On 14 November, the UN General Assembly adopted a resolution calling on Russia to pay war reparations in the latest addition to intensifying efforts being made by multilateral institutions to hold the Putin regime to account for its ongoing aggression in Ukraine.

The historic resolution recommends that member states establish an international register to document evidence and claims against Russia, as well as an international mechanism for damage, losses or injuries sustained since 24 February.

94 countries supported the motion. Fourteen – including Russia, China and Iran – voted against it and 73 – including Brazil, India and South Africa – abstained. Although Russia’s veto power has prevented the Security Council taking action against the country, no such veto power exists at the General Assembly and this latest move marks its fifth Ukraine-related resolution since the invasion.

At the end of November, European Commission President Ursula von der Leyen announced plans to establish a specialised court to investigate and prosecute possible war crimes committed by Russia in Ukraine. The Commission proposed two options: either a special independent international tribunal based on a multilateral treaty, or a specialised hybrid court integrated in a national justice system with international judges. 

During the IBA’s recent Annual Conference in Miami, Beth Van Schaack, US Ambassador-at-Large for Global Criminal Justice, remarked that proposals for the European Union to partner with Ukraine to establish an international tribunal were promising. ‘[This would] lend it the legitimacy that these are crimes that are being committed within the continent of Europe and the manifest violation of the UN Charter within Europe,’ she said. 

Ukraine’s Prosecutor General, Andriy Kostin, also praised Europe’s support for a court during the session. ‘We are deeply appreciative of the Parliamentary Assembly of the Council of Europe and the European Parliament for their positive stance over the matter,’ he said. ‘We hope that individual members of the international community would support this initiative as well.’  

However, Trahan, who is also Convenor at The Global Institute for the Prevention of Aggression, believes that securing accountability for Russia’s aggression in Ukraine is not just Europe’s responsibility. ‘What has happened is a threat to the international legal order,’ she says. ‘It is not solely a regional issue and deserves a response through the United Nations. When a permanent member of the UN Security Council invades a neighbouring country with impunity, that is a concern for the whole global order and stability.’

She’s also concerned that some aspects of the European Commission’s proposals could prevent heads of state and foreign ministers from being prosecuted. ‘The case law says that to avoid immunities a tribunal must be established by the international community as a whole,’ she says. ‘It is very unclear whether a tribunal, established by the EU, and with General Assembly recommendation would be such a tribunal. It might well not be. Given that the crime of aggression is a leadership crime, to have immunity apply would defeat much of the purpose of establishing a tribunal. For this reason, establishing the tribunal by a bilateral agreement between the UN and Ukraine, after the recommendation of the UN General Assembly, is much the preferable solution.’

There’s also still the burning question as to how a special tribunal, in whatever form it takes, would be funded, says Dill. ‘From a practical standpoint, the ICC is already struggling with funding and resources – in recent weeks defence counsel and staff have testified as to inequality and inadequacy in funding. Staffing issues are also prominent. I would question whether funds are available, or if this would even be feasible to set up.’

As Russia rejects any proposals for a 'Christmas ceasefire' in Ukraine, Dill says it’s incumbent on other states to negotiate peace talks and seek accountability and redress for the victims of the war in Ukraine. ‘One of the prominent aspects of this conflict was the initial response of most of the world to take sides,’ she says. ‘As we see countries such as the United Arab Emirates attempting to stay neutral and negotiate between the parties, we have to hope that there will be others who can assume the role of a neutral arbiter – either in the peace process, or in any prosecutions for war crimes. Unfortunately, accountability is not always possible or realistic, and thus we should also be looking at mechanisms or processes, outside the international criminal process, that will help survivors and victims move forward with their lives after the conflict.’ 

Image: A United Nations International Organization for Migration vehicle. Image credit: PhotoSpirit/AdobeStock.com

The Taliban’s increasingly draconian policies in Afghanistan, the return to Sharia law and attacks on women’s rights have rightly drawn the world’s attention. However, almost 18 months after the Taliban seized power, there are growing calls to ensure that Afghan men, including those working in the legal profession, are also safe from harm.

Imogen Canavan, a Legal Consultant at the Max Planck Foundation for International Peace and the Rule of Law, has worked closely with the IBA and the International Association of Women Judges to evacuate vulnerable Afghans since August 2021. As part of these efforts, hundreds of female judges deemed to be at risk were evacuated alongside their families and have since been resettled in Canada, Australia, Germany, the UK, Ireland, New Zealand and Iceland.

While Canavan says these efforts are to be hugely commended, she’s increasingly concerned for the safety of male judges in Afghanistan who are now being forced to impose Sharia Law. ‘One of the focuses for me as a consequence of this work has been the male judges, because I feel like they’re a much bigger group,’ she says. ‘There are about 200 female judges, but there are about 2,000 male judges. What we see in terms of security risks for them is mostly kidnappings of the eldest son. They usually want the judge to present themselves to the Taliban in exchange for the son. Then often we anticipate that this would be likely to result in killing or certainly torture. There's extortion as well.’

Global Insight spoke to Ali, a male Afghan prosecutor who was fortunate enough to be evacuated to Pakistan in January 2022 and resettled in Germany in June. He believes that the international community has a moral obligation to help male prosecutors who remain in Afghanistan. ‘We are being persecuted and being labelled as having assisted the international community to promote certain principles,’ he says. ‘That affiliation and collaborative work with the international community is what caused us to be exposed to horrible experiences and risk of persecution. And now they need to advocate for human rights in the country because there's a dire need for that.’

While most countries have stopped taking in vulnerable Afghans, a handful continued to offer them much-needed refuge as 2022 drew to a close. In October, Germany launched a new programme to admit 1,000 at-risk Afghans and their family members per month and has been inundated with applications.

Canada also brought in several policies, including a programme that allows groups of five Canadian citizens or permanent residents in Canada to provide private sponsorship to Afghan refugees who have already left Afghanistan without the need to submit a refugee status determination document. However, the Canadian government said the programme had already reached its capacity of 3,000 Afghan refugees within six weeks of its launch.

Alex Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and managing partner of MKS Lawyers in Vancouver, says the popularity of such programmes underlines why countries must do more to support vulnerable Afghans. ‘The simple answer is that there is a need,’ he says. ‘The human rights situation in Afghanistan is horrific and people need settlement support.’

But Stojicevic admits the options are limited for those still in Afghanistan. ‘I don't know what more can be done in terms of supporting those displaced in-country,’ he says. ‘You would need military intervention in order to guarantee security to help such people, so I don't know how realistic that would be unless countries adopted an emergency evacuation visa model, such as what the IBA has been advocating for since 2019.’

In December, the Taliban sparked further outcry after it banned women from attending university and working for both local and international aid agencies. Mark Ellis, IBA Executive Director, says such moves are exacerbating the country’s humanitarian crisis. ‘Until the Taliban government, under the pressure from the international community, tempers its ways and allows international civil society, including the IBA, to help them to have a more engaging presence, then we're going to be limited in what we can do,’ he says.

Ellis says it’s crucial that the international legal community continues to support its counterparts still working in-country. ‘It's a forgotten crisis,’ he says. ‘The best we can do right now is to continue to try to engage with our colleagues that are still in Afghanistan to find ways that we can support them.’

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