Following the so-called “special military operation”, which was in fact an open aggression against Ukraine, Russia was expelled from the Council of Europe. This step has significant legal consequences, including for the jurisdiction of the European Court of Human Rights. Meanwhile, many individual applications were filed with the Court, and Ukraine brought an inter-State complaint against Russia. Ukraine has also triggered the International Court of Justice. The Court has already ordered provisional measures. The ICC Prosecutor has launched an investigation into the most serious international crimes, war crimes, crimes against humanity, and genocide in Ukraine and delivered arrest warrants against the Russian President and his Commissioner for Children’s Rights. There is a serious discussion going on concerning the establishment of a special tribunal for the crime of aggression. This text deals with some aspects of the Russian “special military operation” cases before international courts. It attempts to identify what role the international courts may play in the new phase of the conflict in Ukraine and the extent and effect of their intervention, given the jurisdictional limitations and the inability to enforce judgments.

The principle of nullum crimen sine lege expresses an old idea that only the law can prescribe a particular act as punishable. It is commonly understood as a requirement of sufficient definiteness of an offence, in particular – of a statutory description of an offence before it has been committed (lex scripta, lex praevia), and of clarity and precision in criminal provisions so as to enable an individual to conform with them (lex certa), as well as their strict interpretation (lex stricta). Nowadays the principle is an internationally recognized human right to foreseeable criminalization, guaranteed by, inter alia, Article 7 of the European Convention on Human Rights. However, the European Court of Human Rights seems to formulate two slightly different requirements on its basis, namely that the application of criminal law must be foreseeable for an individual and coherent with the “essence of an offence”. One may question whether this can serve as an adequate “shield” from arbitrariness on the part of State authorities. Nevertheless, the core aim of such a flexible approach is not to promote legal security for potential perpetrators, but to achieve better protection of human rights in general.

This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.