Ukraine Symposium – Building Momentum: Next Steps Towards Justice for Ukraine
[Author’s Note: I am a member of the Legal Task Force on Accountability for Crimes Committed in Ukraine, alongside Amal Clooney and other international lawyers and academics. I am writing in my own capacity.]
On April 27, 63 days after the Russian invasion, the UN Security Council held a meeting under the Arria formula convened by the permanent missions of Albania and France in cooperation with Ukraine. The objective was to “bring together member states and key actors involved in documenting crimes committed in Ukraine to identify how these efforts can be supported and coordinated to ensure the effective investigation and prosecution of those responsible for atrocities”. As an Arria Formula meeting, it was an informal meeting with a range of participants, including representatives of civil society.
Amal Clooney, representing the Clooney Foundation for Justice, gave a powerful speech, which you can watch here. In this article, I will draw attention to the practical steps outlined by Amal to maintain and intensify the momentum for a better justice system because, as she noted, “peace, like war, must be conducted. And justice too is something we have to fight for.
Amal has identified seven concrete actions that governments should take. I will briefly develop, from my own point of view, each of them.
1. “Powerful states, including the United States, should support the International Criminal Court [ICC]- clearly and unequivocally – dropping unprincipled objections to jurisdiction and offering resources and evidence to support the prosecutor’s work.
The background to this point is that until recently, the United States has argued that the ICC cannot prosecute nationals of a state that has not joined the ICC, unless there is a referral of a situation by the Security Council. Interestingly, at the April 27 meeting, Ambassador Beth Van Schaack Express strong support for international investigations into the atrocities in Ukraine, including those conducted by the ICC.
2. “States must ensure that those responsible for the crime of aggression – which are currently beyond the reach of the ICC – can also be brought to justice in court.
The ICC currently has jurisdiction over war crimes, crimes against humanity and genocide under the ad hoc acceptance of the jurisdiction of the Court under Article 12(3) of the ICC Statute. The Court cannot exercise its jurisdiction over the crime of aggression of a State not party to the Statute (article 15bis (5)). Jurisdiction over aggression could be obtained by referral of the situation in Ukraine to the Security Council (Article 15ter), but this is made impossible by the Russian veto.
Other options are therefore being explored (see here, here, here and here). These include a special aggression court formed by pooling the jurisdiction over aggression of various states or created in cooperation with the United Nations General Assembly, as well as a hybrid court established under of the Ukrainian judicial system with the support of the Council of Europe or another body. There is also the possibility of prosecution by Ukraine or by some of the twenty states that have universal jurisdiction over aggression in their domestic law. Each of these options has advantages and disadvantages, which are hotly debated, including the challenge of overcoming the personal immunity of senior officials, the obstacles to obtaining custody of these officials, and the prospect of in absentia trials.
3. “States should file interventions in support of Ukraine’s lawsuit against Russia at the European Court of Human Rights and the International Court of Justice.”
Until recently, interventions before international tribunals in contentious cases were rare and motivated by a specific legal interest in the subject matter of the case, such as a potential encroachment on a boundary claim. But the legal framework exists for a greater number of interventions aimed at defending the values of the international community.
Article 63 of the Statute of the International Court of Justice (ICJ) gives the “right” to intervene in proceedings where “the interpretation of a convention” to which a State is a party “is at issue”. In the Gambia vs Myanmar case, the Maldives, the Netherlands and Canada have announced their intention to intervene in support of The Gambia’s case that Myanmar is responsible for the genocide against the Rohingya people. And some States expressed their interest in participating in Ukraine vs Russia cases before the ICJ and the European Court of Human Rights. Well-coordinated, targeted and relevant interventions can be very useful in developing the legal aspects and, depending on the type of intervention, the factual aspects of cases.
4. “The United Nations General Assembly should clarify that sovereign immunity should not prevent Russian state assets from being made available to Ukraine and its people – and that the assets of all those who support war are in danger.”
Currently, $600 billion of Russian foreign currency is frozen in foreign jurisdictions, about half of which is believed to be frozen by restrictions imposed on Russia’s central bank. In general, state property enjoys immunity from jurisdiction and execution, subject to rare exceptions such as state consent or when the property is used for commercial purposes. Central bank assets, in particular, tend to enjoy broad execution immunity. Further, the ICJ has held that “customary international law continues to require that a state be granted immunity from prosecution for offenses allegedly committed in the territory of another state by its armed forces or other state organs in the conduct of an armed conflict”. (para. 78).
But there are options for overcoming this high bar, which are being explored by lawyers and academics. First, as Ingrid Wuerth and Tom Ruys have argued, immunity from jurisdiction and execution relates to judicial proceedings, but immunity does not appear to be an impediment to the freezing of assets by executive action. . Alternatively, legislative action that is unrelated to legal proceedings may be able to freeze, seize and reallocate frozen assets. Indeed, as the ICJ has observed, “State immunity rules are procedural in nature and are limited to determining whether or not state courts may exercise jurisdiction over another State” (para. 93) (emphasis added).
There is still work to be done here, including reviewing the legal regimes To do apply to such an action if the law of immunity does not apply to it, including the notions of inviolability, sovereign equality, due process and possibly expropriation. Second, any action against assets that is prima facie unlawful could potentially be justified as third-party countermeasures or an act of collective self-defense. This would benefit from further analysis.
And customary international law Is change, and states can play a role in accelerating that change. The United Nations General Assembly has a role to play in this regard because its resolutions can have normative force and constitute evidence of State practice. A carefully crafted resolution could signal a change in how the majority of states view the right to immunity in these exceptional circumstances, paving the way for judicial, legislative and executive action in search of resources that would allow Ukraine and its people to rebuild their lives. .
5. “States must ensure a hostile environment for war criminals” by (a) signing the Crimes Against Humanity Convention to allow prosecution of this crime in national courts and better sharing of evidence between states; (b) expand national laws to capture more perpetrators of international crimes.
Amal noted that there have only been two successful prosecutions for international crimes in the UK, and the US has had only three cases under the Torture Act and no indictment cases. of genocide. This contrasts with the practice, for example, of Germany.
In December 2019, the United Nations General Assembly took note of the International Law Commission’s draft articles on the prevention and punishment of crimes against humanity. The articles focus on a clear gap in international criminal law (with respect to war crimes and genocide treaties) and draw heavily on provisions that states have previously agreed to in treaties such as the 1984 Convention against torture and the 2003 Convention against Corruption. Progress has been limited to date, but the time seems ripe for this treaty to enter into force.
At the national level, Amal cited as a positive example of expanding national laws the bill proposed by Senator Durbin and supported by Senator Graham in the United States.
6. “The United Nations should create a compensation commission.”
Various compensation and claims commissions have been established over the years, dating back to the Joint Claims Commissions under the Jay Treaty of 1794. The UN played a leading role in one of the most successful examples – the United Nations Compensation Commission (UNCC), which operated from 1991 until the beginning of this year. It provided payments (partly from funds derived from the export of Iraqi oil) to individuals, companies, governments and international organizations. The Iran-US Claims Tribunal is another model, which used the involvement of an intermediary third party (Algeria) to bring the parties to the negotiating table. There are also models, such as the Housing and Property Claims Commission (Kosovo), where state consent was not required.
7. “States should reach out to its refugees, until they are safe enough to return home.”
Poland, which has 38 million inhabitants, has already taken in more than 2.9 million Ukrainian refugees since February 24. The overall impression was one of generosity and warm support for people fleeing in horrific circumstances, but challenges remain in terms of resources, logistics and sustainability. The UK has been criticized for its limited and belated response to the refugee crisis, leading to an apology from the Home Secretary. UNHCR recently launched a regional refugee response plan seeking $1.85 billion to assist 8.3 million expected refugees in Hungary, the Republic of Moldova, Poland, Romania, Slovakia, Belarus, Bulgaria and the Czech Republic.
The horrors unfolding in Ukraine, which we see flashing across our screens hourly, can either spur us to action or numb us. The Russian invasion and continued violations of international law represent a daunting task for international justice. In her powerful statement to the meeting organized by the UN Security Council, Amal offered states a compelling roadmap to improve the prospects for Ukraine and its people. States are well advised to consider and adopt these proposals to continue building the momentum for justice.
Philippa Webb is Professor of Public International Law at King’s College London.
Photo credit: Oleksandr Ratushniak / UNDP Ukraine