Címke: Ukraine

Ukrainian-Russian summit in Budapest?

The possibility mentioned in the title has been mentioned more and more in the press, so it may be worthy to take a look into that. The fact is that for Viktor Orbán, it would mean a very serious diplomatic success from a political point of view, which can easily be converted into an excellent domestic political advantage with the next year’s Hungarian elections: look all, important things are happening and being decided here, organised by me, and in the event of successful negotiations, Budapest could literally write itself into the great books of diplomacy and history by achieving the Budapest Peace or Ceasefire (forget the Budapest Memorandum of 1994 now, please). This would be important for him not only from a foreign but also from a domestic political point of view, as he could use it to support his problematic foreign policy shifts and often incoherent steps of recent years.

Moreover, the biggest shame of the recent years, which I have also been constantly and intensely criticizing – the withdrawal from the International Criminal Court (ICC) – would become understandable here. Make no mistake, my position on the matter remains unchanged in principle, but the step, if still not moral, could become practically and politically defensible in the case of such a major diplomatic success. There is a good chance that the Russian president would not come to an EU member state that would be obliged to arrest him, but – Hungarian diplomacy and Viktor Orbán may reason – if the danger of that no longer exists, then there is no obstacle to the meeting on Hungarian territory. And that is why it may be worthy to accept the political-diplomatic inconveniences, especially since there were no particularly major disadvantages to be countered: the International Criminal Court ruled that Hungary had violated the provisions of the Rome Statue, the founding treaty of the ICC by not arresting Netanyahu, and did the only thing it could do, expressed its sorrow and pain to the Assembly of States Parties, where nothing happened – as usual. The European Union is also – for now – silent on the issue, apparently the EU institutions are not bothered enough by the violation of one of the very few common foreign policy values to do something, it’s not even impossible, that they partly share the Hungarian government’s plans and don’t want to get in the way of those. We don’t know this, it’s not important, the point is that they did not make this foreign policy step “more expensive”.

So, it may seem that this might even be possible. However, as always, the calculation may be wrong again.

As I said at the time, several times, in several places, leaving the International Criminal Court will not happen overnight. After the document on the withdrawal has been received by the UN Secretary-General, the ICC statute will still be binding on the state party for one more year, so its binding force will not cease until next summer, to be precise, June 2, 2026. However, the elections in Hungary next year will take place before that, so such a possible diplomatic success will not be useful there, and it is not worth expecting that the Russian side will put aside its worries, and certainly not that the Ukrainian side, striving for European integration, will take part in such a dog comedy. The painful reality is that Viktor Orbán is not worth it to anyone to deviate from his own safe path. However, if the Hungarian government is thinking in the longer term, this may still seem like a feasible solution for it (a meeting in Budapest in the fall of 2026), and although the practice so far does not fundamentally allow us to conclude this, it cannot be ruled out that it will be able to let go of thinking strictly in terms of election cycles in the field of foreign policy. This is not far from the political profile of Viktor Orbán in recent years, and if we assume that news related to the preparation of the meeting may also have political communication value, then such a solution is not unrealistic either.

Especially in light of the fact that one can essentially rejoin the International Criminal Court system at any time for free… At this point, I would refer to what the President of the Assembly of States Parties said when he commented on the withdrawal of Hungary: “I truly hope that Hungary’s withdrawal from the Rome Statute is not permanent, but just a brief pause to its commitment to international justice”. So the next question may be whether it is fortunate for states to abandon their “commitment to international justice” due to their current foreign policy interests. This is not just a theoretical-philosophical problem, as representatives of the Hungarian government have also continuously contrasted the values of “justice” and “peace” in their communication on the subject of the International Criminal Court, reflecting (even if unknowingly) on the possibility included in Article 16 of the Rome Statute (criticized by many from the beginning), according to which the UN Security Council can suspend any investigation or proceeding before the International Criminal Court at any time if it deems it necessary in the interests of maintaining international peace and security.

So the question, to which the future will provide the answer, is whether the Hungarian government only wanted to make such a quick turn, and whether we consider the possibility of such turns to be a good one at all.

About the Chinese in the custody of the Ukrainians

The news, published by the Ukrainian media, that two Chinese citizens who had previously fought for Russian units had been taken prisoner of war, has understandably stirred up emotions. Additionally, it also raises a number of legal questions that are worth considering.

Is China becoming a belligerent?

If the Chinese citizens joined the Russian armed forces of their own free will – and based on our current knowledge, this is the case – then this does not make China a party to the ongoing conflict. If they had been sent by China, or if they were linked to China in some official capacity (e.g. being members of its armed forces), then their participation in the hostilities would certainly mean that China is also becoming a belligerent, although this is more of a political significance due to the distance between Ukraine and China.

Yes, it is possible that they did indeed go there of their own accord and joined the Russian armed forces, although the laws of most states prohibit citizens from undertaking military service for another state. However, the potential violation of this prohibition cannot be investigated by the enemy state involved in the conflict (in this case, Ukraine) in the event of their capture, since it has nothing to do with that citizen status, and is obliged to treat them in accordance with the rules dictated by the laws of war.

What rules apply to these individuals?

Since, as far as we know, they traveled to Russia of their own accord and joined its armed forces, their situation is equivalent to that of Russian soldiers – as long as they are members of the Russian armed forces, they are considered being prisoners of war and must be treated in accordance with the provisions of the 1949 Geneva Convention III. From this perspective, it is irrelevant whether they joined voluntarily while staying on Russian territory or became Russian soldiers against their will as a result of some crazy local conscription; the important thing is the official connection with the state’s armed forces.

The same would be the case if they had been present in some kind of “representation” of China, only with the more complicated political background that – as I described above – in that case China would also be considered a belligerent party.

However, the situation would be significantly complicated if these Chinese citizens had not been captured in Ukraine as members of the Russian armed forces, but as private individuals, or as employees of a mercenary group or of a private military company – that is, without a direct state connection. In this case, they would not be entitled to the status of prisoner of war, which is usually reserved only for members of the armed forces of the states participating in the conflict by the system of laws of war. Such persons are considered being civilians in the armed conflict regardless of their actions, which can be actually really bad for them: on the one hand, their harmful actions, even if in accordance with the laws of war, become punishable (which is logically not the case with soldiers), and on the other hand, their detention is regulated not by the provisions of the abovementioned Geneva Convention III, but by Convention IV, related to civilians. Moreover, there is a chance that it does not apply to them either, since this convention (specifically its Article 4) states that it should not be applied to persons held in captivity who are not citizens of either party to the conflict and whose state has regular diplomatic relations with the capturing state. Since Ukraine and China have diplomatic relations, this situation would be a textbook example of this, but since the Chinese citizens served in the Russian armed forces, that relationship establishes the more regulated, stronger protected status of prisoner of war. The essence of this rarely invoked provision of Convention IV is to keep persons who are not involved in the conflict because of their nationality as far away from the conflict as possible, including the obligation to apply the rules of war. What if their own state does not want to do anything against the detaining power? Unfortunately, in such cases, only the human rights-related rules that apply to the detaining state impose some kind of limit on their treatment. The legal loophole and legal uncertainty that easily arise from this has allowed the United States to loosen the legal rules binding it with regard to the persons it captured during its “war on terrorism” after the 2001 September 11 attacks… But let’s not open that question here.

At the same time, it is impossible to ignore the interviewing of the Chinese prisoners, which constitutes a violation of the prohibition contained in Article 13 of the Geneva Convention III, governing the treatment of prisoners of war by Ukraine. This provision states that prisoners of war must be protected from “public curiosity”, which is obviously a provision intended to protect their person. It may of course be argued that they consented to the interviews, but the relevant practice typically does not accept this argument, and has not accepted it in other cases either. However, in this case too, the practical question arises: “so what then?”… It may be nothing, but it is worth noting the fact of the violation.

That is all we know for now, and that is all that is worth recording. If there are any developments, we will discuss it further.

From Partner to Pariah: The Changing Position of Russia in Terms of International Law

A chapter of mine with the title above has just recently been published in a book titled “Russia’s Imperial Endeavor and its Geopolitical Consequences: The Russia-Ukraine War”, edited by Bálint Madlovics and Bálint Magyar, with CEU Press.

The book is available in an ebook format on the website of the publisher, You can download my chapter from my Academia page.

CEELI Institute’s “Legal Skills in a Time of War” programme

During the past week I have had the honour of having been invited to and of participating at the CEELI Institute’s “Legal Skills in a Time of War” programme in Prague.

The two-weeks programme has collected a very strong international faculty and its goal was to give knowledge and information to a group of pre-selected Ukrainian students and young experts, dealing with legal questions related to the ongoing war on the territory of Ukraine. The participants of the programme have been extremely interested in the subject-matter and highly engaged in conversations and debates.

I have covered the subjects of use of force in international law, international humanitarian law and war crimes. Additionally, I have also assisted in the preparation of a mock trial practice, preparing participants to test their ideas and arguments.

I was very happy and grateful being involved in this project, and I am looking forward to further cooperation with CEELI and the colleauges working there and those I have met now for the first time. It was an honour of being a part of a group of a great international faculty from Estonia, UK and the USA, representing my country with not the best reputation these days when it comes to relationship with Russia, especially with the people of Ukraine.

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 ICJ’s order on provisional measures requested by Ukraine

Today the order of the International Court of Justice (ICJ) on provisional orders requested by Ukraine in its contentious case against Russia was published.

The decisions of the order do not contain anything surprising. The Court has not taken a position on the merits of the application of Ukraine, it has found that prima facie it has jurisdiction, Russia is obligated to cease its military operations, and both parties shall refrain from escalating the situation any further. All other requests have been denied, so the president of Ukraine’s tweet about “complete victory” seems to be a bit exaggerating, but this is something inevitable in the current political situation.

You can also find some information in the published order about the Russian counterarguments, presented in the meantime. Those are based on the jurisdiction issues I have outlined in my earlier post. The Court has no jurisdiction to examine questions related to use of force, only related to the Genocide Convention, and Russia argues that it uses force not on the basis of that, but on the basis of customary law and Article 51 of the UN Charter, meaning the practicing of self-defense – this way the jurisdictional clause in Article IX of the Genocide Convention is not applicable. Currently the Court has tackled this argument with currently not dealing with the situation on the merits, but as international law dictates the peaceful settlement of disputes as a general obligation, it is entitled to create these obligations as provisional measures.

It is important to emphasize that this decision is not the judgment in the case. That will take months or even years to be adopted.

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…