Weekly analytics for 15 — 21 March
Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important process in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combating corruption, criminal justice, etc.
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Winners of competition for the HQCJ announced; Now, it’s the HCJ’s turn
On March 15, the Competition Commission for the Selection of Members of the High Qualification Commission of Judges of Ukraine (HQCJ) announced the names of 32 winners (based on two candidates per one vacant position). According to the Commission, 10 judges and retired judges, 9 scholars, 6 lawyers, 5 candidates with mixed professional experience, and 2 representatives of law enforcement agencies were recommended for appointment.
On March 17, the Head of the High Council of Justice (HCJ) held a briefing regarding the situation with the appointment of the HQCJ members, where he noted: “according to the results of the competition, the Competition Commission had to provide the HCJ with a list of candidates for each vacant position of a member of the HQCJ in the number of at least two, taking into account the proportional principle of the qualification commission’s formation and the conditions for acquiring the authority by this body” (according to requirements of the law, the HQCJ consists of 16 members, the majority of whom (eight members) are appointed from among judges or retired judges; the Commission is competent when at least 11 members are appointed to its composition, including six from among judges or retired judges – note by the CPLR). At the same time, it was emphasized that such interpretation of legislative provisions does not reflect the position of the entire HCJ, and members of the HCJ may appoint six or eight members of the HQCJ from among representatives of the judicial community recommended by the Competition Commission.
1. According to p. 5 of Article 95 of the Law of Ukraine “On the Judiciary and the Status of Judges”, the Competition Commission conducts the selection of candidates for the position of a member of the HQCJ on the basis of at least two candidates per one vacant position of a member of the Commission. The law imposes no obligation on the Competition Commission to take into account the judges’ quota in the HQCJ when announcing the winners of the competition, as this not only contradicts the essence of the competition procedure, but also the tasks set before the Competition Commission. As follows from the content of p. 6 of the specified article, the Competition Commission may recommend for appointment only candidates who, in its opinion, meet the criteria of integrity and professional competence. Based on the substance of the law, a candidate’s professional affiliation is not an indication that provides any advantages or benefits within the scope of the Commission’s integrity assessment.
On March 15, the Competition Commission announced the list of candidates who meet the criteria of integrity and professional competence, in the number specified by the law. As indicated above, among the recommended candidates, there are 10 representatives of the judicial community, which makes it possible to fully fill the judicial quota in the HQCJ’s composition.
2. The HCJ’s interviews with candidates recommended for appointment are the next stage of the HQCJ members selection. According to the law, such interviews must be conducted openly. During the briefing, the head of the HCJ announced that they will try to ensure the transparency of interviews, but the means have not yet been determined (either through online broadcasts or by posting video recordings of the interviews). The HCJ will have to fill the vacant positions of the HQCJ members based on the results of the interviews. In the near future, it is expected that the Council will approve the methodology for the selection of the HQCJ members which will be used by the members of the HCJ.
The International Criminal Court issues arrest warrants for Putin and Lvova-Belova
On March 17, 2023, the International Criminal Court (ICC) issued arrest warrants for V. Putin (President of the Russian Federation) and M. Lvova-Belova (Russian President’s Commissioner for Children’s Rights) in connection with illegal deportation and transfer of Ukrainian children from the occupied territories to the Russian Federation, which grossly violates the norms of international humanitarian law (constitutes a war crime).
Namely, the provisions being violated are Art. 8(2)(a)(vii) (unlawful deportation or transfer or unlawful confinement) and Art. 8(2)(b)(viii) (the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory) of the Rome Statute of the ICC. V. Putin and M. Lvova-Belova are potentially guilty of committing such criminal acts directly, jointly with others, or through another person (Article 25(3)(a) of the Rome Statute). Moreover, V. Putin must bear responsibility for the failure to exercise proper control over civilian and military subordinates who “kidnapped” Ukrainian minors during the armed conflict (Article 28(b) of the Rome Statute).
The President of the ICC Piotr Hofmanski notes that such warrants are secret in order to protect victims and witnesses. However, according to representatives of the ICC, in this case, public awareness of the warrants can help prevent further crimes.
The official portal of the National Information Bureau “Children of War” considers a total of 16,226 Ukrainian children deported since the beginning of the full-scale invasion. At the same time, according to open sources, the Russian authorities claim the number of 744,000 deported children.
The issuance of an arrest warrant by the International Criminal Court against a sitting head of the state is a significant event in the international criminal justice area. In its substance, an arrest warrant is a decision of the Pre-Trial Chamber issued for the purpose of arresting and transferring a suspect of committing an international crime for further participation in the court proceedings, preventing the impediment to effective investigation and stopping the commission of an ongoing crime (Article 57 of the Rome Statute of the ICC ). All states that have ratified this international treaty (RS of the IСС) – i.e., 123 states, as well as other states at their will (such as the USA), are mandated to execute the warrant.
Below are the answers to some frequently asked questions regarding this decision:
a) Does this mean that Putin will stand trial?
Yes, he definitely will appear sooner or later. The ICC does not recognize the process in absentia (in the absence of the suspect), so the accused must participate in the trial in order to issue the verdict. An arrest warrant is one of the stages of ensuring the participation of such a person in court. The person receives the specific legal status of a suspect with a corresponding set of rights and obligations both for him and for the member states of the Court, as well as the international community in general.
There are no precedents for the extradition of the sitting head of state, although the ICC had issued warrants for their arrest. Although 123 states are required to execute an arrest warrant, there are no guarantees that they will, especially given the latest statements by the UN Secretary General. Thus, despite the legal basis for the arrest, it is currently impossible to say exactly when and how it will happen.
As history shows, the ICC’s warrant for arrest of the head of state has led to sad consequences for such official also in domestic politics, such as riots and murders (for example, Muammar Gaddafi). There is also another example: more than 10 years ago, the ICC issued a warrant for arrest of the then-president of Sudan, Omar al-Bashir, accused of mass murder. However, he participated in events in various states, some of which are members of the Rome Statute (including the African Union summit). As a result, no one has arrested him yet. A third option is also possible – there were two cases when the suspects appeared before the ICC voluntarily; these are the president and vice president of Kenya.
Currently, it is the political consequences that are important. The ICC has recognized that there is strong evidence of commission of war crimes by the military and political leadership of the Russian Federation. Most likely, this will mean isolation from international events, reduced contacts with other states, and refusal to sign direct agreements with a potential war criminal. Maintaining relations with the suspects will be a serious reputational threat, which only certain states that are either already outcasts or can afford their own course (for example, China) will accept.
Moreover, the decision of the ICC should affect the position of the Russian Federation in the UN Security Council. According to Article 27 (3) of the UN Charter, a party to a dispute shall abstain from voting on issues related to such dispute. The ICC Prosecutor Karim Khan’s statement contains a direct reference to the aggression of the Russian Federation and the existence of an armed confrontation between Ukraine and Russia. Therefore, further efforts should be made to eliminate the Russian Federation from voting and abusing the veto power, especially in light of the fact that starting from April 1, 2023, the state will preside over the Council.
b) What about the diplomatic immunity of the head of state?
References to diplomatic immunity from criminal prosecution in the so-called “triple” positions (the president, the head of the government, and the head of the Ministry of Foreign Affairs) provided for in sec. 2 of Art. 7 of the Vienna Convention on the Law of Treaties of 1969 are commonly cited. This has to do with the fact that Putin, Mishustin, and Lavrov cannot be tried within the national courts of any state due to their functional immunities.
In contrast to the national courts, the ICC does not recognize any official immunities if the case concerns commission of the most serious international crimes (Article 27 of the RS of the ICC). The immunities concepts that exist in international law do not dispute this; moreover, they extend the concept of punishment for the most serious crimes to ad hoc tribunals. This approach is a kind of the UN “intervention right” in the international criminal law and is recognized by the majority of civilized states of the world. More details.
с) But Russia did not sign the Rome Statute, how can they be prosecuted?
The Russian authorities indicated that they are not a party to the RS of the ICC, and that the decision is “null and void.” At the same time, some of its representatives threaten the ICC and its judges with physical violence, which is not surprising given the systemic violation of basic provisions of international law by this state. It is important that the Russian legal system gradually asserted the primacy of national legislation over international treaties, for example by allowing itself not to comply with the ECtHR decision; thus, even if it was part of this international treaty, this would hardly change anything.
Moreover, in 2000, the Russian Federation signed the Rome Statute of the ICC, but withdrew its signature in 2016. Despite non-ratification of the international treaty, the Russian Federation did not take a position of open confrontation with the ICC. By signing the Rome Statute, Russia agreed with the provisions of international law enshrined in it, and therefore, in accordance with Article 18 of the Vienna Convention on the Law of Treaties, it is required to avoid actions that deprive the treaty of its object and purpose. In addition, Russia took an active part in the development of the Rome Statute for decades (in the UN Commission on International Law, the Preparatory Committee for the Establishment of the International Criminal Court, the Rome Conference, the Assembly of States Parties, and even in the Special Working Group on the crime of aggression). The Russian Federation had every opportunity to express its sovereign will, so now its ability to refer to the involuntary imposition of obligations is quite limited.
At the same time, the Russian Federation actively participated in the creation of international criminal tribunals for Yugoslavia and Rwanda. During the adoption of Security Council Resolution 1593 (2005) regarding the transfer of the situation in Darfur to the ICC, the Russian representative Denisov never mentioned non-recognition of the jurisdiction of the Court, the immunities of the heads of state, or the violation of the principle of sovereign equality; instead, he fully supported the initiative. Indeed, four states abstained from voting whereas Russia voted in favor. More details.
d) Does this mean commission of the crime of genocide?
Currently, there such a qualification is not at issue, but this does not mean that it will not appear in the indictment. Furthermore, the Prosecutor of the ICC can initiate amendments to the arrest warrant even now, by changing or adding to the already specified crimes. It must be reminded that a week ago, an “information leak” in the New York Times had occurred that, in addition to the kidnapping of minors, also referenced indiscriminate attacks on civilian objects.
Unlike war crimes or crimes against humanity, where scale and systematicity are important, genocide must involve the intent to destroy, in whole or in part, one of the protected groups (racial, religious, national, or ethnic). In other words, it is necessary to prove the intent to partially destroy Ukrainians according to national criteria.
The facts of deportation of children, interfering in educational process, filtration camps, and elimination of patriotic Ukrainians in the occupied territories are evidence to this, and the Ukrainian authorities responsible for prosecuting international crimes (Office of the Prosecutor General, Ministry of Foreign Affairs, Ministry of Justice) are currently working to convey this position to the international organizations/institutions, states, and others. Thus, the situation regarding qualification of the crime is not final.
e) If the ICC demonstrates steps to bring Putin to justice, why does Ukraine talk about the need for a Special Tribunal?
No, there is not any contradiction here. The ICC should do its job (prosecuting Russia’s military-political leadership for war crimes, the crime of genocide, and crimes against humanity), and the future Special Tribunal should do its job – prosecuting for the crime of aggression (mother of other crimes, one that precedes them).
Unlike the other three international crimes, the crime of aggression was not included in the original version of the ICC Statute of 1998. Article 8bis appeared later, along with the Kampala Amendments of 2010, whose implementation mechanism is complex. In Ukraine’s case, it is necessary that either Ukraine and Russia ratify the RS of the ICC, or the UN Security Council defines the ICC’s jurisdiction on this issue. Neither the former nor the latter are possible for political reasons, so Ukraine is right when stating that “there are no other mechanisms of prosecution for the crime of aggression”. More details.