According to international law, at least three international judicial bodies can try Russia for its invasion of Ukraine: the International Court of Justice, the International Criminal Court (both located in The Hague, Netherlands), and the European Court of Human Rights (Strasbourg, France). In addition, there is a possibility to create an ad hoc international military tribunal akin to the Nuremberg Tribunal against the Nazi German leadership in 1945.

The process of dispute resolution between states requires the involvement of international judicial bodies. The first institution of such kind was created after World War II to prosecute the leadership of Nazi Germany and its satellites for the war crimes they were responsible for. Unfortunately, this precedent did not prevent war crimes and genocides in the future. OPORA figured out who and how can sue Russia for its full-scale military invasion of Ukraine.

The International Court of Justice (ICJ)

The ICJ is the principal court of the United Nations (UN) for international law. It was established in 1945 and is located in The Hague, Netherlands. The ICJ consists of 15 judges elected by the UN General Assembly and Security Council for nine-year terms. Judges are elected according to their professional qualifications and not based on nationality; however, there can be no more than one judge representing one country. Only states can be parties in ICJ trials.

The ICJ has the following competencies:

- Consider disputes between states related to international treaties and international obligations. Quite often, these cases consider conflicts over territories, rights to use minerals or fishing, etc.

- Issue rulings in all disputes opened in response to requests from UN member states. Its rulings are binding, i.e. states must follow them.

- Present advisory opinions on any legal issues upon the request by the UN General Assembly or Security Council. These opinions are non-binding.

Often, the consideration of cases by the ICJ takes years. However, the ICJ has already agreed to hold urgent public hearings in response to the full-scale Russian invasion of Ukraine and should issue a preliminary ruling soon. The first hearing took place on March 7.

Ukraine’s appeal to the ICJ was related to Russia’s statement about the “genocide of the Russian-speaking population in Donbas” which created a pretext for the military invasion of Ukraine under the guise of “genocide” prevention. Ukraine was able to submit this appeal due to the statement of Russian President Vladimir Putin on February 24 who announced the start of the invasion and said that Russia “should stop this genocide.” The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948, and Ukraine became the first country to attempt to clarify its provisions in practice through the international dispute resolution process.

Notably, the seats for Russian representatives in The Hague remain empty as the country declined to participate in the court hearings. On the first day of the hearings, ICJ President Joan Donoghue said that the Russian ambassador to the Netherlands Alexander Shulgin “indicated that his government did not intend to participate” and that the court “regrets the non-appearance of the Russian Federation in these oral proceedings.” However, the refusal of Russia to participate won’t stop and might even speed up the process as the judges have already started preparing the decision. It is expected within the next few days.

The International Criminal Court (ICC)

The ICC also sits in The Hague but is not a part of the UN structure. It was established in 2002 according to the Rome Statute, a multilateral treaty adopted in 1998. Unlike other international tribunals, the ICC functions permanently.

It consists of 18 judges elected by the Assembly of States Parties for nine-year terms. Judges are elected according to the division into experts in criminal law and experts in humanitarian law. Meanwhile, each group of states (Asia, Africa, Latin America, Eastern Europe, Western Europe, and other countries) should be represented by at least two judges.

The ICC has jurisdiction over three types of crimes: genocide, war crimes, and crimes against humanity (however, only those that were committed after the adoption of the Rome Statute). Only the states that have ratified the Rome Statute can appeal to the ICC, but the court can also open an investigation in response to a request by the UN Security Council. Other organizations, including human rights organizations, also can send appeals to the ICC according to the special procedure. The court can investigate crimes committed both by member states and by the nationals of member states.

On January 20, 2000, Ukraine signed the Rome Statute but has not ratified it since then. Nevertheless, the ICC obtained the right to investigate crimes in Ukraine due to the resolutions of the Verkhovna Rada recognizing the court’s jurisdiction over the mass murder of Ukrainian citizens from November 21, 2013 — February 22, 2014, and the crimes against humanity and war crimes committed by the leaders of the so-called Donetsk and Luhansk People’s Republics. On February 28, Karim A.A. Khan, Chief Prosecutor of the ICC, stated that he decided to “proceed with opening an investigation into the situation in Ukraine, as rapidly as possible.” On March 2, he confirmed that the referrals received from 39 member states enabled the court to open the investigation. Although Russia withdrew its signature from the Rome Statute, this does not prevent the investigation of actions by and the prosecution of Russian citizens for crimes committed on the territory of Ukraine.

The European Court of Human Rights (ECHR)

The ECHR is located in Strasbourg, France, and was created in 1959. It has jurisdiction over all member states of the Council of Europe (CoE) that have ratified the European Convention on Human Rights (European Convention). The Parliamentary Assembly of the CoE elects 47 judges, each representing one member state, for nine-year periods.

The goal of the ECHR is to ensure compliance with the provisions of the European Convention. Hence, the ECHR can consider appeals about human rights violations against member states of the CoE or against the European Union. In addition, it can interpret the norms of the European Convention and previously adopted rulings and advisory opinions. Individuals, groups of individuals, non-governmental organizations, and CoE member states can appeal to the court (the latter only in case of violations committed by another member state).

Ukraine became a member of the CoE in 1995. On March 10, 2022, the Ministry of Foreign Affairs of Russia announced Russia’s withdrawal from the organization. This statement was preceded by the decision of the CoE to suspend Russia’s membership in its two bodies, the Committee of Ministers and the Parliamentary Assembly, following the Russian invasion of Ukraine. However, Russia remains a member of the CoE and a signatory of the European Convention de jure. This means it should follow the European Convention provisions and adhere to ECHR rulings nonetheless.

On February 28, Ukraine addressed the ECHR according to Article 39 of the Rules of Court requesting it to adopt urgent measures in response to the mass human rights violations by Russian soldiers on the territory of Ukraine. The ECHR prioritized this appeal and applied a number of measures concerning Russia (the prohibition on targeting civilians, residential areas, medical vehicles, and people who are hiding in shelters, houses, or other buildings due to bombing and shelling and lack access to food, healthcare, water, and electricity), as well as demanded that Russia ensures safe evacuation and humanitarian help delivery.

Ad hoc international military tribunals

A special international tribunal can be established based on an agreement between states. For instance, the Nuremberg trials were held by the International Military Tribunal created in 1945 by the representatives of four states (the Soviet Union, the US, the UK, and France) according to the London Treaty. In 1946, following international negotiations, eleven Allied states (the Soviet Union, the US, China, the UK, Australia, Canada, France, the Netherlands, New Zealand, India, and the Philippines) established the Tokyo War Crimes Tribunal.

The International Criminal Tribunal for the Former Yugoslavia, unlike other international tribunals, was established in 1993 by the resolution of the UN Security Council. Sometimes, similar tribunals were created upon recommendations by the UN General Assembly based on agreements between the UN and a certain state that did not fall under the jurisdiction of specific international judicial institutions. This was the case with the Special Court for Sierra Leone of 2000 and the Extraordinary Chambers in the Courts of Cambodia of 2002.

Whom and how can I inform about Russia’s war crimes?

There are several ways to send the information about the war crimes committed by Russia in Ukraine to the international tribunals.

First, you can send the information in any language to the Chief Prosecutor of the ICC via email at [email protected].

Also, there is a possibility to submit information to the Ukrainian state agencies, including:

- Prosecutor General’s Office of Ukraine: https://warcrimes.gov.ua/

- Security Service of Ukraine: chatbot @russian_war_tribunal_bot; email [email protected]; hotlines +38 (068) 1289229, +38 (066) 6829937, +38 (063) 0665937 (Signal, WhatsApp, Telegram)

- A joint project of the Kyiv School of Economics, Office of the President of Ukraine, and the Ministry of Economy of Ukraine: https://damaged.in.ua/

In addition, leading Ukrainian human rights organizations, including OPORA, are collecting evidence of war crimes to refer them to the international tribunals:

- Civil Network OPORA: https://russiancrime.org

- Information Center on Human Rights, Ukrainian Helsinki Human Rights Union, and Ukrainian Legal Consulting Group: [email protected]

- Euromaidan SOS: [email protected]

We urge all witnesses and victims of Russia’s war crimes on the territory of Ukraine to share evidence and available information to hold perpetrators accountable.