PILPG Ukraine Drafting Notes: Justice

Justice

Justice is a topic that almost certainly is going to come up during peace negotiations as Russia will want to escape justice whilst the victims will want to see the crimes prosecuted.  The issues that could arise during such discussions include:

• Form of Justice:  Whether accountability will be achieved through international mechanisms, domestic courts, or perhaps not at all.

• Crimes to Be Prosecuted:  Whether the scope of prosecutions will encompass all crimes, including atrocity and political crimes, or focus only on the most severe offenses.

• Defendants:  Determining who will be held accountable, whether all participants, only those most responsible, or all except specific groups.

Form of Justice

Decisions on justice can rely on one justice mechanism exclusively, pursue justice through different avenues, or perhaps opt for providing amnesty depending on the priorities of the negotiators. 

• International Ad Hoc Tribunal:  An international ad hoc tribunal, possibly supported by a coalition of states or international organizations like the United Nations, would provide an independent framework for prosecuting crimes, ensuring adherence to international standards of justice.  This option offers high impartiality, though it may face opposition from parties viewing it as foreign interference.  Moreover, an international tribunal may lack local relevance, limiting its impact on national reconciliation.

• Hybrid Tribunal:  A tribunal composed of both international and national judges would combine local insight with global standards, potentially lending the process both international credibility and local legitimacy.  However, hybrid tribunals could also face issues with garnering sufficient international support, especially when they are mandated to prosecute heads of state.  

• Domestic Courts in the Victim State:  Pursuing justice through domestic courts avoids encountering delays or problems with securing sufficient international support.  It also allows the entire process to be driven by local actors thereby strengthening the processes’ legitimacy in the eyes of the victims.  At the same time, domestic courts are unable to overcome head of state immunity if the perpetrators are foreign heads of state.  Such courts might also face challenges with apprehending defendants that are located in other states. 

• Domestic Courts in the Aggressor State:  Domestic courts in the aggressor state could allow for a more comprehensive justice process as many of the alleged perpetrators are likely residing in the aggressor state.  It would also avoid issues with regard to immunity.  Nonetheless, it is unlikely that Russia would be willing to try any perpetrators in its courts, nor would there be a guarantee that the trials would follow international standards. 

• Combined Justice Mechanism:  A combined approach could integrate multiple justice mechanisms, such as an international tribunal for top leadership and hybrid or domestic courts for mid- and lower-level perpetrators. This multi-tiered structure could balance the need for impartiality with local relevance, allowing for a nuanced approach that addresses different levels of responsibility.  However, a combined mechanism could be administratively complex and require significant coordination, potentially slowing the justice process and complicating efforts to achieve consistency across different systems.

• Amnesty:  Granting amnesty to specific individuals or groups is usually the preferred approach when discussions surrounding justice are perceived to be hindering peace.  However, it risks backlash from victims’ groups and civil society, who may view it as undermining accountability and eroding confidence in the justice process.  International law also prohibits amnesty for atrocity crimes such as war crimes, crimes against humanity, genocide, and serious human rights abuses like torture and sexual and gender based crimes.  

Crimes to Be Prosecuted

Determining which crimes to prosecute will shape how broadly justice is pursued, affecting both accountability and societal healing.

• All Crimes, Including Atrocity and Political Crimes:  Prosecuting all crimes associated with the conflict—encompassing war crimes, crimes against humanity, and political crimes—would create a comprehensive framework for accountability.  While this approach may reflect a full commitment to justice, it could overwhelm judicial resources and risk opposition from parties who view the inclusion of political crimes as a subjective measure that might lead to bias.

• Only Atrocity Crimes:  Focusing exclusively on the most severe offenses, such as war crimes and crimes against humanity, would streamline the process, ensuring that the worst crimes receive priority attention.  By narrowing the scope, this approach could make justice more attainable, yet it may be perceived as insufficiently thorough, failing to address the broader range of crimes that affected communities and thus potentially limiting broader reconciliation.

Defendants

Determining who will face prosecution will be a key factor in balancing the need for justice with the feasibility of reaching a peace agreement with Russian officials. 

• All Involved:  Prosecuting all participants connected to the armed conflict would demonstrate a comprehensive approach to justice and reinforce the notion that all crimes are significant.  However, it is unlikely that Russia would agree to the prosecution of its highest ranking officials, including Putin and Lavrov.  Such an approach would also put a heavy burden on the justice system as there would be a high number of cases to try. 

• Most Responsible:  Focusing accountability on those deemed most responsible for the most severe crimes, such as key leaders and senior officials, would target the individuals who played central roles in planning and carrying out violence.  This approach could reduce the number of cases, allowing for more thorough investigations, but it may be perceived as selective and insufficient, as those directly involved in lower-level crimes would not face prosecution.  Additionally, it would likely face heavy resistance from Russian leadership.

• All but Certain Leadership Figures:  Excluding certain high-ranking figures from prosecution, while holding others accountable, may facilitate peace negotiations by removing legal barriers for key actors.  While this approach could accelerate the process of reaching cessation of hostilities, public opposition could be significant, particularly among victims and civil society, who may view such exclusions as compromising the integrity of the justice process.