Currently, according to the latest data of the
General Prosecutor's Office, more than 32,000
war crimes have been registered, and this raises
questions about the ability of our national system
to cope with such a huge number of crimes and
to effectively conduct investigations (Bilous,
2022).
So, let's consider the previous practice of
resolving war crimes by the International
Criminal Court. Decision on the situation in
Kenya in 2011 (Case ICC-01/09-02/11-274,
2011). There were 2 pending cases related to the
situation in Kenya, but Kenya wanted to deal
with these two cases independently. The Kenyan
government approached the court from the point
of view that the International Criminal Court
recognizes the jurisdiction of Kenya and pressed
precisely on the principle of complementarity,
that the primary task of investigating and
prosecuting lies with Kenya as a state that "must
deal with itself". Kenya based its arguments on
promises to conduct an investigation in the next
3-4 months, but there was no concrete evidence
from the Kenyan government that the suspects
were being investigated. The decision of the
International Criminal Court (including the
Appeals Chamber) was based on the fact that the
Kenyan government must have something more
specific than just an intention to investigate now
or in the future (Bilous, 2022).
This confirms that Ukraine should work on the
effectiveness of war crimes investigations. It is
equally important to establish cooperation,
because the International Criminal Court
depends on cooperation and can cooperate with
civil society, and international organizations
(UN, Interpol, EU, International Committee of
the Red Cross).
An equally important body that investigates war
crimes is the UN criminal court. However, in the
conditions of international legal customs
regarding the immunity of states that have caused
damage by acts of aggression, genocide, and
military actions, there are certain difficulties in
bringing the guilty parties to justice in the
lawsuits of private persons of another state
regarding its compensation.
The decision of the UN International Court of
Justice in the case Jurisdictional Immunities of
the State, Germany v. Italy: Greece Intervening
(2012). The need to apply judicial immunity to
Germany by Italian national courts when
considering cases based on claims of victims
during the Second World War has been
recognized.
However, Italy and Greece have already shown a
willingness to waive immunity to the aggressor
state in disputes concerning damages. After the
decision of the International Court of Justice of
the United Nations, Italy refused to comply with
it. In 2014, the Constitutional Court of Italy noted
that in this case, the usual international rule of
immunity of foreign states entails an absolute
sacrifice of the right to judicial protection, since
it denies the jurisdiction of domestic courts to
resolve claims for damages brought by victims of
crimes against humanity and gross violations of
human rights. Moreover, in the constitutional
system, no overriding public interest can be
defined that can justify the sacrifice of the right
to judicial protection of fundamental rights that
have been violated as a result of serious crimes.
The immunity of a foreign state from the
jurisdiction of an Italian judge, granted by
Articles 2 and 24 of the Constitution, protects the
sovereign function of the state, but does not
protect behavior that is not a typical exercise of
government powers and is qualified as illegal, as
it violates human rights (Atamanova & Kobets,
2022).
So, as the analyzed practice shows, state
immunity can actually become a way of
protection and the result of impunity, and victims
are deprived of the opportunity to receive fair
compensation for the damage caused to them.
And that is why it is important to draw the
attention of society (other states) to the fact that
the presence of immunity should not mean
impunity of the state for committing war crimes.
Prospects for the activity of international courts
The following should be noted regarding the
prospects for the activities of international
judicial bodies.
A number of experts, in particular the chief
prosecutor of the International Criminal Court in
The Hague, Karim Khan, oppose the creation of
specialized tribunals to investigate certain war
crimes (in particular, the investigation of Russia's
crimes in Ukraine), given that the International
Criminal Court can itself effectively consider
war crimes. At the same time, the European
Commission intends to create a special court with
the support of the UN to avoid problems with
immunity for Putin (Voice of America website,
2022).
Also, there are some legal challenges to properly
prosecuting war criminals.
For example, Ukraine signed the Rome Statute in
2001 but has not yet ratified this international
treaty. One of the reasons is the decision of the