See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/361693044

The Fundamental Role of International (Criminal) Law in the War in Ukraine

Article in Orbis · January 2022

DOI: 10.1016/j.orbis.2022.05.010

CITATIONS READS

2 323

1 author:

Giulia Lanza
University of Verona
3 PUBLICATIONS 3 CITATIONS

SEE PROFILE

All content following this page was uploaded by Giulia Lanza on 07 August 2022.

The user has requested enhancement of the downloaded file.

 The Fundamental Role of International
(Criminal) Law in the War in Ukraine

May 2022

By Giulia Lanza

Abstract: The repercussions of Russia’s invasion of Ukraine are reverberating around the
world. The multilateral and coordinated response of the international community to Russia’s
unprovoked war in Ukraine was immediate and has been waged on multiple fronts. While
the world’s major powers are focused on the best strategies to face the ongoing conflict,
international humanitarian law and human rights law are violated every day in Ukraine.
Innocent civilians are tortured, killed, or obliged to leave their city or country to avoid the worst
atrocities, while civilian buildings and infrastructure are destroyed. This article examines the
most relevant decisions adopted at the international level and identifies possible solutions to
prosecute and punish international crimes perpetrated in Ukraine. International (criminal)
law and cooperation between states and international organizations will play a crucial role in
the fight against impunity for those responsible for the worst atrocities against the Ukrainian
population.

S ince February 24, 2022, the international community has witnessed the
worst and the fastest-growing humanitarian crisis since the end of World
War II. According to the UN Refugee Agency (UNHCR), more than six
million refugees have fled Ukraine since the war started. 1 Considering the
conflict’s escalation, the number of refugees is destined to grow. In response
to the invasion of Russian troops in Ukraine, the European Union, as well as
many other countries, including the United States and the United Kingdom,
have imposed economic sanctions on Russia designed to stop the war and raise
the economic cost for President Vladimir Putin.2 To date, these sanctions have

1 Ukraine Refugee Situation, Operation Portal, https://data2.unhcr.org/en/

situations/ukraine.
2 “EU support to Ukraine: Practical Information,” https://ec.europa.eu/info/

strategy/priorities-2019-2024/stronger-europe-world/eu-solidarity-ukraine/eu-
sanctions-against-russia-following-invasion-ukraine_en.

© 2022 Published for the Foreign Policy Research Institute by Elsevier Ltd.

doi: 10.1016/j.orbis.2022.05.010 Summer 2022 | 424

LANZA

not achieved the desired effects and, despite the numerous but feeble attempts
to negotiate peace, the Russian offensive is ongoing.3
Since the start of the war, the world has witnessed the killing of innocent
civilians—including children—the bombing and destruction of buildings and
infrastructure, and the widespread violation of human rights.4 The threat that
Russia might use biological or chemical weapons still looms. There seems to
have been an allusion to this possibility in the speech released by President Putin
on February 24 when he stated that anyone who tries to interfere with the
Russian Federation would face consequences never seen in history.5
Moreover, the conflict in Ukraine offers fertile ground for cyberwarfare
to be carried out in conjunction with traditional war. On February 26,
Ukrainian Digital Minister Mykhailo Fedorov called for cyber specialists to join
in creating a volunteer “IT army for Ukraine.”6 The ongoing conflict is carried
out at different levels, including in cyberspace. In addition, social media has
been flooded with videos, images, and stories. And, as Human Rights Watch
has highlighted, social platforms are being used for many different purposes,
including to document the war and the atrocities perpetrated in the Ukrainian
territory, to invoke an intervention from the international community, and to
crowdsource international assistance. Yet, social media is being used also to
spread disinformation and hate speech, to recruit fighters, and to incite
violence.7
Russia’s war in Ukraine has global repercussions. Many of the images
and videos coming from the battlefield weigh on the conscience. Was it
possible to avoid this brutal war? What is the role of the countries not directly
engaged in it? Is the supply of weapons to Ukraine the best option to face the
Russian invasion of the country? Certainly, the list of questions is a long one.

3 See also the decisions of the International Maritime Organization (IMO), Mar. 11,
2022, https://www.imo.org/en/MediaCentre/PressBriefings/pages/
ECSStatement.aspx.
4 Organization for Security and Co-operation in Europe Office for Democratic

Institutions and Human Rights, Apr. 13, 2022, https://www.osce.org/files/f/

documents/f/a/515868.pdf.
5 Putin stated: “Whoever will try to stop us and further create threats to our country,

to our people, should know that Russia’s response will be immediate and lead you to
such consequences that you have never faced in your history. We are ready for any
outcome,” Sky News, Feb. 24, 2022, https://www.youtube.com/watch?v
=fWBNK5DlpTQ.
6 Joe Tidy, “Twitter Is Part of Our War Effort—Ukraine Minister,” BBC News, Mar.

7, 2022, https://www.bbc.com/news/technology-60608222.
7 “Russia, Ukraine, and Social Media and Messaging Apps,” Human Rights Watch,

Mar. 16, 2022, https://www.hrw.org/news/2022/03/16/russia-ukraine-and-social-

media-and-messaging-apps.

Summer 2022| 425

 The Fundamental Role of International (Criminal) Law in the War in Ukraine

Yet clearly the ongoing war in Ukraine has disrupted the world’s security and
shattered the international rules established after World War II. In this context,
an additional question becomes: What is the role of international (criminal) law?
Recently, several initiatives have been undertaken at the international
level. The objective of this article is to focus on the most important initiatives
and to identify possible solutions for prosecuting international crimes
perpetrated in the Ukrainian territory—and fighting against the impunity of
those responsible for such atrocities.
Before going into the details of the analysis, it is noteworthy that Russia
has played an important role in the international security architecture. Indeed,
the Russian Federation is a permanent member of the Security Council of the
United Nations, and until recently it was part of the Council of Europe. In
addition, it is a State Party to several UN conventions, such as the Genocide
Convention on the Prevention and Punishment of the crime of genocide.8 It is
also party to the Chemical Weapons Convention, as well as the 1949 Geneva
Convention.9

Russia’s Departure from the Council of Europe

On February 25, 2022, because of Russia’s unjustified invasion of

Ukraine, the Committee of Ministers of the Council of Europe suspended the
Russian Federation from its rights of representation in the Committee and in
the Parliamentary Assembly of the Council.10 In response, on March 15, 2022,
Moscow declared its intention to withdraw from the Council of Europe and
denounced the European Convention on Human Rights under article 58
ECHR. The following day, it was removed from the Council and ceased to be
a Council member.11 This decision marks a turning point as Moscow’s break
with the system of human rights protection that was established by the
European Convention on Human Rights and the European Court of Human
Rights. It has now disengaged from all mechanisms of the Council of Europe,

8 UN Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src

=IND&mtdsg_no=IV-1&chapter=4.
9 International Committee of the Red Cross, https://ihl-databases.icrc.org/applic/

ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelecte
d=553.
10 Council of Europe, https://search.coe.int/cm/Pages/result_details.

aspx?ObjectId=0900001680a5a3b6.
11 Resolution CM/Res(2022)2 on the Cessation of the Membership of the Russian

Federation to the Council of Europe, Mar. 16, 2022, https://search.coe.int/cm/

Pages/result_details.aspx?ObjectId=0900001680a5da51.

426 | Orbis
LANZA

such as the European Committee for Human Rights and the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment.
However, the European Court of Human Rights specified that Russia
is going to be party to the European Convention on Human Rights until
September 16, 2022. More precisely, the Court stated that it “remains
competent to deal with applications directed against the Russian Federation in
relation to acts or omission capable of constituting a violation of the
Convention provided that they occurred until 16 September 2022.” 12
Therefore, although there are some doubts related to the concrete execution of
the Court’s decisions, its findings will continue to be legally binding on the
Russian Federation. 13 The Court’s specification is particularly relevant
considering the harsh restriction of free expression and other violations of
human rights that are occurring following to the Ukraine invasion.
It is notable that, as part of the assistance provided by the Council of
Europe to Ukraine following the Russian Federation’s aggression, the
Directorate General Human Rights and Rule of Law set up an expert advisory
group. This group has the task to support and assist on a strategic level the
Office of the Prosecutor General of Ukraine in the investigation of human
rights and international humanitarian law violations in the ongoing conflict.14

The Dual Function of the UN in the Ongoing Conflict

The purpose of the United Nations is to maintain international peace

and security. This is the primary duty of all members states, including the
Russian Federation and Ukraine. However, with the Russian army’s invasion
of Ukraine, Moscow has violated a core principle of the United Nations Charter

12 “Resolution of the European Court of Human Rights on the Consequences of the

Cessation of Membership of the Russian Federation to the Council of Europe in
Light of Article 58 of the European Convention on Human Rights,” Mar. 21, 2022,
https://echr.coe.int/Documents/Resolution_ECHR_cessation_membership
_Russia_CoE_ENG.pdf.
13 Resolution CM/Res(2022)3 on Legal and Financial Consequences of the Cessation

of Membership of the Russian Federation in the Council of Europe (Adopted by the

Committee of Ministers on Mar. 23, 2022, https://rm.coe.int/resolution-cm-res-
2022-3-legal-and-financial-conss-cessation-membershi/
1680a5ee99?msclkid=60a33447ab8d11ec9c8f9bc54d5831c1.
14 “Council of Europe Expert Advisory Group Starts its Work Supporting Ukraine’s

Prosecutor General Office,” Council of Europe, Apr. 21, 2022,

https://www.coe.int/en/web/portal/-/council-of-europe-expert-advisory-group-
starts-its-work-supporting-ukraine-s-prosecutor-general-office.

Summer 2022| 427

 The Fundamental Role of International (Criminal) Law in the War in Ukraine

(UN Charter): the prohibition to use force against the territorial integrity of
another state, provided in article 2(4). In this context, it is not possible to
examine the UN’s role in the ongoing conflict without considering that Russia
is a permanent UN Security Council member and without being reminded of
the role that the Council has played within the UN mechanism.
The Security Council is paramount in the maintenance of international
peace and security. According to article 39 and article 42 of the UN Charter, it
has the power to determine whether there is “any threat to the peace, breach of
the peace, or act of aggression” and the duty to maintain or restore international
peace and security. For this purpose, it can impose sanctions and take
measures, including, if necessary, the use of force. For example, the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR), as well as the International
Mechanism for Criminal Tribunals, were established by UN Security Council’s
Resolutions.
Considering article 25 of the UN Charter, the decisions taken by the
Security Council, in contrast to those taken by the General Assembly, are legally
binding for the member states. In its role as a Security Council permanent
member, the Russian Federation, together with the other permanent members
(China, the United States, the United Kingdom, and France), has the power to
veto any proposed action by the Council. Nevertheless, if the Security Council
is “paralyzed” due to the veto of a permanent member and thus to the lack of
unanimity among the permanent members, the General Assembly can adopt
recommendations proprio motu under articles 10 and 11 of the UN Charter or
according to the General Assembly Resolution 377(A)(V), known as the
Uniting for Peace (U4P) Resolution.15 According to this resolution, the General
Assembly could also decide to use armed force if necessary to maintain or
restore international peace and security, in case of breach of peace or an act of
aggression.16 The General Assembly could intervene further by establishing a
special tribunal aimed at prosecuting and punishing crimes of aggression or an
international, impartial and independent mechanism for Ukraine, similar to the
international mechanism for Myanmar17 and the mechanism for Syria.18 The
purpose would be to collect and preserve evidence to assist the investigation
and prosecution of those responsible for international crimes. For example,

15 “Repertoire of the Practice of the Security Council,” United Nations Security

Council, https://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf.
16 “Repertoire of the Practice of the Security Council.”
17 Independent Investigative Mechanism for Myanmar, United Nations,

https://iimm.un.org.
18 Independent Investigative Mechanism for Myanmar.

428 | Orbis
LANZA

the Extraordinary Chambers in the Courts of Cambodia was approved by the

General Assembly with Resolution 57/228 of May 13, 2003.19
Considering the aforementioned, it is not surprising that on February
25, 2022, the Security Council failed to adopt a resolution on ending the Ukraine
conflict, due to Russia’s veto. 20 The Russian veto prevented the Security
Council from exercising its primary role of maintaining international peace and
security. Such an approach —although expected—was denounced by several
Security Council members. Days later, the Council—on the basis of Resolution
2623 (2022), voted in favor by eleven, with one against and three abstentions—
called an emergency special session of the General Assembly on Ukraine crisis,
invoking the Uniting for Peace Resolution.21 Despite the Russian Federation
vote against this resolution, it was possible to adopt it because of its procedural
nature, and thus it was not subjected to the veto. Consequently, the eleventh
emergency special session was called. 22 It is noteworthy that the General
Assembly has only held ten emergency sessions in its history.
On March 2, 2022, the General Assembly adopted a resolution, entitled
“Aggression against Ukraine,” demanding, inter alia, that the Russian
Federation “immediately ceases its use of force against Ukraine . . . immediately,
completely and unconditionally withdraw from Ukraine,” condemning all
violations of international humanitarian law and violations of human rights, and
invoking the use of diplomacy to immediately find a peaceful resolution of the
conflict. 23 Only a day earlier, the European Court of Human Rights had
ordered interim measures requiring the Government of Russia to refrain from
military attacks against civilian population and civilian objects (e.g., schools and
hospitals) including emergency vehicles and residential premises. Ensuring the
safety of personnel, emergency vehicles, and medical establishments in the
territory under siege by Russian troops was also ordered.24 On March 4, 2022,
the UN Human Rights Council established an independent international

19 “Report of the Third Committee: Khmer Rouge trials: Resolution 57/228 adopted
by the General Assembly,” Refworld, https://www.refworld.org/
docid/403b4e5b2.html.
20 Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as

Russian Federation Wields Veto, United Nations, Feb. 25, 2022,

https://www.un.org/press/en/2022/sc14808.doc.htm.
21 United Nations, “https://www.un.org/press/en/2022/sc14809.doc.htm, United

Nations, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/271/32/
PDF/N2227132.pdf?OpenElement.
22 UN General Assembly Documentation, https://research.un.org/en/

docs/ga/quick/emergency.
23 Official Documents System of the United Nations, https://documents-dds-

ny.un.org/doc/UNDOC/GEN/N22/293/36/PDF/N2229336.pdf?OpenElement.
24 European Court of Human Rights, https://hudoc.echr.coe.int/eng-press.

Summer 2022| 429

 The Fundamental Role of International (Criminal) Law in the War in Ukraine

commission of inquiry tasked with investigating all alleged violations of

international humanitarian law and abuses of human rights in Russian
aggression against Ukraine.25
On March 23, 2022, the Security Council failed again to intervene in the
ongoing situation.26 This time, the failure was not due to a Russian veto, as the
latter promoted a draft resolution aimed at protecting civilians in the passage to
destinations outside Ukraine. In other words, the draft was mainly focused on
the humanitarian crisis afflicting the country. Only China joined the Russian
Federation; the remaining Security Council members, by abstaining, rejected the
proposed text, claiming it constituted an attempt by Russia to somehow justify
the aggression in Ukraine. The Russian Federation was criticized for requesting
the international community to intervene in resolving a humanitarian crisis that
it had caused.
On March 24, 2022, the General Assembly adopted a resolution,
drafted by the Ukrainian government and its allies, reiterating the need to
implement its previous resolution of March 2, 2022, demanding the full
protection of civilians, women, and children.27
In addition, on April 7, 2022, the General Assembly suspended the
Russian Federation from the UN Human Rights Council.28 Despite the fifty-
eight abstentions and twenty-four votes against it, the draft resolution was
adopted thanks to ninety-three votes in favor.
It is important to see how the UN system may become weak when those
who violate the UN Charter coincide with those who have the power to exercise
the veto, thus paralyzing the Security Council—which is designed to maintain
international peace and security. For this purpose, on April 26, 2022, the
General Assembly adopted a Resolution aimed at holding the five permanent
Security Council members accountable for their right to veto.29

25 Situation on Human Rights in Ukraine Stemming from the Russian Aggression,

UN Human Rights Council, Mar. 4, 2022, https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G22/277/44/PDF/.
26 Security Council Fails to Adopt Text Demanding Civilian Protection, Unhindered

Humanitarian Access in Ukraine, as 13 Members Abstain, United Nations, Mar. 23,

2022.
27 Humanitarian Consequences of the Aggression Against Ukraine, General

Assembly, United Nations, Mar. 24, 2022, https://documents-dds-

ny.un.org/doc/UNDOC/GEN/N22/301/67/PDF/.
28 Suspension of the Rights of Membership of the Russian Federation in the Human

Rights Council, General Assembly, Apr. 7, 2022, https://documents-dds-

ny.un.org/doc/UNDOC/GEN/N22/312/47/PDF/.
29 Resolution Adopted by the General Assembly, United Nations, Apr. 26, 2022,
https://www.documents-dds-ny.un.org/doc/UNDOC/GEN/N22/330/37/PDF/.

430 | Orbis
LANZA

The Intervention of the International Court of Justice

The Russian Federation justified its army invasion on the allegation that
genocide occurred in the Luhansk and Donetsk oblasts of Ukraine. For the
same reason, it recognized the so-called “Donetsk People’s Republic” and
“Luhansk People’s Republic” and launched a “special military operation.”
Consequently, on February 26, 2022, Ukraine submitted its application to the
International Court of Justice (ICJ).30 According to the Ukrainian government,
the so-called “special military operation” that Russia carried out since February
24, 2022 was based on false allegations and was provoking widespread
violations of the Ukrainian people’s human rights. Therefore, according to
Ukraine, there was no legal basis justifying Russia’s action against Ukraine. On
March 16, 2022, the ICJ ordered the Russian Federation to suspend the military
operation immediately. 31 The Court claimed that at that stage of the
proceedings there was no evidence supporting the Russian allegations on the
alleged commission of genocide in the Ukrainian territory. In addition, it
expressed its doubts on the possibility for a Contracting Party to the
Convention to unilaterally use force against another State for the purpose of
preventing or punishing an alleged genocide.32 As a consequence, it affirmed
Ukraine’s right not to be subjected to the Russian Federation’s military
operation.33

The International Criminal Court and the Impunity Gap

A few days after Russia’s invasion in Ukraine, the Prosecutor of the

International Criminal Court (ICC), Karim A.A. Khan QC, announced his
intention to open an investigation into the Ukraine crisis. The investigation
began on March 2, 2022 and focuses on alleged crimes committed in Ukraine
since November 2013. Based on a joint referral of 39 ICC state parties, the
prosecutor started to collect evidence.34 In the following days, Japan and North

30 Dispute Relating to Allegations of Genocide, International Court of Justice, Feb.

26, 2022, https://www.icj-cij.org/public/files/case-related/182/182-20220227-
APP-01-00-EN.pdf.
31 Allegations of Genocide Under the Convention on the Prevention and Punishment

of the Crime of Genocide, International Court of Justice, Mar. 26, 2022,

https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-
EN.pdf.
32 Ibid, para. 59.
33 Ibid, para. 60.
34 https://www.icc-cpi.int/ukraine

Summer 2022| 431

 The Fundamental Role of International (Criminal) Law in the War in Ukraine

Macedonia referred the situation to the Court. To date, there are 43 referring
states, due to the further referrals of Montenegro and the Republic of Chile.35
The Prosecutor of the Court specified that the investigation
encompasses the alleged crimes perpetrated “by any party to the conflict on any
part of the territory of Ukraine.” This statement is particularly important
considering the fundamental role played by the ICC in the international
panorama. It is the only permanent, independent, universal, and
complementary system of international criminal justice, fighting against the
impunity of the most serious crimes of concern to the international community,
contributing to the protection of victims and populations.
Ukraine and the Russia are not States Party to the ICC. Nevertheless,
Ukraine accepted the Court’s jurisdiction over the alleged crimes under the
Rome Statute occurring on its territory according to article 12, paragraph 3 of
the Rome Statute (hereafter ICCSt). The first declaration dates back to April 9,
2014, when Ukraine accepted the Court’s jurisdiction on the crimes committed
from November 21, 2013 to February 22, 2014.36 The second one dates to
September 8, 2015 and is particularly important, as Ukraine extended, on an
open-ended basis, the time period of the investigations.37 Therefore, according
to the second declaration, the Court can exercise its jurisdiction also on the
crimes related to the Russian invasion of February 2022. If there are no doubts
that the Court can exercise its jurisdiction ratione materiae over genocide, crimes
against humanity, and war crimes, the same does not hold true regarding the
crime of aggression. Indeed, according to article 15 bis (5) ICCSt, the Court
has jurisdiction over such a crime when it is committed by the nationals or on
the territory of a state party. As an alternative, the court may exercise its
jurisdiction over aggression if the UN Security Council refers the situation to
the ICC according to article 15 ter ICCSt. However, this option does not seem
feasible because Russia is a permanent state of the Security Council. Therefore,
concerning the crime of aggression there would be an impunity gap.
The effort of the ICC to gather evidence on international crimes carried
out in the ongoing conflict and to bring those responsible to justice is manifest
also in the recent agreement signed by the Court with Eurojust aimed at

35 https://www.icc-cpi.int/ukraine.
36 Embassy of Ukraine (this is the subject, the registrar receives it)Registrar,
International Criminal Court, Sept. 4, 2014, https://www.icc-
cpi.int/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf.
37 Minister of Foreign Affairs for Ukraine, International Criminal Court, Sept. 8,

2015, https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-
3_declaration_08092015.pdf#search=ukraine.

432 | Orbis
LANZA

cooperation with the joint investigation team (JIT) on core international crimes
committed in Ukraine.38

Observations and Possible Solutions

Reflecting on the above, the Russian attack against Ukraine activated

mechanisms on several levels. The international community’s response to the
unlawful Russian invasion was an immediate and forceful condemnation. This
response is manifest in the Resolutions of the General Assembly of the UN, in
the Court of Justice’s decision, in the opening of the ICC investigations, as well
as in the sanctions imposed on the Russian Federation by the European Union
and other States.
Once the conflict ends, the international community will need to secure
accountability for the atrocities committed through fair and independent trials
and through lawful punishment. Despite the jurisdictional limitation related to
the crime of aggression, the ICC, due to its specific function in the international
context, could exert its jurisdiction over the alleged war crimes, crimes against
humanity, and genocide. Consequently, if upon investigations there will be
reasonable grounds that political and military leaders in the ongoing conflict
committed these crimes, warrant of arrests and/or summons will be issued
under article 58 ICCS. However, as the ICC is a treaty-based institution and
lacks an enforcement apparatus, support from states and civil society is
indispensable. Many countries, including Russia, could remain indifferent to
the measures adopted by the ICC. For example, there is the case of the
Sudanese former President Omar al-Bashir where, despite the pending warrant
of arrest issued by the ICC against him, many countries continued to maintain
“normal” relationships with him, declining to make an arrest. This example
shows the importance of cooperation between the ICC, states, and international
organizations.
Several proposals have been submitted on how to prosecute and punish
the crime of aggression. Some proposed establishing an international or hybrid
tribunal, with the scope of only prosecuting and punishing the crime of
aggression, addressing the present ICC impunity gap.39 Finding the necessary

38 “ICC Participates in Joint Investigation Team Supported by Euro Just on Alleged

Core International Crimes in Ukraine,” European Union Agency for Criminal Justice
Cooperation, Apr. 25, 2022, https://www.eurojust.europa.eu/news/icc-participates-
joint-investigation-team-supported-eurojust-alleged-core-international-crimes.
39 Gordon and Sarah Brown, “Calling for the Creation of a Special Tribunal for the

Punishment of the Crime of Aggression Against, Ukraine,” Mar. 2022,

https://gordonandsarahbrown.com/wp-content/uploads/2022/03/Combined-
Statement-and-Declaration.pdf. This solution has also been suggested recently by the
Parliamentary Assembly of the Council of Europe (PACE), 28 Apr. 2022,

Summer 2022| 433

 The Fundamental Role of International (Criminal) Law in the War in Ukraine

consent from a General Assembly resolution would be difficult. In addition, it

would constitute an ex post facto jurisdiction aimed at overcoming the ICC
jurisdictional problem. It also would entail significant time and money.
Considering the number of ongoing armed conflicts in the world, it is not
reasonable to create new tribunals every time it is not possible to fully activate
the ICC. Undoubtedly, enhancing the existing system, and eventually
modifying the Rome Statute, makes more sense. A decision that favors
establishing an ad hoc tribunal could also be criticized for selectivity. Why
should we establish an international tribunal for prosecuting and punishing
Russian aggression in Ukraine and not an equivalent one for aggression in Iraq?
Domestic courts will play a role in the prosecution and punishment of
those responsible for the crimes perpetrated in Ukraine, considering the
territoriality and nationality principles. The ICC is a court of last resort. It is
based on the principle of complementary, according to which the Court can
exert its jurisdiction only when national jurisdictions are unable or unwilling to
investigate and prosecute the crimes under its jurisdiction. The criminal codes
of both Ukraine and Russia provide for the crime of aggression and war crimes,
respectively in article 437 CCU and 353 CCR, and in article 438 CCU and article
356 CCR.40
Nevertheless, in the current context, it appears to be difficult to secure
fair trials in Ukraine41 for several reasons. First, once the war ends, the priority
will be reconstructing the country, including the justice system. Second,
Ukrainians’ hatred against Russia is growing. This sentiment could have a
double effect: on one side, there would be the risk that only crimes committed
by Russians would be prosecuted and punished; on the other, the risk of
conducting an unfair trial is very high. Finally, if we consider whether Russia
would prosecute and punish those responsible for the alleged crimes, it appears
quite improbable. Such crimes would undoubtedly be officially justified,
denied, or condoned. This holds true, particularly, at the governing level.

https://www.coe.int/en/web/portal/-/pace-calls-for-an-ad-hoc-international-criminal-
tribunal-to-investigate-war-crimes-in-ukraine.
40Criminal Code of Ukraine, Legislation Online, Sept. 1, 2001,
https://www.legislationline.org/documents/action/popup/id/16257/preview;
Criminal Code of the Russian Federation, Legislation Online, June 13, 1996,
https://www.legislationline.org/documents/section/criminal-
codes/country/7/Russian%20Federation/show.
41On May 18, 2022, Ukraine’s first war crime trial against a Russian soldier took place:
https://edition.cnn.com/europe/live-news/russia-ukraine-war-news-05-18-
22/h_0a6b199d57b950fe1a4434a9e56b4c03.

434 | Orbis
LANZA

National courts may have a role in the prosecution and punishment of

the conflict-related offences when they can be qualified as crimes against
humanity or war crimes, based on the universal jurisdiction. In some countries,
such as Germany, Poland, and Lithuania, national investigations of individuals
allegedly responsible for international crimes can be carried out. Indeed, these
countries recognize both international crimes and the principle of international
jurisdiction in their legal systems. This mechanism, however, would more likely
involve only the low-level commanders and soldiers.
What is certain is that to give justice to the victims and to prevent
further conflicts entailing the violation of international rules, it is necessary that
politics and world powers’ interests do not overcome justice and that the law is
not instrumentalized. International (criminal) law and cooperation between
states and international organizations play an important role. International
(criminal) law must be demonstrated to be effective and thus ready to face all
challenges that this war is presenting—and capable of fighting against impunity,
ensuring that individuals responsible for atrocity crimes are held accountable
before a court of law.
As Karim A.A. Khan QC stated at the Arria-Formula meeting of the
UN Security Council, held on April 27, 2022, “This is a time when we need to
mobilize the law and send it into battle—not on the side of
Ukraine against the Russian Federation or on the side of the
Russian Federation against Ukraine, but on the side of humanity
to protect, to preserve, to shield people who are children, who
are women and who are men, who have certain basic rights.”42

Giulia Lanza is a criminal lawyer and collaborates with the chair of criminal
law and international criminal law at the Department of Law of the University
of Verona (Italy). In 2018 she earned a PhD in European and International
Legal Studies in an agreement between the University of Verona and the Georg-
August Universität in Göttingen, Germany. Her work has appeared in the Revue
Internationale de Droit Pénal, the Journal of Eastern-European Criminal Law, the Indice
Penale, the Diritto Penale Contemporaneo, and the Duncker & Humblot, among other
publications.

42Statement at International Criminal Court, Apr. 27, 2022, https://www.icc-

cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-arria-formula-meeting-un-
security-council-ensuring.

Summer 2022| 435