War crimes allegations: recommending a forum
This article provides guidelines for investigators, where they have concluded that a war crimes allegation requires further investigation, which judicial forum they recommend that it be referred to.
The jurisdiction in theatre (i.e. Ukrainian courts)
The jurisdiction of the defendant (e.g. Russia - although this may or may not be suitable in different cases)
A third party jurisdiction that has so-called "universal jurisdiction" rules to try war crimes cases irrespective of where the crimes were committed or by whom (three examples of these are the United Kingdom, Belgium and Spain).
As a last resort, the International Criminal Court in The Hague.
There are no concrete rules for deciding which forum is best, but here are some principles to consider:
1. If victim and defendant are from different belligerent countries, then an accusation that the courts of either such country are biased to hear a war crimes case is highly likely.
2. If defendant and victim share a nationality, then the courts of that country are likely to be attractive.
3. If either defendant or victim have another nationality where the courts have universal jurisdiction over war crimes cases, that may be a desirable jurisdiction.
4. If the jurisdiction in theatre accepts to establish internationally managed war crimes courts, then that may be the best venue for the majority of cases. So far Ukraine has not agreed to this; it might be considered an important term of a peace agreement.
5. The ICC in The Hague has very limited capacity and only the most serious war crimes allegations may be referred there.
6. Trying war crimes takes many years after the conclusion of the war.
7. International ad hoc war crimes courts, such as those established in adjacent countries (in this case perhaps Moldova, Belarus, Hungary or Slovakia), have had acceptable results in the aftermath of some wartime situations and more consideration should be given to them.
8. Another option is hybrid courts in border zones (e.g. three Judges sitting in a court in Donetsk or Luhansk: one Ukrainian, one Russian and one from a third country with a similar legal tradition as those two countries).
9. Because the International Criminal Court is a jurisdiction of last resort where no other courts are apparently appropriate to accept jurisdiction; and because most war crimes being investigated by The PALADINS are of a grave nature, if we are of the view that a war crime allegation is deserving of further enquiry and no other court obviously presents itself as a potentially fair jurisdiction, then as a rule we will recommend referral to the ICC. However such recommendations will be subject to review as the war crimes court architecture for the war in Ukraine gradually emerges.
10. In particular, where new agreements or resolutions on war crimes trials emerge in the course of international diplomacy, we may undertake wholesale review of all forum recommendations where we have recommended further action or investigation on specific war crimes allegations.
There is no perfect solution to how to try war crimes, and it is inevitably to a degree of a moveable feast.