Ukraine Symposium – Building Momentum: Next Steps towards Justice for Ukraine

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| May 2, 2022

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.]

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On 27 April, 63 days after the Russian invasion, the UN Security Council held an Arria-formula meeting convened by the Permanent Missions of Albania and France in cooperation with Ukraine. The aim was to “bring together Member States and key actors involved in the documentation of crimes committed in Ukraine in order to identify how such efforts can be supported and coordinated so as 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 civil society representatives.

Amal Clooney, representing the Clooney Foundation for Justice, made a powerful intervention, which you can watch here. In this post, I will draw attention to the practical steps that Amal outlined for sustaining and escalating the momentum for a better system of justice because, as she noted, “Peace—like war—must be waged. And justice, too, is something we must fight for.”

Amal set out seven concrete actions that governments should take. I will briefly elaborate, from my own perspective, on each of them.

1. “Powerful states including the United States should support the International Criminal Court [ICC]—clearly and unequivocally—by dropping unprincipled objections to its jurisdiction and offering resources and evidence to support the prosecutor’s work.”

The context for 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, in the 27 April meeting, Ambassador Beth Van Schaack expressed strong support for international investigations into atrocities in Ukraine, including those conducted by the ICC.

2. “States must ensure that those responsible for the crime of aggression – who are currently beyond the reach of the ICC—can also be brought to justice before a court of law.”

The ICC currently has jurisdiction over war crimes, crimes against humanity, and genocide pursuant to Ukraine’s ad hoc acceptance of the Court’s jurisdiction under Article 12(3) of the ICC Statute. The Court cannot exercise jurisdiction over the crime of aggression of a State not party to the Statute (Article 15bis (5)). Jurisdiction over aggression could be achieved through a referral of the situation in Ukraine by the Security Council (Article 15ter) but that is rendered impossible by the Russian veto.

Other options are therefore being explored (see here, here, here, and here). These include a special aggression tribunal formed by pooling the jurisdiction over aggression of various States or created in cooperation with the UN General Assembly, as well as a hybrid tribunal established as part of the Ukrainian judicial system with the support of the Council of Europe or another body. There is also the option of prosecutions by Ukraine or by some of the twenty States that have universal jurisdiction over aggression in their domestic law. Each of these options has advantage and disadvantages, which are being hotly debated, including the challenge of overcoming the personal immunity of high-level officials, the obstacles to securing custody over those officials, and the prospect of in absentia trials.

3. “States should file interventions in support of Ukraine’s cases against Russia at the European Court of Human Rights and the International Court of Justice.”

Until recently, interventions before international courts in contentious cases were rare and driven by a specific legal interest in the subject matter of the case, such as potential encroachment on a boundary claim. But the legal framework exists for a greater volume of interventions aimed at standing up for the values of the international community.

Article 63 of the International Court of Justice (ICJ) Statute gives the “right” to intervene in proceedings where the “construction of a convention” to which a state is a party “is in question.” In the Gambia v Myanmar case, the Maldives, Netherlands, and Canada have announced their intention to intervene in support of Gambia’s case that Myanmar is responsible for genocide against the Rohingya people. And some States have indicated their interest in intervening in the Ukraine v Russia cases at the ICJ and the European Court of Human Rights. Well-coordinated, focused, and pertinent interventions have the potential to be very useful in developing legal and, depending on the type of intervention, factual aspects of the cases.

4. “The UN General Assembly should make clear that sovereign immunity should not prevent Russian state assets being made available to Ukraine and its people—and that the assets of all those who support the war are at risk.”

Currently, $600 billion of Russian foreign currency are frozen in foreign jurisdictions, with about half of that amount believed to be frozen by restrictions imposed on Russia’s central bank. In general, State property benefits from immunity from jurisdiction and enforcement, subject to narrow exceptions such as State consent or when the assets are being used for commercial purposes. Central bank assets, in particular, tend to enjoy extensive immunity from enforcement. Further, the ICJ has held that “customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces or other organs of the State in the course of conducting an armed conflict” (para. 78).

But there are options for overcoming this high bar, which are being explored by lawyers and scholars. First, as Ingrid Wuerth and Tom Ruys have argued, immunity from jurisdiction and enforcement pertains to judicial proceedings, but immunity does not appear to be a bar to the freezing of assets through executive action. Alternatively, legislative action that is not linked to a judicial proceeding may be able to freeze, seize, and repurpose frozen assets. This is because, as the ICJ has observed, “the rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State” (para. 93) (emphasis added).

There is more work to be done here, including consideration of what legal regimes do apply to such action if the law on immunity does not, including notions of inviolability, sovereign equality, due process, and possibly expropriation. Second, any action against assets that is at first glance unlawful could potentially be justified as third-party countermeasures or an act in collective self-defence. This would benefit from further in-depth analysis.

And customary international law does change, and States can play a role in accelerating that change. The UN 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 worded resolution could signal a change in how the majority of States view the entitlement to immunity in these exceptional circumstances, opening the way to judicial, legislative, and executive action in pursuit of resources that would allow Ukraine and its people to rebuild their lives.

5. “States should ensure that they are a hostile environment for war criminals” by (a) signing the Crimes against Humanity Convention to allow for prosecutions of this crime in national courts and better evidence-sharing between states; (b) expanding national laws to capture more perpetrators of international crimes.

Amal noted that there have only been two successful prosecutions for international crimes in the United Kingdom, and the United States has had only three cases under the Torture Act and zero cases charging genocide. This contrasts with the practice of, for example, Germany.

In December 2019, the UN General Assembly took note of the International Law Commission’s draft articles on prevention and punishment of crimes against humanity. The articles are focused on a clear gap in international criminal law (as compared to the treaties on war crimes and genocide) and rely extensively on provisions that States have accepted previously in treaties such as the 1984 Convention against Torture and the 2003 Convention against Corruption. There has been limited progress to date, but the time would seem ripe for this treaty to come into being.

On the domestic level, Amal cited as a positive example of expanding national laws the proposed legislation by Senator Durbin and supported by Senator Graham in the United States.

6. “The United Nations should establish a compensation commission.”

There have been various compensation and claims commissions established over the years, dating back to the Mixed Claims Commissions under the 1794 Jay Treaty. The UN played a prominent role in one of the most successful examples—the United Nations Compensation Commission (UNCC), which operated from 1991 until earlier this year. It provided payments (sourced in part from funds from the export of Iraqi petroleum) to individuals, corporations, governments, and international organizations. The Iran-US Claims Tribunal is another model, which used the involvement of a third party intermediary (Algeria) to bring the parties to the negotiating table. There are also models, such as the Housing the Property Claims Commission (Kosovo) where State consent was not needed.

7. “States should extend a welcoming hand to its refugees—until it’s safe enough for them to go home.”

Poland, with a population of 38 million people, has already taken in more than 2.9 million Ukrainian refugees since 24 February. The overall impression has been one of generosity and warm support to people fleeing in horrific circumstances, but challenges lie ahead in terms of resources, logistics, and sustainability. The United Kingdom has been criticized for a limited and delayed response to the refugee crisis, leading to an apology by the Home Secretary. The UNHCR has recently launched a Regional Refugee Response Plan seeking $1.85 billion to support a projected 8.3 million refugees in Hungary, the Republic of Moldova, Poland, Romania, Slovakia, Belarus, Bulgaria, and the Czech Republic.

Conclusion

The horrors taking place in Ukraine, which we see scrolling across our screens on an hourly basis, can either galvanize us into action or render us numb. The Russian invasion and the ongoing violations of international law present an imposing task for international justice. In her powerful statement to the UN Security Council-hosted meeting, Amal offered States a compelling roadmap for improving the prospects for Ukraine and its people. States are well advised to consider and adopt these proposals to keep building the momentum towards justice.

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Philippa Webb is Professor of Public International Law at King’s College London.

 

 

Photo credit: Oleksandr Ratushniak / UNDP Ukraine

 

 

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