On April 27, 63 days after the Russian invasion, the UN Security Council hosted a summit convened by the Albanian and French Allied Missions in cooperation with Ukraine. The aim was “to bring together Member States and key actors involved in documenting crimes committed in Ukraine to see how these efforts can be supported and integrated to ensure effective investigations and prosecutions of perpetrators of atrocities.” Like a formula meeting, it was an informal meeting with a list of stakeholders, including community representatives.
Aral Clooney, a representative of the Clooney Foundation for Justice, made a powerful intervention, which you can watch here. In this article, I will draw attention to the practical steps that Amal described to support and enhance the momentum of a better justice system because, as he noted, “Peace must be fought — as a war. Justice, too, is something we must fight for. ”
Aral has set out seven concrete steps that governments must take. I will briefly describe, from my own point of view, each of them.
“The federal jurisdiction of the United States should support the International Criminal Court [ICC] — clearly and unequivocally — by withdrawing contradictory protections and providing resources and evidence to support the prosecutor's work.”
The essence of the point is that until recently, the United States had been arguing that the ICC could not prosecute members of the State who did not join the ICC, unless there was a referral by the Security Council. Interestingly, at a meeting on April 27, Ambassador Beth Van Shack expressed strong support for the international investigation into the atrocities in Ukraine, including that of the ICC.
"States must ensure that those involved in torture cases - who currently have no access to the ICC - and can be prosecuted before a court of law."
The ICC currently has jurisdiction over war crimes, crimes against humanity, and genocide following Ukraine's temporary acceptance of Court power under Article 12 (3) of the ICC Statement. The Court cannot exercise jurisdiction over a case of violation of a State that is not constitutional (Article 15bis (5)). Power over violence can be achieved through the transfer of status to Ukraine by the Security Council (Article 15ter) but that does not happen without the Russian veto.
So some options are explored (see here, here, here, and here). These include a special tribunal of violence created by the integration of international violence or co-created by the UN General Assembly, and a joint tribunal established as part of the Ukrainian justice system with the support of the European Council. There is also the option of prosecution by Ukraine or 20 other countries with international jurisdiction over violence in their domestic law. Each of these options has advantages and disadvantages, which are highly controversial, including the challenge of overcoming the personal insecurities of high-ranking officials, the barriers to obtaining the right of citizens, and the possibility of non-existent litigation.
Until recently, interventions before international courts in controversial cases were rare and a legitimate interest in the subject, such as a possible intervention in a border patent. But the legal framework exists for many interventions aimed at representing the principles of international society.
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