Britain has a crucial role in helping prosecute Russian leaders of war crimes in Ukraine
6 min read
In virtually every aspect of our lives, law has a role to play; and war is no exception.
One of the main priorities of the Ukrainian president is his desire to see Russia held accountable for the crime of aggression in its invasion of Ukraine without just cause. Ironically, the crime – a crime against peace – was proposed by Russian lawyer Aron Trainin after the German invasion of the Soviet Union during the Second World War, and was the overarching charge in the Nuremberg trials when the war ended. In the years before that war’s conclusion, as is happening in Ukraine now, work was being done to gather evidence of war crimes and the full horrific revelations of the Holocaust made the cases overwhelming.
Aggression is a leadership crime committed only by those who are policymakers, and it could see Vladimir Putin, his defence minister, and other Kremlin officials on trial if the international community has the will to embark on this process. It is a crime which falls under universal jurisdiction so a case could in fact be initiated by any individual nation – including the United Kingdom – but for reasons of legitimacy, it would be more feasible to have a tribunal established under the auspices of a wide cohort of nations.
The build-up of legal pressure can have a disruptive and destabilising effect on the morale of key players in the Russian elite
There are many who feel that it is premature to even think about a tribunal when the conclusion of the conflict seems far off and getting aggressors in the dock presents a major challenge. It is noteworthy that no one has been prosecuted for the crime of aggression since the 1940s so there is hesitancy over the implications of doing so now, with the pall of double standards in the air. However many of us feel that the build-up of legal pressure can have a disruptive and destabilising effect on the morale of key players in the Russian elite as they conjure up the prospect of criminal convictions and spending the rest of their lives in jail.
So while political sensitivities are ironed out and efforts are being made to draw a coalition of nations together to establish such a special tribunal, the business of evidence gathering, training Ukrainian judges and lawyers in the conduct of war crimes, and preparations for a post-conflict compensation commission are all pressing ahead.
Ukraine’s impressive and indefatigable prosecutor general is already bringing war crime cases against arrested Russian soldiers in Ukraine’s domestic courts, and the chief prosecutor of the international criminal court (ICC) Karim Khan KC, a British barrister, is investigating and building his evidential base for an indictment of war crimes and crimes against humanity for eventual trial in his international court.
The taskforce on legal accountability for crimes committed in Ukraine, of which I am part, was established at the behest of the Ukrainian authorities only weeks after the start of the war. It includes Lord Neuberger, former president of the UK supreme court, British KCs, other practitioners and academic lawyers, as well as American attorneys and French advocates. The early start meant that Tim Otty KC, one of the UK’s leading lawyers, managed to place allegations of human rights crimes against the Kremlin before the European Court of Human Rights on behalf of Ukraine prior to Russia being expelled from the Council of Europe. The case is awaiting hearing and is likely to be the first case involving the war to come before an international court.
The speed of action by Ukraine in putting the law to work meant that British lawyers Amal Clooney and Philippa Webb started immediately examining the legal reforms necessary to enable the seizure of frozen assets in central banks, to provide for the rebuilding of Ukraine after the cessation of hostilities. My own work and that of the International Bar Association’s Human Rights Institute has been in relation to sexual crimes against women and children, and the abduction of children, which has now led to warrants issued by the ICC against Putin and his commissioner for children.
This war has had more media coverage than any that has gone before, showing bombings of residential areas, community centres, hospitals, orphanages and schools – Mariupol being a prime example. There are reams of footage to be examined and collated into archives. Intentionally directing attacks against a civilian population is a war crime. British lawyer Wayne Jordash KC, married to a former member of Ukraine’s parliament, has established a well organised team of skilled lawyers and paralegals to take statements from eye-witnesses as well as the victims of atrocities for use by the domestic and international courts.
Judge Howard Morrison, who sat on the ICC, has led the British training of Ukrainian judges and prosecutors in the conduct of war crimes. The International Bar Association, led by Mark Ellis, has also started training lawyers and has set up a mentoring scheme for those in Ukraine, conducting trial observations to ensure that the war crimes trials which are already under way conform to due process. It means lawyers from the UK and around the world are advising and supporting those undertaking these roles. One of the challenges, of course, is ensuring that those Russians on trial are properly defended.
I am firmly of the view that Ukraine should now embark upon the creation of a new constitution to come into effect at the end of this war. The aftermath of war is a defining moment. With so many of their own lawyers serving on the frontline, Britain is well placed with the appropriate expertise to assist Ukrainian lawyers and politicians in such a project.
There are only a few times in the history of a nation when the constitutional architecture can be reinvented. The cessation of this terrible conflict would provide an opportunity to define the nation of Ukraine, clarify its aspirations, define the separation of powers, strengthen the rule of law, deal with corruption, provide strong protections for the media, and mend the fissures in Ukrainian society.
It would mean providing clear protections for those who constitute minorities within the nation, protecting their right to maintain their language and any other cultural elements of identity, ensuring their representation in government and also encouraging the creation of a multi-party state.
I was privy to the quiet work that went on during the 1980s to create a new constitution for South Africa in the hope that, one day, apartheid might end. We have to believe that there will be a positive end to this war and we on the outside have to inspire and maintain hope for Ukrainians that a better future will come out of so much suffering.
Baroness Kennedy of The Shaws KC, Labour peer
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