Ukraine’s Legal Counterattack

by | Mar 17, 2022

Ukraine Legal Counterattack

Beyond its endurance on the battlefield, Ukraine has launched a legal counterattack against Russia in the courts. The normally slow-moving, process-heavy gears of international justice are now moving at relative lightspeed in response to Russia’s illegal invasion of Ukraine and the global condemnation that quickly followed at the United Nations. While much has been made of the military, economic, and financial resistance against Russia’s invasion, Ukraine’s strategic legal salvos should not be undervalued.

Symbolically, it is important for democracies to take legal action against larger authoritarian adversaries when they are wronged, if for no other reason than to support the notion of the rule of law. Ukraine’s multi-pronged legal strategy involves cases in at least five international tribunals including advocacy by attorneys from prominent U.S. law firms. The two most recent advances have occurred in The Hague at the International Court of Justice (ICJ) and the permanent International Criminal Court (ICC).

The International Court of Justice

The ICJ held hearings at the Peace Palace last week on Ukraine’s request for provisional measures—essentially a restraining order against further Russian aggression. Defending itself against Russian President Vladimir Putin’s allegations of genocide against Russian-speaking peoples in the Donetsk and Luhansk regions, Kyiv opened a case against Moscow by triggering Article 9 in the 1948 Genocide Convention activating the Court’s jurisdiction. Indeed, in a bit of legal ju-jitsu, Ukraine turned the tables on Russia, noting that the international killing and infliction of serious injury on Ukrainian nationals by Russian forces transgressed at least two of the treaty’s actus reus prohibitions and may suggest genocidal intent by Russia itself.

Yale Law School’s former dean, Harold Koh, powerfully delivered Ukraine’s closing argument, “The tragedy we are all watching in the streets of Kyiv … is precisely what our modern international legal system was designed to prevent.” Foreshadowing what China might do against Taiwan if Russia succeeds in subjugating Ukraine, Koh stated, “If this Court does not act decisively against this level of aggression and atrocity, based on outrageous abuse of one of the world’s most important human rights treaties … why should any Permanent U.N. Member see international law as a meaningful obstacle to what it might perceive as ‘necessary military action’?” He then directly challenged the fifteen judges to act swiftly: “You have undeniable legal authority to act. Anything less would fail to vindicate the rule of international law under these most dire of circumstances…. [T]he world awaits your actions.” Russia declined to appear before the Court.

The International Criminal Court

On the other side of The Hague, overlooking a beach on the North Sea, the ICC was abuzz with activity. The Prosecutor, British barrister Karim Kahn, assembled his team to begin collecting evidence of war crimes, genocide, and crimes against humanity in Ukraine. It is happenstance that the ICC is able to tackle this situation. The Court does not always have jurisdiction over atrocities committed by or on the territories of non-State Parties to the Court’s Statute such as Russia and Ukraine. However, because Ukraine had requested and accepted the ICC’s jurisdiction after Russia annexed Crimea in 2014, and that process was not yet completed, Russian tanks literally rolled into a still-open situation before the Court. Mr. Kahn immediately announced his intention to convert this examination into an investigation and the case was assigned to Pre-Trial Chamber II. If the Kremlin’s attorneys advised Putin that he was immune from the ICC’s reach, they were as badly mistaken as he was surprised.

This jurisdictional track on the prosecutor’s initiative is overlaid, and further legitimized, by the sudden opening of a second track by thirty-nine State parties led by Lithuania which separately requested an investigation. The three judges who will oversee Mr. Kahn’s investigation are an all-star bench: Antoine Kesia-Mbe Mindua (DRC), who has deep experience drawn from previous postings at the Rwanda and Yugoslavia war crimes tribunals; Tomoko Akane (Japan), whose work on capacity building and legal systems in addition to prosecuting give her a keen eye toward process and procedure; and Rosario Salvatore Aitala (Italy), whose background in geopolitics and terrorism issues equip him to appreciate a much bigger picture in the Ukraine situation. This chamber will examine the evidence as it comes in, approve cases within the Ukraine situation, and issue summons or arrest warrants.

If the ICC issues an arrest warrant against Vladimir Putin for war crimes, it will be a legal thunderbolt. It is a rare thing for sitting heads of State to come under the jurisdiction of international law, but a decade ago this is exactly what happened to president Omar al-Bashir of Sudan for his role in the Darfur genocide. The ICC’s arrest warrant weakened Bashir both at home and abroad to the point that he was eventually overthrown, leading to negotiations for his transfer to The Hague to stand trial. No one presumes to know whether a similar fate would befall Putin, but it certainly wouldn’t help him.

Other Tribunals

The broader legal front Ukraine has mounted against Russia since the annexation of Crimea also includes previously percolating cases against Russia in the Law of the Sea Tribunal for illegal annexation Ukraine’s sovereign territorial waters and the fisheries and energy resources therein, and the Permanent Court of Arbitration for seizure of Ukrainian assets and investments in Crimea. These have re-emerged now with new urgency. Not insignificantly, on March 1st the European Court of Human Rights also ordered Russia, on Ukraine’s request, to refrain from further military attacks against civilians and civilian property in Ukraine.

Legal Impact

Ukraine’s legal counterattack in an array of international venues has put Russia back on its heels. Not only did Moscow not show up to challenge Ukraine at the ICJ, nor respond to the ICC Prosecutor’s announcement opening a war crimes investigation in Ukraine, Russia has withdrawn from the Council of Europe—a precursor to denouncing the European Convention on Human Rights—and is on the verge of being suspended from the World Trade Organization.

The law is designed to serve those who need it in the pursuit of justice. International justice is no exception, and there is no better case than Ukraine’s existential plight. The rule of law is what, in the end, tends to separate democracies from dictatorships.

***

Michael Kelly holds the Sen. Allen A. Sekt Endowed Chair in Law at Creighton University School of Law.

 

 

Photo credit: Ministry of Defense of Ukraine (mil.gov.ua)

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