Bringing Russia’s thugs to justice

| December 10, 2022

The Ukraine conflict offers a microcosm of the tensions inherent to the international legal order. Legal pathways to justice, especially with relation to powerful states, remain frustratingly narrow.

The war in Ukraine has been characterised by a number of things, some obviously related to each other: the effect that the conflict has had on the global economy; the ever-present threat of the use of nuclear weapons; miscalculations and poor military strategy from Russia’s military forces; and questions regarding the West’s capacity for ongoing and unified support of Ukraine.

Another characteristic of the current conflict is the degree to which it has frequently, and arguably unprecedentedly, been framed through reference to the laws of war. For as long as wars have been fought, there have been rules that attempted to limit its occurrence and moderate its conduct.

Beginning in the mid-19th century, these rules have since developed into an almost universal system of customary and treaty laws determining under what circumstances states can go to war (jus ad bellum) and what constitutes acceptable conduct during war (jus in bello).

The universality of these laws is not in question. The UN Charter bans all resorts to armed force, except in the case of individual or collective self-defence or when authorised by the UN Security Council to end any serious violation of the United Nations Charter prohibition on the use of force that amounts to a crime of aggression.

The 1949 Geneva Conventions, the cornerstone of modern jus in bello law (more commonly referred to as either international humanitarian law (IHL) or laws of armed conflict (LOAC)), have not only been ratified by all UN member states, but they are considered to have passed in their entirety into customary international law.

For much of the modern period, war was primarily a political act, and the rules governing its behaviour were subservient to raison d’état, especially during the Cold War. However, the establishment in the immediate post-Cold War era of the two UN-backed ad hoc tribunals for the former Yugoslavia and Rwanda, and the subsequent establishment of the permanent, treaty-based International Criminal Court, meant that where states once self-regulated with regard to the violations of the laws, their crimes could now fall under the purview of international justice mechanisms. War, thus, became both a political and legal enterprise.

Some points can be made regarding the laws of war and the current conflict in Ukraine. First, there is little doubt that Russia’s invasion of Ukraine constitutes a crime of aggression. Second, there is also ample evidence to suggest that multiple war crimes have been committed during this conflict, the most damning evidence indicting crimes committed by Russian forces. These include, but are not limited to, targeting of civilians, targeting of medical facilities and civilian infrastructure, looting, torture, and rape. There are also suggestions that Russia might be responsible for crimes of genocide and crimes against humanity.

Nonetheless, framing the war through a legal lens creates tensions, the most noteworthy being the barriers to prosecution for violations of the laws of war, especially the crime of aggression. Although the crimes identified above are horrendous crimes, the crime of aggression threatens the very fabric of international society that is underpinned by states existing without constant threats to their borders.

Since July 2018, the ICC has had jurisdiction over the crime of aggression, but only for ICC member states which have ratified the Rome Statute and the amendments on the crime of aggression.

Furthermore, unlike the other crimes within the jurisdiction of the Court, the ICC does not have jurisdiction over ICC member states, or their nationals, that have not ratified these amendments in the case of a state referral or proprio motu (initiated by the ICC prosecutor) investigation. In short, the ICC doesn’t have jurisdiction to investigate Russia over the crime of aggression.

Since the days following Russia’s invasion of Ukraine, and recognising the magnitude of the crime of aggression, policy makers and international jurists have been seeking alternative ways to prosecute the individuals responsible for committing the crime of aggression.  These proposals include a UN-backed ad hoc tribunal, and support for Ukraine to prosecute individuals, most likely in absentia.

But these proposed solutions are flawed in a number of ways. A UN Security Council backed tribunal, similar to those established for Rwanda and the former Yugoslavia, is of course a non-starter because of Russia’s veto authority. A UN General Assembly (GA) backed tribunal has been suggested. If it were supported by a strong cross section of UN member states, it would certainly be regarded as legitimate.

However, as the recent GA vote on establishing an international mechanism for compensation for damage, loss and injury, demonstrated, GA support for international mechanisms for Ukraine is slipping. Further, the reluctant ratification of ICC members for the crime of aggression suggests that states are wary of establishing a precedent for mechanisms that might punish them for using what many states still regard as a legitimate tool of statecraft.

Prosecuting the crime of aggression in Ukraine has the advantage of proximity, and would hence lend legitimacy to proceedings. But any prosecutions would be unlikely to commence until the cessation of hostilities, and a domestic prosecution would be unable to overcome the customary protection afforded to heads of state being tried in foreign courts.

Regarding jus in bello crimes, the same jurisdictional restraints don’t exist; Ukraine, for the purposes of Article 12 of the Rome Statute, is a state party to the ICC. Still, Russia, as a non-state party, is under no obligation to cooperate with potential ICC investigations.

The Ukraine conflict offers a microcosm of the tensions inherent to the international legal order. As discussed above, over time, war has come to be increasingly framed via reference to the legality of its constituent actions. Yet while the laws of war have permeated to become a common referent in judging the legitimacy of state’s use of force, the justice pathways for violations of these laws, especially with relation to powerful states, remains frustratingly narrow.

This article was published by the Australian Institute for International Affairs.