Ukraine Symposium – Litigating Russia’s Invasion of Ukraine

Since the commencement of Russia’s invasion of Ukraine at the end of February, different international courts and tribunals have been engaged as means to invoke international responsibility for the various violations of international law that have occurred. As is often the case in international law, however, the proceedings initiated before these tribunals reflect a very particular legal framing of the broader invasion and conduct of hostilities (I wrote on this theme a few years ago in relation to the post-2014 litigation between Ukraine and Russia). This is a consequence of the absence in international law of a single, integrated judicial system with compulsory jurisdiction. Instead, there are many different courts that, for the most part, have limited subject-matter jurisdiction.

Since the February invasion, cases have already been initiated before the International Court of Justice, European Court of Human Rights, and International Criminal Court. The first two of these courts deal with Russia’s responsibility as a State, whereas the third deals with the responsibility of individual perpetrators of crimes. While the speed with which these courts have started their investigations is promising, many obstacles lie along the path to accountability. This post outlines these proceedings and considers some of the key obstacles that they face.

International Court of Justice

The day after Russia’s invasion began, Ukraine submitted an application to the International Court of Justice (ICJ). Ukraine alleges that Russia is in violation of the 1948 Convention Against Genocide, on the grounds that Russia has falsely accused Ukraine of committing genocide in the East and used this as a pretext for its invasion. The 1948 Convention, of course, contains a compromissory clause granting the ICJ jurisdiction over disputes concerning its interpretation, application, or fulfilment. Ukraine must, therefore, frame its dispute (which is really one concerning the use of force and conduct of hostilities) as one concerning the Convention Against Genocide. Indeed, similar legal framing was also necessary in its earlier ICJ application regarding Russia’s annexation of Crimea and activities in Eastern Ukraine, which Ukraine brought on the basis of the Convention on the Elimination of All Forms of Racial Discrimination and the International Convention on the Suppression of the Financing of Terrorism.

Ukraine faces a number of challenges in its application, however. Most importantly, the Genocide Convention does not clearly prohibit wrongful allegations of genocide against another State; rather, it requires States to prosecute persons responsible for genocide. It is not clear, therefore, that Russia’s actions violate the Genocide Convention as such.

Nonetheless, Ukraine was able to convince the Court in its application for the indication of provisional measures that the Genocide Convention granted the Court prima facie jurisdiction and that its rights thereunder had plausibly been affected. The Court consequently issued its Order on 16 March that Russia “immediately suspend the military operations” against Ukraine. As Marko Milanovic has noted, the Order is especially noteworthy for going beyond what Ukraine had requested, requiring the suspension of all its military operations and not just those based on the pretext of genocide in the Donbas.

Judges Xue and Gevorgian dissented, arguing that rights under the Genocide Convention were not implicated here, whilst Judge Bennouna’s declaration was admirably honest, in that he “felt compelled by the tragic situation” to vote with the majority but doubted whether the Genocide Convention could indeed grant the Court jurisdiction over Ukraine’s claims. This might suggest a tougher path for Ukraine at the later, preliminary objections stage when it will have to argue in full that the Convention grants the Court jurisdiction. However, unlike when seeking provisional measures (which are designed to protect specific rights), Ukraine may be able to argue that the dispute is one of “fulfilment” of the Convention (that is, Ukraine’s fulfilment) without the need to ground its claim in an assertion of a right not to be accused of genocide as such.

European Court of Human Rights

In addition to bringing a claim against Russia before the ICJ, Ukraine has also brought a claim before the European Court of Human Rights (ECtHR). This joins four other sets of pending cases brought by Ukraine against Russia before the ECtHR in relation to the annexation of Crimea and Russian actions in Eastern Ukraine since 2014. A number of cases have also been brought against Russia by individuals in Ukraine since the start of the invasion, which join thousands of individual cases against Russia in relation to the events from 2014.

All of these cases allege that Russian actions in Ukraine violate its obligations under the European Convention on Human Rights (ECHR). However, a number of States, including the United Kingdom, have long pushed back against the idea that the ECHR can extend to their extraterritorial conduct or to the regulation of armed conflict. Though the Court takes the view that the ECHR does, in certain cases, regulate extraterritorial action, in its Georgia v Russia (II) judgment of last year, it took a distinctly narrow view of the application of the ECHR to killings during the invasion phase of an international armed conflict (though the Court was heavily divided). Ukraine may find this precedent problematic when it comes to arguing its latest case in full, at least for those of its claims invoking the substantive right to life during active hostilities.

Like the ICJ, however, the ECtHR has already issued an order on interim measures (which is has subsequently interpreted and expanded) requiring Russia to refrain from attacks against civilians and civilian objects, to provide safe evacuation routes (within Ukraine), and to allow humanitarian aid through.

Litigation before the ICJ and ECtHR takes a notoriously long time, and it will be some years before any substantive judgment on the merits of these cases is given. However, these initial orders against Russia issued by both courts are likely what Ukraine really sought, at least for now. Such clear denunciations of Russia’s actions from international courts add to the political and diplomatic pressure exerted on Russia.

International Criminal Court

In addition to Russia’s responsibility as a State for its various violations of international law, the International Criminal Court (ICC) Prosecutor confirmed soon after the February invasion that he was opening an investigation into alleged international crimes committed on Ukraine’s territory, based on Ukraine’s earlier acceptances of the Court’s jurisdiction in 2014 and 2015. We have seen many reports alleging war crimes during the conflict. These include reports of attacks on medical facilities such as the maternity and children’s hospital in Mariupol, murder and sexual violence in Russian controlled areas, and the killing of civilians in Bucha. International efforts at evidence gathering are already underway and include the newly-created UN International Commission of Inquiry and the recent report of the Mission of Experts established under the OSCE’s Moscow Mechanism.

Again, however, there are many obstacles, both legal and practical, to accountability. With respect to legal obstacles, prosecuting military and political leaders for their roles, in addition to individual soldiers, poses difficulties. Establishing the individual responsibility of political or military leaders requires evidencing either an order to commit international crimes (Art. 25(3)(b) of the Rome Statute) or knowledge/willful blindness of those crimes as well as a failure to take reasonable and necessary measures to prevent or respond to them (Art. 28 of the Rome Statute). Given the widespread reporting of alleged war crimes, together with examples of Russia’s blanket denials in response, there does appear to be some evidence of willful blindness and failure to take reasonable measures.

However, the ICC could not, of course, prosecute President Putin or other Russian political or military leaders for the crime of aggression, given that Russia itself is a party neither to the Rome Statute nor to the Kampala amendments on aggression (a limitation on the power of the ICC supported by a number of States, including the United Kingdom).

Regarding practical obstacles, as is frequently the case, the ICC would no doubt struggle to gain custody of defendants even after evidence has been collected and arrest warrants issued. The widespread political support for prosecutions for war crimes in Ukraine might offer some help with this, as there is more likely to be cooperation with the ICC and transfer of defendants to the Court should they travel to another State. Yet this will further delay trials proceeding.

Though a Special Tribunal to prosecute the Russian leadership for aggression in Ukraine has been proposed, and a domestic Ukrainian “special mechanism” to prosecute international crimes is being established, it is not clear that these would overcome the obstacles already faced by the ICC.

A long road ahead

Many obstacles lie on the path to accountability for international law violations in Ukraine. However, the speed with which these international courts have initiated their proceedings does offer some hope, and in the short-term they add to the political pressure on Russia. This immediate political pressure should not be under-estimated, and it contributes to Ukraine’s diplomatic retaliation. In the long-term, while one should not dismiss the possibility of international courts contributing to a resolution of armed conflict, Russia’s refusal to participate in the initial ICJ hearings on provisional measures (instead submitting a note setting out its position), and its indication that it may also refuse to participate in any future proceedings, could severely limit the ability of the Court to act as a forum for genuine dispute resolution.

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Lawrence Hill-Cawthorne is an Associate Professor in Law at the University of Bristol.

Photo credit: UN Photo/CIJ-ICJ/Frank van Beek. Courtesy of the ICJ.