Following numerous atrocities in Ukraine, a team of international law experts is offering a proposal for a special court in Ukraine to investigate and prosecute those responsible.
The Public International Law & Policy Group (PILPG), a non-profit co-founded by Case Western Reserve University School of Law Co-Dean Michael Scharf, is leading the effort. Under Scharf’s direction, PILPG has been working on the draft with legal experts from across the world—including in Ukraine.
“We’re seeing the wheels of international criminal justice turning,” Scharf said. “Ukraine needs to be equipped to fairly and effectively prosecute the coming flood of cases arising out of the conflict.”
Scharf is leading a presentation on Zoom—open to the public—at noon (7 p.m. Kyiv time) on July 22 to unveil and discuss a legislative proposal to create a High War Crimes Court of Ukraine to investigate and prosecute those allegedly responsible for war crimes. Among the panelists will be Stephen Rapp, former U.S. Ambassador for Global Criminal Justice, and Tetyana Antsupova, Judge of the Supreme Court of Ukraine. The event will be moderated by Paul Williams, president of PILPG.
In February 2022, Russian President Vladimir Putin ordered a full-scale invasion of Ukraine, leading to thousands of civilian deaths and massive destruction of Ukrainian cities. Scharf said the Russian military—and Russian-supported insurgents—committed numerous atrocity crimes, many in plain sight and captured on cell phones.
“There is an urgent need to initiate widespread prosecutions,” Scharf said, noting that the International Criminal Court (ICC) has opened an investigation and will likely prosecute a handful of high-level perpetrators of atrocity crimes committed in Ukraine.
Since the ICC does not have jurisdiction over the crime of aggression with respect to Ukraine, Scharf said there are proposals to establish a hybrid international or regional tribunal to prosecute high-level Russians for the crime of aggression currently under discussion. But because these international mechanisms are designed to prosecute a small number of individuals, experts recognize that most of the perpetrators will need to be prosecuted by domestic courts in Ukraine.
“Yet, history has shown that without international assistance and involvement, it is inherently difficult to fairly and effectively prosecute foreign nationals and insurgents in ordinary domestic courts during and in the aftermath of an armed conflict,” Scharf said.
To address this gap and facilitate fair and effective accountability for the atrocity crimes committed in Ukraine, PILPG, together with the New York-based international law firm Weil Gotshal & Manges and jurists and legal experts from Ukraine, prepared draft legislation for a High War Crimes Court for Ukraine to prosecute atrocity crimes.
Scharf said the legislation is modeled after the High Anti-Corruption Court for Ukraine established in 2019 and on best practices of internationalized domestic war crimes courts around the globe.
The main features of the draft legislation include: establishing jurisdiction over atrocity crimes and the crime of aggression in Ukraine since November 2013; appointing international advisers to the judges, prosecutors and defense; authorizing the presence of international trial observers; offering special measures to protect trial participants; and providing a mechanism for international funding.
