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Ukrainian president Volodymyr Zelensky addresses members of Spanish parliament via video link.
EPA-EFE/Chema Moya

Ukraine: Zelensky’s ‘special mechanism’ for prosecuting war crimes explained

Ukrainian president Volodymyr Zelensky announced recently that he had approved a decision to create a “special mechanism of justice in Ukraine” to investigate Russian “crimes” in Ukraine. The question now is what this special mechanism is and how it will fit with existing processes for ensuring accountability for crimes committed by Russia and its soldiers.

Russia’s initial invasion of Ukraine was met with widespread condemnation as a breach of the international law prohibiting the use of force. In addition, in the conduct of the invasion, there have been allegations of breaches of international humanitarian law (the branch of international law that regulates armed conflict), including alleged attacks on hospitals in Mariupol, use of cluster bombs in Mykolaiv and reports of summary executions of civilians. Calls for accountability for this conduct have come from around the world, and there are a number of ways in which Russia can be held responsible for its various violations of international law.

In response, existing international mechanisms are being employed to invoke Russia’s responsibility. These include cases brought by Ukraine against Russia before international courts, such as the European Court of Human Rights (ECtHR) and the International Court of Justice (ICJ). Both of these courts have already indicated provisional measures, with the ICJ calling on Russia to suspend its military operations against Ukraine and the ECtHR calling for Russia to, among other things, refrain from military attacks against civilians.

In addition to Russia’s responsibility as a state, mechanisms are also being designed to hold individuals accountable for breaches of international criminal law, as set out in the Rome Statute of the International Criminal Court (ICC). With the support of 39 ICC states, the prosecutor of the ICC has commenced an investigation into crimes committed on Ukraine’s territory. There have also been calls for a Special Tribunal to prosecute the Russian leadership for the crime of aggression in Ukraine.

Given these diverse and active avenues for international accountability, what is the role for a Ukrainian special mechanism and what form will it take?

Ukraine’s ‘special mechanism’

No further details are currently available as to the nature of the special mechanism, so we must focus on Zelensky’s announcement. It appears to be a domestic procedure set up under Ukraine’s legal system. Zelensky said it would be a mechanism for justice, investigation and judicial examination of “every crime” committed by Russia in Ukraine.

We can assume that the material scope will focus at least on war crimes as spelled out under Article 8 of the Rome Statute. In common with other specialist tribunals, such as the Bosnian War Crimes Chamber, it may also extend to crimes against humanity under Article 7 of the Rome Statute (that is, certain crimes committed in the context of systematic or widespread attacks against civilians).

Forensic investigators line up a row of corpses in body bags, Bucha, April 2022.
Forensic investigators line up body bags – evidence of possible atrocities in Bucha, northwest of Kyiv, April 2022. EPA-EFE/Oleg Petrasyuk

Zelensky’s speech, and the fact that Ukraine amended its domestic law last year to enable it to prosecute all crimes under the Rome Statute, implies that the special mechanism may also be able to prosecute genocide and acts of aggression.

As the ICC has already commenced investigations into the conduct of Russia, it will be important for these procedures to work together. The principle of “complementarity” provides that the ICC only has jurisdiction over cases where states are unwilling or unable to prosecute. The hope is that states will prosecute perpetrators of these crimes within their own courts. The development of the special mechanism enables Ukraine to do precisely this – but it will be necessary for the two procedures to avoid duplication.

It may be that this tribunal is seeking to replicate the Bosnian War Crimes Chamber, which was established to prosecute lower-level offenders (that the International Criminal Tribunal for the former Yugoslavia, and similarly the ICC, would not). If so, this could be a useful complement to the ICC’s investigation.

In addition, this special mechanism may allow a speedier process than the ICC. International criminal trials take a notoriously long time, with only four ICC cases reaching final conviction since 2002. This is due to the expensive process, the difficulty in arresting high-profile defendants, the complexity of cases, and the challenges in holding to account superiors for the conduct of soldiers under their command. Proposals for a Ukrainian special mechanism may be an attempt to circumvent some of these issues, especially in regard to time, process and expense.

As a domestic mechanism, there seem to be legitimate grounds and precedent for this proposal. But, at the same time, it could face other difficulties. If the special mechanism is a purely domestic court, for example, questions of immunity may arise if it prosecutes foreign state officials (in other words, Russian soldiers). As a general rule, domestic courts cannot prosecute other states’ officials for their “official acts”.

There is growing judicial and academic recognition that this immunity does not apply where the foreign official is accused of committing international crimes or where it is the courts of the state in which the crime was committed that is exercising jurisdiction. But some experts question whether these have really developed as valid exceptions to the general rule of immunity (the work of the International Law Commission on this topic has proved controversial). Domestic trials of Russian officials for their actions in Ukraine may, therefore, have to consider this controversy.

Ensuring accountability

An array of international legal procedures have been initiated in response to the clear violations of international law that the invasion of Ukraine by Russia has constituted. Zelensky’s proposals to prosecute international crimes committed by Russia at the domestic level could complement these international mechanisms to ensure that the net of accountability is spread wide.

That accountability is necessary is indisputable. But Ukraine should be cautious about duplicating domestic and international procedures to avoid charges of illegitimacy. In addition, a domestic mechanism could face difficult questions about the scope of any immunity invoked by those brought before it.

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