The Fate of Justice in Russia-Ukraine Peace Talks
from International Institutions and Global Governance Program and Diamonstein-Spielvogel Project on the Future of Democracy

The Fate of Justice in Russia-Ukraine Peace Talks

Originally published at Just Security

September 27, 2023 11:38 am (EST)

Article
Current political and economic issues succinctly explained.

While the final chapter of the Russia-Ukraine war has yet to be written, the prospects of any negotiations to achieve a just and lasting peace remain distant. But it is not too soon to consider how accountability, particularly criminal accountability, would fare if any such talks were held between Russia and Ukraine.

More From Our Experts

Russian negotiators will, of course, push back on any proposal for accountability. Ukrainian officials should anticipate a range of Russian positions that would prove incompatible with international justice. The Russians likely will table immunity defenses and counterproposals for amnesties of various types in order to shield their officials and personnel from any criminal prosecutions.

More on:

Human Rights

Ukraine

Russia

International Law

The War in Ukraine

Two strategies on the role of justice in the negotiations seem plausible. The first strategy would be to focus the negotiations only on peace objectives – ending the fighting, withdrawal of Russian troops, territorial integrity, reparations, return of Ukrainian children, exchanges of prisoners of war – and not seek any justice objectives. This would simplify the process but also leave accountability off the table to fend for itself. The second strategy would be to seek justice objectives – notably prosecutions of perpetrators of atrocity crimes – but perhaps leverage one or more elements to incentivize agreement on the peace objectives.

The Role of Justice and Accountability in a Negotiated Peace  

The Ukrainian people and their allies and friends across the globe are desperately seeking justice for the victims of atrocity crimes, namely genocide, war crimes, crimes against humanity, and aggression on Ukrainian territory. The seventh point of Ukrainian President Volodymyr Zelenskyy’s 10-Point Peace Plan is “justice,” which includes establishing a Special Tribunal to prosecute the crime of aggression against Ukraine and creating an international compensation mechanism. Zelenskyy has staked out a firm position on holding all Russian perpetrators to account. During his address in Helsinki on June 2, 2023, U.S. Secretary of State Antony Blinken said that, “A just and lasting peace must address both accountability and reconciliation.”

The issue of accountability has been a regular feature of various peace negotiations in recent decades. But no situation on the global landscape is identical to any other in the realm of peace and justice. The Russia-Ukraine war has characteristics that, when considered together, present an extraordinarily challenging scenario for negotiators to navigate:

More From Our Experts
  • a blatantly unprovoked war of aggression launched and perpetuated by Russia, a permanent member of the U.N. Security Council, against Ukraine without any prospect, yet, of Moscow reversing its illegal cross-border interventions;
  • the infliction of widespread atrocity crimes of a character not seen in Europe since the Balkans war in the early 1990s;
  • the emerging crime of ecocide (or war crimes or crimes against humanity constituting attacks on the environment) significantly amplified with the destruction of the Kakhovka dam on the Dnipro River in June 2023, which caused loss of life and enormous environmental and property damage and human dislocation, not to mention other devastating assaults on the Ukrainian environment during the war;
  • the rapid and intensive investigation of atrocity crimes by a wide range of courts, inter-governmental bodies, and civil society groups – all building a large body of evidence and demanding prosecution;
  • the International Criminal Court (ICC) central role in investigating senior perpetrators alongside the work of domestic Ukrainian criminal courts that face the Herculean task of potentially prosecuting more than 108,000 registered war crimes;
  • while Russian troops who remain on Ukrainian territory and commit atrocity crimes will be exposed to the risk of arrest, a large number of suspects who may be charged with committing such crimes in Ukraine are or ultimately will be residing in Russia and for all practical purposes shielded from arrest and transfer to the custody of Ukrainian courts, the ICC, or any other court of non-Russian jurisdiction in the near term and possibly indefinitely; and
  • the still undecided means of prosecuting the crime of aggression against the highest political and military leaders absent ICC jurisdiction over that crime in the Ukraine situation.

Some might speculate that Russian President Vladimir Putin would be discouraged from negotiating since he already is targeted with an international ICC arrest warrant. Additional arrest warrants almost certainly will be issued against Putin in the future, including from other courts. Surely, he would refuse any responsibility for Russian commission of atrocity crimes and reject any means to establish criminal culpability in the peace agreement.

More on:

Human Rights

Ukraine

Russia

International Law

The War in Ukraine

Common sense informs such thinking, but so too does the reality that issues of justice are ever present in a world that is highly sensitized to atrocity crimes and to the growing realization – buttressed by three decades of tribunal-building – that such heinous crimes can no longer be planned and committed by political and military leaders with impunity and devoid of any prospect of accountability. Many such leaders have been brought to justice despite earlier common presumptions that they would escape the reach of international law for the commission of atrocity crimes while in office. Further, top political leaders, including former heads of State, have been charged in recent years for other types of crimes, demonstrating that the overall reach of criminal law has expanded significantly for those who hold power or have relinquished it.

If the day arrives when Ukraine begins peace negotiations with Russia, accountability should be factored into the strategy that Ukrainian and international negotiators formulate before and during such talks. These considerations are practical necessities given Russia’s likely negotiating position and the demands of the Ukrainian people for justice. There are two over-arching strategies for the fate of justice in such negotiations. 

First Strategy: Negotiate Only Peace

The First Strategy would have a dual character: to end the armed conflict on largely favorable terms for Ukraine and to pursue accountability that stands separate from the peace negotiations (just as accountability is currently being pursued absent any negotiations for peace). This relatively simple formula for the peace negotiations would leave criminal accountability completely off the peace table. There would be no negotiated agreement to accelerate, slow down, strengthen, or weaken the pursuit of justice. The negotiators would be focused exclusively on the aims of peace rather than justice objectives.

The two-track approach in the First Strategy would not assume any cooperation by Russian authorities with Ukrainian objectives for accountability under Ukrainian or international criminal law. There would be no leverage employed during the peace talks to compel the Russians to cooperate with atrocity crimes investigations, enforce arrest warrants, or hold any Russians accountable in Russian national courts. The pursuit of justice would rely solely on the jurisdiction exercised by non-Russian courts as well as the actions and cooperation of the Ukrainian government and many other governments, the United Nations, the European Union and other multilateral institutions, and civil society organizations committed to assisting with investigations and prosecutions of atrocity crimes committed in Ukraine.

Thus, the First Strategy would remove the thorny issue of justice from peace negotiations, which could derail the talks because of the personal exposure of Russian leaders to legal jeopardy. Those leaders have a predictable interest in avoiding the legal risk or any acceptance of such criminal liability. The justice track would be pursued simultaneously under its own steady steam, with investigators, prosecutors, and judges seeking to achieve what they can in both the short term, facing Russian non-cooperation, and the long term, when Russian intransigence likely will continue unless Russia one day reforms politically in a manner where at least some cooperation on accountability might be plausible. For example, the latter could arise if Putin loses power and is succeeded by a leadership group that views his surrender or the surrender of any members of his leadership cohort to the ICC as politically useful.

After all, former Serbian President Slobodan Milosevic faced exactly that fate in 2001. Once he lost power government authorities surrendered the indicted fugitive to the International Criminal Tribunal for the former Yugoslavia to face justice in The Hague for atrocity crimes. Similarly, the Liberian government consented to the surrender of former President Charles Taylor to stand trial before the Special Court for Sierra Leone, where he was convicted in 2012 and is now serving a 50-year sentence in a British prison.

Second Strategy: Leverage Justice for Peace

Negotiators might follow a very different course and insist on the issue of accountability being addressed directly in the peace agreement, albeit in radically different ways. It will be difficult for the Ukrainian officials to dismiss accountability as they will be representing a victimized population determined to bring perpetrators of atrocity crimes to justice. But it will be equally difficult for the Russian negotiators to embrace any proposal of accountability for Russian actions which they might view as an admission of guilt, a dark prospect that many Russian citizens would likely resent and resist.

The elements that follow explore how accountability strategies could be introduced into the negotiations between Ukraine and Russia. Political factors might, for now, eclipse immediate pursuit of some justice objectives and using justice as leverage would be at the discretion of Ukrainian negotiators during any talks. Each of the elements are designed with that flexibility in mind, employing one, two, or more of the elements depending on policy judgments.

Comprehensive and credible justice, which will take years if not decades to achieve, may not rest on the same time schedule as achieving the end of the war and the benefits of peace, territorial integrity, and societal stability. Of course, delayed legal proceedings can undermine successful prosecutions as witnesses become unavailable or their memories fade, tangible evidence becomes increasingly difficult to collect, public interest and support shifts to other priorities, and indicted fugitives burrow ever deeper into safe havens to avoid arrest. The mantra of “justice delayed is justice denied” can ring very true, particularly when elderly defendants die before final verdicts are rendered. But the brutal Russia-Ukraine war demands a pragmatic realization of how to balance justice with peace by examining, in advance, options that could be plausibly raised at the negotiating table by either party.

Element 1: Demand full accountability for Russian criminal conduct before criminal tribunals as well as State responsibility before the International Court of Justice under relevant treaties.

Accountability essentially would become a peace objective in and of itself and a means for Russia to answer for its crimes. This would be the maximalist justice strategy, but one that would meet steep Russian disinterest and resistance. While full accountability could still be pursued under the First Strategy, its prospect under the Second Strategy and melding it to peace discussions is highly problematic.

Element 2: Ask the U.N. Security Council to mandate deferral of certain ICC investigations or prosecutions for one year under Article 16 of the Rome Statute, which governs the ICC. The action would have to be an enforcement resolution under Chapter VII of the U.N. Charter to maintain international peace and security and avoid a veto by any permanent member of the Council: China, France, Russia, the U.K., and the United States. This procedure was pressed by a number of African countries in the past to limit the ICC’s early focus on African situations of atrocity crimes, but the Security Council never acted under its Article 16 authority. The tactic could prove controversial both domestically in Ukraine and among ICC States Parties, including those sitting on the Security Council. The deferral, unless renewed with a veto-free vote in the Security Council, would end after one year with full resumption of any delayed ICC investigations and prosecutions.

Element 3: Consult with the ICC prosecutor to take the interests of victims into account in arriving at decisions to prosecute. Article 53(2)(c) of the Rome Statute empowers the ICC prosecutor to decide that there is “not a sufficient basis for a prosecution because…[it] is not in the interests of justice, taking into account all of the circumstances…”  This provision does not prevent or derail investigations. Rather, it allows the prosecutor considerable discretion to take the interests of victims into account when weighing what strategy can best achieve not only justice, but also peace, security, safety, and economic recovery for the victims. While it may appear counter-intuitive to the aims of international criminal justice, under the Rome Statute the ICC prosecutor can elevate non-judicial interests of victims in determining the efficacy of a prosecution.

Element 4: Require a temporal limitation (such as signing the peace agreement) on Ukraine’s Article 12(3) declarations under the Rome Statute that have granted jurisdiction to the ICC for atrocity crimes in Ukraine since late 2013. The Article 12(3) declaration is available to States that have not joined the ICC, like Ukraine, to request the Court’s jurisdiction over its own territory for designated atrocity crime situations. If, to advance the negotiations, the declarations are time-limited, the ICC’s jurisdiction could be reactivated with a fresh Article 12(3) declaration if there is Russian noncompliance with the peace objectives, particularly with the commission of new atrocity crimes.

Element 5: Suspend efforts to create the Special Tribunal for Ukraine on the Crime of Aggression provided there is Russian compliance with the peace objectives. While the need to prosecute the crime of aggression against Ukraine before an international tribunal remains essential for both Ukraine and the deterrence of aggression globally, the fact that leadership suspects likely will avoid arrest by remaining on safe haven territory, such as Russia, gives Ukraine some flexibility to delay the creation or operational start date of the Special Tribunal in return for compliance with peace objectives at the negotiating table.

Element 6: Drop or modify charges of war crimes against prisoners-of-war who would be exchanged between the two countries. Article 119 of the 1949 Geneva Convention III, which both Russia and Ukraine have ratified, posits this possibility with discretionary language: “Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.”  Applying leniency in some manner for charged or convicted prisoners of war, whose names must be shared and who include Ukrainian soldiers held in Russian detention, could be explored to facilitate their return home, particularly at the conclusion of the war as negotiated by the parties.

Element 7: Drop or modify Ukrainian criminal charges against individuals responsible for illegal abductions and transfers of Ukrainian children into Russian custody provided the children are first returned to their Ukrainian parents and guardians. This may prove to be a difficult procedure under Ukrainian law, but, like prisoners-of-war, the return of Ukrainian children would be so central to any peace negotiations that there may need to be an incentive of this character to ensure that it can be accomplished.

Element 8: Minimize Ukrainian legal penalties for some of the Ukrainians who collaborated with Russian occupying forces, but only if there is a Russian demand for this type of leniency. Ukraine could offer, for example, to grant such treatment to suspected collaborators who engaged in minor acts of humanitarian cooperation to ensure the survival of the residents in their communities

Element 9: Create a new “Accountability Commission” that would digitally record the admissions of responsibility for atrocity crimes by low-ranking soldiers who enjoy safe haven on their national territory and have not surrendered to the custody of foreign courts, but who wish to confess or promote truth. The Accountability Commission would be created with expert international oversight and operated in the spirit of transitional justice to enable victims to reach at least some degree of closure on holding perpetrators responsible for their crimes. Russia would have to agree to cooperate with this mechanism, including a guarantee not to retaliate against those who share information with the Commission.

Element 10: Lift certain economic sanctions and unblock at least some frozen assets upon Russian fulfillment of justice objectives. These tools undoubtedly will be used in the negotiations to achieve peace objectives, including the rebuilding of Ukraine. But an important issue will be to what extent they could be used to pursue justice objectives as well. For example, lifting some sanctions might be tied to surrender of designated indicted war criminals. Various sanctions were imposed against Serbia by the United States and the European Union until indicted fugitives of the International Criminal Tribunal for the former Yugoslavia, including former leaders Radovan Karadzic and Ratko Mladic, were arrested on Serbian territory and surrendered to the Tribunal. Also, the seizure of certain frozen Russian assets, particularly if facilitated with Moscow’s consent under the peace agreement, could be used to finance investigations and litigation before national and international courts for years to come.

None of these strategies on justice (however configured) would be easy to implement. Each would be controversial. Funding any mechanism of justice would remain difficult. But the strategies should be considered while the pathway to peace negotiations is paved.

This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.

Creative Commons
Creative Commons: Some rights reserved.
Close
This work is licensed under Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) License.
View License Detail
Close

Top Stories on CFR

Russia

The new defense treaty demonstrates a growing closeness between the two pariah states that is likely to make the rest of the world uneasy.

LGBTQ+

Election 2024

Each Friday, I look at what the presidential contenders are saying about foreign policy. This Week: The United States may come to rue its failure to get its fiscal house in order.