan (here in Bucha, in the suburbs of Kyiv), raises the question of the risk of instrumentalization of justice. © Fadel Senna / AFP
5 min 46Approximate reading time

On February 24, 2022, Russia’s invasion of Ukraine stunned the whole world but particularly Europe and the West. This war has profoundly shaken political and geostrategic agendas. It also generated the biggest shock that international criminal justice has known for a long time.

This is firstly because never before has a conflict been so documented and analysed in real time, by a multitude of actors. While the current times allow this through telephones and technology - as we have seen in Syria and other recent conflicts -, the situation in Ukraine is singular in that it allows access to its territory and Ukraine has called on the help of international criminal justice.

And secondly it is because from the outset, through the leadership of President Volodymyr Zelensky, Ukraine has publicly set out two main lines of response: the first is resistance through armed struggle; the second is to respond to violence with the weapon of justice. Thus, three months after the beginning of the war, the office of Ukraine’s Prosecutor General has opened more than 13,000 cases and already investigated and tried its first war crime case. In record time, non-commissioned officer Vadim Shishimarin, just 21 years old, was sentenced on May 23 to life imprisonment for shooting a civilian in the Soumy region (north-east). This is a start, as other trials are already underway, and public pressure will continue to weigh heavily as the bombs continue to rain down on the country.

In this context, one actor has imposed itself, driven by the unanimous reactions of many European and Western countries: the International Criminal Court (ICC). Thirty-nine states immediately seized the ICC and asked it to open an investigation, even though neither Ukraine nor the Russian Federation are party to the court. Ukraine has not signed the Rome Statute, the ICC's founding treaty, but in 2014 officially recognized the Court's jurisdiction over crimes committed on its territory. With unprecedented support, the response of ICC Prosecutor Karim Khan was not long in coming: he not only opened an investigation but went to Ukraine on March 16, going so far as to meet virtually with the Ukrainian president. Many European and Western countries have joined in by providing the ICC with resources and experts. Never has a country seen the crimes committed on its territory documented and investigated by so many national and international experts and investigators in such record time.

In a context where the war seems far from over, can this aggressive but efficient criminal policy not be questioned, or even interpreted as lacking neutrality because supported by actors in the conflict? Does it run the risk of adding fuel to the fire? Can a country under attack, suffering day after day from unprecedented violence, ensure that its institutions are capable of judging quickly and calmly in an impartial manner according to required standards and respecting the rights of the defence? Can it do this amid huge and legitimate national and international emotion, and while the communication around this war is playing a preponderant role on both sides of the conflict? 

Can we judge a war during the war?  

This conflict has barely begun and the terms "war crimes" and "crimes against humanity" are in everyone's mouths. Analyses and opinions are coming from all sides, and the media have been covering the subject non-stop for three months. If we want to take a step back, the sudden entry of the ICC into the heart of the Ukrainian conflict merits serious consideration of the risk that this court could be seen as a political tool.

Such a rapid referral to the ICC recalls a historical precedent. On March 3, 2011, the ICC opened an investigation into possible crimes against humanity committed on Libyan territory. The ICC had been seized five days earlier by the UN Security Council, shortly after the conflict in Libya began. While this referral did not generate as much media attention, the speed of the reaction was almost the same, although it was initiated by the members of the UN Security Council, including Russia. The ICC Prosecutor at the time, Luis-Moreno Ocampo, warned: "There will be no impunity in Libya.” But 11 years later, due to lack of cooperation from Libya, the rare arrest warrants have still not been executed and investigations are difficult, with access to the territory restricted. Libyan victims still see no justice on the horizon. 

So it is gratifying to see the International Criminal Court doing its work in Ukraine. This is undoubtedly facilitated by strong cooperation from Ukraine, which is itself engaged in a process of national justice that is rapid -- perhaps even a little too rapid. At the same time, it is surprising to see the ICC so active, so visible on the public scene and acting in a time frame that many would have liked to see in previous or ongoing conflicts. It is also surprising to see that the ICC has reacted so quickly to requests from European and Western states, most of which are members of NATO -- no doubt because it was unable to obtain a referral from the Security Council, where the Russian Federation has a veto power as a permanent member.

But we do not hear much about how certain countries, particularly African countries, view this, and perhaps we should pay more attention. The ICC is generating an image that carries the risk of it being seen as a weapon of justice for the powerful. With its credibility, neutrality and effectiveness already being regularly questioned, this risk-taking could have disastrous consequences in the long term.

Thus, in this Russo-Ukrainian conflict steeped in communication strategies, the ICC is offering a kind of gift to those who criticize it as a tool of the West. By publicly and unquestioningly siding with the aggressed without waiting to have judicial visibility on the crimes committed and their contexts, the ICC has become part of the communication war and a strong lever of international political pressure for Ukraine. While this author does not contest the aggression and crimes suffered by Ukraine, the ICC is "taking up arms" in a way, and taking a position in this conflict.

ICC at the service of the West?

On March 10, fourteen days after the beginning of the conflict in Ukraine, ICC Prosecutor Karim Khan made public his intention to issue arrest warrants for Russia's armed intervention in Georgia in 2008, which the ICC has been investigating since 2016. While these warrants have been in existence for several years, the new ICC Prosecutor's decision to make them public demonstrates how the conflict in Ukraine has brought about a 180-degree shift, especially for some ICC member countries.

The initiatives taken by the new ICC Prosecutor could, in the long term, risk damaging the credibility of the ICC by transforming it into a weapon of war, or at least an instrument that is too obviously in the hands and service of the West, appearing as if it were "rushing" in the wake of a conflict that pits the powerful NATO against another power, a nuclear one: the Russian Federation. 

The International Criminal Court is an indisputable step forward in the global march towards justice and must be protected and supported. The common quest to reduce impunity in the world for the most serious crimes should bring States closer together, not divide them. In this perspective, the ICC must preserve the trust of all states and their citizens. It will therefore have to be careful not to overstep its judicial role if it does not want to lose credibility. It must guarantee neutrality and equality in its approach to all situations, and the serenity of the process that international criminal justice so deeply needs to be credible for all.

In a similar way, Ukraine's commitment to justice is remarkable and could serve as an example in the future, by setting up rapid trials to render justice to the victims and thus respond more concretely to their hopes. But we should not forget that justice requires a serene context at least to ensure that each accused can understand the content of his acts, that each accused person can be judged without emotion or spirit of revenge in a fair way, especially regarding the sentences pronounced.

The war in Ukraine is a sad opportunity for international justice and for the ICC in particular to gather unprecedented means and support. It also carries the risk that the ICC could pay a high price, in the medium or long term, for not clearly establishing safeguards against being seen as a tool of one side.

Céline BardetCÉLINE BARDET

A legal expert on international crimes for 25 years, Céline Bardet is the founding president of the non-governmental organization We Are Not Weapons of War (WoWW), which works with victims of rape in armed conflicts