Ukraine: Devastation prompts calls for accountability in international courts

The Ukraine conflict has already caused over 1,000 civilian casualties and the worst refugee crisis since the Second World War, prompting calls for those responsible to be held to account in international courts.

On 28 February, the Prosecutor of the International Criminal Court, Karim Khan QC, announced he was opening an investigation into alleged war crimes and crimes against humanity in Ukraine ‘as rapidly as possible’ after 39 countries referred the situation to the ICC, the largest referral in the Court’s history.

Ukraine has not ratified the Rome Statute and cannot refer situations to the ICC, but the country has twice accepted the Court's jurisdiction over alleged crimes committed on its territory since November 2013.

Ukraine has also called on the International Court of Justice (ICJ) to stop Russia committing crimes against humanity and war crimes. After Russia boycotted the hearing in The Hague on 7 March, the ICJ said it would follow a fast-track procedure to expedite its ruling.

International experts are also pushing to establish a special international criminal tribunal to specifically address the crime of aggression, which falls outside the ICC’s jurisdiction as Russia is not a state party.

The UN Security Council can refer alleged crimes of aggression to the ICC, but Russia, a permanent member, would block this.

Philippe Sands QC, a barrister at Matrix Chambers and a professor at University College London, is leading calls for the special tribunal, which has been endorsed by Ukraine’s Foreign Minister Dmytro Kuleba, his special adviser Mykola Gnatovsky, former UK Prime Minister Gordon Brown and numerous international legal experts.

During an online event hosted by Chatham House on 4 March, Sands said the tribunal would complement the ICC and ICJ’s ‘vital work’ to bring justice to the people of Ukraine. ‘International law is just one weapon in the armoury available to the international community, but it has become plain to me that sanctions alone will not work and that more is going to be needed,’ he said. ‘Harnessing the idea of the rule of law and the crime of aggression is one more way of doing that.’

Kuleba, who spoke via video link from Ukraine, welcomed the move. He said the calls by 141 countries at the UN General Assembly to end Russia’s operations in Ukraine also gave the initiative considerable ‘political ground to move forward.’

Professor Philip Leach, an expert in human rights law at Middlesex University, litigated numerous cases against Russia over almost two decades at the helm of the European Human Rights Advocacy Centre, including claims arising from the conflict in Chechnya. He says a special tribunal focused on crime of aggression would ‘plug a clear gap in the international criminal armoury.’

Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute (IBAHRI), agrees that an ad hoc committee is greatly needed. ‘An investigation is being opened by Karim Khan QC, the Chief Prosecutor at the ICC, into war crimes and crimes against humanity,’ she says. ‘The ICJ, at the instigation of Ukraine, will deal with the accusation by Russia of genocide of the Russian-speaking people of Donbas to justify the invasion and bombing of a whole nation. But no court will deal with the very act of seeking with extreme violence to annexe a nation. For that reason, I think the UN should establish an ad hoc tribunal to address that triggering crime.’

Details on the tribunal’s potential location, necessary funding or membership are still to be determined. Justice Richard Goldstone, the former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia and Honorary IBAHRI President, hopes it could repeat the successes of the Rwanda Tribunal, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia and ‘set a very good precedent to be applied in the cases of future acts of aggression.’

Mark Ellis, IBA Executive Director, has been a strong advocate of the ICC’s decision to launch an investigation and supports any judicial mechanism designed to hold Putin’s regime to account.

However, he believes the international community should strengthen the use of universal jurisdiction before quickly embracing another ad hoc tribunal. ‘States with a formerly wide understanding of the principle have reinstated a required connection of the perpetrator to the state in question, for example, residence in the forum state,’ he says. ‘If states would, in a more robust way, embrace the principle of universal jurisdiction, which is aimed at ensuring that those committing the most egregious atrocity crimes do not go unpunished, then you can create an extensive and effective network of states targeted at the perpetrators of the crimes, including Mr Putin.’

He says this could be more sustainable than an ad hoc approach. Certainly, universal jurisdiction has proven to be one of the few viable avenues left to hold high-level officials in Assad’s regime accountable. In January, the Koblenz Higher Regional Court in Germany found former Syrian security officer Anwar Raslan guilty of crimes against humanity and sentenced him to life imprisonment. The conviction was only possible because Germany’s Code of Crimes, which came into force in 2002, gave the country’s courts universal jurisdiction over genocide, crimes against humanity and war crimes.

Ellis says the Russian invasion should act as a ‘wake-up’ call for the international community to ‘reassess and commit’ to universal jurisdiction: ‘I would argue that there should be no barriers for countries to recognise, in their legislation, universal jurisdiction over the crime of aggression, meaning the planning, initiation, or execution of armed force by a state against another state, as we are witnessing in Ukraine. The crime is now well established, having journeyed from Nuremberg to the ICC.’

Goldstone agrees with Ellis’ approach and says a renewed focus on universal jurisdiction could be ‘complementary’ to the proposed tribunal. However, he urges that, if there’s sufficient political will to make it happen, a special tribunal could provide ‘a quicker route’ to hold the Russian regime accountable.

Image: Bjorn Olof Skoog, Ambassador of the European Union to the UN, discusses the Security Council vote on the Russian invasion of Ukraine at UN Headquarters. New York, 25 February 2022: lev radin/Shutterstock.com

Russian Ambassador Vassily Nebenzia speaks during the Security Council meeting and vote on resolution on Russian aggression in Ukraine at UN Headquarters. 26 February 2022. lev radin/Shutterstock.com

Ukraine - The UN: words, but no teeth

Russia’s invasion of Ukraine has horrified the world and spurred regional bodies, notably the EU and NATO, into taking concrete action to help Ukrainian refugees and provide military assistance to the country. But what of the global organisation, the United Nations? The world’s peacemaker seems confined to the shadows as one of the greatest world crises since the Second World War unfolds.

The war in Ukraine has bought into sharp focus the known weaknesses in the structure of the United Nations, especially the Security Council (UNSC). When the UN was founded in late 1945, five ‘great powers’ were chosen as permanent UNSC members: UK, France, China, Russia and the US. Unlike the other ten rotating members of the UNSC, these five were vested with veto powers. The permanent members have in the past used their veto in a partisan manner, for example in proxy wars or to further their own geopolitical interests. But with Russia’s blatant aggression in Ukraine the system is being put under enormous, if not unprecedented, strain.

Due to Russia’s veto, the Security Council is hamstrung in the actions it can take to deal with the war. For instance, at a meeting on 25 February the UNSC was unable to pass a resolution demanding that Russia withdraw from Ukraine and facilitate humanitarian access to the country. During the debate the UN delegation from Ireland said that ‘The veto is an anachronism that has no place in today’s world’, though added with more than a touch of wishful thinking: ‘Nor will it hinder the international community’s response to Russia’s blatant breaches of international law.'

‘Jaw jaw’ not the answer to this war

But, is it true that the veto will prove no hindrance? Internationally coordinated UN sanctions, with which member states would be obliged to comply, would require a binding resolution in the Security Council.

Despite overwhelming condemnation of Russia’s actions in the UN General Assembly (141 of 193 UN states), the world’s nations show less solidarity in the application of non-UN sanctions, with some countries drip-feeding measures against Russia while others do nothing at all.

The majority of countries in Latin America and Africa have demonstrated no appetite to join in attempts to economically isolate Russia, nor have significant countries like China, India, Brazil, Pakistan, Indonesia, and NATO ally, Turkey.

Without the Russian veto a range of escalating coercive measures used by the UN in past conflicts would have been available, perhaps starting with sanctions. As Richard Goldstone, Honorary President of the IBA’s Human Rights Council, explains: ‘Russia's veto precludes any meaningful action by the Security Council. So, there is no way to compel or enforce a humanitarian corridor or to refer an investigation of the crime of aggression by Russia. Any offers to mediate would require the consent of Russia.’

Such initiatives, even if initially resisted, could be part of a graduated response leading to authorisation, in extremis, of military action. Such a route would surely confer wider legitimacy than the current NATO and EU–led actions, which feed Putin’s false narrative of aggression by Western nations. Instead, during discussions at the UNGA and UNSC member states are left only with words of condemnation and symbolic demonstrations of global solidarity. For instance, during the UNSC debate of 25 February the US representative emphasised the moral importance of rallying behind the UN:‘...so long as we have a Security Council, I believe that we should strive to ensure that it lives up to its highest purposes: to prevent conflict and avert unnecessary war. Russia has already subverted that mission, but at a minimum—the very minimum—the rest of us have an obligation to object and stand up for the United Nations Charter.’

But perhaps it is this very inability of the UN to take concrete action that threatens not only the present but also the future authority of the organisation. As Goldstone, says, ‘...this malevolent misuse of the veto power diminishes the standing and respect of the UN as the only really effective body to stop threats to international peace and security.’

‘Uniting for peace'

Taken out of the historical context of the UN’s creation, it is difficult, in 2022, to justify that a mere five countries — the UK, France, China, Russia and the US — should continue to wield such massive influence over the capacity of the UN to act when a major war threatens not only the security of Europe, but also the world.

In 1950 the UNGA passed the ‘Uniting for Peace’ resolution, authorising the General Assembly to ‘recommend’ a range of actions, including military intervention, where international peace and security is at risk. The veto-frustrated Security Council used this mechanism on 27 February to pass the baton to the UNGA, resulting in the massive vote against Russia’s aggression on 2 March.

Beyond that, the UN has used other structures in an attempt to apply some pressure. The Human Rights Council has launched an international commission of inquiry into abuses in Ukraine. The International Court of Justice is considering an application by Ukraine against Russia. And the UN has appointed a United Nations Crisis Coordinator for Ukraine to harmonise humanitarian assistance. While important, such initiatives cannot substitute for action at the UNSC, which has ‘primary responsibility’ under the UN Charter for the ‘maintenance of international peace and security’.

So, the problem has always been, and remains, that the power to mandate coercive action, as opposed to merely recommend it, remains the sole prerogative of the UNSC. And when global war threatens it is no time to be without the strongest weapon in the UN’s armoury.

The UN will always be plagued by the inevitable compromises involved in banging together the heads of 193 countries. Although a high-minded and sometimes imperfect tool, its role is crucial if the world is to stand firm against the destabilising evil of blatant aggression. But it must function properly to be effective.

What is happening in Ukraine is, conceivably, the starkest reminder in living memory of the UN’s limitations. Reforming the structure the Security Council has long been considered a huge undertaking, but this current conflict provides the most powerful argument for action since the end of the Second World War. While pessimists may see the UN’s current impotence in the face of Russian aggression as its death knell, optimists will be hoping for change.

Image: Russian Ambassador Vassily Nebenzia speaks during Security Council meeting and vote on resolution on Russian aggression on Ukraine at UN Headquarters. 26 February 2022. lev radin/Shutterstock.com