Video recording of our online event about some burning questions of international law related to the Russia-Ukraine war

The open Russian aggression against Ukraine during February of 2022 has not only opened the usual questions of armed conflict situations, but also has applied tense pressure on new institutions of international law and European legal-political cooperation. Not often can we see the worst of international relations (actual use of force and armed violence) testing the best of international relations (multilateral cooperation in the framework legal-political organisations) on the European continent, where most countries are proud of being an active supporter of international organisations like the International Criminal Court.

How can the existing legal-political-institutional framework handle this conflict situation, and most importantly, the violations taking place during that? Is Europe, are the European institutions capable of providing stronger enforcement, or is this only an illusion?

Speakers:
Aleksandr Popov (Estonian Military Academy): General respect for international treaties and the possibility to limit use of force
Agnieszka Bieńczyk-Missala (University of Warsaw): Refugees of the conflict, with special attention paid to the Polish situation
Justinas Žilinskas (Mykolas Romeris University, Vilnius): Criminal responsibility based on the Ukraine Criminal Code
Milan Lipovský (Charles University, Prague): Ad hoc tribunal for the crime of aggression. Good or bad idea?
Evhen Tsybulenko (Kyiv International University / TalTech Law School, Tallinn): Genocide and the possibility of new international criminal fora
Beatrice Onica Jarka (coordinator of the Romanian Competition of International Humanitarian and Refugee Law – Nicolae Titulescu): Measuring the impunity for international crimes: Scene of Crime – Ukraine
Tamás Lattmann (C4EP / University of New York in Prague / Tomori Pál College, Budapest): The role of the EU and European organisations

The first hearing in Ukraine’s case against Russia before the ICJ

The International Court of Justice (ICJ) has held the first public hearings yesterday on the request for the indication of provisional measures presented by Ukraine in its case initiated against Russia recently. As indicated earlier, the case is based on the Genocide Convention, its Article IX providing jurisdiction for the Court.

Video recording of the hearing can be watched online at the UN Web TV.

Not surprisingly, the Russian Federation was not represented by any delegation or agent. This is not rare, it has happened a few times, that the defendant state does not appear in the courtroom. Of course this sends a very bad message, but it does not have any effect on the proceeding of the Court. Currently, it will definitely be seen by everyone as Russia not even trying to defend its vocal position about the “genocide”, which will not help its credibility at all.

The “other The Hague” – the ICC and the Ukraine-Russia conflict

Questions about violations and possible war crimes comitted during the conflict become more and more vocal, and we hear more and more about the option of the “other The Hague” court – the International Criminal Court (ICC), created in 1998, in operation since 2002 (not to be confused with the International Court of Justice (ICJ), which is tasked with inter-states disputes).

As neither Ukraine nor Russia is party to the founding international treaty of the ICC, the so-called Rome Statute (though both of them have signed it after its adoption in 2000), the Court’s operation needs a specific linking element, providing jurisdiction. According to the Statute, this may be the UN Security Council referring the situation to the Court, which logically requires the consent or at least the absence from the Russian Federation – but there is no doubt about the state rather using its veto. The same way it was done a few years ago, when there was the idea to create a special tribunal to examine possible responsibility for the tragedy of the MH17 flight. In general, I am not a big fan of this possibility, as You can see from more of my earlier publications, this has not proven to be an effective way during the past years.

However, it is not needed in the current situation, as Ukraine had already accepted the jurisdiction of the ICC during 2014-2015 by unilateral declarations according to the relevant provisions of the Statute. Based on these, the Office of the Prosecutor have already been conducting preliminary examinations, leading to Russia withdrawing from the ICC in 2016, meaning the withdrawal of the signarure from the treaty, instead of concluding the ratification procedure. This means that the Court has jurisdiction over any war crimes committed on the territory of Ukraine, regardless of the nationality of the perpetrator. Based on this, the Prosecutor has already stated, that he plans to initiate investigations, possibly leading to actual charges. Needless to say, I do not expect any cooperation from the Putin-led Russian government, but at least the legal base of the ICC’s operation is clear without any resolutions from the UN Security Council.

It is worthy to mention, that there was a bit of a twist in the question related to jurisdiction, which has come to me as a surprise at the beginning. In his statement, the Prosecutor has called upon the states party to the ICC to refer the situation of Ukraine to the Court according to Article 14 of the Statute – while based on Article 15, he could have initiated investigations and then press charges proprio motu (on his own right) based on Ukraine’s abovementioned earlier declarations. As a reaction, more states party have done it quickly, but I felt a bit confused – why was this needed?

Logically, by this the Prosecutor intends to circumvene the pre-trial procedure which is needed in the case of application of Article 15 – if the Prosecutor initiates investigations proprio motu, he needs a permission from the Court. Application of Article 14, referral by states party does not require this, in that case investigations can be initiated immediately. Probably the goal is to gain time, to put pressure on Russia as soon as possible. (Interestingly, one of the main arguments of the US against the ICC from the very beginning has been built around the question of limiting the powers of the Prosecutor in the case of his/her attempts of overstepping the rules. The solution to this problem was the pre-trial procedure, which now seems to be taken care of by the Prosecutor this way…)

I have serious doubts that states party may do this. Can a state party refer a situation to the Court based on Article 14, if taht state itself does not have jurisdiction over that situation? Based on the practice so far, states have only referred to the ICC situations over their own territory, which is compatible with the principle of complementarity and general provisions of international law, the do not have any legal base to do the same with territory of an other state. Even authors of professional literature have not mentioned this possibility ever before, not even in theory. I would not be surprised at all to see this question being raised later, if the Prosecutor decides to continue its work based on these Article 14 referrals.

We will be watching.

The ECHR and the Ukraine-Russia conflict

The Strasbourg-based European Court of Human Rights has decided today to employ interim measures against Russia, by the request of Ukraine. The court, being the primary human rights-related judicial organ of the Council of Europe and as such not only a leading European human rights institution, but also one on the global level, has jurisdiction over both states even during this conflict, as both of them are party to the European Convention on Human Rights. The human rights typically under special threat during conflict periods are the right to life, right to fair trial, right to property, prohibition of torture, degrading or inhuman treatment – the goal of the convention is to minimize damages to these, of course, as it is possible during times of armed conflict.

The jurisdiction of the court is not affected by the fact that recently the Council of Europe has suspended membership representation rights of Russia. First, because this does not anull any obligations deriving from membership and second, because human rights obligations of member states are not based on their membership, but on being party to the Convention. Additionaly, the recent communication from ex-president Medvedev, arguing that this suspension could give an opportunity to Russia to restore the death penalty, shall not be taken very seriously. First, as we have seen, there is no casual relationship between obligations deriving from CoE membership and from being party to the Convention. Second, we have already heard similar from Turkey after the coup attempt of 2016, and that has also proven to be a simple threat. It is good for a populist proposal, but possible problems and disadvantages coming with really restoring the death penalty would be disproportinately more than any realistic profit, which is well-known to the Russian government as well.

the court in its order adopted today has called upon Russia to refrain from any attacks on persons protected by international law, and to inform the court about every step it has made and going to make to prevent these from happening. If somebody is disappointed now, because of expecting something from the court to prohibit Russia from the whole military operation in general, then it is important to remind everyone, that the European Court of Human Rights is the guardian of the European Convention on Human Rights, with a jurisdiction to examine and identify violations of that very treaty. Questions related to agression, taking a position on the legitimacy of states’ decisions about use of force do not belong to its jurisdiction. Rightly so, if I may add. Rightly, because from the aspect of human rights violations, this question is irrelevant, as the questions of “whose” rights are violated, citizens of the agressor state, or of the citizens of the victim state – even if our sympathies logically rather go to the latter.

The current application from Ukraine has initiated a new inter-State complaint, next to which there is still the option of individual complaints (subject to the relevant provisions, e.g. the obligation of exhausting domestic remedies). It may be interesting to point out now, that during the past twelve years there have been more inter-State proceedings in front of the court, than during the nearly sixty years before that period, and all of these have somehow been related to states becoming members of the Council of Europe after the political changes of 1989-1990.

The Ukraine-Russia conflict before the ICJ

The president of Ukraine has tweeted today, that Ukraine turns to the Hague-based International Court of Justice (ICJ) against Russia, arguing it “manipulating the notion of genocide to justify aggression”. Some time later, the court has published the relevant press release, which has helped to clarify the exact claims and arguments.

Originally, based on the tweet itself, I was quite pessimistic about the application, and I thought that the court will come to the conclusion of not having the proper jurisdictional base and – after a few month – will end the case. As a consequence of this, the request of Ukraine to order provisional measures against Russia also seemed to have a weak base, as it requires jurisdiction at least “prima facie”, meaning that the court at least “at first sight”, based on a quick examination, has to take a position about the case being suitable for examination on the merits. Provisional measures, being possible in this case, mean legally binding orders from the court to specific behaviour or action to the states involved in the debate.

Why is it so? The answer is fairly simple. The current international legal order, being built on sovereignty of states, requires some form of the involved states’ consent to the proceedings leading to a legally binding judgment before the ICJ. The most clear case is, when the parties in the dispute jointly turn to the ICJ (like in the Gabcikovo-Nagymaros case between Hungary and Slovakia), but this consent may also be indirect: a so-called jurisdiction clause may be added to international treaties, based on which any state party can turn to the ICJ in the case of violation of that treaty. This is quite commonly used, and usually this is how the ICJ can get access to cases with serious tensions, when the states involved do not even talk to each other, and definitely would not go to the court hand-in-hand together. This was the base for example of more proceedings between the US and Iran, and this gave the possibility to Palestine against the US, to initiate a proceeding because of it moving its embassy into Jerusalem.

There may be hope for the proceeding to advance, if it is based on the UN Genocide Convention. The president’s tweet was vaguely referring to this option, and it is later reaffirmed by the press release. Both Ukraine and Russia is party to it, and its article IX contains a jurisdictional clause (“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”), meaning that the ICJ does not need an explicit consent from the defendant state, Russia. Still, its examination has to be narrowed to questions related to the Genocide Convention, and first, agression is not inseperable from this, second, so far genocide has only been present on the level of political propaganda, not reality. Still, some parts of the application, published by the press release indicates a very interesting argumentation line from Ukraine: it argues that the false accusations of genocide, used to provide legal grounds for recognising the breakaway regions as states and for its military invasion constitutes a violation of the convention. Smart. The court may not accept this argument in the end, but I believe it is capable of finding jurisdiction “prima facie”, proving the legal ground for provisional measures.

Still, this will not provide jurisdiction for the ICJ to examine the question of agression. In earlier proceedings, more states have tried to smuggle this question into cases on different jurisdictional base (see e.g. the case initiated by Georgia against Russia after their 2008 conflict, or the cases initiated by Armenia and Azerbaijan against each other last year, all of those being based on the jurisdiction clause included in article 22 of the UN Convention on the Elimination of All Forms of Racial Discrimination), but the court has always been reluctant to apply such an extensive interpretation, and even if it has ordered provisional measures, those have always been closely related to the given international treaty providing the jurisdiction.

At the same time, it may be worthy to add, that these cases are often not initiated by the states because they want legal results, rather to project the image of “fighting on all fronts”. Even if the governments know not to expect any results – this may be simple PR. Of course it does not neccessarily mean, that the state is not right on the merits, but it is not enough, if there is no jurisdiction of the ICJ…