Declarations is back for season seven! In our second episode, host Neema Jayasinghe is joined by panellist Charlotte Duthie to discuss the contemporary race for justice in Ukraine with guest Dr. Felicity Gerry KC. The ongoing war in Ukraine has recently hit its year-long mark since the initial Russian invasion in February 2022. This episode will focus on discussing and evaluating the different avenues for achieving transitional justice for Ukrainians. Are Russian military leaders better dealt with by the international community, the Ukrainian judiciary, or a synthesis of the two? As a practitioner, Dr. Felicity Gerry KC offers a refreshing and optimistic insight into the capacity of international criminal and humanitarian law to prosecute such individuals in the future.
‘Optimism can be realistic, too.’Dr. Felicity Gerry KC
This episode opens with a brief explanation of the recent developments in Ukraine. Felicity states that a year on, data is emerging on the number of international crimes that are being committed in Ukraine. According to the Ukrainian Prosecutor General’s Office, these figures sit at a staggering 71,321 war crimes and crimes of aggression involving 639 military or political representatives of the Russian Federation. Such numbers elucidate an expansiveness that must be considered in efforts to truly achieve justice in Ukraine.
‘It’s a huge task to think about how law can cope with war.’Dr. Felicity Gerry KC
Tremendous international pressure has been placed upon both the International Criminal Court (ICC) and the Ukrainian judiciary to prosecute these crimes, even though both institutions have several jurisdictional and infrastructural restrictions in doing so. Felicity reasons that we must have some faith in the investigative capacity of the ICC which is evidenced by a history of experience in carrying out similar data collection. Simultaneously, Ukraine is doing its best to demonstrate that it is willing and able to carry out its own prosecutions, but it needs the assistance and expertise of the ICC. While this demonstrates a slight tension, it nonetheless shows that the capacity of these institutions to handle such cases exists.
This still leaves the question of which form the tribunal should take to achieve justice in Ukraine, be it domestic or international. Following the Second World War, the Allied Powers set up an international military tribunal in Nuremberg – the first of its kind – to specifically prosecute and punish prominent Nazi war criminals. In the Ukrainian context, there are scholarly debates on how successful a Nuremberg-style tribunal for crimes of aggression would be. From a very practical perspective, Felicity is sceptical of a tribunal that deals solely with crimes of aggression, whether it be in Ukraine or more generally.
‘I like the idea of domestic jurisdictions keeping their jurisdiction where they’re willing and able, and the ICC being supported, funded, and able to deal with international crimes itself.’Dr. Felicity Gerry KC
However, Felicity acknowledges that she is not in the position to effectively summarise the debates within war crime scholarship. Both Carrie McDougall and Kevin Jon Heller are mentioned as particular authors of interest in considering the advantages and drawbacks of ad hoc tribunals. Regardless, Felicity’s practical approach illustrates a reasoned doubt about the fragmentation of the international legal system.
In the past, hybrid tribunals have been utilised, such as the Bosnian War Crimes Chamber which famously supplemented the International Criminal Tribunal for the Former Yugoslavia. Thus, it may be plausible for a hybrid tribunal to be set up between the ICC and the Ukrainian judiciary. Felicity acknowledges that if there were to be an ad hoc tribunal, there is no reason that it should not be able to function in such a way. So long as the right security, people, and methods are used Felicity is rather optimistic about the proposal’s possibility. One particular caveat is the situation of the defence; Felicity reasons that the defence account for around 2% of the ICC’s current budget. Hence, it is of central importance that the tribunal used is balanced and fair to make it possible.
‘The defence is not treated equally to the prosecution.’Dr. Felicity Gerry KC
With such factors in mind, it becomes apparent that the creation of a suitable tribunal will not necessarily happen quickly. Both the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Tribunal for Rwanda are international tribunals that have been extensively criticised. In particular, commentators note lengthy case processing times, incredibly high running costs, and the fact that a minority of perpetrators end up facing punishment. Based on a historical lack of success, one may be tempted to conclude that there is no hope for achieving justice for Ukraine.
Felicity warns against such a mindset. Equipped with invaluable optimism, Felicity finds important takeaways in the supposed failings of previous ad hoc tribunals such as the ECCC. For example, it is significant to note that the tribunal also serves as an inquiry into the situation, rather than solely the prosecution and defence of individuals. These findings are longstanding and their documentation means that the occurrence of similar events should decrease over time. As such, this will ultimately assist in what Felicity calls a shift from ‘war to law’ that the international community must buy into.
‘A case may take forever, but that does not mean we should do nothing.’Dr. Felicity Gerry KC
A failure to push for justice in Ukraine would see the international community withdraw from the commitments it made following the Second World War. Many people are facing the deaths of family and friends, so to prematurely conclude that there is no hope for achieving justice for Ukraine would be incredibly harmful. As Felicity puts it, the numerous logistical difficulties for achieving justice pale into insignificance in light of the clear acts of aggression and international crimes being committed. Therefore, Felicity concludes that it is possible justice can be achieved for Ukraine and that the international community must step up and do so.
‘Whether it is a domestic criminal case or an international criminal case, it is important to look around the courtroom and ask where the women are when something is being negotiated.’Dr. Felicity Gerry KC
To conclude, Felicity highlights the importance of valuing women’s voices within the realm of peace and security. While there is of course a practical optimism regarding the pursuit of justice for Ukraine, the practical reality of women’s involvement must also be analysed.
Dr. Felicity Gerry KC is an experienced international barrister and professor of legal practice admitted in England, Wales, and Victoria (Australia). She has extensive experience in human rights cases being admitted to both the list of counsel for the ICC and the Kosovo Specialist Chambers in The Hague. Felicity has previously advised in relation to death penalty matters in Indonesia and the Philippines, on citizens held in Syrian camps, and on complicity in international criminal cases. As one of few women silks to defend in a terrorism trial, Felicity is a notable trailblazer within her field.
Charlotte Duthie is a final-year law student at Downing College, Cambridge. She has just returned from a year abroad in the Netherlands, with a research focus on the use of human rights law in the aftermath of mass atrocities. Having completed an internship at the ICC in The Hague, Charlotte is keen to highlight the issues surrounding transitional justice in the context of contemporary and historical crimes against humanity and war crimes.