International Criminal Law and Russia: From ‘Nuremberg’ Passion to ‘The Hague’ Prejudice

Abstract

This essay outlines the history of international criminal law scholarship in Russia. I use a politically based explanation of the changing positive and negative attitudes regarding international criminal law, and show that the discourse on these issues in contemporary Russia is subject to serious political pressure. Changing such a situation is a difficult but essential task, mainly because of the over-riding need to free current scholarship from political control.

Notes

¹ ‘Voinskii ustav o nakazaniyakh’ (St Petersburg, V tipografii Vtorogo Otdeleniya Sobstvennoi E. I. V. Kantselyarii, 1868).

² The Martens Clause first appeared in the preamble to the Convention with Respect to the Laws and Customs of War on Land (Hague II) (1899). It was repeated in the preamble to the Convention Respecting the Laws and Customs of War on Land (Hague IV) (1907). The latest codifications of this clause were Article 1(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977). It is also incorporated into paragraph 4 of the preamble to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977). All documents are available at: https://ihl-databases.icrc.org/ihl/, accessed 29 August 2017. See Ticehurst (1997), Pustogarov (1999), Meron (2000), Giladi (2014). Fyodor Martens was born Friedrich Fromhold von Martens in 1845 in Pernov, then part of the Russian Empire, today Pärnu, Estonia. Martens’ legacy belongs to both Russia and Estonia. As Lauri Mälksoo states, ‘Martens represented a distinctively European voice in Russia’s international law—to the extent that we can ask whether he represented Russia in Europe or, rather, Europe in Russia’ (Mälksoo 2012, p. 1149). See also Pustogarov (2000), Mälksoo (2014).

³ See especially Rudenko et al. (1957–1961), Poltorak (1966), Rekunkov et al. (1987–1999), Ledyakh and Lukashuk (1995). It has also been the subject of some films. Sud narodov is the title of the first Soviet documentary film about the Nuremberg trial (director Roman Karmen, 1947).

⁴ See ‘Permskii kraevoi sud, delo No. 2-17-16’, 30 June 2016 (sentence), affirmed by the Supreme Court of the Russian Federation, delo No. 44-АПУ16-17, 1 September 2016, available at legal database ConsultantPlus, available at: https://www.consultant.ru/, accessed 29 August 2017.

⁵ Izvestiya, 24 June 1941, No. 147.

⁶ According to Justice Lawrence, ‘incidentally, the United States, the Soviet Union and Great Britain had already declared their intention of punishing the crimes that Germany had committed. There were, I suppose, three possible courses: to let the atrocities which had been committed go unpunished; to put the perpetrators to death or punish them by executive action; or to try them …. What would have happened if Great Britain and the United States had refused to participate in any form of punishment? Would they have done any good by refusing to act with their Allies? It was inevitable then, it seems to me, that punishment should be meted out and, if so, it surely was right that it should be after a trial which was intended at any rate to be fair’ (Lawrence 1947, pp. 151–52).

⁷ See also Sellars (2013, pp. 48–9). Trainin (1937) and all of his subsequent works referred to in this article were republished in Trainin (2004).

⁸ For a work that performs the same gradual move, see also the legal but partly political work of Shargorodskii (1947).

⁹ For example, Karpets’ discussion of terrorism encompasses 35 pages; 26 pages are devoted to terrorism, the characterisation of terror organisations, and political statements of the USSR on this matter. As for proper legal analysis, he confesses that he gives a ‘narrative’ description to this crime (Karpets 1979, p. 90). Hijacking is explained over eight pages but the legal aspects take only two (Karpets 1979, p. 99–106).

¹⁰ Available at: https://www.consultant.ru/document/cons_doc_LAW_10699/, accessed 29 August 2017.

¹¹ ‘Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948’, United Nations Treaty Series, available at: https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf, accessed 29 August 2017.

¹² ‘Rome Statute of the International Criminal Court. Rome, 17 July 1998’, Volume 2187, United Nations Treaty Series 3, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187.pdf, accessed 29 August 2017.

¹³ For example, see Rarog (2009, pp. 685–89)

¹⁴ Hereinafter, the original English version of the official statements is preserved.

¹⁵ See ‘Comment of the Information and Press Department of the Ministry of Foreign Affairs of Russia in Connection with Passing of the Acquittal by the ICTY in the Case of R. Haradinai’, Ministry of Foreign Affairs of the Russian Federation, 30 November 2012, available at: https://www.mid.ru/en/foreign_policy/position_word_order/-/asset_publisher/6S4RuXfeYlKr/content/id/132494, accessed 29 August 2017.

¹⁶ See ‘Comment by the Information and Press Department of the Russian Ministry of Foreign Affairs Regarding the Decision by the ICTY to Temporarily Free Vojislav Šešelj’, Ministry of Foreign Affairs of the Russian Federation, 14 November 2014, available at: https://www.mid.ru/en/kommentarii/-/asset_publisher/2MrVt3CzL5sw/content/id/791085, accessed 29 August 2017.

¹⁷ Notable exceptions are Antonov (2013) and Vaipan (2011).

¹⁸ See ‘Comment by the Foreign Ministry on the Proposed Establishment of an International Tribunal to Prosecute those Suspected of Downing Malaysia Airlines Flight MH17 over Ukraine’, Ministry of Foreign Affairs of the Russian Federation, 14 July 2015, available at: https://en.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/1571119, accessed 16 July 2015.

¹⁹ See ‘Vystuplenie Postoyannogo Predstavitelya Rossii pri OON v N’yu-Iorke V.I. Churkina na zasedanii Soveta Bezopasnosti v svyazi s rassmostreniem dokladov Mezhdunarodnogo tribunala po byvshei Yugoslavii i Mezhdunarodnogo tribunala po Ruande 4 iyunya 2008 goda’, Ministry of Foreign Affairs of the Russian Federation, 5 June 2008, available at: https://www.mid.ru/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/335280, accessed 16 July 2015.

²⁰ A notable exception is a paper by Mezyaev that denies the factual evidence of genocide in Rwanda (Mezyaev 2014, p. 203).

²¹ See ‘Brifing ofitsial’nogo predstavitelya MID Rossii A.A. Nesterenko, 21 iyulya 2009’, Ministry of Foreign Affairs of the Russian Federation, 21 July 2009, available at: https://www.mid.ru/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/798036, accessed 29 August 2017.

²² See ‘Po kakomu pravu. Sergei Lavrov: Ugrozy primenit’ silu protiv Sirii ostro stavyat vopros o normakh mezhdunarodnogo prava’, 10 October 2013, available at: https://rg.ru/2013/10/09/lavrov1-site.html, accessed 29 August 2017.

²³ Mälksoo states that Russian scholars do not specify constitutional problems with regard to the Rome Statute (Mälksoo, 2015, p. 138); however, some constitutional obstacles to the ratification of the Rome Statute have indeed been identified by a number of scholars (Vasiliev & Ogorodova 2005, pp. 198–200, 221–24; Abashidze 2009, p. 507; Tuzmukhamedov 2009, pp. 534–36, 539; Oivin 2009, pp. 552–57; Vedernikova 2010).

²⁴ See ‘Brifing ofitsial’nogo predstavitelya MID Rossii A.A. Nesterenko, 24 noyabrya 2009’, Ministry of Foreign Affairs of the Russian Federation, 24 November 2009, available at: https://www.mid.ru/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/272302, accessed 29 August 2017; ‘Interv’yu Stats-sekretarya—zamestitelya Ministra inostrannykh del Rossii G.B. Karasina, ITAR-TASS, 23 iyulya 2009’, Ministry of Foreign Affairs of the Russian Federation, 23 July 2009, available at: https://www.mid.ru/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/284750, accessed 29 August 2017.

²⁵ See ‘Interv’yu predsedatelya Sledstvennogo komiteta RF Bastrykina A.I. “Rossiiskoi gazete”’, Investigative Committee of the Russian Federation, 28 April 2015, available at: https://sledcom.ru/blog/bastrikin/item/920274, accessed 16 July 2015.

²⁶ The decision authorises an investigation into the crimes within the ICC jurisdiction which were allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. The vigorous, negative reaction of the Russian authorities was also prompted by the statement in the decision that ‘the potential case in relation to the attack against Russian peacekeepers [was] inadmissible’ because ‘ongoing national proceedings carried out so far by the Russian authorities reveal neither unwillingness nor inability on the part of the State’; Decision on the Prosecutor’s request for authorisation of an investigation, Situation in Georgia (ICC-01/15–12), Pre-Trial Chamber I, 27 January 2016, para. 50.

²⁷ Fatou Bom Bensouda is the chief prosecutor of the International Criminal Court.

²⁸ See ‘Briefing by Foreign Ministry Spokesperson Maria Zakharova, 29 January 2016’, Ministry of Foreign Affairs of the Russian Federation, available at: https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2039123, accessed 1 February 2016.

²⁹ See ‘Interv’yu predsedatelya Sledstvennogo komiteta RF Bastrykina A.I. “Rossiiskoi gazete”’, Investigative Committee of the Russian Federation, 28 April 2015, available at: https://sledcom.ru/blog/bastrikin/item/920274, accessed 16 July 2015.

³⁰ See ‘Interv’yu predsedatelya Sledstvennogo komiteta Rossiiskoi Federatsii A. I. Bastrykina “Rossiiskoi gazete”’, Investigative Committee of the Russian Federation, 17 February 2016, available at: https://sledcom.ru/press/interview/item/1012057/, accessed 9 March 2016.

³¹ See paras 158, 169 in Report on Preliminary Examination Activities. 2016, 14 November 2016, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf, accessed 19 November 2016.

³² See ‘O namerenii Rossiiskoi Federatsii ne stat’ uchastnikom Rimskogo statuta Mezhdunarodnogo ugolovnogo suda’, Decree of the President of the Russian Federation, 16 November 2016, No. 361-rp, available at: https://rg.ru/2016/11/18/statut-dok.html, accessed 29 August 2017.

³³ See ‘Statement by the Russian Foreign Ministry’, Ministry of Foreign Affairs of the Russian Federation, 16 November 2016, available at: https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2523566, accessed 19 November 2016.

³⁴ Several notable examples are necessary. A textbook on international criminal law published in the early 2000s (ca. 300 pages) (Inogamova-Khegai 2003) did not contain any references to the case law of the ICTR or ICTY or to scholarly works published abroad. Another modern textbook (ca. 500 pages) (Naumov et al. 2015) contains several dozen references to case law (against hundreds in the Western textbooks) and to scholarly works published abroad (against hundreds of Russian works). This approach at the least distorts the true content and the legal, judicial, and scholarly sources of international criminal law for Russian students. The situation is much the same with textbooks and legal literature on other areas of international law. The isolationist policy of the Soviet time and the lack of English or French language skills led to a form of teaching on international law in general that was separate and closed off from foreign colleagues. The situation is now better, but only because of the widespread involvement of the Russian judiciary and law enforcement bodies in the procedures and practices of the European Court of Human Rights.

³⁵ China is an interesting case. In spite of voting against the Rome Statute in 1998, China generally supports the ICC’s activity (Muller 2013, pp. 242–52). In any case, Chinese scholars are mostly oriented towards the ICC. They even criticise their own government for its position of potentially barring new generations of lawyers from studying international criminal law institutions (Jia 2006, pp. 93–4) because ‘China should participate in it in order to protect its national interests’ (Jianping & Zhixiang 2005, pp. 618–19). In Russia, ignorance of international criminal law will eventually lead to the inability of Russian lawyers to provide the legal assistance that may be necessary for Russian citizens presumably involved in war conflicts in Georgia and Ukraine.