Dr Stephen Minas is associate professor at the Peking University School of Transnational Law and senior research fellow at the Transnational Law Institute of King’s College London.
The role of the Russian Orthodox Church’s leadership in Russia’s war has been extensively reported on. One aspect that has attracted less attention is the potential international criminal responsibility of Church leaders. In an earlier article, I suggested that Patriarch Kirill, the Church’s most senior leader, may have exposed himself to charges of international crimes. In this article, I will set out a preliminary assessment of the legal position.
International crimes and modes of criminal liability
An accused need not be the physical perpetrator of an offence in order to be held individually responsible. In assessing Kirill’s potential culpability, ‘aiding and abetting’ is the most relevant form of responsibility. The standard for aiding and abetting discussed here is based on the jurisprudence of the ad hoc tribunals, which applied customary international law. The Rome Statute sets a different standard, including a higher mens rea threshold. It might therefore be expected that prosecution by a State exercising universal jurisdiction would more likely succeed than prosecution in the International Criminal Court. (While customary law is only a secondary source for ICC purposes, the Rome Statute’s aiding and abetting standards are best seen as ‘departures from custom rather than departures of custom’, which continues to be applied in other jurisdictions.)
A person who aids and abets the planning, preparation or execution of a crime can be held individually responsible. The required act ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’. Encouragement or moral support describe conduct ‘which affects someone’s psyche’.
‘Substantial effect’ does not require a ‘cause-effect relationship’ but rather the lower standard of a ‘contribution that in fact has an effect on the commission of the crime’. The question ‘whether a particular contribution qualifies as “substantial’ is ‘a “fact-based inquiry,” and need not “serve as condition precedent for the commission of the crime”’. Aiding and abetting can take place before, during or after the physical crime.
The required mental element is ‘the knowledge that these acts assist the commission of the offence’. An accused need only be ‘aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed’.
On March 6, Kirill claimed that unnamed world powers provoked conflict by trying to force the people in Donbass to hold a ‘gay parade’, these powers are actually the ones ‘attacking Ukraine today’ and this ‘struggle’ has ‘metaphysical significance’.
On March 13, during a ceremony in his cathedral, Kirill presented a large icon of the Mother of God to Putin crony and Director of the Russian National Guard (Rosgvardia) Victor Zolotov. Kirill said: ‘let this image inspire young soldiers … who embark on the path of defending the Fatherland … I would like this image to be in the ranks of Rosgvardia’.
After thanking Kirill, Zolotov stated: ‘not everything is going as fast as we would like, but this is only because the Nazis are hiding behind the backs of civilians, behind the backs of the elderly, women, children, they are setting up firing positions in kindergartens, schools, in residential buildings, but … victory will be ours, and this icon will protect the Russian army and accelerate our victory’. Zolotov thanked Kirill again and Kirill nodded to him.
On April 3 – when Ukraine presented evidence of the Bucha massacre – Kirill warned that most of the world’s countries are under the ‘colossal influence’ of one power which ‘today’ opposes Russia. Repeating his theory that certain forces have turned the peoples of ‘Holy Rus’’ against each other, Kirill reminded his audience that Russia ‘broke the backbone of fascism … May the Lord help us today, too’, implicitly endorsing ‘denazification’ in Ukraine.
On April 10, after voluminous evidence of Russian atrocities had been revealed, Kirill called for Russia to ‘repel external and internal enemies’. On May 3, he claimed that ‘Russia has never attacked anyone’ and ‘has only defended its borders’.
Aside from Kirill’s propaganda, it has also been reported that Moscow Patriarchate facilities in Ukraine have provided material support for the Russian invasion. Such support, if substantiated, could also prompt charges for aiding and abetting against Kirill as a leader ‘permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime’. There are also allegations that the Russian church is complicit in the forcible displacement of Ukrainians to Russia, which can amount to both a war crime and crime against humanity.
Moral support and encouragement
Regarding actus reus, a prosecutor would need to demonstrate both an act or acts of ‘encouragement or moral support’ and the ‘substantial effect’ of the same on perpetration of a physical crime. It could be argued that Kirill’s actions amount to a litany of moral support and encouragement for Russian crimes. Despite widespread reporting of Russian atrocities, Kirill has offered Russian combatants fulsome praise instead of admonishment, blessing their conduct and encouraging ‘victory’. He has painted their enemy in dehumanising terms, characterised the ‘struggle’ as a holy war, rejected the existence of Ukrainians as a distinct people and echoed Kremlin rhetoric about ‘fascism’ and ‘genocide’ in Ukraine (claiming Donbas residents have been subject to ‘extermination’ for eight years). Indeed, Zolotov’s participation in the icon ceremony indicates that the regime is actively harnessing Kirill in its internal war messaging.
While there is no ad hoc tribunal case entirely on all fours with Kirill’s conduct, the jurisprudence indicates that his actions could fulfill the required actus reus. In Brdanin, the ICTY found that the accused aided and abetted forcible transfers and deportations by providing moral support or encouragement through multiple ‘inflammatory and discriminatory public statements’ which ‘could only be and were understood by non-Serbs as direct threats to leave the areas under Bosnian Serb occupation’.
In Kirill’s case, the ‘inflammatory’ rhetoric’s intended audience is not the Ukrainian populace but the aggressors themselves. While Kirill’s pronouncements may sound vague to a foreign or secular observer, the legally pertinent question is what an Orthodox Russian combatant in Ukraine hears and understands. While far less explicit than the parish priest’s incitements in Prosecutor v Seromba (‘there are demons in the church, it should be destroyed’), the Russian patriarch’s repeated warnings about the activities of ‘the evil one’, ‘evil forces’ and sinister ‘powers’ in Ukraine are arguably to similar effect.
Kirill’s physical distance from the conflict is no bar to prosecution, as the ‘location at which the actus reus takes place may be removed from the location of the principal crime’. In determining whether the statements of an ‘influential figure’ amount to aiding and abetting by encouragement, it is ‘inconsequential’ whether the figure is ‘present at the crime scene’. From the safe distance of Moscow, Kirill’s words – broadcast to Russian combatants by state and social media – emphatically communicate encouragement for the ‘special military operation’.
Demonstrating ‘substantial effect’ would require a ‘fact-based inquiry’ into the nexus between Kirill’s statements and criminal actions of Russian combatants. This nexus can be inferred from the facts, as the Tribunal in Brdanin did in concluding that the ‘complete inactivity’ and ‘public attitude’ of the Accused ‘could only serve the purpose of leaving no doubt in the mind’ of the physical perpetrators that ‘they enjoyed the full support’ of the Accused. Similar conclusions could be drawn from Kirill’s ‘public attitude’ and his complete forbearance from criticising Russian crimes.
In time, more precise evidence of ‘substantial effect’ may emerge, e.g. through the testimony of Russian combatants captured in Ukraine. It would not be surprising if some of these say that Kirill’s exhortations encouraged them in conduct amounting to war crimes or crimes against humanity. Such evidence of the ‘legitimising effect’ of Kirill’s proclamations could well clear the ‘substantial effect’ hurdle. It should be noted that one can be convicted of aiding and abetting ‘even where the principal perpetrators have not been tried or identified’.
Regarding mens rea, it also seems plausible that Kirill – who served as a KGB agent – is aware that his propaganda assists the commission of Russian crimes in Ukraine. It would not be necessary to prove that Kirill actually knew this, as knowledge may be ‘either actual or constructive’, such that ‘mens rea may be inferred from the circumstances’. Kirill is, by his own account, kept constantly appraised of developments in Ukraine, having claimed to receive weekly reports. This, together with Kirill’s regular meetings with top state leaders and his extensively documented history as a senior regime collaborator, supports the imputation of constructive knowledge of probable commission of Russian crimes.
An accused need not ‘share the intent of the crime’, nor even ‘have the intent to assist with the crime’. A prosecutor would need to demonstrate neither that Kirill shared the intent of the murderer, the rapist, the targetter of civilians, etc, nor even that he intended to assist them, but only that he knew (or had constructive knowledge) that his ‘act will assist the commission of the crime by the principal’.
Kirill’s statements might also be considered to amount to direct and public incitement to genocide. This is an inchoate crime, the advantage of which, from a prosecutor’s perspective, is that it does not require evidence that genocide actually occurred. However, the required mens rea of genocidal intent raises a more formidable hurdle to conviction than the test of constructive knowledge for aiding and abetting.
There are daunting practical obstacles to actually putting senior Russia-based figures on trial. However, history suggests that a new regime in the Russian Federation could expose accused persons either to prosecution in-country or extradition to an international or foreign tribunal.
If the Putin regime survives and provides haven for accused persons, it is probable that Kirill – if under indictment – will have to limit his international travel to ‘safe’ countries in order to avoid arrest. He would probably feel free to visit only the likes of Belarus and Syria – and would doubtless still be able to expect a warm welcome in Pyongyang.
Whether Kirill’s actions amount to international crimes cannot be conclusively determined yet. The question of Kirill’s individual criminal responsibility should be extensively investigated as part of an effort to ensure that there is no impunity for senior Moscow-based figures.