Q&A: Russia’s war and the power of international law
Series Diplomacy & Foreign Affairs

Q&A: Russia’s war and the power of international law

26 Oct 2022 - 10:47
Photo: The International Criminal Court in The Hague. © UN Photo
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Russia’s war on Ukraine sends shockwaves across Europe and the wider world. This Clingendael Spectator Q&A series explores the wider geopolitical consequences with key analysts from across the globe. In the second episode Victoria Kerr (Asser Institute) examines the impact of the war on international law.

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Question 1: Has Russia’s military invasion of Ukraine undermined international law?

Russia’s invasion of Ukraine is a violation of international law. The invasion has been considered an act of aggression in violation of the UN Charter by the UN General Assembly. The International Court of Justice ordered provisional measures that Russia immediately suspend its military operations as the Russian justification on the basis of genocide was not substantiated. There are also many allegations of Russian violations of international human rights and humanitarian law.

However, while international law has been violated, it has not been undermined. International law may not have deterred Vladimir Putin from continuing his invasion, but it is being harnessed with unprecedented speed and scale, especially to bring perpetrators to account. Pursuing accountability for perpetrators is where we will see the enforcement of international law, and its power.

Question 2: How does the situation in Ukraine highlight Russia's approach to international law? And how does it challenge the international law’s universality?

While Russia and the Soviet Union made significant contributions to the development of international law in the past, the Russian Federation’s approach has changed since 1991, following the dissolution of the USSR. The country appears to place great emphasis on the power dynamics underpinning international law, believing the law to be malleable in the interest of victors. This approach enables Russia to criticise the so-called ‘rules-based order’ which it considers to promote only Western interests,

On the other hand, Russia also uses this approach to try to legitimise its own actions (objectively in breach of international law) and evade responsibility under the law (for example by denying the application of international humanitarian law in the context of its military operations).

While there does appear to be a consensus between both Western states and Russia on the general proposition that international law should be universally applied, there may indeed be a fragmentation in their views on how – or to what ends – it is applied in practice.

Question 3: The UN Security Council – which should play a key role in maintaining international peace and stability – has clearly failed in Ukraine. Is there a way to fix this?

The UN Security Council (UNSC) has been paralysed in Ukraine as a result of the Russian veto. The UNSC’s membership could be expanded to be more inclusive, but while this may enhance its legitimacy, it would not prevent the continued use of vetoes. One suggestion has been to create a process for ‘overriding’ a veto where a double majority (for example, both two-thirds of the General Assembly and four out of five permanent UNSC members) agree.

However, this suggestion and expansion require amendment of the UN Charter. This is a burdensome process requiring agreement from a two-third majority of General Assembly members and all five permanent UNSC members. Options not requiring amendment could include permanent members committing to voluntary abstention from using vetoes in cases of mass atrocities. Overall, reforming the UN Security Council is complex, but it is certainly an issue requiring more attention.

Question 4: How might the unilateral sanctions imposed on Russian individuals and entities by several states interact with international criminal justice or international human rights?

Targets of unilateral sanctions imposed in response to the Russian invasion include high-ranking Russian military officers who are alleged to have been involved in the commission of international crimes. For example, the European Union and United Kingdom sanctioned the so-called ‘Butcher of Bucha’, Colonel Omurbekov, and ‘Butcher of Mariupol’, Colonel-General Mizintsev, using language such as “direct responsibility”, “intentional targeting” and atrocities such as crimes against humanity and war crimes.

There is vast information on the commission of such acts, however this wording appears to suggest individual criminal responsibility of the targets even though they have not received fair trial and due process. Not only does this potentially violate the human rights of those targeted, it has the potential to infringe upon international criminal justice.

To preserve human rights and the rule of law, it is important that sanctions do not undermine international criminal proceedings by courts or tribunals, which may be better fora to consider evidence and the liability of the perpetrators including the responsibility of commanders. In my opinion, sanctions may benefit from regulation or oversight to enhance their legitimacy and increase consistency.

Question 5: Ukraine’s president Volodymyr Zelensky has floated the idea to set up a ‘Nuremberg’-style court to try (Russian) war criminals. What is not to like about this proposal?

This proposal has been tabled in the context of the crime of aggression, because the International Criminal Court (ICC) does not have jurisdiction over the crime in relation to the situation in Ukraine. Neither Russia nor Ukraine has signed the ICC’s founding document (the Rome Statute), and the UN Security Council has not referred the situation.

Regardless, it is unlikely that Russia will cooperate with such a proposed court/tribunal, and it is unclear whether head of state immunities would apply. Such a proposal may in fact only demonstrate selectivity and a fragmented approach to international criminal justice.

Some have suggested that Ukrainian domestic courts are better placed to hear aggression cases than international courts. While Ukraine’s Criminal Code does criminalise a form of aggression, it is not formulated as a leadership crime in line with international criminal law – instead, only lower-level soldiers can be charged. Impartiality concerns have been raised. In my opinion, a hybrid model would be the best of both worlds: a centralised court or chamber based in Ukraine which is also supported with international or regional assistance (similar to the War Crimes Chamber of the Court of Bosnia and Herzegovina or the Extraordinary African Chambers).

 

Coming up....
Stay tuned for the next Q&A with Chris Miller (Tufts University / American Enterprise Institute / Foreign Policy Research Institute) on Russia’s military invasion of Ukraine and the role of sanctions.