Pavlo KryvenkoAs the russia-Ukraine war continues to unfold, the prospects of achieving a just and lasting peace remain distant. However, it is crucial to consider the role of accountability, specifically criminal accountability, in any potential negotiations between the two nations. Russian negotiators are likely to resist any proposal for accountability, seeking immunity defenses and counterproposals for amnesties to shield their officials from criminal prosecutions. Ukrainian officials, on the other hand, are determined to seek justice for the victims of atrocity crimes.
The ongoing conflict between russia and Ukraine has left a trail of devastation and tragedy. As the prospect of peace negotiations looms, the question of accountability and justice becomes a central concern. While the final outcome remains uncertain, it is crucial to consider the role of criminal accountability in any potential agreement.
The Complexities of the russia-Ukraine War
The russia-Ukraine war is a unique and complicated conflict, presenting significant challenges for negotiators. It is an unprovoked war of aggression launched by russia against Ukraine, with no immediate signs of Moscow reversing its illegal cross-border interventions. This makes the prospects of achieving justice even more challenging.
The war has witnessed widespread atrocity crimes, including genocide, war crimes, crimes against humanity, and aggression on Ukrainian territory. The scale and severity of these crimes have not been seen in Europe since the Balkans war in the early 1990s. Additionally, the war has witnessed the emerging crime of ecocide, with significant environmental destruction and human dislocation.
Multiple courts, inter-governmental bodies, and civil society groups have been involved in investigating these atrocity crimes, building a substantial body of evidence. The International Criminal Court (ICC) has played a central role in investigating senior perpetrators, alongside domestic Ukrainian courts facing the daunting task of potentially prosecuting more than 108,000 registered war crimes.
The Two Strategies for Justice and Peace
Two strategies emerge regarding the role of justice in the negotiations. The first strategy focuses solely on peace objectives, such as ending the fighting, withdrawal of russian troops, territorial integrity, reparations, and exchanges of prisoners of war. Justice objectives, including prosecutions of perpetrators of atrocity crimes, are left off the table. The second strategy seeks to incorporate justice objectives into the negotiations while leveraging elements to incentivize agreement on the peace objectives.
The Challenging Scenario
The russia-Ukraine war presents a unique and challenging scenario for negotiators. It involves a war of aggression launched by russia against Ukraine, widespread atrocity crimes, the emerging crime of ecocide, multiple investigations of atrocity crimes, and the complex issue of prosecuting senior political and military leaders. Russian perpetrators residing in russia pose a significant challenge to arrest and transfer to non-russian courts.
The Role of Justice in Peace Negotiations
Justice has been a recurring theme in peace negotiations, but each situation presents its own complexities. In the russia-Ukraine war, justice is crucial for the Ukrainian people and their allies who seek accountability for the crimes committed. Ukrainian President Volodymyr Zelenskyy’s 10-Point Peace Plan emphasizes justice, including the establishment of a Special Tribunal and an international compensation mechanism. U.S. Secretary of State Antony Blinken also emphasizes the importance of addressing accountability and reconciliation for a just and lasting peace.
The First Strategy: Negotiating Only Peace
The first strategy focuses exclusively on peace objectives and leaves criminal accountability separate from the negotiations. This approach simplifies the process but relies on non-russian courts and international institutions to pursue justice independently. Russian leaders, facing legal jeopardy, are likely to resist any acceptance of criminal liability.
The Second Strategy: Leveraging Justice for Peace
The second strategy involves addressing accountability directly in the peace agreement. However, incorporating justice objectives into the negotiations poses challenges. Ukrainian officials must balance the pursuit of justice with the interests and resistance of the russian negotiators.
Element 1: Demand Full Accountability
One approach is to demand full accountability for russian criminal conduct before criminal tribunals and State responsibility before the International Court of Justice. This approach makes accountability a peace objective itself, holding russia accountable for its crimes.
Element 2: U.N. Security Council Mandate
Another element involves asking the U.N. Security Council to mandate deferral of certain International Criminal Court (ICC) investigations or prosecutions for one year under Article 16 of the Rome Statute. This action would require an enforcement resolution under Chapter VII of the U.N. Charter to maintain international peace and security.
Element 3: Consult with the ICC Prosecutor
Consulting with the ICC prosecutor allows the interests of victims to be considered in decisions regarding prosecutions. The prosecutor has discretion to determine whether a prosecution is in the interests of justice, taking into account all circumstances.
Element 4: Temporal Limitation on Article 12(3) Declarations
Ukraine’s Article 12(3) declarations under the Rome Statute grant jurisdiction to the ICC for atrocity crimes in Ukraine. A temporal limitation on these declarations, tied to the peace agreement, would allow the reactivation of ICC jurisdiction if there is russian noncompliance with peace objectives.
Element 5: Special Tribunal for Ukraine
The creation or operational start date of the Special Tribunal for Ukraine on the Crime of Aggression could be delayed if there is russian compliance with peace objectives. This allows flexibility in pursuing justice while prioritizing the peace agreement.
Element 6: Leniency for Prisoners-of-War
Leniency could be considered for prisoners-of-war exchanged between russia and Ukraine, such as modifying charges of war crimes against them. This approach follows the discretionary language in the Geneva Convention III.
Element 7: Drop or Modify Charges for Abducted Children
Dropping or modifying charges against individuals responsible for illegal abductions and transfers of Ukrainian children into russian custody could be explored if the children are first returned to their Ukrainian parents and guardians.
Element 8: Minimize Legal Penalties for Collaborators
Minimizing Ukrainian legal penalties for some Ukrainians who collaborated with russian occupying forces could be offered as a concession, particularly for those engaged in minor acts of humanitarian cooperation.
Element 9: Accountability Commission
Creating an “Accountability Commission” to digitally record admissions of responsibility for atrocity crimes by low-ranking soldiers who enjoy safe haven could provide victims with some degree of closure. Russian cooperation would be necessary for this mechanism to succeed.
Element 10: Economic Sanctions and Frozen Assets
Linking the lifting of economic sanctions and unblocking frozen assets to russian fulfillment of justice objectives could serve as a tool to finance investigations and litigation in the future.
Conclusion
The destiny of justice in russia-Ukraine peace negotiations remains uncertain. The two strategies, negotiating only peace or leveraging justice for peace, present unique challenges. The incorporation of justice objectives requires careful consideration, as it involves balancing the interests and resistance of both parties. The ultimate goal is to achieve a just and lasting peace while ensuring accountability for the crimes committed during the war.