The war in Ukraine and international law – what causes its ineffectiveness?

Translation: Kamil Golemo.

From the beginning of the prohibited by international law aggression of the Russian Federation against the sovereign state – Ukraine – most people ask themselves about the reaction of international institutions that should maintain international peace and security. Although it is not the first war (armed conflict, in accordance with the terminology used in international humanitarian law of armed conflicts) since the establishment of the United Nations and international tribunals, it is vain to expect the effectiveness of international criminal law and the establishment of justice for the perpetrators of war crimes.

Prosecutor of the International Criminal Court (ICC) in The Hague, Karim A.A. Khan, announced on Wednesday, March 2nd, that he launched an investigation into possible war crimes or crimes against humanity in Ukraine. What is worth emphasizing, is that Poland was one of the 39 states who put forward a motion in this case (ultimately 41 state applications were submitted). Thus, first of all, it is a proceeding “in the case” and not “against” it. Therefore, there is no question of indicating and publicly naming the perpetrator, and secondly, it is an examination of “possible crimes”, that is, the ICC only after years, or maybe decades, will judge whether what we see every day in the media and hear from Ukrainian war refugees, fleeing to Poland is, according to a legally binding court ruling, a war crime, or a crime against humanity.

The question that immediately arises, refers to the punishment that the perpetrator of the crimes in Ukraine could suffer. A person found guilty of a war crime may receive 30 years imprisonment or life sentence, depending on the gravity of the crime. The court, which is obvious in light of the human rights issues that apply even to such inhumane acts, cannot rule on the death penalty. Lots of international lawyers, including the author of this paper, believe that some of the ICC sentences were “too gentle” and that prison conditions for inmates are luxurious, which by no means gives rise to repentance or sorrow.

Regarding the ICC proceedings, it should be highlighted that the main obstacle is the fact that neither Ukraine nor Russia are parties to the Rome Statute of The International Criminal Court of 1998 (entered into force in 2002). Although the government in Kyiv signed the document, it has never ratified it into its own legal system, which means that it is not bound by its norms. However, there is a practical exception to this rule, as Ukraine has twice accepted the ICC’s powers to settle disputes, adopting the jurisdiction of the body “on an unlimited basis”. This means that Ukraine cannot itself put forward a motion, but the ICC, ex officio, has jurisdiction over crimes committed on its territory.

As for the Russian Federation, the country withdrew from the ICC in 2016 shortly after the Court published a report classifying the Russian annexation of Crimea as an occupation. Since the state is not a party to the ICC, its natural persons, including the head of state, and military decision-makers, cannot be prosecuted for the 4 crimes within the jurisdiction of the Court. These are genocide, crimes against humanity, war crimes, and the crime of aggression. The only possibility to bring a non-party state before the is a UN Security Council resolution. Russia, as a permanent member of the Council, has veto power, so we also have “a legislative miss” here.

So far, not a single political leader of any state has been held criminally responsible in a trial before international criminal tribunals for war crimes

On February 27th, Ukraine brought a lawsuit against Russia to the International Court of Justice (ICJ) in Hague. These two institutions should not be confused. The ICJ is a UN body, and it consists of Russian judges too. The Ukrainian motion included the charge that the invasion was carried out under the pretext of false claims of the genocide committed against Russian-speaking people in the country. However, also in this case, on March 16th, the ICJ issued a decision declaring Russia’s attack on Ukraine illegal, ordering Russia to halt the invasion. Due to the greatest weakness of international law, such a judgment has no component of sanctions or enforcement measures. It is therefore just a symbolic step that will not lead the perpetrators to punishment. It is worth adding that the result of the judges’ voting, in this case, was 10:2. These two are from Russia and China.

What about alternative methods of seeking international responsibility for crimes in Ukraine? There are two legal methods: universal criminal jurisdiction and ad hoc tribunal. The first one makes it possible for the state to prosecute individuals regardless of their nationality and then to proceed on its own territory (before the state courts) for crimes committed beyond the national jurisdiction. For the first time in history, this measure was used when Chilean dictator Augusto Pinochet was arrested in 1998 in London on charges of genocide and terrorism. Recently, in 2015 in Germany, two Rwandans accused of leading a rebel group in the eastern part of the Democratic Republic of the Congo were convicted of war crimes. What is worth adding is the fact that Russia also has its own norms on universal jurisdiction.

Finally, the last legal way is to establish an international criminal tribunal for Ukraine. However, this would be the goal of the states whereas there is no unanimity on the international stage, where even the issue of sanctions against Russia or their scope is a matter of political and economic disputes. After all, many Western media do not even use the word “war”, but only “situation”, “conflict”, and finally “what is happening in Ukraine”. Additionally, the President of the Russian Federation, like any head of state, is protected by immunity. He would have to resign from office (and it does not seem to happen) or be removed from it (very unlikely!), he would have to be extradited after the verdict “against” and not “in the case” (also will not take place), or to voluntarily go to a state that is a subject to the jurisdiction of the tribunal who would issue the sentence (again, a miss!).

Last but not least, the slow procedures of international criminal law should not be forgotten. The proceedings take decades, the perpetrators are able, what is logical, to escape, change their name, provide themselves with an alibi, or use international incompatibility in their own case, as it happened with (the current, sic!) President of Kenya, Uhuru Kenyatta. So far, not a single political leader of the country has been held criminally responsible in a trial before international criminal tribunals for war crimes. Although it is extremely difficult to link the head of state with crimes committed by the armed forces of his country, it should be remembered that war crimes do not have a statute of limitations. The memory of the act, however, fades with the course of other international affairs, and the perpetrators of the crime will not live to see the charges against them, not to mention the reading of the conviction. This was the case with the former president of the Socialist Republic of Serbia, Slobodan Milošević, who died in 2006 in Hague of a heart attack.

Will the Russian evasion of the responsibility for war crimes before international courts, then, contribute to the consideration of the issue of the effectiveness of legal solutions by the states who form international institutions? Will the exclusion of the Russian Federation from the Council of Europe initiate exclusions from other international organisations? Will there be any transformation in the largest intergovernmental organisation – UN – that bases (un)peace, (dis)order, and (in)stability in the world on the Big Five of the Security Council? If so, it will mean a new global order, where, hopefully, international law will be provided with relevant enforcement measures.