Gennady Esakov. Europe-Asia Studies. Volume 69, Issue 8. October 2017.
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.
Historically, there have been several notable names and events in the field of international criminal law originating in Russia. Before the widespread recognised criminalisation of war crimes starting in the middle of the twentieth century, the Russian Imperial Military Law on Punishments (Voinskii Ustav o Nakazaniyakh) of 1868 provided punishment for the following: imposing an unauthorised indemnity on residents of localities under military occupation or increasing legally imposed indemnities without authorisation (Section 267); robbing enemy wounded or dead soldiers (Sections 273, 274); and marauding (Section 275). In 1868, 1874, and 1899, conferences on the laws of war were convened following Russian initiatives. ‘The Martens Clause’ was named in memory of Russia’s Professor Fyodor Martens, who proposed it in 1899. Subsequently Russia was a party to the Nuremberg and Tokyo trials but later in practice abandoned this area of international law. For the contemporary global community of international criminal law scholars and practitioners, Russian legal views on this theme are, for the most part, terra incognita.
Scholarship and discussion about international criminal law issues in contemporary Russia is under serious political pressure. In explaining Russian attitudes towards international criminal law to date, I will refer to changing political relations between Russia and the West: the period of warmth during the Nuremberg trial, the Cold War, the brief thaw during the 1990s, and the ongoing ‘new Cold War’. The legal analysis of international criminal law in Soviet times was influenced by political and ideological considerations, a tendency that continues to this day. This essay provides an analysis of Russian legal scholars’ attitudes toward international criminal law and justice institutions. It plots the history of international criminal law in three parts: the combined Nuremberg and Cold War epoch; the ad hoc international criminal tribunals since the 1990s; and the International Criminal Court.
The Nuremberg Trial and the Cold War: From Cooperation to Negation
To date, the Nuremberg trial conducted by the International Military Tribunal between 1945 and 1946 has been regarded as the greatest achievement of Soviet diplomacy and its international criminal law theory (Ledyakh & Lukashuk; Mälksoo, pp. 138-39; Ispolinov, pp. 36-46). The second major war crimes trial, the Tokyo trial (the International Military Tribunal for the Far East) in 1946-1948, has been less studied in Russia and thus there are only a few books written on it (Smirnov & Zaitsev; Raginskii). In a recent textbook on international criminal law, the history of the Nuremberg trial encompasses 35 pages, whereas the Tokyo trial is covered in one page (Naumov et al., pp. 406-42). This may be explained by the relatively low relevance of the Far East and the Pacific military campaigns of 1941-1945 to the USSR: military operations were conducted outside Soviet territory and Soviet casualties were insignificant (about 12,000) compared to the millions of deaths in Europe. The approach adopted by scholars is the same for the Nuremberg trial although they made an ‘inestimable contribution to the form and substance of international criminal law’ (Heller, p. 400).
The voluminous literature on the Nuremberg trial includes hundreds of articles in Russian. The trial is praised as ‘the trial of nations’ and as a ‘triumph of forces of reason, democracy and progress’ (Rekunkov et al., p. 84). In the Russian-speaking world, this produces the impression that the Nuremburg trial has been the only truly impartial international criminal tribunal to date. Sometimes the language of Russian works implies that the Nuremberg trial cannot be criticised even on insignificant matters (Sukharev; Berlyavskii).
The final step in immortalising the results of the Nuremberg trial was made in Russia in 2014 when the Criminal Code of 1996 was amended by the new Section 354.1, which imposes sanctions (a fine or imprisonment of up to three years) for ‘exculpation of Nazism’ (reabilitatsiya natsizma), that is,
denial of facts established by the judgement of the International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis, or approval of crimes, established by the said judgement, or dissemination of knowingly false information about the USSR’s activity during World War II, if these deeds are committed in public.
The aggravated form provides for liability including up to five years’ imprisonment for the same deeds committed by a person in an official capacity, through the media, or by the creation of false evidence. There are serious concerns about the new amendment because it may be used in the future as a tool for limiting historical and critical research regarding the events of World War II. The new section has been applied several times in criminal investigations. For example, in 2016 a sentence based on Section 354.1 of the Criminal Code, was delivered in Perm and affirmed by the Supreme Court. It became the subject of intense discussion in the media and legal community. As stated in the court’s sentence, a 38-year-old man posted a comment on the social network site, VKontakte, the Russian version of Facebook, which included statements to the effect that World War II was launched by Nazis and communists together, that both cooperated closely, and that the USSR invaded Poland in September 1939. The court held that all these statements constituted a ‘denial of facts established by the judgement of the International Military Tribunal’ and ‘dissemination of knowingly false information about the USSR’s activity during the Second World War’ as provided for in Section 354.1 of the Criminal Code. The sentence and the appeal judgment have been criticised for contravening freedom of expression and the admissibility of critical historical research (Bogush & Nuzov).
Certainly, there has been a strong basis for admiring the Nuremberg trial from a Russian perspective. As early as 22 June 1941, the People’s Commissioner for Foreign Relations (Narodnyi Komissar Inostrannykh Del), Vyacheslav Molotov, responded to Germany’s aggression by stating that ‘all liability for this bandit attack on the Soviet Union will fully and in whole rest on German Nazi rulers’. Between 1941 and 1945, the Allies routinely condemned the atrocities committed by the Nazis and promised to punish them (Rekunkov et al., pp. 85-132; Hirsch). According to Mälksoo,
One particular point that is popular in Russian literature is that it was the USSR that insisted on putting the Nazis on trial, even when the Western allies were hesitant. The general narrative is that in World War II ‘democratic forces’, i.e., including the USSR, became united against the Axis powers. (Mälksoo, pp. 138-39)
There is some evidence that the British and US authorities in 1944 were ready to punish the Nazis without legal procedures (Helfman, pp. 355-60; Cassese et al., pp. 255-56). At the end of war, each of the Allies had a different reason for supporting a trial of the Nazis. In Russian academic circles, most aspects of the Nuremberg trial have been studied in great detail, although some areas have been deliberately omitted. On the one hand, much of the literature has focused on purely legal issues pertaining to the Nuremberg trial, and in places, readers might have the impression that international criminal law today is the same as it was in the mid-1940s (Inogamova-Khegai, pp. 199-200, 203-4, 216-17; Skuratova, pp. 83-93; Kostenko, pp. 83-8, 143-50; Naumov et al., pp. 439-41). On the other hand, there are omissions, related in particular to the Molotov-Ribbentrop Pact of 23 August 1939, the invasions of Poland and Finland in 1939, the killing of Polish officers in Katyn in 1940, and the annexation of the Baltic states in 1940 (Bogush, pp. 382-85; Määlksoo, p. 138). This ambiguity may be easily explained. Being the highest point in the USSR’s achievements in the arena of international criminal law, the Nuremberg trial was at the same time a failure. The three full acquittals, only a life sentence instead of the capital punishment required by the prosecution for Hess, and the non-imputability of the Katyn massacre to the Nazis changed the essence of the matter from legal to political.
This change is clearly indicated in the writings of Aron Trainin, professor of criminal law at Moscow University in the period 1921-1952 and the leading Soviet expert in international criminal law during the preparatory stage and the Nuremberg trial. In 1935 he published a book, Ugolovnaya interventsiya (Criminal Intervention) the title of which was deliberately chosen to show the attempts of the ‘capitalist’ world to intervene in the Soviet Union’s internal matters, not by force but by the movement for harmonisation of criminal legislation. Besides political criticism directed at the attempts of the League of Nations to develop detailed conventions on terrorism, piracy, and drugs, Trainin also proposed his own criminal concepts of liability for these crimes and international crimes in general (Trainin, pp. 43-4, 46-9). He elaborated these ideas further in later publications where he criticised the absence of relevant criminal law provisions on an international as well as a national level (Trainin). Following Germany’s aggression against the USSR in 1941, Trainin’s criticism moved into the practical sphere. In 1944-1945, he published a series of notes on the Nazi’s criminal responsibility and on the Nuremberg trial (Trainin). Firstly, he rejected the criminal liability of a state as such. Next, he proposed to divide all guilty persons into ‘ordinary’ perpetrators who might be convicted of such crimes as murders and rapes, and ‘high officials’ responsible for aggression, terror, violation of international obligations, and war crimes. He also discussed general questions of liability such as obedience to superior orders and conspiracy. In 1945, Trainin took an active role in the drafting of the International Military Tribunal Charter and was an academic adviser to the Soviet prosecution team. His ideas on crimes against peace (namely, the waging of aggressive war) and conspiracy clearly influenced the Charter (Hirsch, pp. 703-10; Sellars, pp. 49-52, 55-8, 109-10), although the scale of such influence is still debatable. His final series of notes on the Nuremberg tribunal (Trainin) provided an exhaustive legal analysis of the trial’s subject matter, although it should be said that such proper academic legal analysis was not unknown in the Soviet literature of the time (Shargorodskii; Piontkovskii). However, after the judgment, Trainin moved from legal to political arguments. The acquittals were described as biased decisions, and the dissenting opinion of Soviet Judge Iona Nikitchenko related to the three full acquittals and life sentence for Hess, was highly praised (Trainin). The series of notes was concluded by a remark which came to be always associated with Trainin: ‘in Nuremberg the world was again convinced that when it is necessary to hear the clear and strong voice in defence of democracy and peace then the Soviet representative is speaking’ (Trainin, p. 687).
In Trainin’s last book (Trainin), the legal analysis was limited to the Charter and the judgment of the Nuremberg tribunal, and all new proposals related to the creation of permanent international criminal tribunals were criticised as false and anti-communist in nature. The Western theory of international criminal law was characterised as ‘capitalist’ and ‘outdated’ and former Western allies were accused of having a tolerant policy regarding the Nazis (Trainin).
The abovementioned failure in Nuremberg and the advent of the Cold War moved the legal literature on international criminal law from cooperation to condemnation. As Mälksoo recollects, ‘[my] first encounter with (post-)Soviet approaches to international law may have been when my criminal law seminar teacher at Tartu University authoritatively declared, around 1994, that there was no (or could not be) such a “thing as international criminal law”‘ (Määlksoo, p. 30).
The approach to international criminal law in Soviet doctrine was not necessarily consistent. Firstly, there was disagreement as to the nature and status of international criminal law. The majority of scholars admitted its existence as part of general international law (Shargorodskii; Stepanenko). However, a minority considered that the absence of international criminal justice institutions confined international criminal law to scholarly discourse (Galenskaya), or accorded it a separate independent status from international law (Karpets, pp. 22-7). Secondly, the range of application of international criminal law was subject to debate. Since every scholar would normally include matters related to jurisdiction, extradition, and asylum in international criminal law, this raised general questions about the sources of this law, its structure, its relation to national criminal legislation, complicity, fault, inchoate crime and punishment (Karpets). The crimes actually covered by international criminal law were a matter for dispute. The majority position divided all such crimes into two groups, namely ‘international crimes’ and ‘crimes of an international nature’ (Karpets, pp. 31-53; Stepanenko). ‘International crimes’ were limited to deeds committed by senior officials of the state responsible for its policy; the necessary element of this crime was a nexus between the state’s criminal policy and the deeds committed. ‘Crimes of an international nature’ were defined as deeds affecting international relations but not connected to the state’s policies (for example, transnational pornography, money counterfeiting, hijacking, and piracy). Thirdly, the discussion of international crimes and, more generally, international criminal law, was politically shaped. For example, Karpets declared the following attitudes and ideas: international criminal law is a tool for suppressing the international communist movement; Western scholars are politically biased; international criminality is a phenomena of capitalist society with its monopolies, transnational corporations and influence on new states in Africa and Asia (Karpets, pp. 15-9, 54-63).
Eventually Russian legal scholars concentrated on the remembrance of the Nuremberg trial at the same time as shielding themselves from what, in their opinion, was the ‘anti-communist’ development of international criminal law in the West. Idolising the Nuremberg trial, demonising the Western capitalist system of justice, and accusing the West of attempting to launch a new war comprised the mainstream mode of thinking (Romashkin). This shift led to a simplification of legal analysis whereby practically all norms and constructs of international law were declared ‘anti-communist’, and were discussed in narrative and political terms, without any historical, comparative, or international research.
Until the end of the 1980s, Russian scholarship on international criminal justice was more political than legal. The development of a clearly defined conception of international criminal law was politically stymied and therefore did not develop in Soviet times. Social changes in Russia and the re-emergence of international criminal law took place simultaneously in the early 1990s. Whether this coincidence was a happy one or not will be discussed in the next section.
The Views of Ad Hoc International Criminal Tribunals as Politically Biased Institutions
Large-scale changes in Russia in the early 1990s led to a renewal of legislation, including the Criminal Code enacted in 1996. The preparatory work began in the 1980s (Kelina & Kudryavtsev). For the first time, the Code contained international criminal law provisions, in Chapter 34, ‘Crimes against peace and mankind’s security’. This chapter contains ten crimes originating mainly from the Nuremberg epoch and international humanitarian law treaties ratified by Russia (Naumov, pp. 807-13).
Chapter 34 of the Criminal Code provides liability for planning, preparing, unleashing, or waging an aggressive war (Section 353); public appeals to unleash an aggressive war (Section 354); the exculpation of Nazism (Section 354.1); the development, manufacture, stockpiling, acquisition, or sale of mass-destruction weapons (Section 355); the use of banned means and methods of warfare (Section 356); genocide (Section 357); ecocide (Section 358); mercenarism (Section 359); assaults on persons or institutions enjoying international protection (Section 360); and international terrorism (Section 361). The Code does not criminalise ‘direct and public incitement to commit genocide’ (provided for in Article III(c) of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 ratified by the USSR in 1954) or crimes against humanity as a separate crime. Section 356, which criminalises the violations of international humanitarian law and has been compared with the detailed Article 8 of the Rome Statute that established the International Criminal Court in 2002, is a highly abstract norm which describes prohibited acts by referring to a massive body of treaty law. The history and body of international humanitarian law are embodied in the lines of Section 356 which provides liability for ‘cruel treatment of prisoners of war or civilians, deportation of civilian populations, plunder of national property in occupied territories, and use in a military conflict of means and methods of warfare, banned by an international treaty of the Russian Federation’. This section draws on the Hague and Geneva conventions, but does not differentiate between international and non-international armed conflicts and leaves unpenalised those acts prohibited under customary international law. Moreover, it is presumably unconstitutional because it is inconsistent with the principle of nullum crimen sine lege certa (no penalty without a defined law) (Esakov, pp. 51-2, 63-4). Provisions concerning universal jurisdiction (Section 12) and statutes of limitations (Sections 78, 83) are the only provisions originated from international criminal law in the general part of the Code. In standard Russian legal textbooks, this chapter is held in high regard, because on the basis of its provisions the Code ‘practically implemented international norms creat[ing] crimes in full’ (Lukashuk & Naumov, p. 27). However, in the 20 years since the Code’s enactment, this view seems overly optimistic. Even in 1996, this chapter did not implement international criminal law in full following Russia’s international obligations. Today, after the rapid development of international criminal law during the last few decades, its provisions are outdated for the abovementioned reasons.
In the same period that international law was being included in Russia’s revised Criminal Code, there was a broader revival of international criminal law mainly caused by the tragic events in Rwanda and Yugoslavia in the 1990s (Werle, pp. 14-8; Ambos, pp. 19-23). Initially, Russia supported the creation of ad hoc tribunals for Rwanda and Yugoslavia by United Nations Security Council Resolutions 955(1994) and 827(1993), respectively. However, even before these tribunals began their active work, political attitudes in Russia changed. The continuing violence in the former Yugoslavia; the defeat of Serbia, a close political ally of Russia; the NATO bombing in 1999; and Kosovo’s subsequent independence crystallised the official Russian position that the International Criminal Tribunal for the former Yugoslavia (ICTY) was an unjust and biased institution. Russia’s ongoing opposition to the ICTY in the Security Council escalated with each ‘wrong’ (in Russia’s opinion) conviction and acquittal in the ICTY. Russia’s critical attitude towards the ICTY is evident in its official statements as published online, of which two examples are given below:
On November 29 the International Criminal Tribunal for the former Yugoslavia (ICTY) after the repeated hearings acquitted on all charge counts of the former commander of ‘Kosovo Liberation Army’ R. Haradinai and members of his entourage …. The verdict together with the recent justification of Croatian generals A. Gotovina and M. Markach is the further evidence of selective justice, when the person accused of committing crimes against humanity and war crimes remain unpunished. We think that the state of affairs in the ICTY is unsatisfactory. The term allotted to this body expires, and Russia intends to pursue the completion of the Tribunal activities in the terms established by the UN Security Council Resolution of 1966 (2010).
The case of Vojislav Šešelj is a good example of the existing negative trend to draw out judicial proceedings by the Tribunal. The duration of judicial proceedings by the ICTY, as in the case of Vojislav Šešelj, is evidence of many systemic gaps in the Tribunal’s activities, which, among other things, lead to gross violations of rights of the convicted to fair judicial proceedings and standards of proper legal procedure. Russia believes that the ICTY must complete its actions within the deadlines set by the UN Security Council.
These political narratives have been reflected in the academic world. Although initially there was a widespread positive attitude to international criminal law in Russia in the 1990s (Kudryavtsev; Lukashuk & Naumov), this rapidly changed into a critical one. However, this critique is mostly political rather than legal: such as criticism of the ICTY’s aims, its ineffectiveness (Naumov, pp. 37-8); its political bias against the Serbs (Dzhatiev & Kotyash; Naumov, pp. 37-8; Grigor’ev & Antonov) and what is regarded as its ‘killing’ of Slobodan Milošević (Dzhatiev & Kotyash). Some scholars consider the ICTY as an illegally created institution (Asatur, p. 286; Vedernikova, p. 49; Boyashov, pp. 485-86). Discussion of strictly legal issues and profound criticism of the ICTY’s activity is missing from these accounts, and more positive views on the tribunal are in the minority (Mikhailov; Egorov). As Sergei Egorov (a former Russian ICTR judge) carefully points out, accusations as to the tribunal’s activity ‘mainly are of a political nature. There are of course faults in the practice of the ad hoc tribunal, and … impartial critical analysis of conducting concrete trials … might be more persuasive in revealing defects of justice procedures in the ICTY’ (Egorov, p. 596).
This conclusion about the political nature of the scholarly approach is further supported by examining discussion which is more positive with regard to other international and hybrid tribunals such as the Rwanda tribunal (Egorov), the Special Court for Sierra Leone (Marusin; Skuratova; Rabtsevich; Egorov), and the Cambodian chambers (Rabtsevich; Kayumova; Lysov; Egorov). These institutions are far removed from Russian political interests and are either approved or (albeit rarely) condemned depending on the political situation.
An interesting example of selective criticism is the official position of Russia on the creation of an international tribunal to prosecute those suspected of downing Malaysia Airlines flight MH17 over Ukraine in 2014 and the adoption of a UN Security Council Resolution under Chapter VII of the UN Charter. Deputy Foreign Minister Gennady Gatilov stated:
The proposal for an international tribunal on the MH17 disaster was untimely and counterproductive … the idea of establishing international tribunals by decision of the UN Security Council, which many states and the expert community have sharply criticised, is based on a questionable principle. Unfortunately, the existing international tribunals, including the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), provide a solid basis for this scepticism, as their activity has been ineffective, expensive, is taking too long and is extremely politicised. These judicial bodies have been in existence for over 20 years, but they have not provided any acceptable results of their activity.
And yet, seven years previously, in 2008, the Russian representative in the Security Council, Vitalii Churkin, had praised the activity of the ICTR.
Academic references to the practices of other international and hybrid tribunals are more positive in a political sense, but these refer only in a general fashion to the activities of these tribunals and avoid any detailed legal analysis.
The International Criminal Court and a Missed Opportunity
Russian representatives took part in the preparatory proceedings of the Rome Statute, which Russia signed on 13 September 2000. Up until 16 November 2016, the government’s position was unclear and varied depending on the situation. Initially, Russia supported the ICC, but the government was waiting to gauge its effectiveness and prepare national legislation for ratification:
The Russian Federation attaches priority significance to establishing an effective system of international criminal justice and the International Criminal Court (ICC) is designed to occupy one of the key positions in it …. Strategically Russia is interested in becoming a fully fledged party to the Rome Statute. The issue consists of determining the optimal modalities and date for us to join this international treaty. On the President’s instruction the proposals on bringing Russian legislation into conformity with the norms of the Statute are being studied. It is already obvious that we will have to make some changes to national legislation so that it does not come into conflict with the requirements of the Rome Statute. This work calls for specialised Russian ministries and departments to work out balanced and comprehensive decisions with the object of ensuring subsequent effective participation of our country in the system of international criminal justice. Apart from this, we are closely following the results of the consideration of the first cases by the ICC. It is crucial for us that the Court shows itself to be a truly universal judicial mechanism devoid of any political bias or partiality. A decision on participation by the Russian Federation in the Rome Statute will be taken based on these factors.
As to ad hoc tribunals, these are about criminal international cases, which judge persons accused of committing crimes against humanity and military crimes. We expect that the practice of activity of these tribunals is still far from the ideals of justice. In many cases they have indulged in political engagements, low quality sentences, long and very costly proceedings. This is primarily about the International Criminal Tribunal for the former Yugoslavia. Taking into account the not very successful experience of ad hoc tribunals, an attempt was made to create a universal International Criminal Court …. The Russian Federation follows the activity of this judicial body closely and cooperates with it on a range of cases. However, we still cannot call the results of its work impressive: in 11 years we have had one condemnatory sentence and one of acquittal. At the same time, the rather modest geographical coverage of the cases examined by the ICC makes us cautious in evaluating its universality. However, such a body will evidently continue operations, and its effect will be more and more noticeable.
After the Rome Statute was signed, the Russian authorities and scholars pointed out some constitutional and legal issues that had to be resolved before its ratification. However, constitutional provisions did not create an absolute prohibition on joining the International Criminal Court. These provisions may be interpreted in accordance with the Rome Statute, and the problem lies exclusively in the political sphere (Vasiliev & Ogorodova, p. 200; Tuzmukhamedov, p. 542; Määlksoo, p. 138). An especially vigorous opponent here is Russian Supreme Court Judge Olga Vedernikova. Her arguments for non-ratification are as much political as legal, and her conclusion is completely political:
There are many and legal obstacles that are difficult to overcome which do not allow [Russia] … to ratify the Rome Statute of the ICC in the near future. Moreover, there are serious and reasonable doubts about the necessity of Russian participation in the activity of the ICC which is connected with a limitation of state sovereignty and creation of a danger to the country’s national security. (Vedernikova, p. 18)
In 2016, the situation changed and attitudes were politically radicalised. After initially approving ICC activity in cases that were in Russia’s favour politically originating in Georgia in 2008, and Ukraine since 2013, following the ICC Pre-Trial Chamber Decision, the Russian authorities changed their approach to cooperation with the ICC:
The ICC prosecutor has placed the blame on South Ossetians and Russian soldiers, taken the aggressor’s side, and started an investigation aimed against the victims of the attack. Such actions hardly reflect the ideals of justice. The Russian Federation is disappointed by the ICC’s decision to support Bensouda’s position. Russia was at the origins of the ICC’s founding, voted for its establishment and has always cooperated with the agency. Russia hoped that the ICC [would] become an important factor in consolidating the rule of law and stability in international relations. Unfortunately, to our mind, this did not happen. In this regard and in the light of the latest decision, the Russian Federation will be forced to fundamentally review its attitude towards the ICC.
Cooperation with the ICC is a matter of politically motivated ‘foul play’. To give one notable example, Alexander Bastrykin, acting head of the Investigative Committee of the Russian Federation, stated in an April 2015 interview with the leading governmental newspaper, Rossiiskaya gazeta:
The Russian Federation has signed this Statute [the RS] but has not ratified it so does not participate in its activity, and this [step, that is, ratification] should be taken as soon as possible …. So it is necessary to study carefully an option either to join one of the acting courts or to create a new international judicial body authorised to try cases on war crimes including those committed in Donetsk and Lugansk regions of Ukraine.
After the ICC decision mentioned above, in his next interview to the same newspaper, Bastrykin denounced the ICC’s activity with regard to the situation in Georgia:
[Question] Are you satisfied with the International Criminal Court decision and do you expect a fair investigation?
[Answer] I would love to believe it. But, unfortunately, the facts are to the contrary …. The ICC turned facts ‘on their head’ …. The ICC laid down the vector of investigation and began to subsume the circumstances of the case under questionable legal doctrine of ‘effective control over another territory’, which was formulated in a number of other biased decisions of international judicial bodies rendered against the interests of Russia.
Finally, on 16 November 2016, following publication of the Report on Preliminary Examination Activities where the ICC Prosecutor’s Office recognised the occupation of Crimea and Sevastopol by the Russian Federation and stated that the situation in these regions and in eastern Ukraine amounted to an international armed conflict between Ukraine and the Russian Federation, President Vladimir Putin signed a decree which informed the UN Secretary General that Russia would not ratify the Rome Statute. In doing so, he used the authority granted to him by Article 18 of the Vienna Convention on the Law of Treaties of 1969 expressing a clear intention ‘not to become a party to the treaty’. On the same day, the Russian Ministry of Foreign Affairs issued a statement accusing the ICC of ineffectiveness and selectivity and surprisingly, or perhaps intentionally, of bypassing the Report of the ICC Prosecutor’s Office:
Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterised in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.
In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African states from the Rome Statute is understandable. Some of these states are already conducting such procedures.
The Russian Federation cannot be indifferent to the Court’s attitude vis-à-vis the situation of August 2008. The Saakashvili regime’s attack on peaceful Tshinval, the assassination of the Russian peacekeepers resulted in the Court’s accusations against South Ossetian militia and Russian soldiers. Eventual investigation of actions and orders of Georgian officials was left to the discretion of the Georgian justice and remains outside of the focus of the ICC Prosecutor’s office attention. This development speaks for itself. We can hardly trust the ICC in such a situation.
The vagueness of the official position up to November 2016 is reflected in the scholarship. The prevailing view confirmed separation of international criminal law from international law (Inogamova-Khegai, pp. 34-43; Kibal’nik, pp. 11-22; Subbotina, pp. 39-44; Naumov et al., pp. 16-25); some scholars treated international criminal law as still a part of international law (Lukashuk & Naumov, pp. 9-14; Kostenko, pp. 7-18). However, in contrast to contemporary Western doctrine, Russian scholars prefer to analyse international crimes as crimes of an international nature, namely terrorism, transnational economic crimes, ecological crimes, corruption crimes, and hijacking (Lukashuk & Naumov; Inogamova-Khegai; Kostenko; Naumov et al.).
In general, today two main directions in Russian academic thought regarding contemporary international criminal law may be outlined. The first and largest group of academics may be called ‘conservatives’, for example, Mezyaev and Vedernikova. This group follows the official government position on international criminal law institutions for two main reasons. Firstly, all leading Russian universities are state-funded, and teaching that is not in line with the political position of the state leads to informal accusations of being a traitor of national interests. Scholars in Russia are under constant threat of dismissal because tenure or permanent contracts do not exist in the university system. It is easier and safer therefore not to challenge the political orthodoxy so as not to invite questions either from law enforcement authorities or from university management. An independent academic community scarcely exists in Russia. Secondly, the historical tradition is still alive in the form of scholars who are indirectly linked to Soviet scholarship with its strong suspicion of Western-originated concepts and reliance on state sovereignty, and they continue to be extremely cautious with regard to international criminal law in general and its modern institutions in particular. Again, to cite Vedernikova:
Basically an approach to international criminal law with due regard to national interests is connected with an idea of priority of state interests in international law which should be taken as the sole possible in circumstances of conflict of national interests …. The views about the priority of universal humanity values, the existence of universal international human rights standards are all idealistic pompous trivialities completely separated from reality …. Keeping in mind possible impartiality and politicisation of activity of international trial institutions … the prospects of international criminal justice in general are doubtful. (Vedernikova, pp. 47-9)
In 2016, a group of scholars prepared a draft of the new Criminal Code. Article 2( 2) reflects the conservative view on international law, stating ‘[t]his Code is based on universally recognised principles and norms of international law to the extent that it is not against the Constitution of the Russian Federation and interests of the Russian Federation’ (Lopashenko et al., p. 18). The political essence of the last caveat is obvious.
A second and minority group of Russian legal scholars is more flexible and ready to join the international criminal law community (Bogush, pp. 388-91; Kibal’nik; Trikoz; Abashidze, p. 510; Shulepov, p. 665; Naumov et al., pp. 59-63). However, positive attitudes go hand in hand with political caveats as to the possible politicisation of international criminal justice, and a policy of ‘double standards’ (Kibal’nik, pp. 53-4).
In summary, the discussion around international criminal law is still strongly influenced by political considerations. This has had a negative impact on current Russian textbooks and articles on international criminal law, which are often far removed from contemporary reality. Sometimes very politicised and based on outdated materials, they cannot be regarded as authoritative sources either for students or for practitioners. As Bogush rightly points out, ‘such isolation was not known to national legal scholarship even in the Soviet era’ (Bogush, p. 48). Russian legal scholarship is still primarily carried out in Russian, with few publications in the lingua franca of international criminal law, English.
Except for short and isolated periods, the history of Soviet and then Russian legal scholarship in international criminal law for the most part is one of isolationism and political partiality. Being under strict political control in the Soviet era, scholars absolved themselves from legal discourse and turned to political argumentation. Later, they missed an opportunity to join the community of international criminal law theory in the 1990s, and again in the 2000s.
To conclude, the field of international criminal law remains undeveloped in Russia, being neglected by Russian scholarship; this is mainly for political reasons. Negative political attitudes to international criminal institutions are easily converted into a dominant academic mode of thinking; overcoming such political pressure is difficult for scholars who remember the sad results of taking an ‘unofficial’ position in Soviet times. This academic situation is almost unique in the contemporary world (except perhaps for some other post-Soviet states with similar attitudes to international criminal law): even the US and Chinese governments, despite their negative political position regarding international criminal institutions (on the whole or with regard to specific ones), separate political attitudes from the law. Academic work in international criminal law in both countries is strong and globally recognised. Moreover, the situation in Russia has gone from bad to worse during the last few years, due to strengthening isolationist and aggressive policies towards the West and the political rhetoric of the Russian leadership. Under these circumstances, sound legal scholarship and the impartial teaching of international criminal law theory will be a matter for individual scholars. The opportunity for the general revival of international criminal law theory in Russia in the foreseeable future is an illusory one. In my opinion, only radical reforms in Russian political and academic life, as happened in the late 1980s and early 1990s, leading to the formation of an independent, world-oriented academic community, will change the situation.