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Challenges to Security in the Black Sea: Analyzing the Tripartite Initiative Operation in the Black Sea - Dobrin Dobrev - 12 December 2023

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Challenges to Security in the Black Sea: Analyzing the Tripartite Initiative Operation in the Black Sea - Dobrin Dobrev - 12 December 2023

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Introduction
Commercial shipping in the Black Sea has encountered restrictions ever since the full-scale invasion by Russia towards Ukraine began. One of the issues revolves around the rising number of sea-mines in the Black Sea, which are negatively impacting not only the belligerents Ukraine and Russia but also the neighboring countries, like Romania, Bulgaria, and Türkiye.

There have been numerous cases in which sea-mines have threatened the security of Romania such as the case in which a mine exploded in 2023 near the coastline of the town Costinesti or on the 8 th of September 2022 when the Romanian navy's minesweeper was damaged near the port of Constantza. According to the Ukrainian Crisis media center, the Romanian navy has reported ly neutralized five mines in the Black Sea.

The situation in Bulgaria is similar to Romania, with different types of sea-mines appearing near its coast. One was defused 200 meters from the village of Tyulenovo in January 2023 and on the 2 nd of July, another was defused 27 nautical miles from the Kamchia river. First Rank Captain Vanyo Musinski, the chief staff of NATO's 27 th edition 'Breeze' exercise, has reported that "so far, only sea mines with a small charge have been discovered in the Black Sea."

In Türkiye, since 2022 the fear of sea-mines has increased as fishermen are afraid that they will hit the mines and " disappear underwater in the blink of an eye". The fear is based on the fact that since the invasion of Ukraine, many sea-mines have appeared near Rumelifeneri, a village located in the northern part of Istanbul. Ankara responded that year to the situation by banning fishing at night time and most of the fishermen eventually ended their season earlier than expected with an economic loss. The most recent incident with sea-mines was reported on the 5 th of October 2023 by a Turkish-flagged cargo ship that hit a mine and sustained minor damage during its journey.

In October of 2023 news spread that Russia would try to sabotage the Ukrainian grain vessels by planting sea-mines against civilian shipping in the Black Sea. The situation raised concerns over the possibility of disrupting commercial trade coming from the Black Sea and dangers to maritime traffic.

In response to the Russian provocative actions in the Black Sea, Bulgaria's Defense Minister, Todor Tagarev publicly announced that there will be a joint naval operation with NATO allies Romania and Türkiye in the Black Sea. The mine-cleaning operation, although not a NATO operation, will combine forces from the three countries into a joint sea-mine clearance unit without the assistance of the other NATO allies. The mine countermeasures squadrons of Bulgaria, Romania, and Türkiye will play an important role in safeguarding commercial sea traffic.

There is a serious question that arises with the sea-mining situation in the Black Sea, such as whether there is a responsibility of the neutral states to remove and neutralize the sea-mines? Possible danger to the safety and security of the surrounding NATO countries of Romania, Bulgaria, and Türkiye prompts an examination of the international legal system addressing maritime security and the removal of sea-mines.
Strategic Significance of Sea-mines and History Overview
Sea-mines are capable of damaging or destroying ships and submarines, but their primary strategic purpose is to keep the adversary from reaching strategically important maritime locations. It has been observed throughout history that sea-mines are a cost-effective weapon with substantial tactical, operational, and strategic value. Remarkably, China asserts that it is the first country that has used this type of weapon, having been developed and manufactured throughout the Ming dynasty period in the 16th century. Since the Russo-Japanese war in 1904-5, naval mines have become a strategic weapon in naval warfare. State armed forces have used this weapon in several international armed conflicts (IACs), such as the Vietnam War (1955-1972), the Iran and Iraq war (1980-1988), and nearly every significant maritime conflict that has taken place in the twentieth and twenty-first centuries. Naval mines have been also used in non-international armed conflicts such as the American Civil War, the Spanish Civil War, and the Libyan Armed Conflict. These sea mines also pose a severe risk to commercial transportation.

Unlike landmines, which are considered prohibited weapons by most states around the world due to treaty law (see also here), sea-mines are considered lawful weapons, with their usage governed by Hague Convention VIII and customary international law in relation to IHL. The meaning of a sea-mine is not defined under international law. However, a good definition can be found in the US Navy manual which defines them as "an explosive device laid in the water with the intention of damaging or sinking ships or of deterring shipping from entering an area." Sea-mines can be further categorized into two different categories, persistent and non-persistent mines. Persistent sea-mines " remain active indefinitely waiting for activation by the presence, proximity, or contact of a person or vehicle." Non-persistent sea-mines are those that " remain active for a predetermined period of times until one of the following functions renders the mines inactive."
Terrain-specific Challenges for Sea-mine Placement
Sea-mines cannot be placed by belligerent parties engaged in an IAC in the internal waters, international straits, or archipelagic waters that overlap with the seas of non-conflicting states. Nonetheless, there may sometimes be a debate over the proper balance that must be struck between the interests of belligerents and the passage right of neutral nations since international law does not forbid mine-laying in the national seas of the belligerent or even international waters.

It is inevitable that neutral freedom of navigation in the Black Sea will be inevitably impacted by the presence of an IAC. The belligerents to the armed-conflict being Ukraine and Russia do not, however, have an unrestricted right to lay sea-mines. This is because sea-mines may only be laid with a legitimate military objective. Sea-mines cannot be laid by belligerents with the expressed intent of preventing commercial sea trade. A belligerent has to accord the legitimate interests of neutral nations "due regard" if it chooses to deploy mines or attach pre-laid mines in international seas.

If it is essential for gaining military advantage, belligerents may lay mines in the continental shelf areas of neutral states and the exclusive economic zone (EEZ). Therefore, provided the mines do not endanger international shipping, states may place them. However, according to Part V (Art. 55-59) of UNCLOS, it is essential to respect the rights of the coastal state in relation to the exploration and utilization of natural resources while undertaking such actions. Additionally, the state responsible for laying mines has an additional duty to inform the coastal state of its mine-laying activities. The International Court of Justice further elaborated on this matter stating that "the laying of mines in the waters of another state without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907." Furthermore, the Court in the Nicaragua case emphasized that the information of notification "must be communicated to Governments through diplomatic channels". This precautionary measure of notification has been explicitly outlined by the Court in the Corfu Channel case: "certain general and well recognized principles, namely: elementary consideration of humanity, even more exacting in peace than in war".

In the present scenario unless the mines are controlled types of mines that are used specifically to target military targets, the mine-laying state (in the present case Russia) is obliged to notify the neutral states of risks to innocent shipping. As long as military circumstances allow, the requirement to provide notification must be fulfilled promptly. Delayed notification does not automatically result in a breach of international law.
The Tripartite Mine Clearing Operation
As seen above, the three states being Bulgaria, Romania and Türkiye ("the Tripartite") have adequately reported the locations and the dangerous presence of sea-mines in the Black Sea near their coastal lines. The fact that all of them informed the international community about the presence of sea-mines is very important as it was confirmed in the Corfu Channel case, where the Court found that Albania was under a positive obligation, under the Hague Convention VIII of 1907 ( the Hague VIII is viewed as reflecting customary international law) and in accordance with general principles of international law, to warn the international community of dangerous shipping. In accordance with the Corfu Channel judgment it can be observed that the Tripartite has successfully uphold their obligations towards the international community in that regard.

Secondly it is significant to note that the Court in the Corfu Channel case elaborated that a state does not possess an independent entitlement that would authorize its military force to enter the territorial sea of another state and carry out mine-clearing operations without the consent of the coastal State. The reasoning that supports this principle is now evident expressly under Article 2 of UNCLOS. This provision asserts that coastal state's sovereignty encompasses the territorial sea. Consequently, any actions conducted by other states in the territorial sea must align with the legal rights held by the coastal state over that specific area of the sea. Unlike Operation Retail, under which the United Kingdom forces acted without the consent from Albania and were found in violation of international law in their sea-mine clearing in the present scenario the Tripartite will meet in Ankara where each state will explicitly give consent in an agreement so that no state will violate the jurisdiction of its territorial waters.

International law would allow the Tripartite to conduct research and to eliminate the armed sea-mines from the archipelagic sea lanes and international straits. The legal justification of such mine-clearing operation can be on the basis that the presence of such mines would obstruct the commercial transit passage of innocent shipping within the Black Sea and violate treaty law but also customary international law. On this basis it would seem that the Tripartite would via the mine cleaning operation enforce the freedom of navigation in the Black Sea.

If a state such as in the present situation the Russian Federation has potentially engaged in unlawful mining without legitimate humanitarian law purposes such as military advantage which results in harm towards innocent passage of ships, it may be held responsible for its wrongful act under international law. Additionally, the affected state has the right to receive complete reparations for the damages inflicted.
Conclusion
In conclusion, there is a serious threat to marine safety and security as a result of Russia's brutal aggression towards Ukraine and increased geopolitical tension in the Black Sea. Despite the absence of a prohibition of mining the sea, except of the territorial sovereignty of Romania, Bulgaria and Türkiye, the belligerent in the present situation Russia may not intentionally interfere with the freedom of navigation that is enjoyed on the basis of treaty law and customary law by the neutral states in the Black Sea. The Tripartite, by effectively informing the international community of the dangerous waters in the Black Sea, has adhered to the principles laid down under in international law and illustrated in the Corfu Channel Case. Furthermore, the coalition's mine-cleaning action could be viewed as enforcing an obligatory measure of self-help aimed at restoring the freedom of navigation and countering denial of innocent passage of ships.

The current Black Sea challenges demand immediate actions as it has been recently noted by the US Congress in this regard that a diverse and effective strategy towards maintaining the stability in the region is of high priority between the US and the Black Sea NATO allies. This would mean that the Black Sea has now been viewed as one of the top priority regions of security risks.

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Challenges to Security in the Black Sea: Analyzing the Tripartite Initiative Operation in the Black Sea

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Dobrin Dobrev is a recent graduate from Utrecht University's master's program in International Law from the Conflict and Security track] Introduction Commercial shipping in the Black Sea has encountered restrictions ever since the full-scale invasion by Russia towards Ukraine began.

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In Ukraine, Russian Passportization Generates Effective Denationalization - Evan Harary - 4 January 2024

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In Ukraine, Russian Passportization Generates Effective Denationalization - Evan Harary - 4 January 2024

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[Evan Harary is an alumnus of Fulbright Ukraine 2021-22 — where he conducted research on nationality policy, passportization, and statelessness — a graduate of the University of Michiga…

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Domestic Litigation and Compensation to Ukrainian Victims of Russian Aggression - Ingrid (Wuerth) Brunk - 11 December 2023

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Domestic Litigation and Compensation to Ukrainian Victims of Russian Aggression - Ingrid (Wuerth) Brunk - 11 December 2023

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Many proposals to compensate Ukrainian victims of Russian aggression do not directly involve domestic courts, in part because foreign sovereign immunity poses significant obstacles to such litigation. There are, however, important cases against Russia currently pending in Ukrainian courts.

These cases were the subject of a recent session held in Lviv, Ukraine, as part of a joint meeting between the American and Ukrainian Societies of International Law. Participants in the session included Chimene Keitner (TLB Advisor), David Pinksy, Ihor Zeman, Ivan Horodyskyy, and many others. This post provides an overview of the cases and their potential significance for international law. It then analyzes litigation against the Wagner Group that is moving forward in the United Kingdom.
Ukrainian Cases
Ukrainians have already won domestic tort cases against Russia for war-related damages. The courts issuing those default judgments denied sovereign immunity to Russia in decisions upheld by the Grand Chamber of the Ukrainian Supreme Court. Because Ukraine lacks a statute governing foreign sovereign immunity, the issue is governed by customary international law. According to an English summary, the Ukrainian Supreme Court reasoned that Russia is not entitled to immunity because the invasion of Ukraine violated fundamental international legal norms including the UN Charter, meaning that Russia should not receive the "courtesy and mutual respect between states" upon which immunity is based. The Supreme Court also invoked the territorial tort exception (citing the UN Convention on Jurisdictional Immunities of States and Their Property) which allows states to deny immunity to foreign states that cause harm to an individual on the territory of the forum state. Immunity also, in the court's view, deprived Ukrainians of the opportunity to protect their rights and put Ukraine in violation of its international obligations under terrorism treaties.

None of those reasons are convincing grounds upon which to deny immunity under customary international law today. The International Court of Justice rejected similar arguments almost a decade ago in a case brought by Germany against Italy for crimes committed by Germany on Italian territory during World War II. Italian domestic courts had denied immunity to Germany based on allegations of that Germany had violated jus cogens norms and had committed torts on Italian territory. The Court surveyed state practice and held that the territorial tort exception did not apply to war time actions by a government's armed forces and that there was no immunity exception for jus cogens violations of international law. It characterized immunity as a procedural right to which states are entitled even if they have allegedly committed grave violations of international law. This case makes it difficult for Ukraine to argue successfully that Russia is not entitled to immunity. For these and other reasons (such as questions about adequate service of process), the judgments are thus unlikely to be enforced against Russian assets outside of Ukraine.

Ukraine is not alone in denying immunity on controversial grounds, suggesting that the customary international law governing immunity is under pressure - at least from a few states. Italy, for example, has continued to deny immunity to Germany in cases alleging violations of international humanitarian law during World War II. It has also enforced judgments against German assets located in Italy. Germany has accordingly instituted new proceedings before the ICJ against Italy. If the ICJ evaluates state practice again, it will need to consider the Ukrainian cases, which support Italy's position.

And Canada has recently joined the United States in denying immunity to states that the government designates as sponsors of terrorism. Iran challenged the U.S. law before the ICJ, but the Court held it lacked jurisdiction over the immunity issues. Iran has now sued Canada before the ICJ. Although there is very little practice suggesting that states are not entitled to immunity for terrorism-related actions, some scholars argue that acts of terrorism are not governmental acts ( acta jure imperii) to which immunity attaches at all. Even if these arguments are correct, actions taken by the Russian army during an armed conflict may not qualify as terrorism even if they are unlawful. Finally, however, Ukraine would argue that a narrow exception to immunity could be developed based on the U.N. General Assembly resolution in which an overwhelming number of states voted (141-7-32) to condemn the Russian invasion. That resolution said nothing about immunity or even about compensation, however, and the General Assembly resolution calling for reparations was far more contentious (94-14-73).
Cases Against the Wagner Group
Domestic court cases against the Wagner Group, which describes itself as a "private military company" and its founder, Yevgeny Prigozhin, face different obstacles. At least one such action is moving forward in the United Kingdom on behalf of a small group of Ukrainian victims there who allegedly suffered from Wagner's "campaign of terrorism" including murder, rape, infrastructure attacks designed to "spread terror and chaos in Ukraine." The plaintiffs appear to be bringing claims of terrorism and conspiracy. The United Kingdom designated Wagner as a "terrorist group" on September 15, 2023, meaning that supporting the group in the UK is a criminal offense, and perhaps bolstering the allegations of terrorist conduct by the organization.

The exact relationship between Wagner and the Russian government is not clear but appears to be close, raising potential immunity issues. Plaintiffs allege that Russian President Vladimir Putin at one time funded the organization, and a Congressional Research Group Report from August 2023 says that Russian military intelligence "reportedly helped establish and oversee" Wagner, including its activities in Ukraine. The relationship between Wagner and Russia might entitle Wagner to immunity under the UK Sovereign Immunity Act (§ 14(2)(a)) if "the proceedings relate to anything done by it in the exercise of sovereign authority." Characterizing Wagner's actions as terrorism that is distinct from the sovereign actions of the Russian armed forces may help avoid immunity. On the other hand, as discussed above, Ukraine sometimes characterizes the actions of the Russian army itself as "terrorism," potentially muddying the distinction between sovereign and non-sovereign conduct.

There do not appear to be any Ukraine-related cases against Wagner in the United States. Wagner has not been designated as a terrorist organization by the U.S. government. If it were so designated - which apparently is still under consideration - any U.S. national harmed by an act of international terrorism by Wagner could sue in the United States, irrespective of where the terrorist act took place. Plaintiffs would still need to establish personal jurisdiction; they might do so through proper service followed by a default judgment.
Conclusion
The customary international law governing state immunity depends on state practice. Although the issue of immunity for armed forces during armed conflict and the question whether acts of terrorism are entitled to immunity are not new, the terrible and unlawful war in Ukraine and the lawsuits it has spawned are generating new state practice and refocusing attention on these important questions.

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Domestic Litigation and Compensation to Ukrainian Victims of Russian Aggression - Transnational Litigation Blog

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domestic cases against Russia and Wagner group test the law of state immunity

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Manifestly Unlawful: Why Russian Military Commanders Must Disobey a Nuclear Launch Order Against Ukraine - Christopher Hart - November 2023 

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Manifestly Unlawful: Why Russian Military Commanders Must Disobey a Nuclear Launch Order Against Ukraine - Christopher Hart - November 2023 

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Manifestly Unlawful: Why Russian Military Commanders Must Disobey a Nuclear Launch Order Against Ukraine

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Applying the international legal framework governing the use of nuclear weapons to the facts of the war in Ukraine leads to a clear answer to the question of whether the use of nuclear weapons in Ukraine by Russia would be legal. While the 1996 International Court of Justice Advisory Opinion on the Threat or Use of Nuclear Weapons did not conclusively decide whether the use of nuclear weapons was per se illegal, by applying the legal framework articulated by the International Court of Justice to the facts of Russia’s war against Ukraine it is clear that any conceivable use of nuclear weapons in Ukraine by Russia would be illegal. This article builds on the holdings of the International Court of Justice advisory opinion by applying the fundamental principles of international humanitarian law to the war in Ukraine. This includes an evaluation of several types of potential Russian nuclear strikes, including a tactical nuclear strike on a city, at sea, or in a remote location of the battlefield. This analysis demonstrates that there is no Russian nuclear strike against Ukrainian targets that could satisfy the legal requirements of international humanitarian law. Therefore, the article advises Russian military commanders to refuse to launch any nuclear launch order against Ukraine in the present armed conflict.

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Crime of Aggression against Ukraine: The Role of Regional Customary Law - Patrycja Grzebyk - (2023) Journal of International Criminal LAw

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Crime of Aggression against Ukraine: The Role of Regional Customary Law - Patrycja Grzebyk - (2023) Journal of International Criminal LAw

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Crime of Aggression against Ukraine: The Role of Regional Customary Law

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Abstract. In the discourse around prosecution of perpetrators of the crime of aggression against Ukraine, there is a need to consider the impact of Eastern Euro

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Compromises on Territory, Legal Order, and World Peace: The Fate of International Law Lies on Ukraine’s Borders - Maksym Vishchyk and Jeremy Pizzi - 6 October 2023

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Compromises on Territory, Legal Order, and World Peace: The Fate of International Law Lies on Ukraine’s Borders - Maksym Vishchyk and Jeremy Pizzi - 6 October 2023

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As Russia's war against Ukraine persists, officials in Ukraine, Russia, and beyond have differing visions of how hostilities should end. Ukraine has consistently made its position clear that no peace negotiations with Russia are possible before the complete restoration of Ukrainian territorial integrity, that is, a return to Ukraine's 1991 internationally recognized borders. President Volodymyr Zelenskyy laid down that marker when he first outlined his 10-point Peace Formula in November 2022. In contrast, Russia has repeatedly stated that negotiations are only possible with the consideration of so-called "new realities" - that is, Russia's illegal purported annexation of four Ukrainian southeast regions and Crimea. The two visions would appear to be irreconcilable.

Formally, the majority of the international community expressed their commitment to Ukraine's territorial integrity with 143 votes at the United Nations General Assembly (UNGA) on Oct. 12, 2022, and through continued support in European regional organizations and recent rounds of high-level talks. In parallel, however, some officials in Western capitals doubt - publicly or privately - that ending the war is possible without Ukraine conceding part of its territory. In mid-August 2023, a senior NATO official, Stian Jenssen, chief of staff to the NATO Secretary General, stated that a potential ending to the war would require Ukraine to give up its territory in exchange for NATO membership, though he later backtracked, saying the statement was a mistake and was only meant to represent one of many "possible future scenarios."

This was followed by a broader discussion on how Ukraine's allies envision the end of the war. Journalists report that many Western officials believe that Ukraine's allies, including the United States, cannot leave it up to Ukraine to define the war's end goals, since "Ukraine's maximalist aims, they fear, guarantee an endless war." These whispering officials, hiding in the diplomatic undergrowth, seem to think that the solution to the conundrum is to offer Ukraine benefits in exchange for accepting a loss of territory and Russia's plunder of Ukraine's resources - NATO or EU membership, for example, or military and economic aid guarantees.

Of course, while some "realist" analysts press for such accommodations, none of the diplomats are willing to say this outright. They understand that it is not Ukraine's "maximalist aims" provoking a possible endless war, but Russia's undeniable and terrifying imperialistic greed, and they know that such concessions hold not only a potential public outcry but also dangerous ramifications for the global rules-based order constructed so carefully since World War II.

The struggle for peace is not doomed by Ukraine's legitimate aspiration for restoration of its territorial integrity. These aims and Ukraine's search for a political resolution, unlike Russia's hope for territorial concessions, are firmly premised on international law's constraints - the ones that shape, or should shape, collective security arrangements and the modern world.

Indeed, contemporary international law does not accept anything less than an agreement respecting Ukrainian territorial integrity within its 1991 borders. Any form of territorial concessions in the present environment would be legally void and contrary to duties imposed on States to deny manifest attacks on the international legal regime. Most of all, such concessions would deliver a fatal and final blow to the contemporary world order, while inevitably paving the way to further armed conflict in Ukraine and beyond. It risks being a catalyst for rapacious aggressors who seek to satiate their insatiable appetites on smaller countries and on the international community as a whole.

Illegality of Territorial Bargains Imposed by an Aggressor

Prohibition of the use of force as a means of enforcing, challenging, and destroying the rights of States is the backbone of the contemporary international legal order. Where the law fails to prevent and stop the unlawful use of force, at minimum it ensures that such an illegal act does not produce any legal rights for the benefit of the law-breaker, including acquisition of territorial title as a result of the conquest ( Lauterpacht (1953) 233; Lauterpacht's Report A/CN.4/63 (1953) 148; Schmalenbach (2018) 872). The corollary of this principle is reflected in the law of treaties, which declares void any international agreement procured by the threat or use of force in violation of international law principles enshrined in the United Nations Charter ( VCLT, Article 52).

In contrast to the pre-World War I era, when the law permitted war as a legitimate means of dispute resolution and States were bound to recognize unequal treaties imposed by victorious aggressors, further developments culminating in the adoption of the U.N. Charter in 1945 led to an explicit rule invalidating treaties imposed by force. Thus, peace treaties "imposed by the victorious aggressor," including those legitimizing territorial changes resulting from hostilities, have no legal validity when they are concluded under duress and without consent ( Lauterpacht (1953) 233; Lauterpacht's Report A/CN.4/63 (1953) 147; Schmalenbach (2018) 872).

Apart from guarding the international legal order and State sovereignty, the rule on voidance of imposed treaties is also aimed at guaranteeing stability: treaties imposed under the threat or use of force can further be used as an incentive to later enter into renewed military hostilities to remedy unequal positions ( Malawer (1977) 156-157, 165).

Thus, the imposed treaty is absolutely void in its entirety and ab initio ( VCLT, Articles 44(5), 69(1)). Its voidance is so fundamental that it is not affected by the fact that a coerced party might obtain advantages from the treaty or its part, or fails to claim the voidance within reasonable time: the coerced party's acquiescence is irrelevant (Lauterpacht's Report A/CN.4/63 (1953) 151; see also Rensmann (2018) 867 applicable to VCLT, Article 52 on the basis of Article 45).

Hence, where politics allows for flexibility in discussing potential outcomes of the war, it will eventually have to face the constraints of the law. In the present setting any agreement providing for territorial concessions from the Ukrainian side will inevitably fail the crash test of international law. Be it on its own initiative or under pressure from third States, Ukraine's territorial concessions will inevitably qualify as consented to only under Russia's use of force and/or its threat that it will continue to use force or use force in the future if Ukraine doesn't accept "new [territorial] realities."

In other words, Ukraine's consent to its territorial disintegration will remain involuntary for as long as Russian use of force, or its threat, persists to achieve that outcome. As outlined, this conclusion is not any different regardless of whether Ukraine initiates peace talks due to concern about the cost of continuing to defend itself, a shortage of aid or ammunition, or being provided with certain benefits from any imposed treaty (e.g., NATO or EU membership). In all these and like scenarios, the conclusion of a treaty will primarily be the result of the use of force or threat thereof; where the will of Ukraine is effectively reduced "to such a degree of impotence [making it] unable to resist the pressure to become a party to a treaty" (Lauterpacht's Report A/CN.4/63 (1953) 149).

Accordingly, arguments suggesting that Ukraine's territorial concessions can bring stability to the world are shortsighted and overlook the legal implications. Any treaty formalizing territorial secession from Ukraine will be a mere ticking time bomb threatening to explode at any time. Since imposed treaties are void entirely and ab initio, the territorial concessions agreement, even if formally consented to by Ukraine, will provide any (current or future) Ukrainian government, irrespective of the passage of time or circumstance, grounds to contest territorial changes. Apart from handing the aggressor ill-gotten gains, and an incentive to resurrect their predatory rapaciousness in the future, this threatens more generally to re-open hostilities at any moment with no real prospect of stability, long-term or otherwise.

International law will not accept anything less than a treaty respecting Ukrainian territorial integrity in its entirety. Allowing otherwise will send the international order back to when aggressive war was legal and territorial conquest was legitimate. It will send a clear signal to (potential) aggressors suggesting that they may attack States that are less mighty militarily or politically, subjugate them, and despite international law prohibitions, enjoy the fruits of their unlawful conquest and the crimes committed along the way.

To prevent this and in furtherance of the prohibition of aggression, international law also imposes several duties on the international community and third States that make the grant of territorial concessions by Ukraine even more untenable. They include the obligations to refrain from any explicit or implicit recognition of a situation created by an act of aggression or rendering aid or assistance to maintain such a situation, as well as the duty to enact measures and/or collective action to bring the violation to an end. As discussed below, these duties are the foundation of the contemporary world order, guaranteeing that the preservation of world peace and security remains a matter of community interest for all States, without leaving the victim of aggression facing its consequences alone.

Obligations Incumbent on the International Community and Individual States

The prohibition of unlawful use of force is widely regarded as a peremptory norm of international law ( jus cogens), i.e., an international law rule from which no derogation is permitted ( ARSIWA 112, §4; International Court of Justice (ICJ) Nicaragua (1986), §190). Various legal consequences are considered to follow from serious breaches of obligations arising under a peremptory norm such as that of Russia's aggression and subsequent occupation/purported annexation of Ukrainian territory ( ARSIWA, Art. 41), including those relevant to proposed territorial concessions or any other grubby bargaining with Ukrainian land.

The various duties and obligations below are applicable to all the constitutive elements of Russia's exercise of jurisdiction. This is not solely limited to legislative and administrative acts that purport to revise the international legal status of the territory, but also it concerns the rights, entitlements, and benefits of public and private entities contributing to or benefiting from the unlawful exercise of jurisdiction by the de facto authorities ( Azarova (2018) 53-54). As jus cogens norms protect the common interests of all States, it must be expected that all will invoke the illegality of their breach and work to expel them from international life ( Orakhelashvili (2003) 3).

Duty of Non-Recognition

Incumbent on third-party States is a duty of non-recognition towards the lawfulness of a situation created by a serious breach, e.g., the act of aggression ( ARSIWA, Art. 41(2)). Its customary nature is well-established through international practice and ICJ decisions, which implies that it exists independent of treaty law and is binding on all States (see UNGA Declaration on Friendly Relations A/RES/2625 (1970); UNGA Declaration on the Definition of Aggression A/RES/3314 (1974); ICJ Nicaragua, §188; ICJ Wall, §159).

Arguably, the duty of non-recognition forms the minimum necessary response by States to such serious breaches ( ARSIWA 115, §8). This principle itself was first developed in relation to acquisitions of territory by force ( Aust (2011) 330), and was further crystallized in the U.N. General Assembly's 1970 Declaration on Friendly Relations, which expressly refers to the non-recognition of territorial acquisition resulting from a use of force in breach of the U.N. Charter. It essentially holds that, regardless of how long the fruits of aggression endure, the aggressor should never benefit from its wrongful acts, including by legitimizing territorial changes.

This duty may be argued to be self-executory in that, for it to be triggered, States do not necessarily require a pronouncement of illegality of the situation by an impartial and authoritative body. This is notably seen in ICJ Wall Advisory Opinion (§154-159), where the Court does not seem to root the existence of the duty and corollary obligations in a pre-existing U.N. resolution (unlike in ICJ Namibia, §115-119).

The ICJ has generally erred on the side of expansive non-recognition in circumstances involving unlawful acquisition of territory through use of force (see ICJ Wall and Namibia). Although ideally the measures practically entailed by this duty "should" be specified by the appropriate political organs of the United Nations acting within their authority under the Charter, the absence of such direct directives is not fatal to the duty's applicability. While the ICJ had arguably initially implied such a view (ICJ Namibia, §120ss); a more recent position seems to sustain the duty's enduring application in the absence of such official dictates (see ICJ Wall, §159). This is especially so in considering that state practice has moved in this direction and that the U.N. General Assembly and the U.N. Security Council have primarily political - not judicial - mandates (as the State representatives within typically seek to enact political agendas as diplomats, not jurists) ( Costelloe (2017) 203-204).

Acts that amount to recognition, and must thus be avoided, may consist of explicit or implicit conduct ( ARSIWA 114, §5). Though a mere declaration not to recognize a claim to a given title is certainly a minimal requirement, more exacting measures of isolation have been employed where their pursuit would permit the unlawful exercise of authority to become further entrenched. Examples of such measures include abstaining from entering into treaty relations, suspending diplomatic relations, and ceasing economic cooperation. ( Aust (2011) 330, 333; Lauterpacht (1947) 431ss; ICJ Namibia, §121-124).

These are all tools to address acts taken by a State related to annexed territory. The goal is to prevent a State from consolidating the effects of that breach and the gains that such a breach can potentially produce. Consistent with this, States must ensure that their dealings with an annexing State do not extend to the foreign territory it seeks to illegally annex ( Azarova (2018) 54).

These principles are particularly relevant in light of clandestine discussions on territorial concessions and associated bargains. Given the incontrovertible evidence of flagrant Russian aggression and the self-executory character of the duty of non-recognition, such non-recognition is triggered irrespectively of whether any pronouncement has been made by an international body. In any case, the U.N. General Assembly has consistently recognized Russian occupation of Ukrainian territories since 2014 as "violations" of Ukrainian territorial integrity and "aggression" (UNGA A/RES/68/262 (2014); UNGA A/RES/ES-11/1 (2022)), which guarantees that the duty of non-recognition has been triggered.

This entails various legal consequences for third States, including most importantly, the duty not to recognize any Ukrainian territorial concessions, e.g., either through explicit recognition of a peace treaty that normalizes such Russian claims, or implicit acceptance (e.g., through economic and financial cooperation with occupied territories).

Prohibition of Rendering Aid or Assistance

A corollary obligation under customary international law is the prohibition of rendering "aid or assistance" to the responsible State in maintaining the situation created by the breach of a peremptory norm ( ARSIWA, Art. 41(2); ICJ Wall, §159). While it overlaps with the duty of non-recognition, it extends beyond that, as it aims to prevent acts that would not necessarily imply recognition but provide a "significant contribution" to the unlawful situation ( ARSIWA 115, §11-12; Aust (2011) 340-341).

What amounts to such aid or assistance will depend on the context, from providing military support to simply financing the wrongdoing state ( Costelloe (2017) 207). Although the prohibition tackles more concrete measures impacting directly upon the wrongful situation, it may also arguably encompass political forms of support overlapping with the duty of non-recognition ( Aust (2011) 337).

Based on this, it is apparent that States providing military or material assistance in furtherance of Russian aggression against Ukraine and related international crimes (such as in the cases of Iran or potentially North Korea) are in violation of the duty of non-assistance. However, in the same vein, it may be reasonable to consider that States providing enduring political support to Russian war goals (e.g., Belarus - see here and here) should be no less responsible for aiding and assisting the act of aggression than those whose support is more tangible.

This provokes several questions. For example, does voting in international venues against resolutions in support of Ukrainian territorial integrity in response to Russia's illegal annexations (e.g., Belarus, North Korea, Nicaragua, and Syria) amount to the act of aiding and assisting? In a way, it might constitute a direct and significant contribution to these territorial acquisitions by force by impeding the non-recognition of the unlawful situation or measures prompting its end, as well as ensuring that the effects of the violation can be more easily consolidated.

The same will be true in the reverse scenario. In a hypothetical case, where Russia tries to formalize its territorial gains by initiating action in international venues, voting in favor of such action may present a case of aiding and assisting the breach by ensuring that its fruits persevere. In another hypothetical scenario, third States prescribing territorial concessions as the sole acceptable outcome of peace talks and making clear efforts to push the victim of aggression to concede may run afoul of their duty of non-assistance under international law.

Finally, the duty of non-assistance raises many other potential dimensions currently unexplored in the context of aggression, such as the connection between imposing/maintaining countermeasures and compliance with the duty of non-assistance. For example, where countermeasures were imposed in order to induce an aggressor to terminate their use of force, can the weakening or lifting of such sanctions - in certain circumstances - be regarded as a form of aiding and assisting? Although it may seem atypical in comparison with more widely cited forms of assistance, it might arguably significantly facilitate and encourage the aggressor to further the act of aggression by breaking the existing and deterring status quo, while paving the way for territorial acquisitions and allowing the aggressor to rebuild, colonize, and consolidate its grip. The article will leave this issue aside for more extensive future debate.

Duty of Positive Measures/Collective Action

Finally, the most exacting norm that may arise from a serious breach is an obligation to cooperate to bring it to an end through lawful means ( ARSIWA, Art. 41(1)). In contrast to the duties outlined above, this obligation does not merely require States' relatively passive abstention from facilitating the unlawful annexation, but likewise to undertake proactive actions to bring an end to the violation.

The standing of such a duty as a customary principle still seems subject to debate (ILC Report A/77/10 (2022) 71, §3; Aust (2021) 245). However, in contexts of aggression, there are clear obligations of States to cooperate with each other "in order to maintain international peace and security," as cited in the U.N. General Assembly's 1970 Declaration on Friendly Relations. That might arguably take the form of undertaking collective action aimed at restoring the territorial integrity breached as a result of the unlawful use of force.

Where the violation of a peremptory norm has been recognized by the U.N. Security Council or the General Assembly, the ICJ has recognized a binding obligation on States to make efforts to bring resulting situations to an end via collective action (ICJ Namibia, §86, 121-124; Wall, §21, 159-160). In the current context, the occupation of various Ukrainian territories since 2014 as a direct result of Russian aggression has been deemed invalid and considered a "violation" of the UN Charter by multiple UNGA resolutions ( inter alia, UNGA A/RES/68/262 (2014); UNGA A/RES/ES-11/1 (2022)).

While such collective action could (and perhaps ideally should) be organized through international organizations such as the U.N., it need not be limited to institutionalized forms of cooperation ( ARSIWA 114, §2). This is particularly relevant to situations flowing from the actions of permanent members of the U.N. Security Council, such as Russia in this case, who wield the ability to paralyze coercive organizational measures. Beyond the collective framework, the ICJ has appeared to hold that this obligation may make it incumbent on States to individually take measures to bring situations created by the breach to an end (ICJ Wall, §159).

No specific acts or thresholds can be objectively required of cooperative (or individual) measures, given the diversity of circumstances involved and realities facing third-party States. Yet what this duty may encompass could be inspired by the proactive measures of the Economic Community of West African States (ECOWAS) in response to repeated coups d'états in the region. This involves actions such as economic sanctions, exerting diplomatic pressure (from public criticism to red lines in negotiations), and travel bans for certain individuals.

Hence, in addition to negative duties to abstain from legitimizing or facilitating annexation, international law also seemingly requires States to act proactively to bring an end to the violation. On the face of it, upholding the existing pressure on Russia with countermeasures and continuing political, financial, and material support to Ukraine seemingly represent a minimum of acts sufficient to meet the duty of positive action. The pressure and support thus should persist for as long as the violation continues.

Moreover, as is also now crystal clear, if Ukraine is forced into territorial concessions, the price to be paid is not solely in land but also in the millions of people exposed to Russia's atrocities and national and political persecution (see, e.g., UNCOI (2023), OHCHR (2023), HRW (2022)). With the same impetus that is felt by Ukraine and its soldiers on the frontlines for liberty and freedom, the international community has an onerous and incontrovertible duty to fight for Ukraine's sovereignty and territorial integrity. A calamitous reversal of Ukraine's struggle based upon ambivalence is not an option available in international law.

Conclusion

International law architecture, including the prohibition of the use of force, was not imposed by some abstract legislature or idealist. It emanated from human civilization's common will and vision of elevated principles that evoke a future free of violence and that mark humankind's progress as a whole. The law might not have arms to immediately terminate or suppress aggression and the atrocities accompanying such a violation, yet the law at least refuses to reward the aggressor for persevering with its illegitimate acts. Faced with the eventual resolution of the current war in Ukraine, the scarcity of inter-State armed conflicts being concluded by treaty in the post-WWII era lends particular weight to such a salient international collective response.

The obligations and duties discussed form many sides of the same fundamental prism: the solidarity of the international community in the face of serious attacks against the rules which protect the fundamental values collectively adopted. Where the violations occur, it is the basic function of the law, as a primary social regulator, to ensure that the fruits of the violation will, at minimum, not endure or withstand historical examination. Ultimately, those responsible shall face accountability in courts of law. Anything less will weaken the world order, as well as the law that is essential for its maintenance, development, and prosperity.

Hence, there is no alternative to Ukraine reestablishing its territorial integrity in its entirety. This is the only way not only to reaffirm shared values but - even more pragmatically - to secure the world from even greater chaos and endless war that would flow from permitting or facilitating Russia's territorial acquisitions. Most essentially, it is the only way that millions of people in occupied territories can be protected from displacement, persecution, and Russia's destructive bent. The Ukrainian allies' proud narrative of supporting Ukraine "for as long as it takes" should not remain merely a matter of being "on the right side of history" but - primarily - the manifestation of a sacred legal duty. This is the choice of - and for - the future: the choice between the rule of law and the reign of chaos.

IMAGE: Ukrainian servicemen of the 65th Mechanized Brigade walk near the frontline village of Robotyne, in the Zaporizhzhia region, on October 1, 2023, amid the Russian invasion of Ukraine. (Photo by ROMAN PILIPEY/AFP via Getty Images)

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Rachel VanLandingham, Lt Col, USAF (Ret.)

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Compromises on Territory, Legal Order, and World Peace: The Fate of International Law Lies on Ukraine's Borders

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Any form of territorial concessions in the present environment would be legally void and contrary to duties imposed on states.

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Making Counter-Hegemonic International Law: Should A Special Tribunal for Aggression be International or Hybrid? - Patryk I. Labuda - 19 September 2023

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Making Counter-Hegemonic International Law: Should A Special Tribunal for Aggression be International or Hybrid? - Patryk I. Labuda - 19 September 2023

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In the past year, discussions about a Special Tribunal for the Crime of Aggression (STA) against Ukraine have shifted from whether to establish such an institution to the related question of how best to do so. Two main options have emerged: (1) a (purely) "international" tribunal created through a bilateral treaty between Ukraine and the United Nations on the recommendation of the U.N. General Assembly, and (2) some form of "hybrid" or "internationalized" tribunal, which would combine international and domestic legal elements. On Sept. 22, the Core Group of Friends for Accountability, which currently comprises 38 States advocating for aggression trials, is scheduled to meet in The Hague, Netherlands, to continue diplomatic negotiations. The tribunal's institutional design will feature prominently on the main agenda.

While much ink has been spilled on the crime of aggression since Russia's full-scale invasion of Ukraine in 2022, the most pressing question now is which of the competing models is better suited to address aggression. Diplomats should pay close attention to how this question is answered. Although choices of institutional design may seem like technical disputes among lawyers, the question of how to prosecute aggression may have consequences as far-reaching as whether to seek punishment for Russia's behavior at all. Indeed, the increasingly polarized debate over the tribunal's institutional design - international or hybrid - goes to the heart, and core purpose, of international criminal justice, especially its ability to serve as a counter-hegemonic force aiding the victims of abuse by powerful States.

While various arguments have been advanced for and against both models over the past year, an international tribunal appears to offer greater promise - subject to a caveat relating to in absentia trials - for the development of international criminal law. By contrast, opting for a hybrid approach may have conservative effects and facilitate great power impunity. Given the high stakes of these conversations, supporters of accountability, especially from smaller and weaker States, would be well advised to make their views known in the coming weeks and months.

How Did These Two Options Emerge?

In recent months, the debate over what kind of tribunal should prosecute Russia's aggression has become more prominent. Although Ukraine and its allies, especially States from Eastern Europe, embraced an international tribunal in the months after Russia's full-scale invasion, the main Western powers hedged their views and ultimately came out - beginning with Germany, followed by the U.K. and the United States - in favor of a hybrid tribunal based on Ukraine's domestic jurisdiction. Diplomats from Ukraine initially appeared non-committal, but the special tribunal's institutional design became more pressing as negotiations shifted from whether to how the tribunal should proceed.

In May 2023, Ukrainian President Volodymyr Zelenskyy forcefully rejected the idea of a hybrid tribunal, emphasizing that approach would replicate the flaws of previous Western-imposed arrangements like the 2014-15 Minsk accords, which produced only a "hybrid peace." However, Ukraine's clear preference for an international tribunal has faced resistance, with recent statements by Ukrainian diplomats (see here, here and here) pointing to an entrenched split between Western powers in the G7 and a host of other States forming the Core Group (31 others in total, including a cross-regional panoply of members from Western States, Eastern Europe and Latin America). With Ukraine's Presidential Office hinting that diplomatic negotiations cannot drag on forever and should ideally be finalized by the end of 2023, there is now talk of a compromise solution consisting of a third State's - as opposed to Ukraine's - jurisdiction serving as a base to ground the Special Tribunal's powers. While this new "third State" model avoids some problems of a hybrid tribunal based on Ukraine's jurisdiction, it replicates other hybrid design features favored by Western powers, especially the applicability of immunities for Russia's top leadership. This in turn explains why the Ukrainian government continues to advocate for an international tribunal.

Given the public disagreement between Western powers and other "Friends of Accountability," it is worth examining the main arguments for and against each model, before assessing the global stakes of this conversation.

The Arguments For an International Tribunal

There are several arguments for an international tribunal. The chart below distills them. Unlike a hybrid tribunal based on a country's domestic jurisdiction (that of Ukrainian or a third State), an international tribunal created using a treaty between U.N. and Ukraine - like the Special Court for Sierra Leone - could argue persuasively that it does not have to recognize the personal immunities of the Russian troika (the current head of State, prime minister, and foreign minister). Put differently, an international tribunal could issue arrest warrants for the presumed masterminds behind Russia's aggression and - provided it obtains custody - put them on trial for the crime of aggression.

In addition to the issue of immunities, an international tribunal recommended by the General Assembly would enjoy greater legitimacy than a purely national court that is exercising its own domestic jurisdiction over aggression. Given the long history of imperial and colonial exploitation that underpins this war, international prosecutors and judges would be seen as more impartial than their Ukrainian counterparts who would be asked to sit as judge and jury in a case over the invasion of their own country. Equally important, an international tribunal set up by a significant number of States would create a precedent, deterring great power intervention in the future and, if such cases do occur, facilitating a coordinated response. It is no coincidence that diplomatic negotiations on the special tribunal have spurred a parallel effort to amend the Rome Statute's flawed Kampala jurisdictional regime that prevents the International Criminal Court (ICC) from addressing aggression on Ukrainian territory - unlike the war crimes, crimes against humanity, and acts of genocide that are already being investigated by ICC Prosecutor Karim Khan.

Although there is some disagreement among experts as to whether the General Assembly has the legal power to disregard the troika's immunities under customary international law, the main sticking point is not legal, but political: how many States would have to vote in favor of such a tribunal to give it sufficient legitimacy and set aside immunities for what the General Assembly has previously condemned as "aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the [United Nations] Charter." Some commentators set the legitimacy threshold as high as a two-thirds majority of voting States, but the better view is that Ukraine should leverage its anti-imperial and post-colonial credentials to build a cross-regional coalition and that a simple majority of voting States would suffice (the threshold also depends on whether Ukraine opts for a General Assembly resolution under the "Uniting for Peace" framework or by ordinary procedure). However, with only 38 States from South America, North America and Europe making up the Core Group's membership - and Asia and Africa unrepresented up to this point - some have pursued an alternative institutional model for the Special Tribunal.

The Arguments for a Hybrid Tribunal

Proposals for some type of mixed, non-U.N. sponsored institutional design date back to mid-2022, but the current proposal appears to be a special tribunal based on the jurisdiction of a third State, with the Netherlands as a likely candidate. Although the legal details are still unknown, the working assumption is that such a hybrid (the label "internationalized" has been used more frequently of late, but nothing hinges on this semantic distinction) Special Tribunal would be acting on the basis of Ukraine's delegated jurisdiction or, more controversially, pursuant to a third States' universal jurisdiction to prosecute the crime of aggression (only a few States recognize universal jurisdiction over this crime, including Poland and the Baltic States). The third State institutional setup, which appears untested at other international criminal tribunals, avoids various complications that have hampered discussions of a hybrid tribunal based on Ukrainian law, including a constitutional prohibition on creating such an institution during wartime.

However, while the existence (or not) of Ukrainian, Dutch or other countries' jurisdiction over the crime of aggression is a pre-requisite for any diplomatic negotiation of a Special Tribunal, the question remains what benefits this model offers compared to the international model. In other words, why should diplomatic delegations support a hybrid tribunal for aggression, which - according to recent reports - will be put to a General Assembly vote anyway? In this regard, advocates of hybridity have been more circumspect, with arguments falling under a "positive" and "negative" rubric.

Among the positive arguments, U.S. Ambassador At Large for Global Criminal Justice Beth Van Schaack has emphasized that a hybrid tribunal will build the capacity of Ukraine's justice system. As I have explained elsewhere, these arguments - based on examples from Africa and Asia, where hybrid tribunals were created to deal with hundreds of atrocity crimes, and against the backdrop of State fragility - are not persuasive when it comes to Russian aggression against Ukraine. Unlike investigations into thousands of war crimes and crimes against humanity, aggression trials in the Ukraine context will happen only a handful of times, and without any downstream effect on Ukrainian judges' expertise on this specific crime. Moreover, not only will Ukrainian magistrates not be perceived as credible judges in their own case, plans for a hybrid tribunal - whether based on Ukraine's or another State's jurisdiction - take for granted that such an institution would be physically located outside of Ukraine, which would in turn reduce its potential "spill-over" or "demonstration" effects on the domestic rule of law. In short, the so-called "positive" case for hybridity seems to copy-paste institutional models from different geographical contexts, whereas meaningful transitional justice is about tailoring approaches to a specific context and avoiding "one size fits all" formulas.

This leaves negative arguments that - as insiders acknowledge off the record - are the unstated albeit real reason for the current discussions about a hybrid model. Both the U.S. and German governments have emphasized concerns about insufficient support for a General Assembly resolution, which they link to allegations of "double standards" in international criminal law (discussed later). The bottom line is that, led by the United States and Germany, the G7 support a hybrid model less on grounds of principle rooted in the tribunal's purported benefits, and more out of a fear that an international model might not receive sufficient votes to make it international. What explains this fear of the unknown?

Immunities and the Crime of Aggression

This brings us to the G7's second negative argument: immunities. As observers widely acknowledge, in line with consistent jurisprudence, only an "international" tribunal may have the legal power to pierce the personal immunities of the Russian troika, otherwise enshrined in customary international law. By contrast, a "mere" hybrid tribunal would, in principle at least, lack the legal power to do so. Notwithstanding this fundamental difference of institutional design that appears to speak in favor of an international model, the United States has brushed these considerations aside, suggesting that a hybrid tribunal's inability to overcome immunities does not matter because a trial will only happen if Russian President Vladimir Putin is deposed as head of State, in which case immunities would cease to apply. Put differently, because it is very unlikely the Russian leadership will be arrested and prosecuted while still in office, a hybrid tribunal is an equally acceptable model because their personal immunities will never matter in practice.

Although this consequentialist argument may seem plausible at first blush, it amounts to a bait and switch, which distracts from the fundamental legal principles that are in play as diplomatic negotiations continue. Contrary to what advocates of hybridity may claim, it matters greatly for international law whether a tribunal is created with the power to investigate, issue arrest warrants, prosecute, try and sentence the people it has jurisdiction over from the outset.

For starters, from a pragmatic, resource-oriented perspective, it is not clear why States would establish a tribunal that, by its own advocates' admission, lacks the legal powers to do the main thing it is purportedly established to accomplish. If a factual pre-requisite for a tribunal to exercise its powers is missing, would it not make more sense to wait for the facts to change and then propose an institution to deal with the fallout? Counterarguments to the effect that the facts surrounding Russia's aggression should be investigated are unpersuasive, because they again overlook that aggression trials will not be an extended series of multiple proceedings relating to thousands of atrocity crimes, but rather a time-limited inquiry into a single set of acts, the facts of which are already relatively well known. Moreover, given that an investigative body, the International Centre for the Prosecution of Aggression, is now up and running, advocates of hybridity must still answer the following question: what is the value added of their tribunal today?

In this regard, the U.S. argument about immunities overlooks a crucial point about how international law is made and how it can have a real impact on international relations. To be sure, Ukraine and a handful of States can create a paper (hybrid) tribunal today, wait for the facts to change, and then - if anyone still thinks this necessary - ask the General Assembly to provide the international community's blessing for a fait accompli. Ukrainians will indeed secure a modicum of accountability if Putin is deposed and eventually put on trial for aggression before such a hybrid tribunal. But the legal consequences of that type of trial against a deposed head of State would be miniscule compared to what an international tribunal could accomplish, which brings us to the crux of the debate that must be resolved in the near future.

Unlike a hybrid tribunal, which by its sponsors own admission would lack the power to pierce Putin's immunities, an international tribunal could issue an arrest warrant for Putin without waiting for regime change in Russia. So why does an arrest warrant matter even if the Russian leadership cannot be (immediately) arrested? In realpolitik terms, a warrant issued by an international tribunal, created with the General Assembly's approval, further delegitimizes Putin and increases the likelihood of his eventual fall from power. It is well known that Putin did not attend last month's BRICS summit in South Africa because of the legal complications caused by the ICC's arrest warrant against him, with reports suggesting Brazil now faces the same dilemma. Equally important, the very fact of issuing an arrest warrant for Putin creates a momentous legal precedent by confirming that the troika enjoy no personal immunities for the crime of aggression before a tribunal with jurisdiction over such a crime (it should be remembered that a tribunal must have the legal authority to issue such warrants, lest States relive the controversy over former Sudanese President Omar al-Bashir's immunity, where doubts about the ICC's powers enabled non-cooperation from States for many years).

Not only would arrest warrants from a legally empowered institution constitute, in and of themselves, a progressive interpretation of the law on immunities; they would also have immense counter-hegemonic potential, aimed at the leadership of a U.N. Security Council permanent member State. In fact, the value of an arrest warrant for aggression would likely be greater than an in absentia trial of Russia's leadership. While Ukraine appears to favor such a trial - where the accused would be prosecuted in their absence - in absentia proceedings are widely seen as contentious under international law, and should be avoided when possible.

It bears emphasizing that, conversely, a hybrid tribunal established now, while Putin remains in power, risks amounting to a conservative and regressive endorsement of the contrary international legal proposition. Indeed, it would imply that the troika's personal immunities protect them from prosecution for a core crime like aggression, despite there being a (paper) tribunal for such prosecutions. And, contrary to suggestions by hybridity advocates, this negative precedent would be exacerbated by a hybrid tribunal issuing warrants for senior Russian officials other than the troika, for instance the minister of defense, as this could constitute customary law in favor of the troika's immunities. If, as recent reports suggest, the General Assembly is expected to endorse the hybrid model, it appears the international community would be asked to validate a regressive legal precedent that enshrines the immunity of a permanent Security Council member's leadership, despite the General Assembly's prior condemnations of Russia's unlawful behavior.

In short, far from irrelevant, the G7's negative arguments in favor of a tribunal that corroborates Putin's immunity are, in fact, a conservative ploy that sets the law back and makes it less likely that he will be deposed. Instead of sending a message about the inapplicability of immunities for the crime of aggression, advocates of hybridity would succeed in reinforcing an unequal legal landscape that benefits powerful hegemons like the United States or China, and even "middle powers" like Turkey or Iran, who could later leverage the Ukraine precedent to argue for their leadership's immunity from prosecution.

The Misleading Debate over "Western" Double Standards

It should come as no surprise that the main Western powers accused of unlawful interventions in the last twenty years - the United States, the U.K. and France - have endorsed a tribunal that makes it less likely their leaders will be prosecuted before an analogous tribunal (or any tribunal) in the future. However, a remarkable aspect of the ongoing diplomatic negotiations is how Western government officials increasingly leverage critiques of "Western double standards" to accomplish this regressive development. The irony should not be lost. Drawing on misleading critiques that analyze global divisions over the Special Tribunal through a reductionist "Global South versus West or Global North" binary, the same Western powers that intervened with impunity in Iraq are now making accountability for Russia and future aggressors less likely out of a purported concern that their prior actions in the Global South have not been adjudicated. Incredibly enough, like the Trump administration's faux embrace of critiques leveraged against the ICC to justify sanctioning its "rogue" former prosecutor, the G7 now claim to favor a hybrid court because a General Assembly-endorsed, Ukraine-specific Special Tribunal would risk antagonizing the same Global South nations. Put differently, hybridity is the answer because an international tribunal for Ukraine would supposedly exacerbate - rather than reduce - the impunity of great powers.

As explained at length here, the "Western double standards" narrative, including suggestions that Ukrainians would be "privileged" at the expense of Global South victims, discounts the counter-hegemonic potential of aggression trials in the "Global East" and their ground-breaking precedential value for smaller and weaker States in all regions. By making the perfect the enemy of good, these types of arguments play into the hands of Western powers and ultimately serve to mask the regressive and conservative consequences that flow from a paper (hybrid) tribunal or, equally bad, no special tribunal being established at all. In short, States who ignore Ukraine's accountability demands out of an (understandable) frustration with the impunity of Western powers risk cutting their nose off to spite their face.

Squaring the Circle and the Way Forward

As diplomatic negotiations on a Special Tribunal for Aggression against Ukraine continue in the weeks and months ahead, the world faces a set of urgent questions with consequences far beyond the case of Ukraine. It is important to recognize that the success or failure of this tribunal will shape the parallel negotiations on amendments to the Rome Statute's aggression regime, which advocates of an international tribunal have spearheaded for months.

It will also set a precedent with consequences for international law more broadly for two reasons. First, despite the claims of hybridity advocates, the choice of institutional design matters greatly for the evolving debate over immunities for international crimes. An arrest warrant for Putin would create a momentous precedent that a head of State of a Security Council permanent member and global hegemon does not enjoy immunity for aggression, which could in turn precipitate his fall from power. Second, even if the Rome Statute's jurisdictional regime for aggression is eventually amended, the ICC's incomplete membership by States means that the Ukraine precedent will likely constitute a litmus test for the foreseeable future as to whether and how powerful States can be held accountable for future cases of aggression. In this regard, States must ask themselves what model has a greater deterrent effect, making it less likely that a future aggressor will use force in violation of the U.N. Charter.

Understandably, many States are wary of antagonizing a nuclear power like Russia. However, the uncomfortable truth is that if either a weak institutional model is chosen or no tribunal is established at all, today's decisions, or lack thereof, will have downstream effects for future victims of great power intervention. As the Chilean President, Gabriel Boric, remarked at an EU-Latin America summit in July 2023, "today it is Ukraine, but tomorrow it could be any of us." People in weaker and smaller States around the world should pay close attention to this conversation, as their future may depend on its outcome.

IMAGE: Ukrainian President Volodymyr Zelenskyy and Secretary-General of the United Nations Antonio Guterres shake hands during the joint press conference following their meeting on March 8, 2023 in Kyiv, Ukraine. (Photo by Roman Pilipey/Getty Images)

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Making Counter-Hegemonic International Law: Should A Special Tribunal for Aggression be International or Hybrid?

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If no tribunal is established to try Russia's aggression against Ukraine, today's decisions will have downstream effects for future victims.

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Justifying the Unjustifiable: Russia’s Aggression against Ukraine, International Law, and Carl Schmitt’s “Theory of the Greater Space” (“Großraumtheorie”) - Peter Hilpold (2023) Chinese Journal of International Law

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Justifying the Unjustifiable: Russia’s Aggression against Ukraine, International Law, and Carl Schmitt’s “Theory of the Greater Space” (“Großraumtheorie”) - Peter Hilpold (2023) Chinese Journal of International Law

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Abstract

I. A two pronged approach: Justifying Russia's attack against Ukraine with arguments from inside and outside the United Nations Charter

1. At first glance it seems contradictory to note that in the United Nations (UN) era which definitely outlawed the use of force in international relations-as is well known, an important step in this direction was already taken by the Kellogg-Briand Pact (or Pact of Paris) of 1928 which outlawed war-arguments for leading a "just war" would have become so important. At a closer look, however, this conundrum is easily solved: Exactly because the time of "just wars" is over, it has become so pivotal to find exceptions in the UN systems that would justify legally what in principle can no longer be advocated and is usually associated with blame and sanction. Arguments for going to war, in the past politically so easily at hand, have now to be examined exclusively from a legal perspective which leaves little leeway for deviating from the prohibition of the use of force. This prohibition, which essence permeates the international legal order established in 1945 so pervasively, is so fundamental for UN law that any attempt to justify the threat or the actual use of force must appear as a subversive attack on the foundations of the modern peace order when it is outside a clear authorization by the UN Security Council (SC) according to Chapter VII of the UN Charter, or is not an act of self-defense on the basis of Article 51 of the Charter. It is for the proponent of this exception to prove its legal foundations and this endeavor comes near to a probatio diabolica. As will be seen, the Russian President offered (and continues to do so) an array of justifications somewhat alluding to legal exceptions but without providing real substantiation, leaving it to the listener or reader to choose from among them, individually or in combination, and to connect the dots randomly placed to somewhat resemble a legal figure. This attempt is eventually destined to fail since rarely before there has been such a broad consensus among international lawyers in not providing such arguments any basis in international law. Surreptitiously, however, a further approach emerges among these unsustainable attempts of (legal) defense, according to which a traditional legal dispute is in any case beyond the point in this context, as more fundamental aspects are here at issue. It is the Western countries themselves, so this line of reasoning goes, that are at least co-responsible for this catastrophe as they have wantonly antagonized and provoked Russia. They have ruthlessly played their card of material and technological (although not cultural or moral) superiority, driving Russia, being in the midst of a difficult period of transition, into the corner. The NATO area has been continuously extended and thus imperils the survival of Russia, the argument continues. In the neighboring territories an "anti-Russia" alliance hostile to Russia is created. As Putin stated in his televised speech of 24 February 2022, the day he launched the aggression on Ukraine, in an address to the Russian people: "You and I simply have not been left with any other opportunity to protect Russia, our people, except for the one that we will be forced to use today." While at first sight one might feel that this statement is reminiscent of a self-defense argument, it becomes evident at the same time, that this argument has nothing to do with the traditional discussion about self-defense in international law on the basis of Article 51 of the Charter.

2. We are rather confronted here with an extra- or meta legal reasoning with considerations of self-defense that are not only not covered by the UN Charter but also thoroughly contrarian to this system. They fundamentally contradict the very essence of the modern international legal order. In this, however, they get a legal essence again, as they stand for an alternative order with enormously far-reaching implications.

3. Although such a language might have been used plainly only by Putin and his staunchest allies, respectable and renowned political scientists beyond any suspect of political closeness to Mr Putin have also used arguments at least partially going in a similar direction when they expressed (some) understanding for the Russian President's posture. It seems that advocates of such ideas are mostly not aware of the extent to which the arguments they thereby contribute to has put the basic tenets of UN law into doubt.

4. For this reason, a two-step approach for tackling the proposed justifications (in a larger and narrower sense) seems appropriated:

In a first moment it will try to distill from Putin's argumentation what could be seen as an offer to engage in a traditional international law discussion, relying as far as possible on mainstream concepts and argumentation tools. Already at this point it can be anticipated that any such attempt is bound to fail. Putin's argumentation is unconvincing from the outset: It is presented in a half-hearted way, mixing and confusing various concepts of international law and setting several of them upside down. Sticking to such an argumentation would make international law discussion futile and impossible.

Eventually it becomes clear that the "position by default", the creation of an alternative international legal setting, is President Putin's real thrust. The elements of "mainstream international law language" in Putin's speech are only the "first thin layer" the Russian President used to create something like the semblances of a rule-and-consensus-based exchange of ideas. In reality, however, Putin attempts to overcome this system and to replace it with a different one which begs the questions, however, of whether such a set of rules could still be qualified as international law. And behind post-modern formulas introduced in this context, elements of an old thinking pertaining to a long-gone era reappear.

II. Justifying Russia's aggression against Ukraine with traditional international law arguments-an impossible challenge

II.A. The primary point of reference: President Putin's address of 24 February 2022

II.B. Using the agreed language of international law

8. Those parts of Putin's speech where he uses the commonly agreed language of international law or where he at least uses single terms of this language-albeit in peculiar, unorthodox constructions-can be seen as a nod to the "culture of civility" brought about by international law. It is with the intent to create sort of a common ground in the necessary interaction with those counterparts and interlocutors-first of all representatives of States, international organizations, civil society, media and the ever-growing number of officials administrating international law-towards whom acts of international legal institutions have to be justified. The challenge was extremely high as starting an outright war, all the more so by a permanent member of the Security Council, the UN organ bearing the "primary responsibility for the maintenance of international peace and security" (Article 24 of the UN Charter), runs squarely against the most basic principles of the UN Charter. To justify such an act is practically impossible as the prohibition of aggression (and in substance the violation of the use of force) has a jus cogens character and permits therefore no derogation. On the contrary, Article 41 of the International Law Commission (ILC) Draft Articles on Responsibility of States even imposes an obligation of cooperation through lawful means to bring to an end to such a violation, a prohibition of recognition of the situation created and an obligation not to render aid or assistance in maintaining that situation. How the concept of aggression exactly relates to that of a "breach of peace" is not entirely clear, but it seems safe to argue that "aggression" is a particularly severe breach of the peace.

10. While it is manifestly not possible to deny that a severe breach of the peace has occurred, if at all, an attempt could be made to find a cause of justification avoiding thereby State responsibility. In this context, self-defense is the recourse being taken most often and this has been the case here as well.

II.C. Is the Russian aggression an act of self-defense?

11. Absent a Security Council authorization according to Chapter VII of the UN Charter (interpreted in an evolutive way), self-defense according to Article 51 of the Charter (or on the basis of customary international law, a normative setting providing perhaps somewhat more leeway) is the "natural" justification for States using force. Thereby, regularly the fact is omitted that the requisites for this justification to apply are extremely demanding, which defend the effectivity of the prohibition of the use of force to the utmost extent.

12. Modern surveillance technology and intelligence gathering provide uncontestable information about the factual military developments on the ground prior to 24 February 2022, with large-scale Russian troop amassments directly at the Russian border towards Ukraine and an all-out attack on Ukrainian defense lines, civilian goals and an ultimately failed attempt to encircle and capture the Ukrainian capital Kiev. According to Article 2 of UNGA Res 3314 (XXIX), "[t]he First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression [...]".

13. Already on this basis it appears to be next to impossible to further uphold the self-defense tale. It is true that there are tendencies to interpret the right to self-defense extensively in the sense that it still remains effective in the perspective of an attack that would leave no possibility for later reaction or perhaps even in anticipation of a planned attack. This approach is not without problems as it bears the potential to undermine outright the prohibition of the use of force. A widely contradictory State practice with considerable discrepancies between official proclamation and actual behavior reflects this situation. Not even terminology is coherent: Textbook distinctions between measures against an imminent threat (retained to be permissible by many writers) and anticipatory, preemptive or preventive acts against dangers which seem to be in the offing but have not yet materialized on the ground (retained to be illegal) are not devoid of practical plausibility, but are hardly reflected in official State practice which appears to be disparate.

15. Also at the UN level, it seems to be prepared to accept self-defense against an imminent threat, as suggested by the Report of the High-Level Panel on Threats Challenges and Change (HLP) set up by the UN Secretary-General presented in December 2004. This approach made it even in the 2005 Report by the Secretary General, which was somewhat more cautious, but not in the "Outcome Document" of 2005 which brought this discussion at the UN level to an end.

16. As is well-known, the "Outcome Document" has ushered in a limited UN reform, in particular with regard to human rights protection, and in the aftermath it was no longer possible to achieve a similar momentum for UN reform. The respective discussion thus continued at a more academic level, though within fora which allowed for some broader (albeit mainly academic) consensus building. Also, it has to be remarked that there was a specific focus on threats stemming from non-State actors who pose threats not devoid of sovereignty challenges, but these challenges appear to be quite different than those which arise in inter-State conflicts.

the Chatham House Principles of International Law on the Use of Force by States in Self-Defense of 2005, sorted out by Elizabeth Wilmshurst after an intense dialogue between several British academics and practitioners;

the Leiden Policy Recommendations on Counter-Terrorism and International Law of 2010, again resulting from an intense dialogue between academics and practitioners at Leiden University; and

the Principles on "Self-Defense against an Imminent or Actual Armed Attack by Non-State Actors" presented by Daniel Bethlehem in 2012. These principles are also the result of a preceding dialogue but perhaps are evidence more clearly by the signature of one single author.

18. Letting aside the many terminological problems they create or are at least not able to solve, these documents confirm, to a greater or lesser extent, the existence of a right to self-defense against an imminent threat, but they deny the permissibility of preventive measures. The threat against which self-defense can be exercised may not only be a future and hypothetical one, but it must be real and substantial. It can be argued that due to the specific (although not exclusive) focus on non-State actors there might also have been a greater preparedness to take a broader perspective on "imminence" as these threats are often more difficult to locate. Caution is therefore required not to over-generalize the findings of these inquiries, in particular in view of both their specific focus (on non-State actors) and their primary provenance from academia (where often less importance is attributed to strict sovereignty protection while States regularly insist on this element).

20. Returning to Russia's assault on Ukraine, President Putin did not manage to provide the slightest element of a justification that could qualify for a reaction to an imminent threat. Putin's address contained rather vague hints on a rebalancing of power at the international scene with the building-up of new forces at Russian borders. The threat for Russia's security is not asserted by reference to a specific military menace but rather via more generic assertions concerning the mendacity, meanness and infamy of the West. This set against the traditional Russian peace-love mixes up to a dangerous scenario where history could repeat itself like in 1940 and 1941. Not even remotely are these very subjective considerations related to sound legal considerations as to the applicability of Article 51 of the UN Charter in the present case.

II.D. Other (theoretically possible) justifications based on international law

22. Self-defense is not the only (albeit fully unconvincing) line of argument the Russian side uses to justify the attack on Ukraine. Putin's address in February 2022 contains rather a further mixtum compositum of arguments that somehow refer to international law. There are text passages that allude to humanitarian interventions (when it is claimed that genocide has been perpetrated by Kiev on the people of Lugansk and Donezk in Eastern Ukraine), to interventions by invitation and collective self-defense (when it is sustained that the people of Lugansk and Donezk asked Russia for help, after the newly created Republics in these areas had concluded treaties of friendship and mutual assistance on February 22, 2022) and to the protection of nationals abroad (with reference to the people of Crimea and Sevastopol).

23. None of these arguments withstand any closer scrutiny. As to "humanitarian intervention"-the forcible intervention to protect people in other countries who are faced with grave human rights abuses or outright existential threats-there are strong doubts whether such measures find any legal basis in international law. Interventions of this kind, which occurred first in 1840 and 1850 in their present-day meaning, were often carried out with spurious intent and egoistic imperial motivation, although the atrocities they were intended to stop were regularly real and extreme. From a legal vantage point for a long time these interventions did not create greater problems, but the situations changed in the 20 th century and in particular after the coming into being of the United Nations which attributed the monopoly of the use of force to the UN Security Council (SC). Whether the SC could authorize the use of force for the protection of human rights in situations having otherwise no evident international connotation remained unclear for a long period. On the other hand, the HLP Report of 2004 and the Annan Report of 2005 also seemed to allow unilateral humanitarian interventions in cases of grave human rights violations. The "Outcome Document" of 2005 struck a balance between these opposing positions more in line with traditional international law: On the basis of paragraphs 138 and 139 of this Document, which officially recognized the concept of the "Responsibility to Protect", the SC was attributed the competence to authorize interventions also in cases of mere internal conflict. At the same time, however, it has also become clear that interventions by a single State or groups of States without Security Council's authorization do not fall under this permissive rule. Without authorization by the SC, which was here clearly not given, Russia could therefore not intervene in Ukraine. Therefore, no further investigation as to the validity of the allegations concerning grave human rights abuses by Ukrainian authorities (for which in any case no proof confirmed by independent authorities was provided) was necessary.

24. Also, the reference to an "intervention by invitation" and to "collective self-defense" (expressed by or exercised in favor of what Putin called the "people's republics of Donbass") were fallacious and misleading. Both territories making part of Ukraine were recognized by Russia as independent States only three days before the invasion. Requisites for recognition were manifestly not given and this was also the reason why other States apart from Russia, North Korea and Syria refrained from recognizing the annexation of these territories by Russia on 30 September, 2022. Both an intervention by invitation and collective self-defense require as a legal minimum to be expressed by a State according to international law as otherwise both concepts would become an easy available pretext for interventions in civil wars or would be in favor of previously installed puppet regimes. Furthermore, the requesting State has to exercise sovereignty over the respective territory and any intervention has to be limited to this territory, and the Russian intervention clearly reaches beyond. To discuss the Russian aggression against Ukraine in the context of the concepts mentioned is therefore not possible, not even if these concepts' constitutive elements are defined extensively. We are rather fully outside the boundaries of these exceptions on the prohibition of the use of force.

II.E. First conclusion: The language of law is not able to provide acceptable justifications for the Russian aggression

27. At this stage it can be concluded that traditional international law does not offer any basis that could serve as a justification for Russia's aggression against Ukraine. UN law states quite the contrary. To rely on accepted international law rules that specifically prohibit the use of force and leave open only very small exceptions (primarily for the exercise of the right to self-determination) and to present them in a radically contorted manner is not only an open and outrageous maneuver to circumvent and manipulate generally accepted legal standards, but also an attempt to introduce Orwellian "Newspeak" on the international scene-it reflects a stratagem intended to use words and concepts of international peace law to justify war.

28. As shown, none of the arguments presented withstands closer scrutiny. This must also have been known to President Putin and his legal advisers and may have been the reason why Putin's address in February 2022 also contains other explanations for Russia's attack. They are based not on generally accepted rules of international law but on sort of an alternative international legal order, which may amount to a new rule in international law. Already in view of the dimension of the challenge posed by Russia's aggression against Ukraine, these arguments have to be taken even more seriously than those poorly presented in traditional international law language. Although these arguments may be new and unfamiliar from the viewpoint of the present-day international law discourse, at the same time they do recollect to a past and almost forgotten reality of the 1930s, when the State community's destiny was at an important crossroads. The decisions then taken are now in for a re-assessment.

III. A "Schmittian" versus a Kelsenian view of international law: Are we faced with a change of paradigm?

29. Alongside the various references to possible justifications for the intervention, which are half-heartedly presented and fully unconvincing in language and content, some other passages of Putin's address stand out that might, at first sight, sound like a decrying of Russia's loss of international clout due to the encirclement by Western States and alliances:

Those who claim world domination, publicly, with impunity and, I emphasize, without any reason, declare us, Russia, their enemy. Indeed, today they have great financial, scientific, technological and military capabilities. We are aware of this and objectively assess the threats constantly being addressed to us in the economic sphere, as well as our ability to resist this impudent and permanent blackmail. I repeat, we evaluate them without illusions, extremely realistically. [...] Even now, as Nato expands to the east, the situation for our country is getting worse and more dangerous every year. [...] Further expansion of the infrastructure of the North Atlantic Alliance, the military development of the territories of Ukraine that has begun is unacceptable for us. [...] For the United States and its allies, this is the so-called policy of containment of Russia, obvious geopolitical dividends. And for our country, this is ultimately a matter of life and death, a matter of our historical future as a people. And this is not an exaggeration: it is true. This is a real threat not just to our interests, but to the very existence of our state, its sovereignty. This is the very red line that has been talked about many times. They passed here.

30. These statements call to mind utterances of German politicians and academics of the 20 th century: First the German Kaiser's phobia of "encirclement", then by Great Britain and the Entente and later Carl Schmitt's " Großraumtheorie" (theory of greater space). Both concepts are based on visions very distant from, if not totally contrarian to, today's UN order premised on the principle of "sovereign equality" (Article 2(1) of the Charter).

31. As has been recently stated, encirclement has been a key trigger of major wars in the past, in particular of WWI. However, in these cases, the subjective sense of being encircled and the ensuing intent to overcome this perceived threat by force and not by negotiations and mutual concessions are of decisive importance. While the theory of encirclement and the strategy to break out of it by force have some logic in a system of international relations where the jus ad bellum applies, in the age of UN law, characterized by the prohibition of the use of force, such a reasoning contradicts the very essence of this order and risks putting it at peril altogether. There is a clear danger associated with such an approach that thereby an "alternative" international law system is vied for. The question arises as to what elements of the UN peace order can be preserved on this basis or which elements of "traditional" international law can be upheld within such a new approach. This question is not new but has been topical for the Soviet Union immediately after the Communist revolution and in the following interwar period. It calls to mind the Soviet theory of the international law in the transitional period as it was developed in the early years of the Soviet Union in particular by Professor Yevgeny Korovin: While Russia could engage in some international co-operation with capitalistic countries, first of all the vital interests of Russia have to be defended in view of the encirclement this country was faced by countries far superior in power and strength. Seen from the perspective of the 1920s, two profoundly contrarian societal models competed against each other. When it was still fully unclear which one would finally have the upper hand, such a stance taken by the representatives of one ideology who were fully convinced of the superiority of it was that the creation of a class-free Marxist (and State-free) society would only have been a matter of time. Alongside basic ideological contrasts with the "capitalist" world, this attitude by the Soviet Union also bore out, however, a vision connoted by a strong territorial perspective. In fact, it was the Soviet bloc which had to be defended against more or less the rest of the world. By the Molotov-Ribbentrop Pact of 1939 between Nazi Germany and the Soviet Union which sealed the partition of Eastern Europe and in particular that of Poland, this thinking achieved its utmost escalation.

32. On the academic level the idea of the " Großraumordnung" was developed and propounded mainly by Carl Schmitt. According to this theory the dominant power of each region or "greater space" should awarded superior rights towards neighboring countries where it could intervene to secure its prerogatives while being legitimized to impede interventions by exterior powers.

34. While the demise of the Eastern Communist regimes seemed to render this whole debate obsolete as ideological divergences were no longer given, it was surprising for most observers to see that the underlying conflict reappeared, albeit with changed terminologies and transpiring a substantive conflict between "East" and "West" couched in historic arguments pre-dating the conflict between "capitalism" and "socialism" by far.

36. How much of understanding should be offered to Putin's policy? Does it suffice to denounce the flagrant breaches of UN law and international humanitarian law, perhaps accompanied by some softening of the criticism with the expression of doubts about the factual developments on the ground, while at the same time pronouncing (some) understanding for Russia's general predicament as it has come to unfold in the last decades?

37. Blaming Western countries for recent international law violations is not helpful in this context. Such violations have surely occurred when decision-makers from Western countries involved, but even assuming the situations were comparable with that in Ukraine (they hardly were and in particular this holds true for the preconditions leading to the escalation in the various cases) the "tu quoque" argument would be valid here only if thereby the abrogation of the respective underlying norms could be sustained, which is surely not the case. The underlying norms include prohibition of the use of force, protection of fundamental human rights and international humanitarian laws.

39. In his address on 24 February 2022, Vladimir Putin was not able to offer any remedy against the phenomenon of his country's technological and economic decline but concentrated on the attempt to counter the supposed military threat and at the same time providing them with priority. It is true, that all these phenomena are somewhat interrelated. The loss of political clout in the neighboring countries (going hand in hand with a rebalancing of the military power relations) has hampered also Putin's ambitions to reshuffle the economic imbalance between East and West. What is more, to use the military card is not only an illegal, but also a highly dangerous gamble, even for a nuclear power, as also the course of the war has shown so far. As to the legal issues, the question of reparation has not yet been addressed in detail, even though both on the political level as in academia considerations going in this direction are under way. No doubt, the way to obtain full reparation will be burdensome and most probably also very long, but this is a procedure the parties involved, assisted by the whole community of States, and also have to undergo in order to guarantee the preservation of the existing international law order. Even less attention than to the question of reparation has been paid, up to this moment, to the issue how to tackle a situation where Ukraine should not be able to repel Russian forces from all occupied territories. According to Article 41(2) of the ILC Draft Articles on State Responsibility, States are prohibited from recognizing such a situation, a provision that echoes the Stimson doctrine of 1932. Whether a peace treaty, which regularly is the expression of some sort of a compromise for the sake of ending the war, could overcome this prohibition and validly allow the cession of Ukraine territories to Russia is still very much to be doubted.

IV. Conclusions

40. The Russian aggression against Ukraine has become a catastrophe not only for the immediate victim but for the international legal order as a whole. Notwithstanding many setbacks on a whole the international legal order has strengthened considerably since 1945 and has become an order of sophisticated values and principles. Many of them have been put in question by Putin's war. As it seems, one of the main victims of this war may become Russia herself.

41. The Eastern "greater area" under Russian influence that Putin longed for did not materialize. Russia emerges from this weakened on all accounts: politically, militarily, and economically. The toll in terms of lost human lives is already enormous now. The hope to counter Russia's eminent problem of a rapidly shrinking population by territorial conquest has become a failure. At the end, the question has to be posed as to what the merits of the "territorial obsession" are. It is so aptly described by George Scelle that there is a constant in the interrelations between States, if there have ever been some. This obsession has surely been characteristic for States since their very first creation and it has been a decisive motivating factor in all the great wars of conquest, be they of a colonial nature, of imperial characteristics (like the WWI) or associated with the intent to impose dictatorship based on race or ideology (like WWII). In hindsight, however, this philosophy had catastrophic consequences. It is for this motive that, starting with the "Stimson doctrine", such intense international efforts had been undertaken to interrupt this devastating circle of violence by impeding the thought that aggression should pay off in the form of territorial gains. International law as it stands today offers no space for compromise on this issue. To show comprehension for Putin's justifications based on fully unacceptable distortions of international legal rules and for the rest on the supposed need to protect "territorial spheres of interest" would throw the international community back to the early 1920s. The described process, unfolding since then, has not been without backlashes but nonetheless has been a steady one on a whole. Putin's formal nod to the "culture of civility" as mentioned in the introductory part of this text results to be hollow and manipulative. Seemingly engaging in a discourse based on international concepts and lines of reasoning, in reality no real will can be discerned in the Russian president to use these concepts and ideas according to their agreed meaning. This discussion in "traditional" terms hides the more fundamental attempt to do away with the existing international legal order altogether. The real essence of his message aims at the destruction of the discursive basis of international law formation on which modern understand of these legal orders basically rests. Within the "greater legal space" the dominant power should be the beneficiary of legal privileges trumping even such basic rights as the prohibition of the use of force. Replacing "Kelsenian" international law by "Schmittian" international law would not be in Russia's interest: it would not only set a dangerous precedent as to similar claims by other countries against Putin's empire, but also further delay deeply needed reforms in Russia's economy and society to counter a decay of a country, which is still the largest State in size on earth and whose decline is most probably not based on a dearth of territory.

42. "Zeitenwende" ("a turning in time") was the term German Chancellor Olaf Scholz used for the overall qualification of these and other developments occurring in parallel. It has soon been taken up on an international scale. Due to its vagueness the most diverse meanings can be attributed to this concept. It can well be stated that the Russian aggression against Ukraine and the ensuing consequences have radically changed the political and the economic landscape in Europe and much beyond. As to the rules on the prohibition of the use of force, no "turning in time" has occurred, quite to the contrary. The reactions to this aggression by broad parts of the State community have, once again, revealed the fallacies of Carl Schmitt's " Großraumtheorie" and confirmed the value of the UN peace order which rests on a sincere commitment to the prohibition of the use of force. If there is a "turning in time" in this field, then it is only in the sense that the obligations ensuing from Article 2(4) of the UN Charter have to be taken even more seriously than the case in the past.

Completed on 11 August 2023. The websites cited herein were current as of this date unless otherwise noted.

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Justifying the Unjustifiable: Russia's Aggression against Ukraine, International Law, and Carl Schmitt's "Theory of the Greater Space" ("Großraumtheorie")

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Abstract. Russia's aggression against Ukraine has been accompanied by attempts to justify this blatant violation of international law with reference to the acce

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Preserving Morality or Crossing Boundaries? Assessing the Legality of Sanctions on Russia through the WTO’s Public Morals Exception - Dhaval Bothra - 26 September 2023

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Preserving Morality or Crossing Boundaries? Assessing the Legality of Sanctions on Russia through the WTO’s Public Morals Exception - Dhaval Bothra - 26 September 2023

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Introduction
This blog specifically analyzes the legality of unilateral economic sanctions imposed by Member States, excluding UNSC sanctions. The primary focus is on evaluating the compatibility of these unilateral economic sanctions with the WTO's Public Morals Exception, with particular emphasis on Article XX(a) of the GATT. It should be noted that invoking the public morals exception under Article XX(a) entails a more rigorous review process compared to invoking Article XXI(b) or (c). Recognizing this potential risk is crucial as it may influence the assessment of the legality of sanctions imposed on Russia within the framework of the WTO's Public Morals Exception.

Sanctions against Russia have spurred debate over human rights protection and the extent to which international trade laws can take such concerns into account. The World Trade Organization's ( WTO) Public Morals Exception, which gives member nations the power to take the required actions to defend public morals, is regarded as an important part of this research. In this blog, I look at how the Public Morals Exception applies to international trade and whether the sanctions imposed on Russia are in line with the principle outlined under the clause. It would shed light on the legitimacy of sanctions on Russia in light of the protection of public morals and human rights by reviewing the legal framework and considering the implications of the Public Morals Exception.
What is the Public Morals Exception?
The Public Morals Exception is critical for allowing member countries to prioritize the protection of public morality. Countries that invoke the Public Morals Exception can take measures they deem necessary to maintain public morals, including the preservation of human rights.

Article XX of the General Agreement on Tariffs and Trade ( GATT) sets forth the 'General Exceptions' which include actions recognized as exceptions to GATT substantive obligations.

It states:

" Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a) necessary to protect public morals;"

There is a two-tier test, wherein, the measure proposed in Article XX must not only fall under one or more of the specific exceptions under Article XX, but it must also meet the standards established by the opening clause. Thus, the requirements are:

1. The applicability of the provisional justification based on the measure's classification under Article XX

2. The applicability of the chapeau of the Article XX
The Specific Exception Requirement - Article XX(a) for Protection of Public Morals
In WT/DS285/AB/R, Public Morals were defined as the " standards of right and wrong conduct maintained by or on behalf of a community or nation." Additionally, as per the UN Secretary-General Report, 2000, the GATT General Exceptions call to mind the preservation of human rights such as the 'right to life', and hence these rules should arguably be read in conjunction with applicable international human rights norms. Furthermore, any relevant norms of international law applicable to the parties' relations must be considered when interpreting an agreement as per Article 31(3)(c) of the Vienna Convention on the Laws of Treaties ( VCLT). This principle has been demonstrated in cases such as the United States - Standards for Reformulated and Conventional Gasoline, highlighting the importance of taking into account relevant international legal norms in the interpretation of agreements.

Following fundamental principles of International Human Rights Law ( IHRL), deliberate and premeditated killings of individuals are considered illegal, except in cases where it is an absolute last resort and urgently necessary to protect against an immediate threat to life. This understanding extends to the concept of 'Public Morals,' which encompasses subjects widely recognized as matters of moral judgment and substantial opinion. The global acknowledgement of these legal norms becomes imperative in upholding the principle of prohibiting unlawful killings as enshrined under Article 55 of the United Nations Charter. International human rights treaties, such as the International Covenant on Civil and Political Rights ( ICCPR), explicitly prohibit arbitrary deprivation of the right to life, thereby conferring the necessary recognition of such legal norms. Moreover, this includes the prohibition of unlawful killings during armed conflicts, which further underscores the importance of respecting human rights and fulfilling international obligations as stipulated by these treaties and jus cogens norms under Article 53 of the VCLT.
The Chapeau Requirement of Article XX
The chapeau provision of Article XX of the GATT sets forth three criteria for the application of measures that seek justification under Article XX. These criteria require that there should be no "arbitrary" or "unjustifiable" discrimination between countries and no "disguised restriction on international trade." Interpreting the chapeau involves striking a balance between the right of one party to invoke the exception and the right of the other party to uphold GATT obligations. To determine whether discrimination is arbitrary or justifiable, the focus lies on examining the underlying rationale or logic behind the discriminatory treatment concerning the objective of the measure. If there is a rational connection between the reason and the objective, the measure would not be considered arbitrary or unjustifiable. Moreover, the restrictions imposed must not serve as a concealed means to restrict international trade. Panels have relied on a defined understanding of the term "disguised restriction" to interpret these requirements, where "disguised" denotes actions that are unannounced or intended to be hidden behind misleading appearances.
Justifying the Sanctions on Russia under Article XX of the GATT
It is important to acknowledge from the outset that the consideration of economic sanctions as an issue of public morals has not yet been addressed in any previous WTO decisions. While there may have been a mention of it in a defunct case involving Venezuela, it is essential to recognize that the arguments presented in this blog regarding the legality of sanctions on Russia under the WTO's Public Morals Exception represent the author's perspective rather than established legal precedent.

In the author's view, the imposition of sanctions on Russia can be firmly justified under the requirements outlined in Article XX. These sanctions are a response to protect public morals and address specific incidents that have violated these moral principles. Targeted sanctions have emerged as a powerful tool to ensure accountability and compliance for the preservation of human rights.

The primary justification for imposing sanctions on Russia lies in the imperative to safeguard public morals. Russia's actions, including severe human rights abuses and flagrant violations of international norms, have gravely undermined the fundamental principles of human dignity and ethical conduct in the Ukrainian territory. These actions include arbitrary killings, detentions, torture, sexual violence, and extensive damage, requiring urgent international attention against civilians. The specific incidents and actions by Russia provide undeniable evidence of the contravention of public morals. These actions strike at the core of public morals by eroding the foundations of a just and peaceful international order.

The imposition of targeted sanctions on Russia serves as a pivotal instrument in promoting accountability and ensuring compliance with international norms, as required by Article XX. These sanctions act as a powerful deterrent, compelling Russia to reassess its actions and align with the expectations of the global community. By employing targeted measures, the goal is to foster a culture of compliance and encourage Russia to uphold the principles of public morals and respect for international norms.

The sanctions imposed on Russia meet the criteria enlisted under Article XX of the GATT, as they establish a clear and rational connection between the reasons for their imposition and the objective of protecting public morals. Member States need to ensure that the sanctions do not serve as a means to arbitrarily discriminate against Russia or covertly restrict international trade. Any potential criticisms or counterarguments regarding the discriminatory nature or hidden trade restrictions within the sanctions could be adequately addressed and evaluated following the Chapeau requirements by the WTO Dispute Settlement Body.

To justify the evidentiary matter under Article XX, concrete and substantiated evidence must demonstrate that the measures taken are necessary and non-discriminatory. The interpretative notes to Article XX highlight the requirement for a genuine and sufficiently serious public morals concern. The Appellate Body Report in the United States - Gambling case further emphasizes the need to establish a genuine connection between the measures and the objective of protecting public morals. Thus, a strong evidentiary basis, including factual data, documented violations, and a thorough analysis of the measures' impact and necessity, is essential to establish their legitimacy under Article XX.
Conclusion
This blog has examined the legality of sanctions on Russia under the WTO's Public Morals Exception, emphasizing the importance of considering public morals and human rights within international trade laws. Future research could focus on the interplay between the Public Morals Exception and other specific exceptions, clarifying their scope and potential overlaps. Additionally, further analysis is needed to explore the evidentiary requirements and burden of proof for invoking Article XX(a), ensuring a thorough assessment of the measures' necessity and proportionality. Case studies and comparative analyses of similar instances would contribute to a more coherent understanding of invoking the Public Morals Exception. By addressing these research gaps, scholars can enhance the consistency and predictability of decision-making in justifying sanctions under the WTO's Public Morals Exception.

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Preserving Morality or Crossing Boundaries? Assessing the Legality of Sanctions on Russia through the WTO's Public Morals Exception

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Dhaval Bothra is a law student at Symbiosis Law School, Pune.] Introduction This blog specifically analyzes the legality of unilateral economic sanctions imposed by Member States, excluding UNSC sanctions. The primary focus is on evaluating the compatibility of these unilateral economic sanctions with the WTO's Public Morals Exception, with particular emphasis on Article XX(a) of the GATT.

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Profiteers of Misery: Aggression, the Leadership Clause, and Private Military and Security Companies - Jeremy Pizzi (2023) 21(2) Journal of International Criminal Justice, 291–330

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Profiteers of Misery: Aggression, the Leadership Clause, and Private Military and Security Companies - Jeremy Pizzi (2023) 21(2) Journal of International Criminal Justice, 291–330

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Profiteers of Misery: Aggression, the Leadership Clause, and Private Military and Security Companies

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Abstract. Since its hailing as the ‘supreme international crime’ during the Nuremberg Trials, aggression has largely been neglected relative to other core inter

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United States Transfers Depleted Uranium Rounds to Ukraine: The Legal Issues - Michael N. Schmitt and Kevin S. Coble - 18 September 2023

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United States Transfers Depleted Uranium Rounds to Ukraine: The Legal Issues - Michael N. Schmitt and Kevin S. Coble - 18 September 2023

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On September 6, the United States announced it was sending 120 mm depleted uranium armor-piercing tank rounds to Ukraine for use in the 31 M1A1 Abrams tanks to be delivered this fall. In response, a Kremlin spokesman asserted that the United States' use of depleted uranium "in the former Yugoslavia has led to 'a galloping rise' in cancers and other illnesses and affected the next generations living in those areas." And following the United Kingdom's March announcement that it would provide depleted uranium rounds, Russian Foreign Minister Sergei Lavrov charged that the United Kingdom was "ready to violate international humanitarian law as in 1999 in Yugoslavia" (see Casey-Maslen 's analysis).

The United States pushed back on the facts, with the Deputy White House Press Secretary countering that the Centers for Disease Control and Prevention (CDC) had uncovered no evidence that depleted uranium rounds cause cancer. He added that the World Health Organization (WHO) " reports that there has been no increase of leukemia or other cancers . . . following any exposure to uranium or [depleted uranium]" and that the International Atomic Energy Agency (IAEA) "has stated unequivocally that there is no proven link between [depleted uranium] exposure and increases in cancers or significant health or environmental impacts."

The exchange continues a long-standing debate over the munitions. In this post, we assess their use under international law. Following a short explanation of deleted uranium, we examine potentially relevant weapons treaties. A discussion of the environmental provisions and general conduct of hostilities rules within international humanitarian law (IHL) follows. Based in significant part on international scientific and medical studies, we conclude that the use of depleted uranium munitions, as such, does not violate international law.
Depleted Uranium
Depleted uranium is an extremely dense material that is cheaper and easier to produce than other such materials, like tungsten. These characteristics have led to its use in the medical and industrial fields for decades.

Many military forces employ depleted uranium in armor-piercing munitions and armor plating. For example, the United States uses depleted uranium in 120 mm tank rounds, 30 mm cannon rounds fired from the A-10 Thunderbolt II aircraft, 25 mm cannon rounds used by the Army's Bradley Fighting Vehicle, 20 mm rounds fired by the Navy's Phalanx anti-missile system, and as a component in M1 Abrams tank armor. With respect to the munitions, the Department of Defense has explained (p. 360):

[D]epleted uranium is a material that has a characteristic that allows it to sharpen itself as it penetrates the target. The uranium shreds off the sides of the penetrator instead of squashing or mushrooming . . . . The result is the depleted uranium will penetrate more armor of a given character and type at a given range than tungsten will, no matter how we design the penetrators.

Much of the controversy surrounding depleted uranium stems from its creation as a by-product during the uranium enrichment process. Uranium is a naturally occurring metal found in soil, rock, oceans, food, and drinking water. As a result, the WHO has confirmed that it already exists in the human body due to the normal intake of water, food, and air ( WHO Scientific Review p. iii).

Uranium consists of a combination of three types of radioactive isotopes: U238, U235, and U234. The latter two are the most radioactive. Naturally occurring uranium has a U235 content well below the level needed for nuclear fission. Therefore, it must be "enriched" and removed to be used for that purpose. The by-product of this process is depleted uranium. Depleted uranium has reduced U235 and U234 content compared to natural uranium, making it "considerably less radioactive" ( IAEA, paras. 3-4). In addition, the U.S. Environmental Protection Agency states that it only emits alpha particles, which do not have enough energy to penetrate the skin.

Despite its wide use in the civilian sector for decades, public concern regarding the health and environmental effects of depleted uranium surfaced after the United States and the United Kingdom used depleted uranium munitions during the 1991 Gulf War against Iraq and in Operation Allied Force, the 1999 aerial bombing campaign against the Federal Republic of Yugoslavia ( WHO Scientific Review p. i). Extensive use of the munitions sparked international scrutiny, including a series of United Nations Environmental Programme (UNEP) assessments in the Balkans during the early 2000s ( p. 3). Reports that the United States subsequently used as many as 181,000 30 mm depleted uranium A-10 cannon rounds in Operation Iraqi Freedom reignited public debate in 2016.

During military operations, intact depleted uranium munitions, or fragments, can be deposited in soil, inside objects, on surfaces, or in water. In addition, depleted uranium particles can be aerosolized when striking hard objects, such as armor plating, or through burning due to the heat generated while penetrating objects ( IAEA, para. 6). This being so, the primary pathways for human exposure are inhalation, ingestion (eating food or drinking water containing depleted uranium particles), and dermal contact ( WHO Scientific Review, p. iv). Accordingly, concern has focused on potential environmental contamination issues and short and long-term impacts on human health.
Weapons Treaties
While depleted uranium is not considered a nuclear or chemical weapon, as a mildly radioactive heavy metal, it has both radiotoxic and chemical toxicity properties. This has led some to suggest that depleted uranium munitions violate various treaties. For instance, one scholar who has done excellent work on depleted uranium has pointed to preambular language in the 1963 Limited Test Ban Treaty, which confirms the parties' "desire to put an end to the contamination of man's environment by radioactive substances," to suggest using depleted uranium weaponry "would appear to be in clear violation of the treaty objectives" (p. 238; Russia, United Kingdom, United States, and Ukraine are parties). But as she recognizes, the treaty does not explicitly mention depleted uranium. More to the point, we believe that stretching this preambular text to such a degree is indefensible because the "object and purpose" of the treaty is to deal with nuclear weapons.

Based on the chemical toxicity properties of depleted uranium, the 1993 Chemical Weapons Convention might also appear to apply. Such an assertion would likewise be flawed. The convention prohibits parties from developing, producing, stockpiling, using, or transferring chemical weapons ( art. I), which it defines as "[m]unitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals . . . ." ( art. II). It further defines a toxic chemical as "[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals" ( art. II).

Yet, the munitions employ depleted uranium to enhance their penetration capabilities; they are anti-materiel, anti-armor munitions, not anti-personnel. Moreover, the effects of depleted uranium do not qualify it as a toxic chemical by the treaty's terms. This explains why it is not listed as a toxic chemical in the Convention's Annex on Chemicals. This is consistent with a 2001 WHO Scientific Review, which found that even direct contact with depleted uranium for several weeks is unlikely to produce adverse health effects. Indeed, even the few medical issues caused by excessive exposure to the more radioactive naturally occurring uranium may be transitory (p. iv).

We, therefore, agree with the assessment of the committee established by the International Criminal Tribunal for the Former Yugoslavia (ICTY), which was tasked to review NATO's 1999 bombing campaign against the Federal Republic of Yugoslavia. In its Final Report to the Prosecutor, the committee noted, "[t]here is no specific treaty ban on the use of [depleted uranium] projectiles" (para. 26).
Environmental Provisions in IHL Treaties
Although depleted uranium munitions are not explicitly banned by a treaty, it might be argued that their use is limited by the environmental provisions of the 1977 Additional Protocol I to the 1949 Geneva Conventions, to which both Russia and Ukraine are party. Although the United States recognizes that some provisions of Additional Protocol I reflect customary international law, it has long objected to any characterization of the environmental provisions as reflecting customary law (Matheson, p. 424, 436). As one of us concluded in a forthcoming co-authored piece, the United States' position is legally sound ( Biggerstaff/Schmitt).

Article 35(3) of Additional Protocol I prohibits the employment of "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment." While the use of individual depleted uranium rounds would never reach the "widespread, long-term and severe damage" threshold, the cumulative effect of their usage on the environment merits consideration. For instance, the United States fired close to 10,000 depleted uranium tank rounds, expended over 67,000 25 mm depleted uranium cannon rounds from the AV-8B Harrier, and shot over 780,000 30mm depleted A-10 Thunderbolt II uranium cannon rounds during Operation Desert Storm in 1991. They totaled approximately 340 tons of depleted uranium munitions during a ground war that only lasted 100 hours.

In this regard, it is essential to understand that Article 35(3) requires significant damage to the natural environment before being triggered. Indeed, the 1987 International Committee of the Red Cross (ICRC) Commentary to the article cautions that "a method or a means of war does not become unlawful under Article 35 of the Protocol unless it cumulatively fulfils all three conditions included in the provision" (para. 1457). As one of us accordingly noted, the use of the conjunctive "and" creates a challenging, three-part test, "which is nearly impossible to meet" (p. 119).

Further complicating matters is a lack of international consensus over the standards for reaching the three-part threshold. As the ICTY's Final Report to the Prosecutor notes, the "conditions for application are extremely stringent and their scope and contents imprecise" (para. 15). Consensus has only crystallized around "long-term," which the drafters understood to mean "a matter of decades" (ICRC Commentary, para. 1452).

As to the terms "widespread" and "severe," the United Nations Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques ( ENMOD) uses similar terminology. The committee that drafted the convention understood widespread as "encompassing an area on the scale of several hundred square kilometres" and severe as "involving serious or significant disruption or harm to human life, natural and economic resources or other assets." However, the committee explicitly stated that those definitions are not intended to apply to other international agreements, an obvious reference to Articles 35(3) and 55 of Additional Protocol I. That limitation aside, the ENMOD definitions provide some context to evaluate the Protocol's standards.

Based on the high degree of damage to the natural environment required to violate Article 35's widespread, long-term, and severe threshold, even extensive use of depleted uranium munitions is unlikely to reach that threshold. Regarding the widespread requirement, the WHO and IAEA (p. 14) have only noted detectable localized contamination from depleted uranium munition usage. The widest-spread contamination was from the small, aerosolized particles caused by depleted uranium munitions impacting metal, which are also the quickest to be washed away by wind and precipitation. Munitions embedded in the soil only affect the area of impact, pock-marking an area but not covering large swaths of terrain.

Damage caused by the depleted uranium munitions would also need to last decades to violate the provision. Beyond the fact that wind and rain can dissipate aerosolized particles of depleted uranium, the WHO has concluded that contamination fades into the natural environment over days and years (not decades) (p. 147). Although depleted uranium remains radioactive for a long time, the low amounts of radioactivity it emits (compared to the naturally occurring uranium already present in the soil) means that most contamination will dissipate into the normal background radiation levels. As such, it is unlikely that even widespread depleted uranium contamination would result in detectable increases in radioactivity or chemical toxicity over decades.

Finally, the environmental damage caused by the depleted uranium munitions must be severe before triggering Article 35(3). The UNEP Report mentioned above, which was conducted in close cooperation with the IAEA and WHO, observed that "even in areas with widespread depleted uranium contamination, the overall levels of radioactivity were low and within acceptable international standards, with no immediate dangers from either particle-based or waterborne toxicity" (p. 3). Since December 2007, the UN General Assembly has adopted eight resolutions, each requesting member States to provide information on the effects caused by depleted uranium munitions (see Resolutions 62/30, 63/54, 65/55, 67/36, 69/57, 71/70, 73/38, 75/42, and 77/49). As of December 2022, States had still not provided information to contradict the findings in the 2010 report. Based on UNEP's findings and the lack of countervailing evidence, it is unlikely that even extensive depleted uranium munition use damages the environment to a degree that violates Article 35(3) for parties to that instrument.

Article 55 of Additional Protocol I provides additional environmental protection. Like Article 35(3), it provides that "[c]are shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage." However, Article 55 goes further by prohibiting "the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population." In other words, whereas Article 35(3) addresses damage to the environment itself, Article 55 focuses on the impact of environmental damage on the human population.

The ICRC's Commentary on the article observes that the term health "is concerned not only with acts which jeopardize the survival of the population, but also with those which could seriously prejudice health, such as congenital defects, degenerations or deformities. Temporary or short-term effects are not taken into account" (para. 2135).

No scientific studies have suggested that depleted uranium exposure causes the qualifying health effects. For instance, a 2016 United Nations Scientific Committee on the Effects of Atomic Radiation Report to the General Assembly found that Gulf War veterans exposed to depleted uranium had "no clinically significant pathologies" compared to their cohorts (p. 438). It also noted that long-term studies of Gulf War veterans with embedded depleted uranium fragments "have found no clinically meaningful adverse effects" (p. 438).

The WHO similarly concluded that there is "no convincing evidence of an association between exposure to [depleted uranium] and clinical outcomes, including any type of cancer and congenital malformations." And the UN General Assembly has repeatedly stated "that studies conducted so far by relevant international organizations have not provided a detailed enough account of the magnitude of the potential long-term effects on human beings and the environment of the use of armaments and ammunitions containing depleted uranium" (see Resolutions 65/55, 67/36, 69/57, 71/70, 73/38, 75/42, and 77/49). Therefore, based on current scientific and medical information, it is improbable that the use of depleted uranium munitions would prejudice the health or survival of the population in a conflict zone to the extent that it triggers Article 55.
General Conduct of Hostilities Rules
Commentators sometimes point to a number of general conduct of hostilities rules found in IHL when discussing depleted uranium. None renders the battlefield use of depleted uranium in munitions or otherwise unlawful per se.

Customary IHL prohibits using weapons that are calculated to cause superfluous injury or are of a nature to cause unnecessary suffering. This rule is codified in Article 35(2) of Additional Protocol I. It is also reflected in the U.S. Department of Defense's Law of War Manual (§ 6.6), which discusses its long lineage in IHL. In 1996 and 1997, the UN Human Rights Commission's Sub-Commission on Prevention of Discrimination and Protection of Minorities passed motions that cited weapons containing depleted uranium as of concern with respect to the prohibition (see here; see also here).

However, the purpose of using depleted uranium in armor-piercing projectiles is to enhance the munition's effectiveness at defeating armored vehicles compared to other munitions; its use in the projectiles is not "calculated" to exacerbate injury (DoD Law of War Manual §6.5.7). Moreover, long-term studies have shown that depleted uranium does not cause clinically significant medical issues, even when fragments are embedded in a combatant's body. Thus, there is no meaningful additional harm to humans to qualify as unnecessary suffering. And even if there were, it would not be "unnecessary" given depleted uranium's contribution to the effectiveness of the munitions.

Customary IHL also prohibits indiscriminate weapons, a ban found in Article 51 of Additional Protocol I for parties to that instrument. The DoD Law of War Manual explains that "[t]he test for whether a weapon is inherently indiscriminate is whether its use necessarily violates the principles of distinction and proportionality" (§6.7.2). With respect to distinction, depleted uranium tank and cannon rounds are highly accurate, direct fire weapons. But weapons also can be indiscriminate because their effects . . . are of a nature to strike military objectives and civilians or civilian objects without distinction" (Additional Protocol I, art. 51(4)(c)).

As discussed above, depleted uranium can be aerosolized, making it susceptible to spreading uncontrollably. However, the very mechanisms by which it might spread also dissipate its harmful effects. In any event, scientific studies demonstrate that those effects are highly unlikely to be harmful (a de minimis level).

Although the ICTY's Final Report to the Prosecutor observed that "the underlying principles of the law of armed conflict such as proportionality are applicable" to the use of depleted uranium munitions, it is difficult to imagine a situation in which depleted uranium would be indiscriminate on the basis of violating the customary rule of proportionality. That rule appears in Articles 51(5)(b) and 57(2)(a)(iii) of Additional Protocol I and is reflected in the DoD Law of War Manual (§ 5.10). In text echoing the former, the latter provides, "Combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained" (§ 5.10).

The proportionality question is, therefore, whether the potential environmental and health impacts of using depleted uranium in a particular attack are excessive relative to the military benefits the attack is likely to yield. This evaluation is always situational. It will differ, for instance, based on the target (e.g., an enemy's main battle tank versus a truck) and the amount and type of munitions used to achieve the attack's objective (e.g., one 30 mm round versus 340 tons). Based on the prevailing scientific and medical data, it is unlikely that the residual harm caused by using depleted uranium munitions would ever be excessive during attacks in which it is used for its intended purpose.

Finally, customary IHL requires the taking of feasible precautions during an attack to limit harm to civilians and civilian objects. Codified in Article 57(1) of Additional Protocol I for parties to the instrument, the rule also appears in the DoD Law of War Manual (§ 5.11). As the Manual notes, "Depending on the circumstances, the process of 'weaponeering' in a strike against a target can be used to reduce the risk of harm to civilians and civilian objects by selecting munitions of appropriate size and type, as well as appropriate aim points, while offering the same or superior military advantage in neutralizing or destroying a military objective" (§ 5.11.6).

The purpose of using depleted uranium in munitions is to enhance attack effectiveness compared to other munitions. In other words, the rationale for using them is that other means of attack would be less suitable for achieving the military objective. Using a different type of metal alloy for armor-piercing munitions would likely risk greater collateral damage, for more of the less effective munitions would need to be employed to disable enemy armor and other intended targets. As should be apparent, the requirement to take feasible precautions in attack would seldom mandate a different means of attack.
Conclusion
Neither weapons law nor IHL currently prohibits the use of depleted uranium munitions as such, although they, like all weapons, are subject to the general conduct of hostilities rules governing attacks. Nevertheless, States employing or transferring them would be well-advised to remain sensitive to the fact that they remain controversial. And in areas where depleted uranium munitions are used extensively, the WHO's recommendations concerning environmental and population monitoring and post-conflict clean-up should be considered when feasible.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College. Major Kevin S. Coble is an active-duty Army judge advocate and a military professor in the Stockton Center for International Law in Newport, Rhode Island.
Photo credit: Lance Cpl. Garry J. Welch, U.S. Marine Corps

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United States Transfers Depleted Uranium Rounds to Ukraine: The Legal Issues - Lieber Institute West Point

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Depleted uranium munitions aren't prohibited by weapons law or IHL, but their use must adhere to general conduct of hostilities rules.

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The Slow Effects of the War in Ukraine and International Law - Patricio Barbirotto - 14 September 2023

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The Slow Effects of the War in Ukraine and International Law - Patricio Barbirotto - 14 September 2023

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The awareness of the environmental damages provoked by armed conflicts has constantly been increasing after the bombing of Hiroshima and Nagasaki in 1945, and in particular since the Vietnam War. The invasion of Ukraine by the Russian Federation on 24 February 2022, occurred in a moment, after the Covid-19 pandemic, during which the whole International Community, and in particular Europe, was taking some serious steps in tackling environmental damages in an attempt to stop, or at least to slow down, climate change. In this light, the attention to the environmental impacts of the war in Ukraine has been obviously huge since the beginning. For example, the changes in air pollution, and the destruction of the Kakhovka dam received great attention, both from scholars and the media. Most of the attention was focused on the destructive events themselves, and on their immediate or rather short-term consequences, given that the priority has always been restoring peace as soon as possible.
The Invisible Effects of the War in Ukraine
Nevertheless, as it is often (if not always) the case when it comes to environmental damages, the negative outcomes are here to stay for long time, perpetuating their effects for years or even for decades after the initial event. To some extent, the war in Ukraine will continue to affect people's lives even when the armed confrontation will be over. Indeed, it is likely that the country will fall into a permanent state of emergency due to the slow-onset negative events: while war, the event at the origin of the damages, is not slow at all, it leads to a number of events which may produce their final, tremendous effect in years from now. This may happen sometimes even after reconstruction if the issues are not addressed properly.

Two prominent long-term, slowly-developing consequences of the war in Ukraine can be identified. The first concerns the environmental repercussions of the fighting. While it is widely recognized that warfare leads to environmental degradation which has a potential long-term impact on human health, the direct correlation between these damages and future concerns, such as food security, is not clearly investigated. Ukraine holds a significant position as a global producer and supplier of cereals, as evidenced by the recognition and significance attributed to the "grain deal" by the International Community. However, the potential consequences on global food security in the foreseeable future are expected to be influenced by a range of factors, including soil and water contamination, as well as other war-related effects including infrastructure destruction and the impact of industrial activities such as the production and the availability of fertilizers. The second, less obvious, enduring consequence of the conflict in Ukraine pertains to the societal changes, which in this scenario of ecological distress will play a role on the future evolution of the social and economic ramifications resulting from the commencement of hostilities on 24 February, 2022. Consequently, a significant proportion of individuals, predominantly women and children, have been compelled to escape from their residences, resulting in widespread internal and international displacement. Simultaneously, a substantial number of males were conscripted into the Ukrainian Army, resulting in notable casualties and impairments among this demographic cluster. The potential ramifications of such a pronounced gender disparity could have unforeseeable effects on Ukrainian society and economy, as well as on the realization of rights for Ukrainian citizens, not only in the immediate post-war period but also in the years following the cessation of hostilities.

Such statements are immediately apparent to scholars and practitioners in disciplines such as economics and sociology, fields that are actively engaged in the post-conflict reconstruction efforts. However, things appear more problematic when it comes to legal science, a fundamental pillar of international relations and in building the post-war society. The imperative to address the aforementioned concerns in legal terms is crucial, as it serves the dual purpose of facilitating post-conflict reconstruction efforts and ensuring a fair and just resolution for the victims involved. Thus, it might be argued that, given the nature of the entire matter and the features of traditional international law, a fresh legal perspective is required (as suggested in this work by prof Sara De Vido). In the case of the war in Ukraine, the primary legal obstacle lies initially in determining the attribution of international responsibility, followed by the pursuit of reparation or, more broadly, the attainment of justice for those affected by the protracted and gradually- and slowly-developing consequences of the international wrongful act.
Slowly-developing Effects and International Responsibility
Following the conclusion of the war, a significant challenge will involve establishing a connection between the aforementioned harms and the international responsibility of the Russian Federation. The issue of reparations holds significant importance, particularly in relation to the concept of holding the aggressor responsible for potential future losses resulting from their actions, rather than solely addressing the immediate damage. This approach would represent a significant change in the field of international law. The traditional idea of compensation in the field of international law, which has been in place since the Alabama Claims case in 1872, typically limits the granting of reparation to instances where there is a direct prejudice resulting from an internationally wrongful act. This implies that indirect damages are, in general, excluded from coverage: a matter of significant significance in relation to the provision of compensation. The granting of indirect damages has traditionally been contingent upon the establishment of a direct causal relationship between the international wrongful act and the damages in question. This post deals with actions that can be categorized as long-term, slowly-developing, wherein damages are often indirect by nature. The identification of a clear causal relationship between Russian aggression, subsequent wrongful acts in the armed conflict, and the negative outcomes that will manifest in the future, such as five or ten years or even longer, is exceedingly complex. Still, it is imperative to acknowledge the causal relationship, and not to run the risk of oversimplifying an eventual compensation mechanism. It is in fact crucial to exercise caution, as there is a potential risk that attributing all adverse situations in post-war Ukraine solely to Russian aggression may oversimplify the complex array of negative phenomena.

In order to address the long-term, slowly-developing effects of the Ukraine war from the perspective of international legal responsibility, it is necessary for those responsible for deciding on said effects to assess the prejudice resulting from internationally wrongful acts of war. This assessment should not only consider traditional consequences of a conflict, but also take into account its long-term implications. To facilitate this evaluation, it may be beneficial to establish an ad hoc body specifically dedicated to this purpose. The utilization of current methods and bodies seems inadequate given the specific characteristics of the prejudice in question and of the existing bodies and mechanisms. The ad hoc body should consider allowing private individuals to submit claims, as the consequences can be observed at both a macro level (such as, for instance, the Ukrainian government filing claims regarding soil pollution that negatively impacts strategic food production) and, more importantly, being human rights concerned, at an individual level. For instance, individuals may submit claims related to diseases caused by water pollution that they develop in the coming years. At first sight, it appears that while individual claims may contribute to a heightened perception of justice, fairness and efficacy, state claims may demonstrate higher effectiveness in achieving a favourable resolution.

An illustrative instance of a prospective dispute resolution entity can be found in the Iran United States Claims Tribunal, despite its lack of association with an international military conflict. The Tribunal in question had a limited window of around six months during which claims could be submitted, a duration that is evidently inadequate for evaluating the long-term consequences that arise from an international unlawful act. However, it is imperative to acknowledge that the establishment and operation of a long-term international claims tribunal would entail certain drawbacks. These include exorbitant expenses and the potential dismissal of numerous claims due to the challenges, or even the infeasibility, of establishing a causal wrongful act-prejudice link many years after the occurrence of the events in question. The feasibility of the remedy proposed by the Iran United States Claims Tribunal may therefore not be viable, thereby necessitating the exploration of alternate possibilities.

An interesting point which those receiving the claims will have to face is that, in the event of long-term effects, international responsibility should rest only on the aggressor, i.e., on the Russian Federation or if also Ukraine, in exercising their right to self-defence, can be accounted responsible for potentially wrongful acts leading to long-term, slow-development related outcomes.

Ultimately, once the responsibility has been established, the subsequent obstacle lies in accurately determining the compensation provided to the individuals affected. Once again, the primary challenge lies in establishing the causal connection between the illegal act and the resulting prejudice. As previously mentioned, the traditional notion of compensation for international misconduct restricts compensation to direct damages and those that can be directly linked to the wrongful act that caused the harm. When a decade has passed since the occurrence of a wrongful act and subsequent damage, the task of quantifying the specific amount of damage directly attributable to the original wrongful act becomes highly challenging. This difficulty arises due to the presence, for instance, of additional intervening circumstances that occurred between the time of the wrongful act and the assessment of the resulting harm, despite the existence of a discernible causal link. For instance, in the context of food security, determining the exact proportion of damages resulting from reduced cereal production in Ukraine that can be attributed to soil pollution or water scarcity caused by the war, as opposed to other future factors like climate change, presents a challenging task with limited quantifiability.
Conclusion
The war in Ukraine has distinctive characteristics, notably its occurrence in the aftermath of the COVID-19 epidemic. This global health crisis has brought about significant changes to the world order and has prompted a heightened awareness of other pressing issues, such as climate change and environmental degradation. Furthermore, the ongoing armed conflict in Ukraine takes place at a significant juncture in history, wherein there is heightened focus on human rights and the impact of international events on individuals, particularly Europe, the region where the conflict is unfolding. Given the aforementioned circumstances, it is important to acknowledge the long-term, slowly-developing negative consequences of the war. Consequently, it becomes essential to incorporate the phenomenon into the framework of international legal theory pertaining to international responsibility and reparation. Although it is imperative to adhere to a stringent methodology that relies on establishing a direct causal connection between the unlawful conduct and the resulting harm, it is evident that excluding certain adverse consequences of the conflict from the purview of compensation mechanisms would be highly unsatisfactory. While the feasibility of implementing a claims tribunal may be questionable at present, it is fundamental for the International Community to acknowledge the potential, if not inevitable, occurrence of gradual war damages while deliberating and determining peace terms and reparations. From this perspective, it is conceivable to consider the inclusion of a dedicated fund within the reparations framework to address the long-term consequences of the conflict. These consequences may not be immediately apparent, but are currently "in the making" and are expected to manifest in significant and detrimental ways in the coming decade. The proposed fund, feasible within the existing legal framework, although under a new perspective, is far from perfect but aims to address the today invisible consequences of present-day Russian aggression and prevent the disregard of future suffering, while also providing the victims with a measure of access to justice.

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The Slow Effects of the War in Ukraine and International Law

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Patricio Barbirotto is a research fellow and adjunct professor of international law at Ca' Foscari University of Venice] The awareness of the environmental damages provoked by armed conflicts has constantly been increasing after the bombing of Hiroshima and Nagasaki in 1945, and in particular since the Vietnam War.

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Prisoner of War Status and Nationals of the Detaining Power - Michael N. Schmitt and William Casey Biggerstaff - 5 September 2023

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Prisoner of War Status and Nationals of the Detaining Power - Michael N. Schmitt and William Casey Biggerstaff - 5 September 2023

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As preparations for Ukraine's spring 2023 offensive were underway, reports of Russian dissidents conducting cross-border raids from Ukraine into Russia began to surface. The groups were identified as the Liberty of Russia Legion (sometimes referred to as the Freedom of Russia Legion) and the Russian Volunteer Corps. More recently, the latter group is back in the news (and here) as consisting mainly of, and led by, white nationalists.

At the same time, many Ukrainians are likewise fighting against their own nation. Some are in the Russian armed forces, often due to an unlawful Russian draft in occupied territory. Others were members of the separatist forces in the Donbas region (Donetsk and Luhansk). In September 2022, the Duma passed legislation pulling them into the Russian Armed Forces. Five months later, the Russian Ministry of Defense integrated them into its command structure, where they are now part of the Southern Military District.

Collectively, they raise the issue of the status of such fighters under the law of armed conflict if captured by their country of nationality. Specifically, would Russian nationals captured by Russian forces enjoy prisoner of war status under the 1949 Geneva Convention III on the treatment of prisoners of war? An identical question would apply to Ukrainians captured by Ukrainian troops.

These possibilities have reignited a longstanding debate. On one side are those who argue that individuals falling into the various categories enumerated in Article 4A of the Convention qualify as prisoners of war, regardless of their nationality. The most prominent proponent of this view is the International Committee of the Red Cross (ICRC). On the other are those who argue that the detaining power is not obliged to recognize its own nationals as prisoners of war. This is the position of, for example, the United States.

In this post, we examine the issue, concluding that while both views are reasonable, the latter is more defensible as a matter of law. In arriving at that conclusion, we scrutinized Geneva Convention III and related conventions through the lens of treaty interpretation rules, case law, scholarship, and State practice. Our views on the issue are set forth in greater depth in a recently published article in International Law Studies.
Nationality Under Geneva Convention III
The relevant provision of Geneva Convention III is Article 4A, which sets forth the categories of persons who, having " fallen into the power of the enemy," qualify for prisoner of war status (emphasis added). They encompass: members of the armed forces, including militia or volunteer corps that form part of the armed forces; members of other militia and volunteer corps, including resistance movements; members of the regular armed forces who profess allegiance to authorities the detaining power does not recognize; persons who accompany the armed forces without being members thereof, such as civilian employees; crews of merchant marine vessels and civil aircraft; and members of a levée en masse.

Nowhere in Article 4A is nationality referenced. This absence tracks that in earlier treaties dealing with prisoner of war status (Regulations annexed to both the 1899 Hague Convention II, and the 1907 Hague Convention IV, and the 1929 Geneva Convention). The ICRC and some commentators suggest that if the drafters had intended to make nationality a condition precedent to prisoner of war status, they would have expressly included that condition in the article's text (ICRC 2020 Commentary, para. 971; Martinez, p. 52; Rogers, p. 37). That they did not is a fact advocates of this view find persuasive, if not dispositive.

The other view is that persons who are nationals of a Detaining Power are not entitled to the protected status (DoD Law of War Manual, §§ 4.4.4.2, 4.5.2.5, 9.3.2.1). Proponents suggest that the mere absence of a condition in a treaty provision does not preclude the possibility of it being implied. For example, with respect to prisoner of war status for members of the armed forces (art. 4A(1)), the ICRC applies the Geneva Convention III conditions required of certain armed groups ( art. 4A(2)), such as wear of a "fixed distinctive sign," before they enjoy that status. This is despite no mention of the conditions in the relevant treaty provision ( art. 4A(1)). Advocates of this "nationality matters" perspective similarly contend that the condition is inherent in the term "enemy" found in Article 4A.

Considering these competing viewpoints, treaty interpretation rules are especially useful in addressing the issue. Article 31(1) of the Vienna Convention on the Law of Treaties (to which the United States is not party but which it considers generally reflective of customary law) provides, "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Those who would deny prisoner of war status to nationals of the detaining power contend that the former cannot be the enemy of the latter, as that term appears in Article 4A. By contrast, the ICRC suggests the term refers to the relationship between the detaining power and its State adversary, not between the detainee and the detaining power (ICRC 2020 Commentary, para. 964).

We favor the former understanding, based in part on the Vienna Convention's requirement to look to the context of a term when interpreting it. As used in treaty law, "context" refers primarily to the remainder of a treaty's text. In that regard, other articles within Geneva Convention III do not extend their protections to nationals of the detaining power. For instance, Article 87 on prisoner discipline provides that courts or authorities of the detaining power should consider the fact that the accused is not a national of the detaining power, and therefore does not owe it any duty of allegiance, and is in the detaining power's control as the result of circumstances "independent of his own will," when determining an appropriate penalty.

Similarly, Article 100 requires the same considerations to be brought to a court's attention before a death sentence may be pronounced. Indeed, the 1960 Pictet Commentary on Geneva Convention III, published by the ICRC, labeled them "special factors" (p. 430). Because both articles protect only "prisoners of war" under Article 4A, we read them in "context" as excluding nationals of the detaining power from qualification for that status.

Moreover, Article 32 of the Vienna Convention provides that "preparatory work of the treaty and the circumstances of its conclusion" may be resorted to as a supplementary means of interpretation to confirm the meaning attributed to its text pursuant to Article 31 or to resolve uncertainty. Geneva Convention III's travaux préparatoires, while relatively sparse on the subject, indicate that the government experts meeting thereon identified

[t]wo essential principles [that] should govern all clauses relating to proceedings and sentences concerning [prisoners of war] . . . namely: (a) as a rule, PW are not nationals of the DP, to which they owe no allegiance; [and] (b) as members of forces they owe a duty of obedience to their home country.

In our view, the plain language and drafting history of Articles 87 and 100 support a distinction between those who are not nationals of the detaining power and those who are; therefore, they weigh in favor of interpreting Article 4A as not extending prisoner of war status to a State's own nationals.

Although most attention has focused on these two articles, others also lend support. For instance, Article 7 of Geneva Convention III provides that "[p]risoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention." The Pictet Commentary notes that the article is meant, in part, to prevent prisoners of war from forfeiting their protected status by becoming, either by their free will or due to coercion, nationals of the detaining power. The drafters were concerned that "if such requests are granted, the applicants lose all entitlement to the Convention's benefits, as they can no longer be considered as enemy nationals" (p. 88). In other words, Article 7 was included for the very reason that those who share the detaining power's nationality did not benefit from prisoner of war status.

Context also includes "[a]ny instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty" ( Vienna Convention, art. 31(2)(b)). Looking to the other Geneva Conventions that were produced contemporaneously with Geneva Convention III is therefore appropriate. In that regard, Article 4 of Geneva Convention IV on the treatment of civilians provides, "Persons protected by [the] Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals" (emphasis added). This being so, those who would extend prisoner of war status to nationals of the detaining power would be arguing simultaneously that a State's own civilians are not protected for purposes of that Convention, but nationals who are captured while fighting for the enemy are protected for the purposes of Geneva Convention III. This disparate treatment appears incongruent to us.

In addition to context, the object and purpose of a treaty must also be considered. We agree with the ICRC that Geneva Convention III is meant "'to mitigate as far as possible, the inevitable rigours [of a war] and to alleviate the condition of prisoners of war" (ICRC 2020 Commentary, para. 144). But this object and purpose must be understood in light of the long-recognized general principle that international law rules are not meant to intrude upon the domestic affairs of States. If, as the 1958 Pictet Commentary recognizes, the exclusion of a State's nationals from the protections of Geneva Convention IV is premised upon "remain[ing] faithful" to this principle, in that it does "not interfere in a State's relations with its own nationals" (p. 47), why would the opposite hold true vis-à-vis Geneva Convention III? We suggest that it does not.
Case Law
Case law generally supports our interpretation. Most well-known in this regard is the United Kingdom's Privy Council's 1967 judgment in the appeal case, which found that a Malaysian national fighting on behalf of Indonesia was not entitled to prisoner of war status while detained by Malaysian forces as a matter of customary law. The Privy Council reasoned that Geneva Convention III is "concerned with the protection of the subjects of opposing States and the nationals of other Powers in the service of either of them, and not directed to protect all those whoever they may be who are engaged in conflict and captured."

Subsequent international tribunal judgments echo this understanding. For instance, in its 2013 Prlić judgment, the International Criminal Tribunal for the Former Yugoslavia concluded that a "teleological interpretation seeking to establish the objective of the Third Convention unambiguously leads to the conclusion that only those persons belonging to the armed forces of a Party other than the detaining Party are concerned" (para. 603), an interpretation with which the Appeals Chamber agreed (para. 359). In our view, U.S. case law, including Ex Parte Quirin, In re Territo, Hamdi v. Rumsfeld, and United States v. Lindh, may be interpreted, notwithstanding claims to the contrary, as consistent with these international cases (see our analysis here at p. 532-535).
Additional Protocol I
Despite our view that Geneva Convention III does not extend prisoner of status to nationals of the detaining power, it is necessary to ask whether the 1977 Additional Protocol I does. After all, Russia and Ukraine are Party to the instrument and bound by its terms. Our view is that it does not.

The first commentary on Additional Protocol I was prepared in 1982 by Michael Bothe, Karl Josef Partsch, and Waldemar Solf, all of whom participated in the diplomatic conference that produced the treaty. They cited "nationals of the Detaining Power" as among those categories of individuals who are not entitled to prisoner of war status (or, in their view, treatment) but are instead, according to Article 45(3) of the instrument, entitled to certain other protections outlined in Article 75 (p. 262). Michael Bothe maintained the position in his 2013 revised edition of the commentary (p. 296).

The ICRC's 1987 Commentary on Article 45(3) implied the same view (para. 1761). It noted that there should be no gap in the protection of individuals. But it went on to observe that in "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination," the "adversaries can have the same nationality" (emphasis added). That being so, and as explained above, they would not benefit from Geneva Convention IV's civilian protections. To remedy this dilemma, the Commentary notes that they would enjoy the protections of Article 75, Fundamental Guarantees. But this observation generally would not have been necessary had they been entitled to the protected status in the first place. At least in 1987, therefore, the ICRC seems to have taken a similar approach as Bothe, Partsch, and Solf five years earlier (although the text is admittedly not directly on point).
Scholarship
The scholarly community has long recognized that, upon capture, nationals of the detaining power are subject to exceptions under the law of armed conflict. In 1758, for instance, Emmerich de Vattel, writing in The Law of Nations, observed that States often discriminated against their own nationals who served in the ranks of the enemy ( extract p. 527). In the last century, Lassa Oppenheim, a giant of modern international law, took the position in International Law: A Treatise that "[t]he privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals." Lest the currency of Oppenheim be questioned, both the Privy Council's in and the Department of Defense in its Law of War Manual (§ 4.4.4.2, n. 86) cite his position as authority for confirming that prisoner of war status does not extend to a Detaining Party's nationals.

More recently, Yoram Dinstein, arguably the most influential law of armed conflict scholar in the past half-century, has opined that the "lack of duty of allegiance to the Detaining Power" is a condition for lawful combatancy and, therefore, prisoner of war status (para. 160). In contrast, Marco Sassoli, also a distinguished thinker in the field, has observed (with Eugénie Duss) that "[u]nder the wording of Convention III," nationality should be "irrelevant." But he goes on to acknowledge that "[t]he majority view in military manuals, a judicial precedent, and scholarly writings is that [nationals of the detaining State] do not have POW status" (p. 19).
State Views
At least in the United States, there has been consistency on the matter for over 150 years. Article 48 of the 1863 Lieber Code, for example, provided that those who betrayed their country did not enjoy the privileges afforded to other combatants upon capture: "Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American Army."

Current guidance on the matter remains unchanged. The Army and Marine Corps The Commander's Handbook on the Law of Land Warfare provides that "[t]he special privileges international law affords lawful combatants do not apply between nationals and their own State. For example, provisions of [Geneva Convention III] recognize that nationals of the detaining power are not [prisoners of war]" (para. 1-53). The DoD Law of War Manual similarly states that "the privileges of combatant status are generally understood not to apply, as a matter of international law, between nationals and their State of nationality" (§ 4.5.2.5; see also §§ 4.4.4.2, 9.3.2.1).

Military manuals of other States similarly point to nationality as a relevant consideration. For instance, Denmark's Military Manual on the International Law Relevant to Danish Armed Forces in International Operations (p. 483) states, "The adversary's deserters may claim prisoner-of-war status if they are deprived of liberty. By contrast, defectors will not be entitled to this status if they have defected before they were deprived of liberty." The term defector refers to a "person who leaves his or her country's armed forces and joins the opposing side." There is ample evidence that the United States does not stand alone in denying prisoner of war status to its nationals.
Concluding Thoughts
As noted at the outset, we find both views reasonable. Nevertheless, our examination of the subject finds more support for the premise that nationals of the detaining power do not enjoy prisoner of war status and its associated protections. Moreover, ambiguities remain, such as the meaning of the term nationality in the context of the law of armed conflict, a subject that we discuss in more depth in our International Law Studies article. Therefore, we end by reminding readers that in cases of doubt as to the status of detainees under Geneva Convention III, they enjoy the Convention's protections until a competent tribunal determines their appropriate status pursuant to Article 5 of that instrument.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College. Lieutenant Colonel William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.
Photo credit: Ministry of Defense of Ukraine.

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Prisoner of War Status and Nationals of the Detaining Power - Lieber Institute West Point

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Russians & Ukrainians fighting against their own nations raise the issue of the POW status of such fighters under LOAC.

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Military Aid to Russia and International Law - Michael N. Schmitt - 12 September 2023

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Military Aid to Russia and International Law - Michael N. Schmitt - 12 September 2023

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North Korea's leader, Kim Jong-un, is in Russia to discuss military support, including supplying artillery shells and rockets, for Russian operations against Ukraine. In the past, North Korea has supplied the Wagner Group with arms and ammunition. Its support to Russia is expected to grow as Pyongyang seeks Russian assistance for its own weapons programs and tries to enhance its international influence. In response, U.S. National Security Adviser Jake Sullivan has warned, "Providing weapons to Russia for use on the battlefield to attack grain silos and the heating infrastructure of major cities as we head into winter to try to conquer territory that belongs to another sovereign nation-this is not going to reflect well on North Korea, and they will pay a price for this in the international community."

If the deal goes through, North Korea will join Iran in providing arms and equipment that Russia relies on to maintain its war of aggression against Ukraine. And that support is very significant. To illustrate, the Wall Street Journal reported that in the six months between October 2022 and April 2023, "cargo ships have carried more than 300,000 artillery shells and a million rounds of ammunition from Iran to Russia" across the Caspian Sea. Perhaps best known are the hundreds (maybe thousands) of reconnaissance and attack drones and surface-to-surface missiles Iran has provided Russian forces, which have been used to attack not only military objectives but also civilian targets. Assisted by Iran, Russia is now copying the drones, with a goal of producing 6,000 by next summer.

Prior Articles of War posts examined aid and assistance to Ukraine, which I consider lawful (see here, here, here, and here). By contrast, this post explores the law governing the transfer of arms and equipment to Russia. I conclude that the Iranian and proposed North Korean military support is unambiguously unlawful on multiple grounds.
The Red Herrings
Before discussing why that is so, it is useful to dispense with two potential red herrings. The first is the question of whether military assistance standing alone triggers the use of force prohibition set forth in Article 2(4) of the UN Charter and customary international law, unless provided in self-defense or pursuant to Security Council authorization. In a recent International Law Studies article, Lieutenant Colonel Casey Biggerstaff and I explored the matter, concluding that, in certain limited circumstances, aid and assistance might qualify as a use of force (we hastened to add that "States have yet to meaningfully contend with the concept of indirect force, much less its precise contours"). Applying the criteria we discussed, I do not believe the arms and equipment provided to Russia amounts to a use of force by the States providing it, at least not yet.

The second red herring is the question of whether, and if so, when, aid or assistance to a belligerent in an international armed conflict makes the supporting State a party to the conflict. In an earlier Articles of War post, I explored this issue in the context of U.S. support for Ukraine, suggesting it could do so in certain circumstances. Whether that occurs depends on the nature of the assistance, the intent behind its provision, and its nexus with specific conduct of hostilities operations. Undoubtedly, Iranian aid is making a measurable contribution to the Russian war effort. Still, at least based on the information publicly available, it has yet to transform Iran into a party to this armed conflict. And even if it had, status as a party to a conflict does not alone violate international law. Instead, party status is a choice of law issue. Once a State becomes a party, it is subject to the international humanitarian law and law of neutrality rules binding on belligerents.
Neutrality
The treaty law governing the rights and obligations of neutrals and belligerents is found in two of the 1907 Hague Conventions: Convention (V) Respecting the Rights and Duties of Neutral Powers in Case of War on Land and Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War. Iran, Russia, and Ukraine are party to both, whereas North Korea is party to neither. Most of the military supplies provided to Russia support land operations governed by Hague Convention V. Unlike Hague Convention XIII (see art. 6), it contains no provision banning inter-governmental support. Instead, the only provision related to support of a belligerent is Article 7, which provides, "A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet."

However, the fact that the treaty does not address intergovernmental transfers such as those engaged in by Iran and (possibly) North Korea does not render them lawful. On the contrary, customary law has long prohibited such transfers. The Department of Defense Law of War Manual accurately articulates the rule (§ 15.3.2.1):

Neutral States have an obligation to refrain from providing war-related goods and services to belligerents. A neutral State is prohibited from supplying a belligerent State in any manner, either directly or indirectly, with warships, ammunition, or war material of any kind.

In support, the Manual cites a 1902 Attorney General Opinion, Neutrality-Military Supplies-Horses, thereby demonstrating the rule's long lineage. The scholarly community is in accord. For instance, in his classic 1984 piece on neutrality, Yoram Dinstein observed, "A neutral State must not assist the war effort of one of the belligerents against its adversary through military supplies furnished on an inter-governmental basis. . . . No doubt, this is the general norm in respect of any type of weapons, munitions and war materials to the extent that inter-governmental transactions are involved" (14 Israel Yearbook on Human Rights 80).

This rule would appear to make any military aid and assistance to a belligerent unlawful. Yet, the existence of two approaches to how neutrality law applies complicates matters (see here).

By the first, so-called "strict neutrality," the rules regarding transfer of arms apply equally to all neutral States and without distinction between the belligerents (see Pete Pedrozo's analysis). Military aid to a belligerent is unlawful without qualification. But a second view, which the United States has long advocated, takes a different tack, that of "qualified neutrality." As the DoD Law of War Manual notes, "before its entry into World War II, the United States adopted a position of 'qualified neutrality' in which neutral States had the right to support belligerent States that had been the victim of flagrant and illegal wars of aggression" (§ 15.2.2). Today, the United States takes the position that "[t]he Charter of the United Nations and decisions by the U.N. Security Council may, in certain circumstances, qualify rights and obligations under the law of neutrality" (§ 15.2.3).

The relevant aspects of the Charter are the prohibition on the use of force ( art. 2(4)), the right of self and collective defense ( art. 51), and Security Council authorization for a use of force ( ch. VII). Wolff Heintschel von Heinegg and I have separately contended that the self-evident nature of Russia's aggression justifies the application of the qualified neutrality doctrine in this case. Extensive State practice of providing Ukraine aid and assistance supports this contention, for there is no other legal basis justifying that practice.

But even though aid and assistance to Ukraine are, in my estimation, lawful, the fact that Russia is engaged in aggression against Ukraine precludes it from benefiting from the doctrine. Thus, by any reasonable reading of the law, support to Russia is an unambiguous violation of the customary law of neutrality under both the strict and qualified neutrality approaches.

I have heard it suggested that aid to Russia might be justified as a "collective countermeasure" despite that neutrality violation. A countermeasure is an act or omission by a State that would be unlawful but for the fact that it is a proportionate response to another State's breach of a legal obligation the latter owes it and that is designed to compel that State to cease and/or provide any reparations due under the law of State responsibility (International Law Commission, Articles on State Responsibility (ASR), arts. 22, 49(1)). Collective countermeasures are analogous to collective defense (UN Charter, art. 51) in that third States either assist a State entitled to take a countermeasure or carry out the countermeasures on its behalf and at its request.

The argument in these circumstances would be that by the strict neutrality approach, Ukraine is violating neutrality law by accepting aid from neutral States that themselves are violating that body of law. This gives Russia the right to take countermeasures against Ukraine. In doing so, it has sought the assistance of other States to execute or even perform them, including by supplying otherwise unlawful materiel support.

This is a flawed argument from many angles. For instance, it is debatable whether military support to Ukraine is unlawful (qualified neutrality). Moreover, the right to engage in collective countermeasures is controversial. Sean Watts and I have argued that they are lawful, but in doing so, we acknowledged the reasonableness of the competing views.

Most importantly, however, there is widespread consensus that countermeasures "shall not affect the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations" ( ASR, art. 50(1)(a)) or "other obligations under peremptory norms of general international law" ( ASR, art. 50(1)(d)). In the latter regard, both the prohibition of aggression and the "basic rules of international humanitarian law" qualify as peremptory norms (see, e.g., International Law Commission, 2022 Draft Conclusions on Peremptory Norms, at 16; International Court of Justice (ICJ), Paramilitary Activities, para. 190; ICJ, Nuclear Weapons, para. 79). Providing any military aid enhances Russia's ability to continue its unlawful use of force against Ukraine and Russia uses some of it directly or indirectly to engage in serious international humanitarian law violations, most notably drones and missiles that target civilian infrastructure. Countermeasures, including collective countermeasures, are clearly off the table even if the aid to Ukraine was unlawful.
Aid and Assistance under the Law of State Responsibility
The law of State responsibility regulates a number of situations in which one State may be held responsible for acting in support of the unlawful activity of another. Two are relevant vis-à-vis the provision of military aid to Russia. The International Law Commission's ASR, which are considered a generally reliable restatement of customary international law, address them both.

Article 16 sets forth the first. It provides,

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

The ICJ confirmed the customary law character of Article 16 in the 2007 Bosnian Genocide judgment (para. 420).

Obviously, if Iran or North Korea engaged in the same unlawful conduct as Russia, they would violate international law. Moreover, it cannot be doubted that Iran knows that its military aid supports Russia's continuing unlawful use of force and that some of it is being used to strike civilian targets in violation of international humanitarian law. As to North Korea, any military aid to Russia would plainly fall within the ambit of Article 16 due to the self-evident unlawfulness of Russia's use of force. And should it become apparent that its aid was being used for unlawful attacks under international humanitarian law (see also here), North Korea would also shoulder legal responsibility on that basis.

Applying Article 16 can be complex, as Marko Milanovic has demonstrated here and in his comprehensive International Law Studies article on intelligence sharing. For instance, there has been extensive analysis in the scholarly literature of such issues as the requisite causal nexus between the aid or assistance and the underlying internationally wrongful acts, as well as whether, and if so, how, intent should be read into Article 16(a)'s knowledge requirement. But in this case, the arms and equipment directly make Russia's unlawful operations possible. Furthermore, it would be absurd to suggest there is a lack of intent (if intent is required) when the support's very purpose (and highly visible use) is to enable operations that are barefaced international law violations.

The second basis for finding States supplying Russia responsible for an internationally wrongful act is captured in Article 41(2) of the ASR. It provides, "No State shall recognize as lawful a situation created by a serious breach [of a peremptory norm], nor render aid or assistance in maintaining that situation." As noted, the prohibition on the wrongful use of force and the type of international humanitarian law violations engaged in by Russia are paradigmatic examples of peremptory norms.

It is important to caution that States supporting Russia with military aid are not legally responsible for Russia'sunlawful actions. Under the law of State responsibility, they only bear legal responsibility for their aid's contribution to the underlying unlawful Russian conduct ( ASR Commentary, art. 16, paras. 1, 10). This distinction would be relevant should Ukraine avail itself of its right to take countermeasures against these States (or turn to other States for assistance in taking them) because countermeasures must be proportionate to the wrongful conduct to which they respond ( ASR, art. 51). Similarly, the distinction would bear on the extent of reparations ( ASR, art. 31) due to Ukraine as a result of the assisting States' military aid to Russia.

Only if the military aid is an essential and integral aspect of Russia's wrongful operations would the States providing it be jointly and severally responsible for Russia's unlawful actions. This is most likely in jointly planned operations or where the wrongful conduct could not have occurred but for the aid. Although that arguably might be the case with some of the attacks on civilian infrastructure, responsibility on this basis would be a harder case to make than that set forth by Articles 16 or 41 ( ASR Commentary, art. 16, para. 10).
Common Article 1 of the Geneva Conventions
Common Article 1 of the four 1949 Geneva Conventions provides, "all High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." The International Committee of the Red Cross (ICRC) has cited the provision as reflecting customary international law, and rightly so ( Customary IHL Study, rule 139).

For many years, there has been a debate among international law scholars and States as to the meaning and scope of application of the "respect" and "ensure respect" obligations. In particular, discussion has revolved around two issues: whether the ensure respect obligation imposes a duty on States not party to the conflict to affirmatively take measures to convince a State violating international humanitarian law to desist and whether the obligation applies in non-international armed conflict. These issues have been deconstructed in two International Law Studies companion pieces ( Schmitt & Watts and Zwanenburg).

However, those are not the issues at hand. To begin with, this is an international armed conflict. More significantly, the question here is whether States providing military aid have a negative duty to refrain from supplying Russia, which has used some of it in international humanitarian law violations. They do, although there is some question as to whether the duty derives from the obligation to respect or to ensure respect. I take the former position, while the ICRC has taken the latter ( Geneva Convention I Commentary 2016, art. 1, para. 154). But we agree there is a negative obligation borne by all States, whether a party to the conflict or not, to refrain from aiding or assisting violations of international humanitarian law. This is consistent with the ICJ's judgment finding that States may not encourage persons or groups to violate that law (paras. 220, 255-56). The ICRC takes the position that the obligation not to encourage violations is customary in character, a position with which I agree ( Customary IHL Study, rule 144). Indeed, few means of encouraging international humanitarian law violations are more effective than providing the violating State with the weapons systems used to engage in them, as is the case with Iran.
Violation of U.N. Security Council Sanctions
As a result of North Korea's nuclear and ballistic missile programs (see Schmitt & Tramazzo), the UN Security Council, acting under Chapter VII of the UN Charter, has passed a series of binding resolutions prohibiting, inter alia, the export of certain arms by North Korea. Most notably with respect to North Korea's support to Russia, the Council banned the transfer of "battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships, missiles or missile systems [and certain other items subsequently identified] by their nationals or from their territory" (Security Council Resolution 1718, para. 8). Later resolutions "recalled" Resolution 1718, which remains in effect (see, e.g., Resolution 2397 (2017)).

Thus, the transfer of, for instance, artillery shells by North Korea would violate the ban. It must be remembered that pursuant to Article 25 of the UN Charter, "Members of the United Nations agree to accept and carry out the decisions of the Security Council." This means that if North Korea transfers such material to Russia, Russia would also violate the ban.

Finally, according to the U.S. State Department, Iran's transfer of drones to Russia violated UN Security Council Resolution 2231 (2015), which supported the Joint Comprehensive Plan of Action. This conclusion is highly technical but appears accurate as a matter of law.
Conclusion
International law is clear. The supply by any country of weapon systems, arms, ammunition, or other military equipment to Russia violates the law of neutrality. Additionally, such transfers amount to internationally wrongful acts under the law of State responsibility. They also breach the customary international law obligation to respect international humanitarian law that also appears in Common Article 1 of the 1949 Geneva Conventions. Finally, a transfer by North Korea would constitute a breach of binding Security Council resolutions by both North Korea and Russia, while Iran has already violated a Security Council ban.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Photo credit: Kremlin.ru

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Military Aid to Russia and International Law - Lieber Institute West Point

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If North Korea decides to supply Russia with arms and equipment, it would be unambiguously unlawful on multiple grounds.

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Russia's Interdiction of Neutral Merchant Vessels and the Law of the Sea - John C. Tramazz and Ian Santicola - 11 September 2023

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Russia's Interdiction of Neutral Merchant Vessels and the Law of the Sea - John C. Tramazz and Ian Santicola - 11 September 2023

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On August 12, 2023, the Russian patrol ship Vasily Bykov intercepted the Turkish-owned, Palau-flagged merchant ship in the Black Sea between its point of embarkation in Chalkis, Greece and its destination of Izmail, Ukraine. The incident occurred less than one month after Russia announced its withdrawal from the UN-brokered Black Sea Grain Initiative (BSGI), a topic Articles of War has previously covered. It also occurred two days after Ukraine's Navy announced a "humanitarian corridor" for merchants transiting the Black Sea.

The warship Bykov reportedly hailed the 283-foot-long merchant vessel via radio and requested to inspect her cargo, but the captain ignored the message. In response, the Russians fired warning shots (a fact disputed by at least one source) and dispatched a Kamov Ka-29 helicopter to hover near the Okan's deck. Russian sailors boarded the vessel and stormed its bridge with rifles drawn, forcing the captain and members of his crew to kneel and, later, to sit on the ship's deck. The Russian sailors inspected Okan's cargo for contraband but, after finding none, allowed her to complete the trip to Ukraine. While the precise location of the incident is unknown, it most likely occurred in Bulgaria's exclusive economic zone (EEZ).

Ukraine's government immediately condemned Russia's boarding and search of Sukru Okan. A senior advisor to President Volodomyr Zelensky claimed that the incident was a "clear violation of international law of the sea, an act of piracy and a crime against civilian vessels of a third country in the waters of other states."Additionally, Ukraine's Ministry of Foreign Affairs claimed that "the Russian Navy grossly violated the UN Charter, the UN Convention on the Law of the Sea, and other norms of international law."

The U.S. government also issued a statement criticizing the search. Ambassador Robert Wood, the Alternate U.S. Representative for Special Political Affairs at the United Nations, "strongly condemned" the Russian Navy for firing "shots at the Sukru Okan cargo vessel." Ambassador Wood called on Russia to "comply with its international legal obligations and respect freedom of navigation." In addition, retired U.S. Navy Admiral and former NATO Supreme Allied Commander James Stavridis argued that "Russia's actions in the international waters of the Black Sea create a real risk of escalating this to a war at sea."

In this post, we examine the international law applicable to wartime "visit, board, search, and seize" (VBSS) operations. Based on what we know of the Sukru Okan incident, we conclude (and echo this Articles of War post) that from a legal perspective, the condemnations of Russia's boarding are misplaced. While there is no doubt that Russia's illegal war of aggression has caused suffering in Europe and elsewhere and that the Russian military has repeatedly violated the law of armed conflict, it appears that this particular operation complied with the international laws governing the belligerent right of visit and search.
A Belligerent's Right to Visit, Board, Search, and Seize
During armed conflict, commanders may exercise the right of " visit and search" to determine a merchant vessel's true character (enemy or neutral) and to verify the nature of its cargo, the manner of the vessel's employment, and other facts bearing on its relationship to the armed conflict (see e.g., DoD Law of War Manual, § 15.13; Commander's Handbook, § 7.6). As the Newport Manual on the Law of Naval Warfare explains, "the right of belligerents to visit and search is a time-honored exception to the right of freedom of the seas" ( para. 9.9). A belligerent's VBSS right is not without limits, however, and judging compliance requires a consideration of the location, circumstances, and process of the visit and search.

The belligerent right of visit (i.e., board) and search only applies outside of neutral jurisdictions (e.g., in international waters or in the territorial waters of parties to the conflict). It does not apply in neutral sovereign waters, i.e., in internal waters, territorial sea, or archipelagic waters ( Newport Manual § 11.3.2.2; Commander's Handbook § 7.3.6). Importantly, a neutral State's contiguous zone (CZ) and EEZ do not constitute neutral sea areas; rather, the CZ and EEZ are non-neutral international waters ( Australian Manual paras. 6.46-6.47, 11.16; NWIP 10-2 § 502; Commander's Handbook §§ 7.4, 7.6; UK Manual paras. 13.7, 13.91-13.94).

Therefore, belligerents may lawfully conduct hostilities and engage in other belligerent rights like "visit and search" in the CZ and EEZ of neutral States (see e.g., the UN Convention on the Law of the Sea (UNCLOS), art. 58 and an explanation of the law's application in the EEZ here). Indeed, U.S. forces routinely conducted offensive operations from foreign EEZs during the global war on terror. Consequently, Russia's Navy was entitled to visit and search Sukru Okan in the Bulgarian EEZ. Had the search occurred in Bulgaria's territorial waters (i.e., within 12 nautical miles of its baseline) or in the territorial waters of any other neutral State, the operation would have violated UNCLOS, to which Russia is a party, and customary international law.
Circumstances
While belligerent States must not, so far as possible, interfere with neutral trade or neutral freedom of navigation, a belligerent warship may board and search a neutral vessel if its commander reasonably suspects that the neutral vessel is engaged in one of the following activities:

1. Acting on behalf of the enemy or operating directly under enemy control, orders, charter, employment, or direction;

2. On a voyage especially undertaken with a view to transport individual passengers who are embodied within the armed forces of the enemy;

3. Carrying contraband;

4. Presenting irregular or fraudulent documents, lacking necessary documents, or destroying, defacing, or concealing documents;

5. Breaching or attempting to breach a blockade;

6. Violating regulations established by a belligerent in the immediate area of naval operations;

7. Communicating information in the interest of the enemy;

8. Engaging in activity rendering it a military objective; or

9. Such other violations as may from time to time be recognized in law.

Neutral merchant vessels are only exempt from visit and search if the following conditions are satisfied:

1. The vessel is bound for a neutral port under the convoy of an accompanying neutral warship of the same nationality;

2. The accompanying warship warrants that the vessel is carrying no contraband; and

3. The convoy commander provides such information about the vessel as would otherwise have been obtained through visit and search.

A few points merit elaboration here. First, with respect to the "reasonable suspicion" standard, State practice suggests (contrarary to San Remo Manual, para. 118) that there is no threshold standard of reasonable suspicion before a belligerent can exercise the right of visit and search of a neutral vessel or aircraft.

Second, most States agree that a neutral merchant ship acquires enemy character if: (1) it is not entitled under the domestic law of the respective State to fly its flag; (2) it is under the orders or control of an agent placed on board by the enemy government; (3) it is in the exclusive employment of the enemy government; (4) it operates directly under enemy control, orders, charter, employment, or direction; (5) it is owned by enemy nationals or enemy corporations; (6) it transfers from an enemy flag to a neutral flag before or after the outbreak of hostilities, and such transfer is made to evade the consequences to which an enemy vessel is exposed; (7) it takes a direct part in the hostilities; or (8) it is exclusively engaged in the transport of enemy troops or transmits intelligence in the interest of the enemy (see, e.g., the 1909 London Declaration on the Laws of Naval War, arts. 46, 55-56; Newport Manual, § 3.9.2; and DoD Law of War Manual, §§ 15.14.2.1, 15.15.1).

Third, it is important to note that merchant vessels are not prohibited from carrying contraband. However, the carriage of any item that may be of use to the enemy in waging war heightens the risk of the merchant vessel being visited, searched, captured as a prize, or even treated as a military objective. During the Second World War, for example, some British merchant ships became targetable for resisting boardings and attempting to ram German U-boats.

In the present case, there is no indication that Sukru Okan acquired enemy character or carried contraband (after all, Russia permitted the vessel to proceed), but Sukru Okan was not exempt from Russia's right to visit and search. The vessel was bound for Izmail, Ukraine (despite some conflicting reports that its destination was Sulina, Romania), and the captain reportedly ignored the Russian Navy's initial radio calls. While we cannot comment on whether Russia's boarding of Sukru Okan was based on a reasonable suspicion, in situations of doubt, commanders may exercise the right of visit and search to determine the nature of a vessel's activity. Finally, according to one report, Russia has not published a contraband list, an omission that heightens the risk of miscalculation for merchant vessels.

Generally speaking, before requiring a vessel to submit to a visit and search, a belligerent warship should hoist its own colors (if not already aloft) and summon the merchant vessel (e.g., bridge to bridge radio) ( Newport Manual, § 9.9; Commander's Handbook, § 7.6.1). The contact vessel, if neutral, is bound to stop and display its own colors. If the contact vessel fails to stop, it may be pursued, and force may be employed to compel it to stop. Where a vessel actively resists visit and search, it may render itself a lawful military objective and, therefore, a target for attack ( Commander's Handbook, § 7.6.1). Merchant vessels may be diverted to a belligerent controlled port for the exercise of visit and search, where visit and search at sea is impossible or unsafe. In this case, the Russian Navy reportedly hailed Sukru Okan, fired warning shots to compel it to stop, embarked a boarding party via helicopter, searched the vessel while the crew sat on the deck, and later disembarked, allowing the vessel to proceed. On its face, it appears Russia followed VBSS procedures that the U.S. military itself practices.
Implications of Ukraine's "Humanitarian Corridor"
Ukraine's unilateral implementation of a "humanitarian corridor" in the Black Sea begs an important question: does the corridor impact Russia's belligerent right to visit and search merchant vessels?

As background, on August 10, 2023, Ukraine's Navy announced that it established a "humanitarian corridor" in the Black Sea to enable the departure of merchant ships stuck in Ukrainian ports since Russia's invasion in February 2022. The announcement did not specify how the corridor would be implemented or (more importantly) defended, but less than a week later, on August 16, the container ship Joseph Schulte (Hong Kong-flagged and partly-owned by a German company) became the first ship to successfully sail through the corridor. In its transit from Odesa, the ship appears to have remained inside the territorial seas of Bulgaria and Romania, both NATO Member States. There is no indication that Russia attempted to visit or search Joseph Schulte during its transit.

From a legal perspective, Ukraine's unilateral announcement of a maritime safe passage corridor does not impact Russia's right to visit and search merchant vessels transiting non-neutral waters. While contemplated under international law in certain settings, humanitarian corridors depend on negotiated agreements between parties to a conflict (often with the help of groups like the International Committee of the Red Cross) to allow for the safe passage of people or things through a particular area for a specified period of time. Land-based bilateral humanitarian corridors have previously been employed elsewhere in Ukraine and, early in the conflict, Russia (at the urging of the International Maritime Organization) unilaterally announced its own humanitarian maritime corridor for merchants departing Ukrainian ports on the Black Sea. But Russia has not agreed to Ukraine's new humanitarian corridor in the Black Sea, and Ukraine's unilateral declaration does not abrogate Russia's right of visit and search.

Nevertheless, from a practical standpoint, how and where Ukraine chooses to execute the humanitarian corridor may well impact Russia's opportunities to exercise the belligerent right of VBSS. For example, the Joseph Schulte reportedly remained inside Bulgaria's and Romania's territorial seas. Accepting that Bulgaria and Romania are not parties to the Russia-Ukraine conflict, Russia did not have a right to visit or search Joseph Schulte during its transit through the territorial seas of those neutral States. While it may be more expensive, Joseph Schulte's route should prove instructive for shipping companies seeking to learn from the Sukru Okan incident and mitigate future risk in the Black Sea. Indeed, Ukraine has since sailed a second vessel through the new corridor and reportedly intends to promote the use of this route as a way to recommence large-scale grain shipments that were halted following the collapse of the BSGI.

Still, moving forward, it is important to note that Russia retains the right to undertake self-help enforcement actions if it believes Ukraine or other States are violating the law of neutrality (for example, by using neutral Bulgarian or Romanian waters for the transport of contraband or military materiel to a belligerent) and that those coastal States are unwilling or unable to detect or expel the offending vessel(s) from neutral waters ( Commander's Handbook, § 7.3.5).
Conclusion
The Sukru Okan incident is compelling because it appears to expose a fundamental misunderstanding of a well-settled area of international law. As the RAND Corporation pointed out in its 2020 report Multiple Dilemmas, "insufficient legal expertise" threatens to undermine the success of future U.S. multi-domain operations, particularly in the maritime domain. Russia's visit and search of the Sukru Okan is an opportunity for the U.S. military legal community to grapple with one legal issue that may arise in a future war in the maritime domain.

Indeed, the U.S. Navy, and specifically the Naval Special Warfare community, considers VBSS to be a core competency. But Navy SEALs are not the only U.S. servicemembers training to conduct VBSS operations. The U.S. sea services (including Navy, Marine Corps, and Coast Guard) regularly train with foreign partners on VBSS interoperability. Reconnaissance Marines, Marine Raiders, Army Green Berets, and the Coast Guard's Maritime Security Response Teams also train to do exactly what the Russian sailors did in the Black Sea on August 12. Further, the Chinese People's Liberation Army (Navy) is also conducting VBSS training in the South China Sea, one of the world's busiest commercial sea lanes. It is essential that judge advocates and civilian officials supporting operations understand and be prepared to articulate the legal basis for those operations.

***

Major John C. Tramazzo is an active-duty Army judge advocate and a military professor in the Stockton Center for International Law in Newport, Rhode Island.

CDR Ian Santicola is a judge advocate in the U.S. Navy.
Photo credit: Unsplash

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Russia's Interdiction of Neutral Merchant Vessels and the Law of the Sea - Lieber Institute West Point

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Russia's operation against the merchant vessel Sukru Okan complied with the laws governing the belligerent right of visit and search.

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Territorial Acquisition and Armed Conflict - Michael N. Schmitt  - 29 August 2023

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Territorial Acquisition and Armed Conflict - Michael N. Schmitt  - 29 August 2023

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Soon after the outbreak of its international armed conflict with Ukraine in 2014, Russia annexed Crimea. Eight years later, it also annexed territory around the four Ukrainian oblasts of Donetsk, Luhansk, Kherson, and Zaporizhzhia. In each case, the annexations, which Lauri Mälksoo discussed in an insightful Articles of War contribution, took place following so-called referendums organized by Russian occupation forces. Considered together, they represent the largest annexation of territory in Europe since the Second World War.

Indeed, Ukraine has long rejected the option of ceding territory to Russia to secure a peace deal. As Ukrainian Foreign Minister Dmytro Kuleba stated over a year ago, "The objective of Ukraine in this war . . . is to liberate our territories, restore our territorial integrity, and full sovereignty in the east and south of Ukraine . . . . This is the end point of our negotiating position." Since then, Ukraine has not wavered in its commitment to reject any agreement "that would involve the loss of its territories or the freezing of the conflict." Nevertheless, calls for a negotiated settlement, such as that by a number of Republican members of Congress in an April letter to the President, persist. And the hard fact is that territorial transfer lies at the heart of such negotiations, which have thus far proven unsuccessful.

This post examines the lawfulness of territorial transfer as a result of armed conflict, including through a peace agreement. I conclude that a transfer of territorial sovereignty before peace has been fully restored between Russia and Ukraine is out of the question as a matter of law. Indeed, even with the consent of Ukraine to a peace treaty, such a transfer would have no legal effect. Only a completely consensual transfer of territory for reasons unrelated to the Russian aggression would enjoy legal recognition.
Territorial Acquisition Historically
Prior to the twentieth century, the concept of "conquest" guided the transfer of territory resulting from war. As the Permanent Court of International Justice noted in the 1933 Eastern Greenland case, conquest refers to "[a]cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State." Unlike occupation, conquest involves the transfer of sovereignty, whereas, during occupation, sovereignty is retained by the occupied State, even though administration of the territory is in the control of the occupant.

Conquest must also be distinguished from situations of debellatio, which occurs during international armed conflict when three cumulative conditions materialize: 1) physical control of the entire State; 2) the armed forces of the State concerned are no longer militarily active; and 3) there is no remaining governmental authority over the State. Historically, that State was seen as annihilated, and title passed to the occupant. Today, the notion of debellatio is itself dead.

Finally, conquest must be distinguished from annexation, a unilateral decision to claim sovereignty over another State's territory, as happened in the case of the five Ukrainian areas. Twentieth-century claims of annexation related to conflict include the 1908 annexation of Bosnia-Herzegovina by the Austro-Hungarian Empire, the 1936 annexation of Ethiopia by Italy, the 1980 annexation of East Jerusalem and 1981 annexation of the Golan Heights by Israel, and the 1990 of annexation Kuwait by Iraq. I return to annexation under international law below.

The 1713 Peace of Utrecht, which helped end the War of Spanish Succession, is generally cited as the point at which mere acceptance of the facts on the ground was no longer sufficient to effect territorial change through conquest. Instead, there were three formal legal requirements. First, the State acquiring the territory had to effectively control it once hostilities ended. Second, the conflict must have occurred through a formal declaration of war. Finally, the transfer of the territory must have been provided for in the peace treaty ending the war. For example, in the 1937 Lighthouses in Crete and Samos case, the Permanent Court of International Justice (PCIJ) looked to the transfer of Crete and Samos to Greece in peace treaties following the 1912-13 Balkan Wars to render a decision involving concession contracts.

The doctrine of conquest rested in part on the premise that war was a legal instrument of national policy, a view that had matured fully in the nineteenth century with the decline of the Just War Doctrine. After all, if war was legal, a peace treaty was merely the means by which the results of war were formalized.
The Use of Force Prohibition
The international community progressively chipped away at the legality of the resort to force in the first half of the twentieth century; the result was the demise of the doctrine of conquest. The 1899 and 1907 Hague Conventions I for the Pacific Settlement of Disputes required parties to "use their best efforts to ensure the pacific settlement of disputes" (art. 1), for instance, by resorting to good offices or mediation (art. 2). Article 10 of the 1919 Covenant of the League of Nations was more direct. It required "Members of the League to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League." Similarly, parties to the 1928 Pact of Paris (Kellogg-Briand Pact) "condemn[ed] recourse to war for the solution of international controversies, and renounce[d] it, as an instrument of national policy in their relations with one another" (art. I).

The high point in the trend came in 1945 with the prohibition on the "threat or use of force" in Article 2(4) of the UN Charter. If force was now outlawed except in cases of self or collective defense (art. 51) or when pursuant to a Security Council Chapter VII authorization, it followed that forcible seizure of territory is likewise prohibited, at least when the result of an unlawful use of force. Indeed, Article 2(4) specifically banned the threat or use of force against the " territorial integrity . . . of any State" (emphasis added). There is not the slightest doubt that Russia has violated the prohibition (see my analysis here)

This prohibition is of peremptory character, a point to which I return below. A peremptory norm ( jus cogens) "is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character" ( Vienna Convention on the Law of Treaties, art. 53). That the prohibition on the use of force qualifies is widely recognized (see, e.g., ILC Commentary on Vienna Convention, p. 247; ICJ, Paramilitary Activities, para. 190; ILC, Commentary on Articles on State Responsibility, p. 112 - aggression).

It is now quite clear that territorial sovereignty cannot be forcibly acquired. For instance, the UN General Assembly's 1970 Friendly Relations Declaration provides, "the territory of the State shall not be the object of acquisition by another State resulting from the threat or use of force" and "[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal." Similarly, its 1974 Definition of Aggression Resolution (annex) states that "no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful" (art. 5(3)). The International Law Commission's Articles on State Responsibility, which in great part serve as an authoritative restatement of customary law, likewise note, "No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation" (art. 41(2)). As Yoram Dinstein has pointed out, "[e]ven measures that might be tantamount to ' de facto ' annexation were deemed unacceptable by the International Court of Justice in its Advisory Opinion of 2004 on the " (p. 191).

In the case of Ukraine, General Assembly Resolution 68/262 (March 2014) reaffirmed,

the principles . . . that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.

Numerous resolutions making the same points followed. Most recently, General Assembly Resolution ES-11/6(March 2023) "reaffirm[ed] that no territorial acquisition resulting from the threat or use of force shall be recognized as legal." Plainly, the seizure of territory through an unlawful use of force, standing alone, was contrary to international law by the mid-twentieth century. It remains so today.

In particular, it must be emphasized that annexation of occupied territory, like parts of Ukraine, is expressly forbidden irrespective of the prohibition on using force. As early as 1917, Lassa Oppenheim famously observed, "There is not an atom of sovereignty in the authority of the occupying power." The same point was made in 1925 by an arbitral panel in the Ottoman Public Debt case: "Whatever the effects of a territory's occupation by the adversary before the establishment of peace may be, it is certain that this occupation alone could not legally transfer sovereignty" (p. 555). Similarly, in 1948, the U.S. Military Tribunal at Nuremberg held in United States v. Ulrich Griefelt et al. (the RuSHA case) that,

It has been urged and argued at length that certain territories, such as the Incorporated Eastern Territories of Poland and parts of Luxembourg, Alsace, and Lorraine, were incorporated into the Reich and thereby became a part of Germany during the war . . . .

Any purported annexation of territories of a foreign nation, occurring during the time of war and while opposing armies were still in the field, we hold to be invalid and ineffective. Such territory never became a part of the Reich but merely remained under German military control by virtue of belligerent occupancy.

This is, of course, precisely what Russia has done.

Similarly, Article 4 of the 1977 Additional Protocol to the Geneva Conventions, to which Russia and Ukraine are party, expressly provides that "occupation of a territory . . . shall [not] affect the legal status of the territory in question." To suggest that occupied territory can be annexed is to ignore the foundational principle of the law of occupation that the State whose territory is occupied retains sovereignty de jure.

Finally, Russia has asserted that its annexations are lawful in support of the exercise of self-determination by the population of the areas. In particular, it points to the referendums held before the annexations. However, even if the referendums were fair and the populations did enjoy the right of self-determination (a counterfactual proposition), there is no right to achieve self-determination by means of the external use of force.
Transfer by Peace Treaty?
It is, therefore, clear that the Russian annexation of Ukrainian territory was unlawful. But did remnants of the doctrine of conquest survive in the sense that a peace treaty (as distinguished from a cease-fire or armistice, which do not end the armed conflict) could nevertheless provide for the transfer of territorial sovereignty, if only to end the conflict? In other words, could the execution of a peace treaty by Ukraine and Russia authorize territorial exchange even though seizing control of Ukrainian territory and annexing it could not?

The answer is no. The 1969 Vienna Convention on the Law of Treaties provides in Article 52 that "a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations" (see extended discussion here). Russia and Ukraine are both party to the instrument, and the International Court of Justice recognized Article 52 as reflective of customary international law in its 1973 Fisheries Jurisdiction judgment (para. 24). The United States is not a party, but it regards most key provisions as reflective of customary international law.

Moreover, Article 53 of the treaty would likewise render the peace agreement void. It provides, in relevant part, that a "treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law." Although a peace treaty would not directly authorize the use of force, by recognizing its wrongful consequences as purportedly lawful, the agreement would arguably indirectly conflict with the peremptory norm outlawing the use of force. Should any dispute arise over whether that is so, the International Court of Justice enjoys compulsory jurisdiction over issues of invalidity ( Vienna Convention on the Law of Treaties, art. 66(a)).

Yet, what of a situation where the victim State desperately wants the armed attack on it to cease, but the other side will not agree to end the conflict absent a transfer of territory? Could Ukraine, for instance, decide to cede Crimea and portions of the Donbas to Russia to stave off losing the war altogether? The answer is that even if it did so as a matter of practicality to stop the fighting, the purported transfer of the territory would be invalid as a matter of law. Under Article 69(1) of the Vienna Convention, "provisions of a void treaty have no legal force." This is so even if the victim State did not act to contest the validity of the treaty in question (see art. 65) because the treaty is void, not just voidable.

Additionally, as noted in Article 44(5), treaties rendered void by operation of Articles 52 and 53 are not subject to separation of their provisions, as is the case with certain other treaties; the entire treaty is void. The consequence is that it would not be possible to carve out the territorial provisions of a Russia-Ukraine peace treaty and retain those that mandate the return to a state of peace.

That said, Article 43 of the Vienna Convention provides that "[t]he invalidity . . . of a treaty . . . shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty." Indeed, under the law of State responsibility, States always have an obligation to cease an "internationally wrongful act" like the unlawful resort to force ( Articles on State Responsibility, art. 30). Thus, the invalidity of any peace treaty between Ukraine and Russia that was "coerced" by Russia's so-called "special military operation" would have no bearing on Russia's legal obligation to desist.

Of course, not all peace treaties are necessarily void. Article 52 addresses only treaties secured in violation of the use of force prohibition. Lest there be any doubt, Article 75 of the Vienna Convention on the Law of Treaties cautions, "provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the charter of the United Nations with reference to that State's aggression." In other words, if a peace treaty is not secured through the wrongful use of force, as when the aggressor is defeated, it will stand. Accordingly, if Ukraine secures victory on the battlefield and, as a result, militarily "coerces" Russia to the negotiating table, that factual reality would not render the resulting peace treaty void.

This raises the question whether territorial transfer from an aggressor to the victim State is lawful. Imagine that Ukraine does prevail. In the ensuing negotiations, might it lawfully demand territory from Russia? Yoram Dinstein has opined that it may. For him, "the illegality of . . . territorial acquisition is confined to the case where the beneficiary is the aggressor" (at 43). Indeed, there are well-known post-Second World War situations involving the transfer of territory to the victim of unlawful force. Recall, for instance, that German territories lying east of the Oder-Neisse Line were transferred to Poland, while Königsberg (today Kaliningrad) went to the Soviet Union. Although not effectuated at the time through a peace treaty, the parties acted as if the transfers were legally effective; many years later, treaties recognized the arrangement (1990 German-Polish Border Treaty; 1990 Treaty on the Final Settlement - "2+4 Treaty"). Similarly, Japan renounced numerous territorial claims in the 1951 San Francisco Peace Treaty. Other examples exist that support the practice (see Kontorovich generally).

This also appears to have been the position taken by the International Law Commission. For instance, the 1949 Draft Declaration on the Rights and Duties of States stated that "[e]very State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation" of the prohibition on the threat or user of force against territorial integrity (art. 11, emphasis added). Similarly, the 1954 Draft Code of Offences against the Peace and Security of Mankind provided that "[t]he annexation by the authorities of a State of territory belonging to another State, by means of acts contrary to international law " amounted to an offense (art. 2(8), emphasis added).

Nevertheless, in its 2004 advisory opinion, the International Court of Justice, citing the Friendly Relations Declaration, observed that the "illegality of territorial acquisition" through the threat or use of force is customary international law (para. 87). It did not distinguish between the aggressor and victim, nor did the Declaration. Those arguing for a prohibition extending to territorial acquisition by all the parties to a conflict have also pointed to the requirement of proportionality in the law of self-defense as limiting defensive action to return of the status quo ante. They further cite Security Council Resolution 686, which set forth the requirements for termination of the Persian Gulf War in 1991. It affirmed the "commitment of all Member States to the independence, sovereignty and territorial integrity of Iraq and Kuwait." A decade later, the International Law Commission's 2000 Third Report on State Responsibility asserted that "States may not recognize as lawful, for example, a unilateral acquisition of territory procured by the use of force, even if the use of force was arguably lawful," although it did not deal with the question of consent by treaty.

In my estimation, the better position is that for some time following the Second World War, the acquisition of territory by the victim State was lawful. Whether the law has since evolved to prohibit such acquisition is unsettled. But in this conflict, there is no indication Ukraine has any interest in Russian territory. Indeed, it would be unwise for practical, and perhaps legal, reasons to develop any.
Other Means of Acquiring Territory?
Additionally, an agreement to transfer territory from Ukraine to Russia would be theoretically possible through . Cession is the mutually consensual transfer of territory, and therefore sovereignty, to another State. Various conditions must be satisfied before transfer occurs on this basis. First, it must occur in "legal form," typically through treaty negotiation. Second, and most importantly, there must be genuine consent. In this regard, by operation of Article 52 of the Vienna Convention on the Law of Treaties, Russia's wrongful use of force against Ukraine would have to in no way pressure Ukraine to agree. Rather, Ukraine would need to conclude that the transfer would have been a desirable course of action even if Russia had not used force against it. Third, it is arguable that cession requires the consent of the population concerned (see, e.g., ICJ, 2019 advisory opinion). Relatedly, the transfer should not result in the denial of any right of self-determination the population might have.

Finally, agreeing to the separation of forces and temporary Russian control over Ukrainian territory in a cease-fire would be possible. However, as I discussed in a previous Articles of War post, these agreements, whether general or limited, only suspend hostilities. Cease-fires cannot transfer sovereignty over territory. As to an armistice agreement, which ends the armed conflict without fully restoring peace, any purported transfer of sovereignty over territory contained therein would run afoul of the same obstacles as peace treaties.
Concluding Thoughts
There will be no land for peace during the conflict in Ukraine. To begin with, Russia's purported annexations of Ukrainian territory by Russia are unquestionably without legal effect under contemporary international law. Moreover, the historical doctrine of conquest that allowed for the transfer of sovereignty over territory following war did not survive the emergence of the prohibition on the use of force. Finally, any agreement between Ukraine and Russia that supposedly resulted in Russian territorial gain would be void in its entirety under the law of treaties. Calls for a peace agreement contemplating territorial transfer are, therefore, legally (and, in my view, practically and ethically) flawed. Only if, after the conflict, Ukraine decided consensually to transfer territory to Russia might a transfer be lawful as cession. That eventuality is hard to imagine.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Photo credit: Ilya Varlamov

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Ukraine Symposium - Territorial Acquisition and Armed Conflict - Lieber Institute West Point

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Any agreement between Ukraine and Russia for territorial acquisition for the benefit of the latter would be void under the law of treaties.

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Russia-Ukraine War at Sea: Naval Blockades, Visit and Search, and Targeting War-Sustaining Object - Raul (Pete) Pedrozo - 25 August 2023

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Russia-Ukraine War at Sea: Naval Blockades, Visit and Search, and Targeting War-Sustaining Object - Raul (Pete) Pedrozo - 25 August 2023

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On February 24, 2022, Russia's Federal Agency for Sea and Inland Water Transport (Rosmorrechflot) announced the suspension of navigation in the Sea of Azov "until further notice" due to the commencement of "antiterrorist operations" by the Black Sea Fleet. The following day, Russia's Department of Navigation and Oceanography issued a navigational warning that navigation was prohibited in the northwest portion of the Black Sea north of 45° 21' "due to counterterrorist operations carried out by the Russian Navy" and that ships and vessels "in this area will be regarded as terrorist threats."

After the Estonian-owned M/V Helt struck a free-floating mine on March 3, 2022, twenty miles south of Odessa and sank in the Black Sea, the Spanish Hydrographic Office issued two navigational warnings ( 0092/2022 and 0122/2022) recommending that ships avoid navigating in the northwest part of the Black Sea due to mine danger. The NATO Shipping Centre issued similar warnings , indicating that drifting mines had been detected in the western Black Sea and that the threat of more drifting mines could not be ruled out.

The Russian Federal Security Service (FSB) blamed Ukraine for the drifting mines, alleging that Ukrainian forces had deployed mines around the ports of Odessa, Ochakov, Chernomorsk, and Yuzhny and that these mines had broken loose from their moorings during a storm. Ukrainian officials denied the Russian allegations, indicating that the drifting mines were Soviet-era naval mines seized by the Russians when they invaded Crimea in 2014 and were intentionally set adrift by Russian forces to disrupt commercial shipping in the Black Sea, a violation of Hague VIII, Article 2.

On July 17, 2023, Russia's Ministry of Foreign Affairs announced that Russia was withdrawing from the UN-brokered Black Sea Grain Initiative, which guaranteed the safe transportation by neutral shipping of grain, related foodstuffs, and fertilizer from three Ukrainian ports to global markets. As a result, Russia withdrew its safety guarantees to neutral shipping operating in the maritime humanitarian corridor and abandoned its participation in the Joint Coordination Centre in Istanbul. The Russian Defense Ministry additionally issued a warning that "from 00:00 Moscow time on 20 July, all vessels travelling to Ukrainian ports in the Black Sea will be considered potential carriers of military cargo" and that "the flag countries of such ships will be considered involved in the Ukrainian conflict on the side of Kyiv."

Following the termination of the grain initiative, Russia initiated numerous missile and drone attacks against ship berths and grain and oil terminals in the ports of Odesa and Chornomorsk, causing damage to the ports' infrastructure and facilities. Subsequently, after six neutral merchant ships defied Moscow's 19 July warning and transited the Black Sea en route to the Ukrainian Danube River port of Izmail, Russian forces conducted additional drone strikes against port facilities at Izmail, damaging the cargo terminal, a grain warehouse, and a grain elevator. Russian drones previously attacked grain warehouses in the Danube-port of Reni.

Since the beginning of the war, these Russian actions and statements have been characterized as a naval blockade of Ukraine ( here, here, here, here, here, here). Although the measures taken by Russia to restrict navigation in the northwestern Black Sea may have the practical effect of denying neutral ships access to Ukrainian ports, none of these activities can be reconciled with the traditional concept of a naval blockade under the law of naval warfare.
Law of Blockade
A blockade is a lawful method of warfare designed to prevent ships and aircraft of all States from entering or leaving specified coastal areas under enemy control to deny the enemy economic revenue from its exports and the benefits of imports to support its war effort (Newport Manual, §§ 7.4; 7.4.1; Commander's Handbook, § 7.7.1; DoD Law of War Manual, §§ 13.10, 13.10.1). However, to be recognized under international law, a blockade must conform with certain criteria.

First, a blockade must be declared and notified by a belligerent State. This normally includes (1) the date when the blockade begins; (2) its geographical limits; and (3) the general scope of measures employed, to include a grace period for neutral vessels and aircraft to leave the blockaded area ( 1909 London Declaration, arts. 8-16; Newport Manual, § 7.4.2; Commander's Handbook, § 7.7.2.1; DoD Law of War Manual, § 13.10.2.2). Notification is normally provided by Notice to Mariners, Notice to Airmen, diplomatic exchanges, or other official declaration or announcement by the belligerent State establishing the blockade (or the commander of the blockading force acting on behalf of the State) to all affected States ( 1909 London Declaration, arts. 9-10; Newport Manual, § 7.4.2; Commander's Handbook, § 7.7.2.2; DoD Law of War Manual, §§ 13.10.2.1, 13.10.2.2). A blockade may also be authorized by the UN Security Council acting under Chapter VII of the UN Charter (art. 42) if necessary to maintain or restore international peace and security (DoD Law of War Manual, § 13.10.2.1).

An example of proper declaration and notification of a blockade was Operation Pocket Money, the U.S. mining of Haiphong and 10 other North Vietnamese harbors during the Vietnam War. President Nixon announced the establishment of the blockade on radio and television on May 8, 1972. Notification was also provided to North Vietnam and all other nations concerned, both by a letter to the President of the UN Security Council, by direct bilateral diplomatic notifications, and by Notices to Mariners. The mines were not activated for three days to allow neutral ships in the harbors to leave if they so desired.

Second, the blockade must be maintained effectively by sufficient air and/or naval forces or other lawful methods and means of warfare (e.g., naval mines) to render ingress or egress of the blockaded area dangerous ( 1856 Paris Declaration, art. 4; 1909 London Declaration, art. 2; Newport Manual, § 7.4.3; Commander's Handbook, § 7.7.2.3; DoD Law of War Manual, § 13.10.2.3). Whether a blockade is effective is a question of fact ( 1909 London Declaration, art. 3; Newport Manual, § 7.4.3). There is no requirement that every possible avenue of approach to the blockaded area be covered and the forces necessary to ensure the blockade is maintained effectively will depend on the specific military circumstances (Commander's Handbook, § 7.7.2.3; DoD Law of War Manual, § 13.10.2.3).

Third, the blockade must be enforced impartially against all ships and/or aircraft of all nations: allied, neutral, and enemy alike ( 1909 London Declaration, art. 5; Newport Manual, § 7.4.4; Commander's Handbook, § 7.7.2.4; DoD Law of War Manual, § 13.10.2.4).

Clearly, the announcement of maritime exclusion zones in the Sea of Azov and northwestern Black Sea does not amount to a declaration and notification of a naval blockade. Even if the announcement was considered a proper declaration and notification, Russia is not able to effectively maintain a blockade of the Ukrainian coast. Having lost its strategic toehold on Snake Island, coupled with the increasing risk to naval forces by Ukrainian long-range, land-based missile batteries (e.g., sinking of the cruiser Moskva and the tugboat Spasatel Vasily Bekh), the Black Sea Fleet is no longer able to effectively monitor and control the approaches to the Danube Canal and the sea lines of communication between the Bosphorus and Ukrainian ports. Much of the Black Sea Fleet has been withdrawn to Russian naval bases in Sevastopol and Novorossiysk, outside the effective range of Ukraine's shore-based missile systems.

Constructive blockades are not permitted under international law. The requirement of "effectiveness" prevents belligerents from establishing "paper" blockades (DoD Law of War Manual, § 13.10.2.3). Rather, a blockade is only binding if it is effectively maintained by a force sufficient to prevent access to the coast of the enemy ( Paris Declaration of 1856, art. 4). This requirement corrects the abuse in the early part of the 19 th century "where extensive coasts were put under blockade by proclamation," without the presence of "any actual force, or sustained by a notoriously inadequate naval force, such as an occasional appearance of a man of war in the offing or the like."

The ineffectiveness of the purported Russian "blockade" is illustrated by the transit of the Black Sea by six neutral cargo vessels ( Ams1, Afer, Bosphorus Queen, Sahin 2, Sealock, and Yilmaz Kaptan) on July 30, 2023. These vessels sailed from Israel, Greece, and Turkey to the Ukrainian Danube River-port of Izmail, disregarding the 19 July Russian warning. All the vessels openly transmitted their destination over their Automatic Identification System (AIS). Two weeks later, on 16 August, the Hong Kong-flagged M/V Joseph Schulte, carrying 2,114 containers loaded with 30,000 tons of cargo, including food products, departed the port of Odesa en route to the Turkish Straits. The vessel's track shows the Joseph Schulte skirting the coasts of Romania, Bulgaria, and Turkey before entering the Bosphorus Strait and the Sea of Marmara on 18 August. The vessel had been stuck in Odesa since the beginning of the war. Although the transit was hailed by Ukrainian President Volodymyr Zelenskyy as a win for freedom of navigation in the Black Sea, it is possible that Russia purposely did not interfere with the vessel because of its flag: Hong Kong China. Since the initial warning was issued on July 19, 2023, only one neutral vessel has been subject to visit and search by Russian naval forces.
Belligerent Right of Visit and Search
Visit and search is the "means by which a belligerent warship or military aircraft may determine the true character (enemy or neutral) of merchant ships encountered outside neutral waters" (Newport Manual, § 9.9; DoD Law of War Manual, § 15.3.1; Commander's Handbook, § 7.6). Visit and search may also be exercised anywhere outside neutral waters upon all merchant vessels and aircraft (neutral or enemy) to determine the nature of their cargo, the manner of their employment, or any other facts that bear on their relation to the armed conflict (Newport Manual, § 9.9; DoD Law of War Manual, § 15.3.1; Commander's Handbook, §§ 7.4, 7.6). Although belligerents must not, so far as possible, interfere with neutral trade or neutral freedom of navigation, the belligerent right of visit and search provides a time-honored exception to the right of freedom of the seas ( Paris Declaration of 1856, art. 2; Newport Manual, § 9.9).

Given operational constraints that arise during an armed conflict, visit and search normally occurs if a belligerent suspects that a neutral merchant vessel or civil aircraft is engaged in an activity rendering them liable to capture (Newport Manual, § 9.9). A belligerent warship may undertake visit and search of a neutral vessel or aircraft if it reasonably suspects that the neutral vessel or aircraft is engaged in one of the following activities: (1) acting on behalf of the enemy or operating directly under enemy control, orders, charter, employment, or direction; (2) on a voyage especially undertaken with a view to transport individual passengers who are embodied within the armed forces of the enemy (i.e., unneutral service); (3) carrying contraband; (4) presenting irregular or fraudulent documents, lacking necessary documents, or destroying, defacing, or concealing documents; (5) breaching or attempting to breach a blockade; (6) violating regulations established by a belligerent in the immediate area of naval operations; (7) communicating information in the interest of the enemy; (8) engaging in activity rendering it a military objective; or (9) such other violations as may from time to time be recognized in law (Newport Manual, § 9.6).

A neutral merchant vessel or civil aircraft acquires enemy character and may be treated by a belligerent as a enemy merchant vessel or civil aircraft if it ( inter alia) resists an attempt to establish its identity, including resisting visit and search (DoD Law of War Manual, § 15.14.2.1; Commander's Handbook, § 7.5.2). A neutral merchant vessel or civil aircraft that acquires enemy character may be captured anywhere beyond neutral territory (Commander's Handbook, § 8.6.2.1) and may be attacked and destroyed if it ( inter alia) persistently refuses to stop upon being duly summoned to do so or actively resists visit and search or capture (DoD Law of War Manual, § 15.14.2.2; Commander's Handbook, §§ 7.10, 8.6.2.2). Most States also agree that a neutral merchant ship acquires enemy character if: (1) it is not entitled under the domestic law of the respective State to fly its flag; (2) it is under the orders or control of an agent placed on board by the enemy government; (3) it is in the exclusive employment of the enemy government; (4) it operates directly under enemy control, orders, charter, employment, or direction; (5) it is owned by enemy nationals or enemy corporations; (6) it transfers from an enemy flag to a neutral flag, effected before or after the outbreak of hostilities, and such transfer is made to evade the consequences to which an enemy vessel is exposed; (7) it takes a direct part in the hostilities; or (8) it is exclusively engaged in the transport of enemy troops or transmits intelligence in the interest of the enemy ( 1909 London Declaration, arts. 46, 55-56; Newport Manual, § 3.9.2; DoD Law of War Manual, §§ 15.14.2.1, 15.15.1).

On August 13, 2023, the Russian patrol ship Vasily Bykov stopped and boarded the Palau-flagged cargo ship Sukru Okan that was en route to the Ukrainian port of Izmail. The Ukrainian Ministry of Foreign Affairs (MFA) condemned the boarding indicating that "the Russian Navy grossly violated the UN Charter, the UN Convention on the Law of the Sea, and other norms of international law." Ukraine accused Russia of deliberately "endangering freedom of navigation and safety of commercial shipping in the Black Sea" and called on the international community to take decisive action to prevent Russia from impeding the peaceful passage of vessels through the Black Sea. The MFA emphasized that "Russia should not be able to block international routes in the Black Sea, particularly those leading to Ukrainian seaports." An examination of Russia's boarding of the Sukru Okan, however, demonstrates that it was a "by the book" visit and search conducted in accordance with the law of naval warfare.

After detecting the Sukru Okan off the coast of Bulgaria en route to Izmail, the Vasily Bykov hailed the cargo ship and demanded that it stop for inspection to determine if it was carrying contraband. After the master of the Sukru Okan failed to respond to the order to stop, the Russian patrol ship fired warning shots to force the vessel to heave to. Once the Sukru Okan stopped, it was boarded by Russian naval personnel. The boarding party searched the vessel and inspected the ship's documents and passports of the Turkish crew. After it was determined that the vessel was not carrying contraband, the Sukru Okan was allowed to continue its voyage. At no time did the boarding team make threats or take adverse actions against the crew.
Targeting War-Sustaining Objects
Ukraine is one of the top agricultural producers and exporters in the world and plays a key role in supplying oilseeds and grains to the global market. Agricultural products are Ukraine's most important exports, totaling $27.8 billion in 2021 (41 percent of the country's $68 billion overall exports) and accounting for 10% of the world wheat market, 15% of the corn market, 13% of the barley market, and 50% of the sunflower oil market. Together, Russia and Ukraine account for 12 percent of food calories globally, including one-third of the world's wheat and barley. Thus, the closure of Ukrainian ports at the outset of the war caused serious disruptions in global supply chains and raised fears of an international food crisis.

Following Russia's refusal to extend the Black Sea Grain Initiative on July 17, 2023, President Zelenskyy stated that the "Black Sea grain corridor can continue to operate even without Russia's participation." A month later, Ukrainian naval authorities announced that temporary corridors had been established to facilitate the departure of civilian merchant ships from Ukrainian Black Sea ports. Russia responded to these announcements with missile and drone attacks against port infrastructure and facilities, including ship berths, cargo terminals, and grain warehouses.

UN officials fear that attacks on Ukrainian port facilities and grain storage facilities could have "far-reaching impacts on global food security, particularly in developing countries" and may constitute a violation of the law of armed conflict. Several members of the Security Council also criticized Russian attacks on ports and grain-storage facilities. Albania's representative stated that the Russian attacks are disrupting the food supply chain and condemning millions (mostly in the Global South) to food insecurity. Ecuador's representative condemned the attacks and called on Russia to end its attacks against the production and export infrastructure. The representative from Mozambique expressed concerns that the attacks on critical port facilities were a significant escalation of the war that "could lead to a full-fledged commerce war." Japan's representative labelled the Russian attacks as "reprehensible actions," demonstrating a "strategy of using global food supplies as a weapon . . . ." The representative from Switzerland underscored that the Russian "attacks on port facilities . . . and the threats to civilian shipping present a dangerous potential for escalation."

International condemnation of Russia's attacks on port and grain facilities raises an important legal issue. Are such facilities military objectives (and thus targetable) under the law of armed conflict as a war-sustaining commodity?

During an armed conflict, only military objectives may be attacked. Military objectives are defined as "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (Additional Protocol I (AP I), art. 52(2)). While Article 52 AP I does not apply as a matter of treaty law to purely maritime engagements (art. 49(3) AP I), many States take the view that the principle it expresses reflects customary international law applicable at sea (Newport Manual, § 8.5).

Thus, the law imposes a two-part test for identifying a military objective. First, the object must make an effective contribution to enemy military action by its nature, location, purpose, or use. Second, the object's total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, must offer a definite military advantage (Newport Manual, § 8.5). States, however, disagree on "whether civilian objects that contribute to the enemy's war-sustaining effort-as distinguished from its war-fighting effort-are legitimate military objectives" (Newport Manual, § 8.5.1.1).

For those States that subscribe to the "war-sustaining" logic, enemy export of certain goods, like crude oil, renders an oil facility or a vessel carrying such commodities a military objective because the enemy earns revenue from the sale of goods that contributes to its war-fighting effort (Newport Manual, § 8.5.1.1). During the Second World War, for example, both the United States and Japan made enemy merchant vessels military objectives subject to destruction on sight from the outset of the war. Following the attack on Pearl Harbor, the U.S. Chief of Naval Operations (CNO) issued an order to the Commander in Chief, U.S. Pacific Fleet to "Execute against Japan unrestricted air and submarine warfare." The Chief of Naval Operations of the Imperial Japanese Navy issued a similar order on March 1, 1942, to attack enemy merchant vessels by submarines and aircraft without warning (Newport Manual, § 8.5.1.2, n. 524).

The United States is a major proponent of the "war-sustaining" position and interprets the definition of military objective to include objects that make an effective contribution to the enemy's war-fighting or war-sustaining capabilities (DoD Law of War Manual, § 5.6.6; Commander's Handbook, § 8.2.5). One of the first attempts to codify the law of war-the Lieber Instructions-was prepared during the American Civil War. Article 15 of the code provided (in part) that military necessity allows for the "destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy . . . ." The Lieber Code influenced the further development of the law of war, including the adoption of the Hague Conventions on land warfare of 1899 and 1907. Hague IX (article 2) allows for the naval bombardment of ( inter alia) workshops or plants that "could be utilized for the needs of the hostile fleet or army . . . ."

U.S. law defines the term "military objective" to include "combatants and those objects during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-sustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of an attack" ( 10 USC § 950p(a)(1)). A similar definition is found in U.S. military manuals (DoD Law of War Manual, §§ 5.6.6, 5.6.8.5; Commander's Handbook, §§ 5.3.1, 8.2, 8.2.5).

Examples of war-sustaining commerce include imports of raw materials used to produce armaments and "exports of products the proceeds of which are used by the belligerent to purchase arms and armaments" (DoD Law of War Manual, § 15.12.1; Commander's Handbook, § 7.4). Similarly, "economic objects associated with military operations or with war-supporting or war-sustaining industries" have also been considered military objectives, for example, "oil refining and distribution facilities and objects associated with petroleum, oil, and lubricant products (including production, transportation, storage, and distribution facilities)" (DoD Law of War Manual, §§ 5.6.8, 5.6.8.5).

The same argument could be made for the destruction of Ukraine's most important export-grain and other agricultural products. The resumption of grain shipments would boost the Ukrainian economy by about $20 billion in additional annual revenues. Nonetheless, despite this long-standing U.S. position on war-sustaining goods, the U.S. State Department criticized Russia's for "weaponizing hunger and contributing to global food insecurity through its destruction of Ukraine's civilian ports and grain infrastructure."
Conclusion
The words we use and how we use them matter. They shape the way we perceive a particular issue. Lawyers are trained to be precise with their words. Nonetheless, it is not uncommon for the media to engage in " yellow journalism," emphasizing sensationalism over facts to "capture the attention of a large readership and to influence public reaction to international events." Governments can also use public opinion as a weapon to weaken an opponent's resolve. China has perfected this strategy as one of its three warfares-strategic psychological warfare, public opinion and media warfare, and legal warfare-to influence perceptions in a way that advances its interests and diminishes the ability of its opponents to respond. Sensationalizing the conflict, however, could have the unintended consequence of empowering Russia to take more aggressive action against vessels or aircraft, neutral or enemy, that breach or attempt to breach the purported "blockade."

If a blockade line has not been declared, determining if there is a breach or attempted breach of blockade will be a question of fact for the enforcing commander. A vessel that departs from a blockaded port or a vessel that sails toward the blockaded area with the intention breaching the blockade will normally constitute an attempted breach of blockade. Moreover, under the "doctrine of continuous voyage," Russia could take the position that "it is immaterial [whether] the vessel or aircraft is, at the time of interception, bound for neutral territory if its ultimate destination is the blockaded area." Any vessel or aircraft breaching or attempting to breach a blockade is liable to capture and condemnation or diversion. Moreover, if a vessel or aircraft resists capture or diversion, is may be liable to attack (Newport Manual, § 7.4.7; DoD Law of War Manual, §§ 13.10.4, 13.10.4.1, 15.15.1; Commander's Handbook, §§ 7.7.4, 7.10). Attempted breach of blockade is presumed if a vessel or aircraft is bound for a neutral port or airfield serving as a point of transit to the blockaded area (DoD Law of War Manual, § 13.10.4.1; Commander's Handbook, § 7.7.4).

Ukraine's condemnation of the boarding of the Sukru Okan is a classic example of conflating the peacetime law of the sea with the law of naval warfare. Russia's visit and search of the cargo ship did not violate the UN Charter, the UN Convention on the Law of the Sea, or any other norms of international law. As a belligerent in an international armed conflict, Russia has the right to conduct visit and search of neutral vessels outside neutral waters to determine the nature of their cargo, the manner of their employment, or any other facts that bear on their relation to the armed conflict. During an armed conflict, to the extent that the peacetime regime of the law of the sea and the law of naval warfare are inconsistent, the law of naval warfare is lex specialis and prevails over the peacetime rules reflected in UNCLOS (Newport Manual, §§ 1.1, 4.1). Thus, while all ships enjoy freedom of navigation on the high seas in peacetime ( UNCLOS, arts. 87, 89), the belligerent right of visit and search is a long-standing exception to this peacetime right.

Most States agree that Russia has violated its obligations under the UN Charter by engaging in a war of aggression. Moscow should be held accountable for its unlawful invasion of Ukraine. Nonetheless, as a belligerent in an international armed conflict, Russia has certain rights and obligations that must be acknowledged by the international community. While Russian attacks on Ukrainian civilian ports and grain infrastructure may contribute to global food insecurity, States that adhere to the "war-sustaining" logic in defining military objectives should temper their criticism of Russia's actions. Condemning such attacks today could be used in future conflicts by other adversaries, like China, to discredit similar acts of economic warfare.

***
Raul (Pete) Pedrozo is the Howard S. Levie Professor on the Law of Armed Conflict at the Stockton Center for International Law, U.S. Naval War College, Newport, Rhode Island.
Photo credit: Unsplash

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Russia-Ukraine War at Sea: Naval Blockades, Visit and Search, and Targeting War-Sustaining Objects - Lieber Institute West Point

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Russia's actions in the Black Sea deny access to Ukrainian ports, but they do not align with traditional naval blockade principles.

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Ukraine Willing to “Compromise” on a Non-Ukrainian Internationalized Tribunal - Kevin Jon Heller - 23 August 2023

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Ukraine Willing to “Compromise” on a Non-Ukrainian Internationalized Tribunal - Kevin Jon Heller - 23 August 2023

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Report: Ukraine Willing to "Compromise" on a Non-Ukrainian Internationalized Tribunal

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Evropeyska Pravda is reporting that, although clearly not its first choice, Ukraine would be willing to accept an internationalized tribunal for the crime of aggression as long as it is based in another state's judicial system. Here are the relevant paragraphs, quoting the Deputy Head of the Office of the President: Ukraine decided on these concessions, Andriy Smirnov admitted for...

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Trials of Ukrainian Prisoners of War in Russia: Decay of the Combatant’s Immunity - Maksym Vishchyk - 21 August 2023

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Trials of Ukrainian Prisoners of War in Russia: Decay of the Combatant’s Immunity - Maksym Vishchyk - 21 August 2023

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In mid-June 2023, a trial of 22 Ukrainian citizens affiliated with the "Azov" Regiment of the Ukrainian Armed Forces (UAF) began in Rostov-on-Don, Russia. The accused were captured by the enemy forces in May 2022 during the battle of Mariupol. At the time, some accused were "Azov" members - servicemen who participated in hostilities and auxiliary staff - while the others were seemingly civilians associated with "Azov", i.e., former members of the regiment. In July, the same court commenced a trial of 18 prisoners of war (POWs) from the UAF's "Aidar" Battalion. In both cases, the accused were charged with "participation in a terrorist organization" (i.e., "Azov" and "Aidar", respectively) and "attempts to overthrow the government" of the "Donetsk People's Republic" ("DPR"), i.e., Russia's proxies in Ukrainian territory largely occupied by Russia.

These trials raise concerns in many respects, including their fairness, impartiality, and independence, and appear to violate a range of international humanitarian law (IHL) rules, such as the prohibitions on exposing POWs to public curiosity and insults, ill-treatment, and forced confessions. Fundamentally, the accused seem to have been tried for their participation in hostilities against the Russian forces. This analysis explores the extent to which Russian trials of the "Azov" and "Aidar" fighters might be in violation of the combatant privilege rule, which affords combatants immunity from prosecution for acts of war that are consistent with IHL, and the relating interplay between IHL and counterterrorism law (CTL). As such, it focuses on the accused POWs and does not address the civilian accused.
The Shield of the Combatant Immunity and Terrorism Charges
In international armed conflicts (IACs), including the current war Russia is waging against Ukraine, IHL grants POW status to members of the enemy armed forces, including members of army support services ( III GC Art. 4A(1) and Cmt §978). Once in the adversary's hands, POWs are not entirely immune from prosecution - they may be tried for war crimes and breaches of laws of the Detaining Power, including pre-capture acts. Yet, they remain shielded from prosecution for "lawful acts of war committed in the course of an armed conflict," even if such acts formally qualify as crimes under the laws of the Detaining Power (i.e., combatant's privilege) ( III GC Art. 85 and Cmt §3634).

In other words, combatants have a "license" to commit various warlike acts "materially required" for their participation in the armed conflict, e.g., injuring or killing enemy combatants, destroying military objects, physical presence behind enemy lines, enlistment with enemy forces, use/possession of uniforms and weapons, etc. ( Martinez (2019) 84). Absent such a rule, an untenable situation would exist where combatants could all be prosecuted for their participation in the war itself.

Contemporary IHL and practice recognize two main exceptions to combatant's privilege. First, as noted above, POWs can be prosecuted for international crimes, including grave breaches of IHL ( III GC Cmt §3634), commonly referred to as "war crimes." Second, combatant's privilege does not preclude prosecution for ordinary crimes unrelated to war, e.g., homicide, drug-trafficking, robberies and " pre-capture terrorist offenses not related to the conflict" ( Martinez (2019) 83 referring to U.S. v. Noriega; Jinks (2004), fn. 381).

Hence, prosecution of POW under terrorism charges seems possible in two cases. First, the commission of acts of terror prohibited under Article 51(2) of the Additional Protocol I and recognised as a war crime under customary international law ( Galić Appeal Judgment, §98), i.e., conflict-related acts or threats of violence with the primary purpose of spreading terror among civilians. Second, terrorist acts unrelated to the armed conflict, e.g., distinct from it temporally, territorially, and materially.

In all other cases, although CTL and IHL co-application is not automatically mutually exclusive and despite States' relative discretion to define and interpret provisions of their penal legislation, the existence of an IAC arguably limits or excludes the application of the counterterrorism regime with respect to conduct related to that IAC, which is substituted or supplemented by relevant IHL rules ( Trapp (2014) 170-175, 180; Saul (2022); Saul (2020) 411-413). Specifically, criminal law instruments on terrorism cannot serve to criminalize mere participation in hostilities ( Van Poecke et al. (2021) 297).

To this end, many contemporary counterterrorism treaties contain specific clauses stating either that IHL substitutes their application in armed conflicts, or that "the activities of armed forces during an armed conflict" regulated by IHL are not governed by CTL conventions ( Trapp (2014) 170; Saul (2020) 411-413; CODEXTER (2017) 12; 2005 Nuclear Terrorism Convention, Article 4(2); 1997 Terrorist Bombings Convention, Article 19(2); 1999 Terrorist Financing Convention, Articles 2(1)(b) and 21; Hague Convention 1970, Article 3bis). The underlying logic is that full-scale CTL application may otherwise be used to prosecute conflict-related conduct covered by the combatant's immunity, thus creating normative conflicts ( Trapp (2014) 170).

So, although CTL can more harmoniously co-apply with IHL in non-international armed conflicts (NIACs), in international ones combatant immunity will often bar prosecutions ( Saul (2022); Bruges Colloquium (2016) 42; ICRC (2019), fn. 84). Domestic practice (e.g., of the UK, the Netherlands, and the Court of Justice of the European Union in relation to Al Qaeda and the Tamil Tigers) exposes the same approach: even where CTL and IHL interrelation is not expressly reconciled, CTL was seemingly only invoked for prosecutions in NIACs given the irrelevance of the combatant's immunity issues ( Saul (2020) 417-419).

In sum, to determine whether particular charges against POWs fall under the combatant's immunity during an IAC, the conduct's nature (in particular its relationship to the IAC) and not its formal qualification as a terrorism offense outside of the IAC context, is decisive. While POWs can be prosecuted for the war crime of terror and terrorist acts unrelated to the armed conflict, much violent conduct formally qualifying as terrorism and/or other crimes against national security (e.g., attempts to overthrow the government) in peacetime, will most often be shielded by the combatant's privilege when committed by combatants in the course of hostilities.
Implications for the POW Trials
Ukrainian POWs who are members of the "Azov" and " Aidar" units of the UAF are commonly charged by Russia with two offenses, namely "participation in a terrorist organization" and "attempts to overthrow the ['DPR'] government," while some were additionally charged with "training for terrorist activities." Particularly, according to Russian propaganda, POWs were accused of "collecting information about the whereabouts of the [Russian forces] and firing at [their] positions," "preparing for the violent seizure of new territories of the DPR, controlling checkpoints, guarding and defending the military positions, as well as the occupied territories of the DPR."

"Aidar" was previously declared an extremist organization in Russia, and in 2016, both "Azov" and "Aidar" were declared terrorist organizations by the so-called "DPR." The Russian Supreme Court declared "Azov" a terrorist organization only in August 2022, i.e., three months after the POWs' capture when they were fighting as UAF units. The National Anti-Terrorism Committee of Russia listed several reasons for the decision, namely threatening Russian security by participating in hostilities in the east of Ukraine and sabotage operations in Crimea; supporting neo-Nazi and radical ideology; and the commission of war crimes.

Thus, charges against POWs largely focus on their fight against Russian forces, i.e., "lawful acts of war committed in the course of an armed conflict," which are clearly within the combatant's immunity. Even where they might technically qualify as terrorism in peacetime (e.g., hostile acts against Russian servicemen, so-called "DPR" members, or military units), during the armed conflict, combatant's immunity precludes full-scale CTL application to conflict-related conduct, preventing collision with the combatant's immunity.

This means that the only grounds upon which Azov members might potentially be prosecuted are either the participation in "terrorist" activities unrelated to the armed conflict (e.g., committed in other contexts outside the fighting) or the commission of the war crime of terror. None of these grounds appear to be manifestly invoked by the Russian prosecution.

Likewise, declaring "Azov" and "Aidar" units, which are constituents of the Ukrainian army, as terrorist organizations and prosecuting POWs for the sole fact of membership therein, equally undermine the combatant's privilege. POWs' enlistment in their respective units is inevitably "materially required" for the participation in fighting the war and thus cannot be subjected to prosecution. Even where, as Russia contends, individual "Azov" or "Aidar" members might have been involved in the commission of war crimes, criminal responsibility must be individual and target actual authors of the offense and not their comrades.

If an author cannot be determined, "it must be accepted that the violation will remain unpunished" ( III GC Cmt, §3689). Prosecuting combatants for war crimes committed by their comrades might constitute a form of collective punishment prohibited under IHL, i.e., a "penalty inflicted on a group of persons without regard to individual responsibility for the conduct giving rise to the penalty" ( ibid). Otherwise, Russian authorities would be free to declare any Ukrainian unit a "terrorist organization" and prosecute every Ukrainian POW for their membership therein, which would render combatant immunity entirely futile.
Conclusions
While Russian-held trials of the Ukrainian defenders raise serious allegations of due process violations, most fundamentally, they seem to be based on bogus pretexts from the outset. As captured members of UAF units, the accused qualify as POWs and thus are protected from prosecution for lawful acts of war by the combatant's privilege.

Where POWs' conduct might bear signs of terrorism-related offenses, charges can only concern international crimes (e.g., the war crime of terror) or terrorism offenses distanced from the armed conflict. In an IAC, broader CTL application is arguably only possible where it does not conflict with IHL and combatant's privilege. Recognizing POWs' units as terrorist organizations and trying POWs for the mere fact of enlistment undermines their immunity and might constitute collective punishment prohibited under IHL.

Russian sham trials thus appear to entirely negate these core IHL principles, and appear aimed at de facto legitimizing revenge against the POWs for fighting in defense of their country. The allegations above, in addition to broader concerns about impartiality and respect for the rights of the accused, may point to the commission of a grave breach of IHL under Article 130 of the Third Geneva Convention and the war crime of denying a fair trial under Article 8(2)(a)(vi) of the Rome Statute.

IMAGE: Ukrainian artillerymen of the Aidar battalion fire a 122mm D30 howitzer artillery field gun, at a front line near Bakhmut, in the Donetsk region, on April 22, 2023, amid the Russian invasion of Ukraine. (Photo by ANATOLII STEPANOV/AFP via Getty Images)

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Rachel VanLandingham, Lt Col, USAF (Ret.)

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Trials of Ukrainian Prisoners of War in Russia: Decay of the Combatant's Immunity

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Captured members of UAF units are POWs and should be protected from prosecution for lawful acts of war by the combatant's privilege.

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Investigating Aggression in Ukraine - 28 July 2023

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Investigating Aggression in Ukraine - 28 July 2023

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Launch of the ICPA (screenshot: Eurojust)

The start of July saw a new international body enter the ecosystem of the Hague; the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA) started its operations at the Eurojust premises. We were there for the press conference and we make use of those answers to try to provide some more clarity about who is involved, what the centre will exactly do and not do and how it is placed in the longer road to a possible future tribunal to prosecute the crime of aggression of the Russian leadership.

You will hear from Eurojust President Ladislav Hamran about the specificities of this crime and from Prosecutor General of Ukraine Andriy Kostin about the hopes of Ukraine for justice for Russian aggression. In addition, the Prosecutor of the International Criminal Court , Assistant Attorney General of the US Kenneth Polite, and the European Commissioner for Justice Didier Reynders, all voice their support for the centre with their own specific spins. And of course, our comments on that all.

The way that the US has involved itself when it's not a member of the ICC, nor of Eurojust, made us particularly curious, so we made use of some comments by Beth van Schaack, US Ambassador-at-Large for Global Criminal Justice at a press conference a few weeks ago, to help provide some insights.

With this episode, we also leave you for the summer break. But tune in for our usual selection of archive episodes, selected and re-branded by our current intern Jason Smeets. Enjoy your summer and see you in September with new episodes!

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Justice Update - Investigating Aggression in Ukraine

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What's the new international centre for the prosecution of the crime of aggression in Ukraine? Who's behind it? What role will the US play?

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Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia’s Armed Aggression Against Ukraine by A Volodymyr et al (2023) International Criminal Law Review

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Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia’s Armed Aggression Against Ukraine by A Volodymyr et al (2023) International Criminal Law Review

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Prospects for State and Individual Responsibility in Cases of Aggression in the Context of Russia's Armed Aggression Against Ukraine

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Abstract Notwithstanding the war that raged through the former Yugoslavia in the 1990s, Russia's aggression against Ukraine is admittedly the first armed conflict of such a scale to take place almost in the heart of Europe.

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Merchant Shipping as Military Objectives and Naval Economic Warfare - Himanil Raina - 7 August 2023

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Merchant Shipping as Military Objectives and Naval Economic Warfare - Himanil Raina - 7 August 2023

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Merchant Shipping as Military Objectives and Naval Economic Warfare - Lieber Institute West Point

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Russia and Ukraine declared vessels sailing to their adversary's ports as military objectives, which re-sparked a debate on economic warfare.

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Understanding Russia’s Actions in Ukraine as the Crime of Genocide - by Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian and Volodymyr Venher (2023) Journal of International Criminal Justice

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Understanding Russia’s Actions in Ukraine as the Crime of Genocide - by Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian and Volodymyr Venher (2023) Journal of International Criminal Justice

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The Biden Administration’s Decision to Transfer Cluster Munitions to Ukraine: Legal and Policy Considerations - Brian L Cox - 21 July 2023

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The Biden Administration’s Decision to Transfer Cluster Munitions to Ukraine: Legal and Policy Considerations - Brian L Cox - 21 July 2023

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The Biden Administration’s Decision to Transfer Cluster Munitions to Ukraine: Legal and Policy Considerations - Lieber Institute West Point

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As a matter of law, the transfer of cluster munitions from the U.S. and their use by Ukraine is consistent with relevant legal obligations.

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Release, Repatriation, and Parole of POWs: Lessons from Recent Practice in the Ukraine-Russia Conflict - Emily Crawford - 20 July 2023

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Release, Repatriation, and Parole of POWs: Lessons from Recent Practice in the Ukraine-Russia Conflict - Emily Crawford - 20 July 2023

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The start of Russia's full-scale invasion of Ukraine is famously connected to the events that took place on Snake Island. During the early stages of the invasion, the Russian warship Moskva approached the island, warning the island's defenders to surrender or be bombed, to which the Ukrainian guards famously replied, "Russian warship, go f*** yourself." At the time, it was thought that the thirteen guards stationed on the island were killed following Russian bombardment. However, it was later revealed that the soldiers surrendered and were taken prisoner by Russia. By year's end, the Snake Island prisoners and those who attempted to rescue them had been released in a Prisoner of War (POW) exchange with Russia, one of several exchanges that have taken place throughout this conflict.

More recently, Ukrainian POWs who had been released to Türkiye as part of an agreement between Russia and Ukraine, on the understanding that they would stay in Türkiye until the war's end, instead accompanied Ukrainian President Volodymyr Zelensky back to Ukraine following President Zelensky's meeting with Turkish President Recep Tayyip Erdoğan. Russia's reaction was swift: Russian authorities declared that the release and return of the soldiers from Türkiye was a breach of the exchange agreement.

This post analyzes that contention under the law of armed conflict governing the release, repatriation, and parole of POWs. I address the relevant law in greater detail in a chapter of the Lieber Series book, Prisoners of War in Contemporary Conflict.
The Law Relating to Release, Repatriation, and Parole
Under the international law of armed conflict, parties to an armed conflict are entitled to arrange for POW exchanges, either directly back to their States of origin (under Article 46 of Geneva Convention III (GC III)), or else to neutral third States (under Articles 109-111 of GC III). Additionally, a detaining power can unilaterally agree to release POWs on partial or complete parole (under Article 21 of GC III).

While repatriation is usually reserved for POWs who are sick, seriously injured, or subject to prolonged POW captivity, parole has historically been offered for any POW, without preexisting conditions such as prolonged detention or illness. Although not explicitly stated in Articles 21, 46, and 109 of GC III, historical practice (previously explored in this post for Articles of War) frequently premised parole and repatriation on the agreement that released or paroled prisoners were granted their freedom on the understanding that they would not return to fight against their captor.

Paroling POWs happens far less frequently than prisoner exchanges. However, both acts stem from fundamentally pragmatic grounds. As noted elsewhere, paroling and releasing POWs frees up resources (both personnel and materiel) that would have otherwise been spent maintaining POWs in detention facilities, potentially for protracted periods of time.
Potential Consequences of the POWs' Release
If the agreement between Russia and Ukraine did contain a provision requiring exchanged Ukrainian POWs to stay in Türkiye for the duration of the conflict, any return of Ukrainian POWs covered by that agreement would indeed be a breach. But beyond the simple breach of an agreement between the States involved, the return of the Ukrainian POWs in this instance might set a bad precedent in the current conflict and any future conflicts where POW parole or release is considered.

Because Türkiye allowed Ukrainian POWs to return home, potentially in breach of an exchange agreement, Russia may decide against arranging any more prisoner exchanges or releases. Russian authorities allege this release was the result of heavy pressure placed on President Erdoğan from NATO allies in the lead up to the recent NATO summit.

If Russia believes political pressures might undermine their POW exchange commitments, such exchanges may cease. With the conflict showing no signs of abating, this could mean that any current and future POWs captured in Ukraine or Russia could find themselves in prolonged detention. Beyond the parameters of this conflict, a failure to implement and respect exchange agreements could potentially impact the lives of untold numbers of detainees.
Concluding Thoughts
At the moment, we have no information as to why the Ukrainian detainees were returned, seemingly contrary to an agreement. Neither Ukraine nor Türkiye have provided reasons. However, we may not be dealing with a breach at all. Even if it transpires that the POWs were not released for medical reasons, release and repatriation of physically and mentally healthy POWs to either neutral third States or their countries of origin during a conflict is specifically authorized in instances of prolonged detention.

In the recently updated Commentaries to the Geneva Conventions, it is clear that there is little State practice to suggest that there is a "minimum" duration of captivity required for such captivity to be considered "prolonged," and that it would be undesirable to set such a minimum. The prisoners released from Türkiye had been held in captivity since surrendering in May 2022, amounting to approximately fourteen months. Though fourteen months does not seem a particularly long time relative to the history of captivity in armed conflict, State practice and academic opinion supports twelve to eighteen months constituting prolonged captivity ( para 4289). Therefore, this purported breach may not be a breach at all. It may instead serve to reinforce the international law protecting POWs rather than undermine it.

***
Emily Crawford is an Associate Professor at the University of Sydney Law School and a co-editor of the Journal of International Humanitarian Studies.
Photo credit: The Presidential Office of Ukraine

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Release, Repatriation, and Parole of POWs: Lessons from Recent Practice in the Ukraine-Russia Conflict - Lieber Institute West Point

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Russia claims Türkiye's release of POWs breaches the exchange agreement, but further analysis suggests it might not be a violation after all.

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Transfers of POWs to Third States - Marten Zwanenburg and Arjen Vermeer - 19 July 2023

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Transfers of POWs to Third States - Marten Zwanenburg and Arjen Vermeer - 19 July 2023

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Ukraine Symposium – Transfers of POWs to Third States - Lieber Institute West Point

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Recent transfer of Ukrainian servicemembers to the territory of Hungary raises several questions concerning the transfers of POWs.

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Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Anaïs Maroonian - 29 June 2023

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Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Anaïs Maroonian - 29 June 2023

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On Tuesday, June 6, 2023, the Kakhovka hydroelectric dam was destroyed causing a major humanitarian and environmental disaster. This post analyses the question of whether this destruction complied with the rules of international humanitarian law (IHL). In particular, assuming Russia is responsible for destroying the dam, this article will address the legality of the destruction under Article 53 of the Fourth Geneva Convention.
Background
Commissioned in 1955, the Kakhovka dam, located in occupied Ukrainian territory along the front line in southern Ukraine, sits astride the Dnipro River to generate electricity and store fresh water, part of which was used to supply Crimea. Prior to its destruction, since February of this year, the water level in the dam had risen so that it was submerged at times. Although this could have damaged the structure and caused an accident, experts assert it is more likely that its partial destruction was the result of a deliberate act.

The Russian Federation and Ukraine have blamed each other for the partial destruction of the hydroelectric plant (see Security Council Press releases). Ukraine claimed that Russia had committed a deliberate war crime by blowing up the dam. The Kremlin blamed Ukraine, saying it was trying to distract attention from the launch of a major counter-offensive which, according to Moscow, has been ineffective.

According to information available to date, residents of the Nova Kakhovka region reported hearing a deafening explosion and that the sky had turned white in the early hours of the morning of June 6. Seismic analyses carried out by the Norwegian company Norsar, which relies on sensors located in Romania, have so far confirmed this information, while U.S. media report that spy satellites also detected an explosion at around the same time. Experts add that it would have been much more difficult to destroy the dam from the outside than to blow it up from the inside.

Although it has not been officially confirmed, it is most likely an act committed by Russia.
Application of the Fourth Geneva Convention
Russia has occupied the Ukrainian territory in which the dam is located (see map) for 15 months. Accordingly, Russian forces' conduct is governed by, among other things, Section III of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 ( GC IV). Specifically, if Russia in fact destroyed the dam, the legality of the act is governed by Article 53 of GC IV, which prohibits the destruction of property under certain circumstances during an occupation.

This situation differs from a Russian attack on a military objective (if a dam can be one, under particular conditions applicable to special protected objects, see Article 56 of Additional Protocol (AP I) I and Rule 42 of the ICRC Study on Customary IHL) located on Ukrainian controlled territory, to which the rule of proportionality relating to the protection of civilians in the conduct of hostilities ( art. 51(5)(b), 57(2)(a)(iii) and (b) of AP I) would apply. Here, the distinction between the rule of proportionality and the principle of proportionality is particularly relevant (see my previous post about the distinction).
Is the Destruction Proportionate?
According to Article 53, GC IV, an Occupying Power is prohibited from destroying property belonging to the occupied State, except in cases where "such destruction is rendered absolutely necessary by military operations." In other words, destruction such as that of the Kakhovka dam would not constitute a violation of IHL if it were shown to be absolutely necessary for military operations.

A previous post explained my view that when a rule contains such a relativization between a prohibited action and a justification for such an act, the provision is subject to the principle of proportionality. In the case of Article 53, GC IV, proportionality takes the form of a "balance of interests." This is made up of the occupying power's interest in obtaining a military advantage, on the one hand, and the humanitarian and environmental consequences of the destruction, on the other.

Based on an ex ante analysis, certainly, the destruction of the dam is likely to give a military advantage to Russia, particularly in its intention to halt the Ukrainian offensive. It has been argued that the motive for the destruction of the dam by Russian armed forces was an "instinctive defensive response to the threat of an amphibious attack in the Kherson oblast on the Dnipro." Russia may have sought to mitigate the possibility of a surprise attack by Ukraine on the country's central and defining river.

The destruction of the dam makes an assault in the Kherson region more difficult for Ukraine. What's more, building a pontoon bridge across the widened Dnipro is virtually impossible. Also, it appears that Russia already counted the dam as an asset in its military strategy. Indeed, the Russian authorities allowed the water level in the Kakhovka reservoir, located behind the dam, to reach its highest level in 30 years.

As noted above, this military advantage had to be weighed against the humanitarian and environmental consequences of destroying the dam. The catastrophe caused by the destruction of the dam is one of the most significant incidents, both in human and environmental terms, to have occurred since the beginning of the war in Ukraine. Even more so as the consequences of the tragedy will have an impact for months, if not years, to come.

Not only are people without water, gas, and electricity, but it also halts the country's sewage system from functioning. Figures of the precise losses vary by source and change over time. The Deputy Prosecutor General of Ukraine declared that more than 40,000 people could be in the path of the flooding on both Ukrainian- and Russian-controlled territory. At least 16,000 people have already lost their homes and been forced to flee, according to the Secretary-General of the United Nations.

In addition to the immediate humanitarian consequences, the water level in the Kakhovka reservoir has reached a dangerously low level. It is already too low to feed the four canal systems that supply the Kherson and Zaporizhzhia oblasts and Crimea, which are one of the world's breadbaskets. Without these vital canals, these regions could become deserts as early as next year.

The lowering of the reservoir level also threatens the supply of drinking water to towns and villages along the lower reaches of the Dnipro. It has been stated that flooding could wash sewage into the drinking water, which, if not properly treated, could lead to a whole host of problems, the most frightening of which is cholera. A humanitarian catastrophe on the Russian-occupied left bank would undoubtedly increase the risk of an epidemic of cholera or other intestinal infections.

Finally, although currently uncertain, there is a particularly worrying potential long-term consequence. The level of the Kakhovka reservoir is now much lower than what is needed to reach the intake canal of the Zaporizhzhia nuclear power plant, located upstream of the dam. Normally, water is drawn from the reservoir into the spray basins used to cool the six reactor cores and the spent fuel stored at the plant. Drying up the reservoir is not an immediate threat, as the six Zaporizhzhia reactors were shut down after the plant was occupied by Russian forces and turned into a garrison and military depot. The International Atomic Energy Agency (IAEA) and Ukrainian officials from Energoatom, the Ukrainian nuclear power company, estimate that there is enough water for several years.

However, there is a longer-term risk that the dam surrounding the cooling pond could burst under the pressure of the water inside, in the absence of the countervailing force of the water from the Kakhovka reservoir. In addition to such a risk directly linked to the destruction of the dam, there is the real threat of deliberate sabotage by the plant's Russian occupants.
Conclusion
Although the operation undertaken against the Kokhovka dam is better characterized under IHL as destruction rather than an attack, considerations of proportionality are required elements of its legality. Necessity, as enshrined in article 53 of GC IV, implies proportionality in the analysis of the legality of destruction operations in occupied territory. This analysis involves weighing up opposing interests: military advantage that could be gained vs. the humanitarian and environmental consequences of such destruction.

Russia's fear of the possibility of a surprise attack by Kiev to reach strategic central points and the said river, as well as the intention to slow down or stop the Ukrainian offensive, is certainly a valid Russian military aim. But the particularly serious humanitarian and environmental consequences listed above that the destruction of the Kakhovka dam has had and will continue to have in the long term, are far too severe to justify the destruction of the dam as absolutely necessary for military operations. If so, any type of military operation would be justifiable.

Thus, the destruction of the dam does not meet the exception where a destruction in an occupied territory could be legal (if not disproportionate) and so constitutes a prohibited destruction within the meaning of Article 53 of GC IV.

***
Anaïs Maroonian is a Ph.D. candidate in international humanitarian law at the Faculty of Law of the University of Geneva.
Photo credit: Dmytro Zavtonov / ArmyInform

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Ukraine Symposium - Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Lieber Institute West Point

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The destruction of the Kakhovka Dam constitutes a prohibited destruction within the meaning of Article 53 of GC IV.

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Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Anaïs Maroonian - 29 June 2023

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Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Anaïs Maroonian - 29 June 2023

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On Tuesday, June 6, 2023, the Kakhovka hydroelectric dam was destroyed causing a major humanitarian and environmental disaster. This post analyses the question of whether this destruction complied with the rules of international humanitarian law (IHL). In particular, assuming Russia is responsible for destroying the dam, this article will address the legality of the destruction under Article 53 of the Fourth Geneva Convention.
Background
Commissioned in 1955, the Kakhovka dam, located in occupied Ukrainian territory along the front line in southern Ukraine, sits astride the Dnipro River to generate electricity and store fresh water, part of which was used to supply Crimea. Prior to its destruction, since February of this year, the water level in the dam had risen so that it was submerged at times. Although this could have damaged the structure and caused an accident, experts assert it is more likely that its partial destruction was the result of a deliberate act.

The Russian Federation and Ukraine have blamed each other for the partial destruction of the hydroelectric plant (see Security Council Press releases). Ukraine claimed that Russia had committed a deliberate war crime by blowing up the dam. The Kremlin blamed Ukraine, saying it was trying to distract attention from the launch of a major counter-offensive which, according to Moscow, has been ineffective.

According to information available to date, residents of the Nova Kakhovka region reported hearing a deafening explosion and that the sky had turned white in the early hours of the morning of June 6. Seismic analyses carried out by the Norwegian company Norsar, which relies on sensors located in Romania, have so far confirmed this information, while U.S. media report that spy satellites also detected an explosion at around the same time. Experts add that it would have been much more difficult to destroy the dam from the outside than to blow it up from the inside.

Although it has not been officially confirmed, it is most likely an act committed by Russia.
Application of the Fourth Geneva Convention
Russia has occupied the Ukrainian territory in which the dam is located (see map) for 15 months. Accordingly, Russian forces' conduct is governed by, among other things, Section III of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 ( GC IV). Specifically, if Russia in fact destroyed the dam, the legality of the act is governed by Article 53 of GC IV, which prohibits the destruction of property under certain circumstances during an occupation.

This situation differs from a Russian attack on a military objective (if a dam can be one, under particular conditions applicable to special protected objects, see Article 56 of Additional Protocol (AP I) I and Rule 42 of the ICRC Study on Customary IHL) located on Ukrainian controlled territory, to which the rule of proportionality relating to the protection of civilians in the conduct of hostilities ( art. 51(5)(b), 57(2)(a)(iii) and (b) of AP I) would apply. Here, the distinction between the rule of proportionality and the principle of proportionality is particularly relevant (see my previous post about the distinction).
Is the Destruction Proportionate?
According to Article 53, GC IV, an Occupying Power is prohibited from destroying property belonging to the occupied State, except in cases where "such destruction is rendered absolutely necessary by military operations." In other words, destruction such as that of the Kakhovka dam would not constitute a violation of IHL if it were shown to be absolutely necessary for military operations.

A previous post explained my view that when a rule contains such a relativization between a prohibited action and a justification for such an act, the provision is subject to the principle of proportionality. In the case of Article 53, GC IV, proportionality takes the form of a "balance of interests." This is made up of the occupying power's interest in obtaining a military advantage, on the one hand, and the humanitarian and environmental consequences of the destruction, on the other.

Based on an ex ante analysis, certainly, the destruction of the dam is likely to give a military advantage to Russia, particularly in its intention to halt the Ukrainian offensive. It has been argued that the motive for the destruction of the dam by Russian armed forces was an "instinctive defensive response to the threat of an amphibious attack in the Kherson oblast on the Dnipro." Russia may have sought to mitigate the possibility of a surprise attack by Ukraine on the country's central and defining river.

The destruction of the dam makes an assault in the Kherson region more difficult for Ukraine. What's more, building a pontoon bridge across the widened Dnipro is virtually impossible. Also, it appears that Russia already counted the dam as an asset in its military strategy. Indeed, the Russian authorities allowed the water level in the Kakhovka reservoir, located behind the dam, to reach its highest level in 30 years.

As noted above, this military advantage had to be weighed against the humanitarian and environmental consequences of destroying the dam. The catastrophe caused by the destruction of the dam is one of the most significant incidents, both in human and environmental terms, to have occurred since the beginning of the war in Ukraine. Even more so as the consequences of the tragedy will have an impact for months, if not years, to come.

Not only are people without water, gas, and electricity, but it also halts the country's sewage system from functioning. Figures of the precise losses vary by source and change over time. The Deputy Prosecutor General of Ukraine declared that more than 40,000 people could be in the path of the flooding on both Ukrainian- and Russian-controlled territory. At least 16,000 people have already lost their homes and been forced to flee, according to the Secretary-General of the United Nations.

In addition to the immediate humanitarian consequences, the water level in the Kakhovka reservoir has reached a dangerously low level. It is already too low to feed the four canal systems that supply the Kherson and Zaporizhzhia oblasts and Crimea, which are one of the world's breadbaskets. Without these vital canals, these regions could become deserts as early as next year.

The lowering of the reservoir level also threatens the supply of drinking water to towns and villages along the lower reaches of the Dnipro. It has been stated that flooding could wash sewage into the drinking water, which, if not properly treated, could lead to a whole host of problems, the most frightening of which is cholera. A humanitarian catastrophe on the Russian-occupied left bank would undoubtedly increase the risk of an epidemic of cholera or other intestinal infections.

Finally, although currently uncertain, there is a particularly worrying potential long-term consequence. The level of the Kakhovka reservoir is now much lower than what is needed to reach the intake canal of the Zaporizhzhia nuclear power plant, located upstream of the dam. Normally, water is drawn from the reservoir into the spray basins used to cool the six reactor cores and the spent fuel stored at the plant. Drying up the reservoir is not an immediate threat, as the six Zaporizhzhia reactors were shut down after the plant was occupied by Russian forces and turned into a garrison and military depot. The International Atomic Energy Agency (IAEA) and Ukrainian officials from Energoatom, the Ukrainian nuclear power company, estimate that there is enough water for several years.

However, there is a longer-term risk that the dam surrounding the cooling pond could burst under the pressure of the water inside, in the absence of the countervailing force of the water from the Kakhovka reservoir. In addition to such a risk directly linked to the destruction of the dam, there is the real threat of deliberate sabotage by the plant's Russian occupants.
Conclusion
Although the operation undertaken against the Kokhovka dam is better characterized under IHL as destruction rather than an attack, considerations of proportionality are required elements of its legality. Necessity, as enshrined in article 53 of GC IV, implies proportionality in the analysis of the legality of destruction operations in occupied territory. This analysis involves weighing up opposing interests: military advantage that could be gained vs. the humanitarian and environmental consequences of such destruction.

Russia's fear of the possibility of a surprise attack by Kiev to reach strategic central points and the said river, as well as the intention to slow down or stop the Ukrainian offensive, is certainly a valid Russian military aim. But the particularly serious humanitarian and environmental consequences listed above that the destruction of the Kakhovka dam has had and will continue to have in the long term, are far too severe to justify the destruction of the dam as absolutely necessary for military operations. If so, any type of military operation would be justifiable.

Thus, the destruction of the dam does not meet the exception where a destruction in an occupied territory could be legal (if not disproportionate) and so constitutes a prohibited destruction within the meaning of Article 53 of GC IV.

***
Anaïs Maroonian is a Ph.D. candidate in international humanitarian law at the Faculty of Law of the University of Geneva.
Photo credit: Dmytro Zavtonov / ArmyInform

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Ukraine Symposium - Destruction of the Kakhovka Dam: Disproportionate and Prohibited - Lieber Institute West Point

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The destruction of the Kakhovka Dam constitutes a prohibited destruction within the meaning of Article 53 of GC IV.

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Wagner ist keine Söldnertruppe - Sarah Katharina Stein - 30 June 2023

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Wagner ist keine Söldnertruppe - Sarah Katharina Stein - 30 June 2023

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Wagner ist keine Söldnertruppe: Und das ist nicht so gut, wie es auf den ersten Blick klingt

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Spätestens seit Wagners Putsch-Versuch von letztem Samstag gerät die Gruppe immer stärker in den Fokus der Öffentlichkeit. Dabei nimmt das Interesse an Söldnern und die Forderung nach ihrer Kontrolle und Verboten von allen Seiten zu. Die Mitglieder der Gruppe Wagner sind jedoch keine Söldner.

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Russia’s Eliminationist Rhetoric Against Ukraine: A Collection -  Clara Apt - 29 June 2023

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Russia’s Eliminationist Rhetoric Against Ukraine: A Collection -  Clara Apt - 29 June 2023

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Long before Russian President Vladimir Putin began intensifying his troop buildup on Ukraine's borders more than a year ago and even prior to his 2014 invasion and capture of Crimea, analysts noted with alarm a different kind of escalation - the threatening rhetoric of Putin and actors within his control against Ukraine. Dating at least to 2008 or 2009, increasingly hostile language laid the groundwork for rejecting Ukraine's existence as a state, a national group, and a culture.

What follows is a compilation of publicly available statements (readers are invited to submit by any that we may have missed).

Experts such as Francine Hirsch , a professor of history at the University of Wisconsin-Madison and author of "Soviet Judgment at Nuremberg," have to this language as evidence of genocidal intent toward the Ukrainian people. Whether and how the concept of " " applies to Russia's campaign against Ukraine is the subject of debate, notwithstanding the reference in Article II of the Genocide Convention to "the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such." A related issue under discussion is a concept often referred to as "cultural genocide," which generally connotes the intentional destruction of a group's identity even in the absence of mass killings. "These calls for 'de-Ukrainization' are an incitement to genocide: to 'destroy, in whole or in part,' the Ukrainian nation," Hirsch wrote in April. And Yale University history professor Timothy Snyder , in reference to the same article in the Russian outlet RIA Novosti that prompted Hirsch's conclusion, , "Russia has just issued a genocide handbook for its war on Ukraine."

Beth Van Schaack , U.S. ambassador-at-large for global criminal justice, in a May hearing of the Senate Foreign Relations Committee in response to a question about the Russian atrocities coming to light in Ukraine, "some of the genocidal rhetoric that we're hearing out of Russia is extremely worrying."

A from the New Lines Institute and the Raoul Wallenberg Centre for Human Rights concludes that "Russia bears State responsibility for breaches of Article II and Article III (c) of the Genocide Convention," and "that that there exists undoubtedly a very serious risk of genocide, triggering States' duty to prevent under Article I of the Genocide Convention." Among the evidence the report cites is a range of statements that it says constitute "direct and public incitement to commit genocide," including denying the existence of a Ukrainian identity; accusing Ukraine, contrary to evidence, of committing the very kinds of atrocities that Russia is or envisions committing; and dehumanizing rhetoric.

While analysis of Putin and Russian rhetoric has been extensive, it can make for a fragmented picture of the trend, with selections from relevant passages scattered across articles, social media, books, audio, and video. The following compilation seeks to collect examples of these statements in one place. They are organized in chronological order and necessarily non-exhaustive, since such declarations now occur at higher frequency in various media controlled by the Russian government, as expert monitors of Russian media such as Julia Davis and have found.

The statements range from formal presidential addresses and articles by Putin and other officials to commentary on Russian state television and on social media. Sources include (but are not limited to) news articles; books; the Kremlin's online repository of speeches and addresses ; Russian state-controlled news agencies, including RIA Novosti and Kommersant; and posts on Twitter and Telegram.

This compilation focuses on key words, phrases, and/or themes that appear to express intent on the part of the Russian government to eliminate Ukraine or Ukrainians as a nation-state, people, or culture. Recurring concepts include the notion of historical Russian and Ukrainian unity, denial of the Ukrainian nation, and the conceptualization of "Ukrainianism" as a fascist threat to Russian sovereignty. As the war progresses, it is vital to track these statements of intent for use by analysts, diplomats, policymakers, prosecutors, and more.

(Readers may also be interested in Compilation of Countries' Statements Calling Russian Actions in Ukraine "Genocide" by Elizabeth Whatcott .)

Collected Eliminationist Rhetoric by Putin and Associates

"You don't understand, George, that Ukraine is not even a state. What is Ukraine? Part of its territories is Eastern Europe, but the greater part is a gift from us." (Reported based on anonymous source as a Putin comment to Bush during the NATO Summit in Bucharest, Romania; reported in English on May 25, 2009, in Time Magazine. Neither that nor subsequent references identified to date indicated any effort to corroborate, and some analysts cast doubt on whether Putin made the comment. Some references translated "state" as "country," which would be a more likely meaning, as in a sovereign State.)

Relations between "Big Russia and Little Russia - Ukraine...have always been the business of Russia itself."

Putin - "Russia: The Ethnicity Issue" - Nezavisimaya Gazeta (January 23, 2012), (alternative translation by Russian site

Russia, with its diverse set of languages, traditions, and cultures, has an "ethnicity issue" that is "without any doubt a fundamental one."

Multiculturalism "denies integration through assimilation" whilst making the "'minorities right to be distinct' absolute." However, it "does little to balance this with public, behavioral or cultural commitments to the population and society as a whole."

Russia is a "type of state civilization where there are no ethnicities, but where 'belonging' is determined by a common culture and shared values." This common culture is reliant upon "preserving the dominance of Russian culture," which "hostile forces" have tried to break.
Analysis: Russia's unity is reliant upon "the absorption by the leader - first his ideas and then presumably in his acts - of all of these other groups. I was about to say national minorities, but that would have been wrong because, in Putin's mind, and in [Ivan] Ilyn's mind for that matter, there are no national minorities. Ilyn [a Russian fascist philosopher and source of ideological inspiration for Putin] was very clear that anyone who uses the phrase 'national minority' is attacking Russia." - Snyder"

Subtle cultural therapy" is recommended for Russia, a "a country where, for many, the civil war never really ended and where the past is highly politicized."

The organization of regional parties is a "direct path to separatism." Those who "attempt to lean towards nationalist, separatist, or other similar forces or influences should be restricted from the electoral process through democratic or court procedures."

Russia and Ukraine have "lived together for many centuries. Together [they] were victorious in the most terrible of wars. And [they] will continue to exist side by side. To those who want and try to divide [Russia and Ukraine], I say - in your dreams."
Analysis: When Putin discusses Ukrainians in this vision, "he doesn't mention the existence of the Ukrainian state; that's irrelevant. All he mentions is that Ukrainians are a kind of fragment scattered across this broad expanse... This fragment will only be made whole insofar and as it is absorbed into this larger Russian civilization." Putin also elaborates upon this notion of Russia as a whole civilization in a fascist manner. The "contours, the limits of that civilization are defined by the leader himself." And, If Russia is divided, "it is the fault of others, who must be threatened and deterred." - Snyder

Crimea is "an inseparable part of Russia" that reflects Russia and the region's "shared history and pride."

"When Crimea ended up as part of a different country," Russia realized that "it was not simply robbed, it was plundered."

Russians had been deprived of their "historical memory, even of their language and to subject them to forced assimilation."

Ukraine has "no legitimate executive authority now, nobody to talk to. Many government agencies have been taken over by the imposters, but they do not have any control in the country," and they themselves are "often controlled by radicals."

There is "neither industry, nor a state there" in Ukraine. In 2013, there was "industry there, but there was no state even then."

Ukraine has "several million people [not loyal to Russia]" who "need to be partially eliminated and partially squeezed out."

"New Russia," or the territories from Kharkov, Odessa, Zaporozhye, and Dnepropetrovsk, "should be joined to the Russian regions, with full denazification, deukrainization."

Russia should institute a "complete ban on Ukrainian fonts, Ukrainian texts, programs on [the] Ukrainian language, on teaching Ukrainian - ie completely."

These implementations will cause a "surplus population - let the surplus population go to the [Russian] Far East."

Surkov's "vanity is forever satisfied by the fact that [he] put [his] hand and head into the building of a new Russian state."

There is "no Ukraine," although there is "Ukrainianism" - a "specific mental disorder. Surprisingly brought to the extreme degree passion for ethnography. Such bloody lore. Muddle instead of the state. There is borscht, Bandera, bandura. But there is no nation."

Donbass "does not deserve such humiliation" of returning to Ukraine. Ukraine "does not deserve such honor."

The incorporation of "western Russian lands into the single state" was the product of "common faith, shared cultural traditions, and - I would like to emphasize it once again - language similarity."

There is "no historical basis" for the "idea of Ukrainian people as a nation separate from the Russians."

Ukrainization was "often imposed on those who did not see themselves as Ukrainians."

Modern Ukraine is "entirely the product of the Soviet era" shaped on the "lands of historical Russia." Hence, Russia "was robbed."

Ukraine's leaders "began to mythologize and rewrite history, edit out everything that united [Russia and Ukraine], and refer to the period when Ukraine was part of the Russian Empire and the Soviet Union as an occupation."

The "slogans, ideology, and blatant aggressive Russophobia" of "radical nationalist groups" have become "defining elements of state policy in Ukraine."

Ukraine "peddle[s] Russophobia" and prefers to "exploit the image of the 'victim of external aggression.'"

Russia and Ukraine together have "always been and will be many times stronger and more successful. For [they] are one people."

Ukrainian leaders are "people who do not have any stable self-identification. Who are they, what country are they citizens of, what is their historical identity, ethnic component, what gods do they pray to?"

There are "no fools to fight for Ukraine. And it is pointless for [Russia] to deal with vassals. Business must be done with the suzerain."

Putin in press conference (February 8, 2022) and in official remarks (February 21, 2022) - An Independent Legal Analysis of the Russian Federation's Breaches of the Genocide Convention in Ukraine and the Duty to Prevent - Newlines Institute for Strategy and Policy

"'Like it or not, take it, my beauty'" references a "vulgar Russian rhyme about necrophiliac rape, implying an intention to inflict similar destruction on Ukraine and a view of Ukraine as a corpse."

Modern Ukraine is considered to be "entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia."

Russia is "ready to show what real decommunization would mean for Ukraine."

Putin declaring Russia's full-scale assault on Ukraine - "Putin Orders 'Special Military Operation' for Ukraine" - Bloomberg News (February 24, 2022)

The special military operation's goal is "the protection of people who during eight years, suffer from abuse and genocide from the Kyiv regime."

Whoever tries to stop Russia and "further create threats to [Russia's] country, to [the Russian] people, should know that Russia's response will be immediate and lead [them] to such consequences that [they] have never faced in [their] history."

Russian victory declaration, accidentally published - "The Offensive of Russia and the New World" - RIA Novosti (February 26, 2022)

"There will be no more Ukraine as anti-Russia."

Vladimir Putin has asserted a "historic responsibility by deciding not to leave the solution of the Ukrainian question to future generations."

Ukraine's return to Russia will not mean its statehood's "liquidation"; instead, Ukraine will be "reorganized, re-established and returned to its natural state of part of the Russian world."
Analysis: This victory declaration "made it clear that Russia's aim in this war was to destroy the Ukrainian state, destroy the Ukrainian nation, and then leave the remaining populace as a kind of unformed mass that could be colonized in any way the Russian leadership desired." - Snyder

This war is a "response to the geopolitical expansion of the Atlanticists, this is Russia's return of its historical space and its place in the world."

Pro-Putin pundit Timofei Sergeitsev op-ed - "What Should Russia Do with Ukraine?" - RIA Novosti (April 5, 2022) (alternative translation by Mariia Kravchenko on Medium)

"Nazi, Bandera Ukraine, the enemy of Russia and the West's tool for the destuction of Russia, we do not need."

The "denazification" of Ukraine entails "a set of measures in relation to the nazified mass of the population, which technically cannot be subjected to direct punishment as war criminals."
Analysis: Denazification in "official Russian usage just means the destruction of the Ukrainian state and nation. A 'Nazi,' as [Sergeitsev's article] explains, is simply a human being who self-identifies as Ukrainian. According to [him], the establishment of a Ukrainian state thirty years ago was the 'nazification of Ukraine.' Indeed 'any attempt to build such state' has to be a 'Nazi' act." - Snyder

There is "no significant distinction between the APU [Armed Forces of Ukraine] and the so-called national battalions, as well as the territorial defense that joined these two types of military formations. All of them are equally involved in extreme cruelty against the civilian population, equally guilty of the genocide of the Russian people, do not comply with the laws and customs of war. War criminals and active Nazis should be exemplarily and exponentially punished."

In addition to Ukrainian defense forces, "a significant part of the masses, which are passive Nazis, accomplices of Nazism, are also guilty. They supported and indulged Nazi power."

These masses can be denazified through "re-education, which is achieved by ideological repression (suppression) of Nazi attitudes and strict censorship: not only in the political sphere, bit also necessarily in the sphere of culture and education."

"The terms of denazification can in no way be less than one generation, which must be born, grow up and reach maturity under the conditions of denazification."

Denazification will coincide with "de-Ukrainization - a rejection of the large-scale artificial inflation of the ethnic component of self-identification of the population of the territories of historical Little Russia and New Russia, begun by the Soviet authorities."

Analysis: "As a historian of mass killing, I am hard pressed to think of many examples where states explicitly advertise the genocidal character of their own actions right at the moment those actions become public knowledge. From a legal perspective, the existence of sucha text (in the larger context of similar statements and Vladimir Putin's repeated denial that Ukraine exists) makes the charge of genocide far easier to make. Legally, genocide means both actions that destroy a group in whole or in part, combined with some intention to do so. Russia has done the deed and confessed to the intention." - Snyder

Analysis: History reveals that we "should take dictators at their word. Those who incite genocide usually attempt to follow through. It is not unusual for them to publicize their campaigns through propagandists and media. Adolf Hitler had Joseph Goebbels, Alfred Rosenberg and others doing this work. Putin has Medvedev and the pundits of Russian state media. Finally, the more that Russian soldiers embrace the campaign of 'de-Ukrainization,' the more brutal the war will become - and the harder it will be for Russia to find an exit short of total victory or defeat. Russian society's complacency becomes complicity in murder." - Hirsch

Ukraine is historically "impossible as a nation state, and attempts to 'build' one naturally lead to Nazism. Ukrainism is an artificial anti-Russian construction that does not have its own civilizational content, a subordinate element of an alien and alien civilization."
Analysis: This article is different from other Russian news sources for "two critical reasons. It was published amid Russia's predatory war of aggression - while atrocities were being committed in Bucha, Mariupol and other towns, and while Ukrainian civilians were being kidnapped, deported and sent to filtration camps. It was being published during extreme wartime censorship in Russia, indicating its approval by the Russian authorities." - Hirsch

Politically, the "Bandera elite must be eliminated [as] its re-education is impossible." Ukraine itself requires "cleans[ing] of Nazi elements... integrating this statehood into close cooperation with the Russian department for the denazification of Ukraine." Russia will then create a "tribunal for crimes against humanity in the former Ukraine [and] in this regard act as the guardian of the Nuremberg Trials."

Initial steps of denazification, according to Sergeitsev, can be defined as follows:

"Liquidation of armed Nazi formations, as well as the military, informational, educational infrastructure that ensures their activity;

Installation of the Russian information space;

The withdrawal of educational materials and the prohibition of educational programs at all levels containing Nazi ideological guidelines; and

Lustration, publication of the names of the accomplices of the Nazi regime, involving them in forced labor to restore the destroyed infrastructure as punishment for Nazi activities (from among those who will not be subject to the death penalty or imprisonment)."

"Vladimir Volfovich [former member of the State Duma] made a genuine forecast. And it sounded like this: Zelensky is the last president of Ukraine because after him there will not be any Ukraine!"

"On state television, a military analyst doubled down on Russia's need to win and called for concentration camps for Ukrainians opposed to the invasion. Two days later, the head of the defense committee in the lower house of parliament said it would take 30 to 40 years to 'reeducate' Ukrainians."

The editor-in-chief of the television news network RT described "Ukrainians' determination to defend their country as 'collective insanity.' 'It's no accident that we call them Nazis,' said Margarita Simonyan, who also heads the Kremlin-backed media group that operates the Sputnik and RIA Novosti news agencies. 'What makes you a Nazi is your bestial nature, your bestial hatred and your bestial willingness to tear out the eyes of children on the basis of nationality.'"

"In late March, the head of Russia's Investigative Committee launched a probe into whether Ukrainian students' textbooks 'target Children with hatred of Russia and the Russian language' and 'distort history.'

Opponents of "Letter Z" must "'understand that if they are counting on mercy, no, there will be no mercy for them. It all became very serious. In this case it means concentration camps, re-education, sterilization'"

Russia fights for a "world order" in which there is "no place for frostbitten Nazis, historical lies and genocide [against the Russian people]." (March 17)

Negotiations with Ukraine aim to "fix the neutral status of Ukraine, its demilitarization, the rejection of the use of Nazi ideological laws that were adopted in this country. Well, and a number of positions that the Russian Federation considers to be most important." (March 26)

"Deep Ukrainianism" is a fictional concept "fueled by anti-Russian poison and an all-consuming lie about its identity, is one big fake. This phenomenon has never happened in history. And now it doesn't exist." (April 5)

Ukraine will "suffer its own fate" after having "mentally transformed into the Third Reich, having written down the names of Jews and Nazi henchmen into history books. There she is dear, such Ukraine." (April 5)

Russia's "most important goal" is to "change the bloody and full of false myths consciousness of a part of today's Ukrainians." (April 5)

"History will put everything in its place and show which side the truth is on. Who became the custodian of true Christian values, protecting them from atheists, bandits, and nationalists." (April 27)

"Zelensky has no other way to stay in office. If, of course, the position itself remains." (May 3)

"I am often asked why my Telegram posts are so harsh. The answer is I hate them. They are bastards and geeks. They want death for us, Russia. And as long as I'm alive, I will do everything to make them disappear." (June 7)

Russian State TV Excerpts - translated by Francis Scarr of BBC Monitoring (May 8, 2022)

"Ukraine is in thrall to a Nazi-inspired 'neo-pagan' religion based on violence."

"The 'bloody paganism' was founded by Ukrainian 'accomplices of the Nazis' during WWII and later cultivated by the diaspora in the US."

"Fighting is underway in eastern Ukraine. The Nazis torture and kill the inhabitants of the occupied territories."

Russia is defined by "social harmony - difficult to achieve, but absolutely real"

The Ukrainian special operation has become Russia's "war for peace. And not only in Russia, but also for world peace."

"The troops of LPR and DPR are fighting for their land, and now I have a question: What would the Ukrainian territorial defense fight for? None of it is their land."

"We're telling people: come to your senses! Remember who you are! Look at what's been done to you! Look who conquered you! Remember your great past! Wake up, stop lying to yourselves! And that is the main point. Why are they making up a language for you? You are Rusyns [Slavic people] - do you need that language that Zelenskyy is trying to speak? Look at the history that is being made up for you, the religion that is being made up for you. That's why people are for us. Westerners say, 'Why don't they greet you with flowers'? Yes, they are, big time. Despite their fear, they're welcoming us, and they will welcome us even more when they understand that we're never leaving."

IMAGE: People react as they gather close to a mass grave in the town of Bucha, just northwest of the Ukrainian capital Kyiv on April 3, 2022. (Photo by Sergei Supinsky/AFP via Getty Images)

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Rachel VanLandingham, Lt Col, USAF (Ret.)

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Russia's Eliminationist Rhetoric Against Ukraine: A Collection

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Long before Russian President Vladimir Putin began intensifying his troop buildup on Ukraine's borders more than a year ago and even prior to his 2014 invasion and capture of Crimea, analysts noted with alarm a different kind of escalation - the threatening rhetoric of Putin and actors within his control against Ukraine.

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Putin Admits to Funding the Wagner Group: Implications for Russia's State Responsibility - Jennifer Maddocks - 30 June 2023

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Putin Admits to Funding the Wagner Group: Implications for Russia's State Responsibility - Jennifer Maddocks - 30 June 2023

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Putin Admits to Funding the Wagner Group: Implications for Russia’s State Responsibility - Lieber Institute West Point

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Putin’s recent admission about the funding of the Wagner Group has legal implications, especially from the State responsibility perspective.

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Lemkin and the Origins of Article 2(e) - Kurt Mundorff - 28 June 2023

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Lemkin and the Origins of Article 2(e) - Kurt Mundorff - 28 June 2023

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Kurt Mundorff is author of A Cultural Interpretation of the Genocide Convention and is a Postdoctoral Fellow in the University of Tennessee Knoxville Department of Political Science.] As Russia's invasion of Ukraine moved westward, so too did Russian officials who began removing Ukrainian children and transferring them to Russia, often parading the children on television as proof of their success...

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Lemkin and the Origins of Article 2(e) - Kurt Mundorff - 28 June 2023

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Lemkin and the Origins of Article 2(e) - Kurt Mundorff - 28 June 2023

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Kurt Mundorff is author of A Cultural Interpretation of the Genocide Convention and is a Postdoctoral Fellow in the University of Tennessee Knoxville Department of Political Science.] As Russia's invasion of Ukraine moved westward, so too did Russian officials who began removing Ukrainian children and transferring them to Russia, often parading the children on television as proof of their success...

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Confiscating Russia’s Frozen Central Bank Assets: A Permissible Third-Party Countermeasure? -Menno T. Kamminga (2023) 70 Netherlands International Law Review 1–17 

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Confiscating Russia’s Frozen Central Bank Assets: A Permissible Third-Party Countermeasure? -Menno T. Kamminga (2023) 70 Netherlands International Law Review 1–17 

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Confiscating Russia’s Frozen Central Bank Assets: A Permissible Third-Party Countermeasure? - Netherlands International Law Review

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The war of aggression by a permanent member of the Security Council, combined with the availability of its assets on the territory of other states, creates an opportunity to solve one of international law’s enigmas: the legality of third-party countermeasures in the general interest. Would confiscat…

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Was Russia at War with the Wagner Group? -Michael N. Schmitt - 26 June 2023

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Was Russia at War with the Wagner Group? -Michael N. Schmitt - 26 June 2023

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Tension has long existed between Yevgeny Prigozhin's Wagner Group, a private military company that has borne the brunt of the deadliest fighting in Ukraine, and the Russian armed forces. In particular, Prigozhin has singled out Russian Defense Minister, Sergei Shoigu, and the Chief of the General Staff, Valery Gerasimov, accusing them of deliberately starving his forces of supplies. To exert control over the group, the government announced in early June that "volunteer formations" like Wagner would be required to sign contracts with the Russian Ministry of Defense by month's end (see Maddocks). Unsurprisingly, the Wagner Group did not comply.

That tension erupted into rebellion on Friday, 23 June, when Prigozhin labeled the Russian leadership "evil" and stated, "Those who destroyed our guys today, those who destroyed tens, many tens of thousands of lives of Russian soldiers will be punished." He alleged that Russian forces had attacked the Wagner Group, killing "a huge number of fighters." Prigozhin named Shoigu and Gerasimov as responsible for the supposed rocket, artillery, and helicopter attack and the deaths of 2,000 Wagner Group fighters. Russian authorities denied the incident.

By the following morning, the Wagner Group had moved back into Russia (Prigozhin's so-called "march for freedom") and seized Rostov-on-Don (population 1.1 million), the largest city in southern Russia. Rostov-on-Don hosts the headquarters of Russia's Southern Military District. The District commands the 58 th Combined Arms Army, which is defending against Ukraine's counter-offensive. It is also the command center for the Russian Joint Group of Forces in Ukraine and the key logistical hub for operations in Ukraine. And additional Wagner units headed north toward Moscow. They would eventually come within 125 miles of the capital ( according to Prigozhin).

This was not an isolated mutiny over minor issues. Prigozhin charged that the "war wasn't needed to return Russian citizens to our bosom, nor to demilitarize or denazify Ukraine....[It] was needed so that a bunch of animals could simply exult in glory." He warned, "There are 25,000 of us and we are going to figure out why chaos is happening in the country." It was not a far-fetched threat. Estimates of the group's overall size range up to 50,000; it is heavily armed, on par with a State's armed forces.

Russian authorities immediately launched an investigation into Prigozhin for "organizing an armed rebellion," with the Prosecutor General warning that he faced up to 20 years in prison. The Federal Security Services (FSB) urged Priogozhin's soldiers to arrest him. And President Putin promised a harsh response to such " treason." He proclaimed, "All those who deliberately stepped on the path of betrayal, who prepared an armed insurrection, who took the path of blackmail and terrorist methods, will suffer inevitable punishment, will answer both to the law and to our people." As is often the case with his rhetoric, Putin pointed to history to justify his actions. Referring to the 1917 Russian Revolution, he claimed, "[i]ntrigues, spats and politicking behind the army and people's back ended in an enormous collapse, the destruction of the army and the fall of the state, the loss of huge territories, and in the end, the tragedy of civil war....We won't let that happen again."

Although most of the Wagner Group's moves were unopposed, there were some hostilities. For instance, helicopters and other Russian forces attacked the Wagner Group convoy as it headed toward Moscow, an operation that Prigozhin claimed was ordered by Gerasimov. Reportedly, helicopters and (perhaps) an airborne command post were downed, and more than a dozen Russian soldiers and airmen died. And in Voronezh, a fuel depot exploded, leading Prigozhin to charge that Russian forces were attacking civilian targets. The military and law enforcement agencies took up defensive positions in and around Moscow, and obstacles were erected on the approaches to the city.

Then, as quickly as it had begun, the rebellion was over (ISW, 25 June). Late Saturday, June 24, the Kremlin announced that Belarusian President Alexander Lukashenko had brokered a deal with Prigozhin. He would go to Belarus, charges against him would be dropped, no Wagner Group troops would face criminal changes, and those who did not participate in the rebellion could sign contracts with the Russian Ministry of Defense. Prigozhin released an audio message in which he claimed his "march for justice" had been successful and directed his forces to return to their training grounds to keep the situation from "turning bloody." Further specifics of the deal, such as the timeline, are currently unavailable, although Wagner Group forces have withdrawn from Rostov-on-Don and Chechen forces that had deployed to the region to deal with the Wagner Group also withdrew.

This post examines the legal status of the events that unfolded over roughly 24 hours on Saturday. Building on an earlier Articles of War post, I conclude that they did not trigger a non-international armed conflict (NIAC) between Russia and the Wagner Group, alongside the international armed conflict between Russia and Ukraine that has been underway since 2014.
Non-International Armed Conflict
Obviously, the confrontation between the Wagner Group and government forces was not part of Russia's ongoing international armed conflict with Ukraine. Ukraine exercises no control over the group's actions, which it has been fighting almost since the commencement of the most recent phase of the conflict that began in February 2022.

Accordingly, the question as to the legal status of the incident turns on whether it qualified as a NIAC or was merely an "internal disturbance," such as a "riot or isolated and sporadic act of violence," which does not qualify as armed conflict ( see Additional Protocol II, art. 1(2), reflecting customary law on this issue; DoD Law of War Manual, § 3.4.2.2). As the International Criminal Tribunal for the former Yugoslavia (ICTY) observed in , a NIAC must be distinguished from "banditry, unorganized and short-lived insurrections, or terrorist activities" (¶ 562). It is a distinction that finds roots in the 1952 Commentary to the Geneva Conventions (GC I Commentary at 50).

In Tadić, the ICTY described NIACs as " protracted armed violence between governmental authorities and organized armed groups or between such groups within a State" ( Decision on Defense Motion, ¶ 70) (emphasis added); see also DoD Law of War Manual, § 3.4.2.2). Other international tribunals have adopted that definition, and it appears in the Statute of the International Criminal Court (e.g., ICC Statute, art. 8(2)(f); ICTR, Akayesu; SCSL, Fofana, decision on appeal regarding jurisdiction). Additional Protocol II to the Geneva Conventions, which deals with certain NIACs for Parties to the instrument (including Russia), likewise refers to conflict between a State "and dissident armed forces or other organized armed groups" ( art. 1(1)). Based on these and many other sources, it is clear that two cumulative criteria determine whether a conflict is non-international in character: 1) the degree of organization of the group fighting the State (or another non-State group) and 2) the intensity of the violence.
Organization
As noted, a NIAC can occur between a State and a "dissident armed force" or "other armed group" or between organized armed groups (OAG). Whether the Wagner Group qualifies as part of the Russian armed forces and is, therefore, a "dissident" armed force is an unsettled question (see Maddocks and Williams here, here, and here). However, for our purposes, that issue is irrelevant; both types of groups are subject to the "organization" criterion.

The ICTY noted in that "some degree of organisation by the parties will suffice to establish the existence of an armed conflict" (¶ 89; see also Akayesu, ICTR, ¶ 620). The Tribunal offered indicators of organization in its judgment:

the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords (¶ 60; see also ICC, Lubanga, ¶ 537).

The Wagner Group clearly is a well-organized entity. It has a unified command, and its forces operate in a coordinated manner. Indeed, in terms of organization, it resembles a standard military unit.

One aspect of the organization criterion occasionally causes confusion. According to Article 1(1) of Additional Protocol II, an OAG must be able to "implement" the Protocol. The requirement is understood as an ability to comply with and enforce international humanitarian law (IHL), typically through an internal disciplinary system (ICRC Commentary, ¶ 4470). As I have explained elsewhere, it is reasonable to characterize this condition as applying to all NIACs (see, e.g., ICTY, Boškoski, ¶ 205), not just Additional Protocol II NIACs (see discussion below).

As has been well-recorded in Articles of War and elsewhere, the Wagner Group has engaged in appalling IHL violations on a systematic basis (see, e.g., here and here). However, there is no requirement for an OAG to enforce IHL before a situation qualifies as a NIAC, only that it can do so. The Wagner Group enforces strict military discipline, albeit a discipline based on a "sense of fear of punishment" (as in shooting those who surrender or retreat). Brutal as its discipline is, the group satisfies the "ability to implement" condition.

The more challenging question is whether the situation satisfied the intensity criterion. This criterion has two elements: the extent (scale and scope) of the hostilities and their duration (often referred to together as the intensity criterion).

Various tribunals and non-binding guidance have dealt with the first. For instance, in its 2020 Commentary on the Third Geneva Convention, the ICRC observed, "the requisite degree of intensity may be met when hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces" (¶ 465). The International Criminal Court similarly pointed to "the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, [and] the mobilisation and the distribution of weapons among both parties to the conflict" as indicia in (¶ 538). Earlier, the ICTY had offered a range of oft-cited "indicative factors" in :

The seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements (¶ 177; see also ICTY, Mrkšić, ¶ 407; Dordević, ¶1526).

There was no widespread, intense fighting between the Wagner Group and government forces. However, the Wagner Group did operate freely in large swaths of territory, including a major city. It also effectively neutralized the Russian forces in that area (or at least rendered them passive). A large force marched on Moscow with heavy equipment, and the Russian military engaged it militarily. And Russian law enforcement authorities lacked the capability to take on the Wagner Group.

Thus, there are factors cutting both ways. But with only about a dozen casualties and limited destruction of equipment, it is difficult to label the violence as "intense." In my opinion, the Wagner Group's actions presaged violence of sufficient intensity, but because the group did not engage Russian forces except in skirmishes along the road to Moscow, the intensity threshold was not reached. Near bloodless coups d'état do not qualify as armed conflict.

Also problematic is the matter of duration. As noted in Tadić and reflected in the ICC Statute, a non-international armed conflict involves " protracted armed violence" (see also International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties, art. 2(b)). Isolated and sporadic violence does not suffice. The question is, "How long is long enough?"

In its 1997 decision, the Inter-American Commission on Human Rights found that a 30-hour attack by 42 armed persons on a military barracks in Buenos Ares, with three dozen deaths, qualified as a NIAC (¶ 136). The decision has been criticized, and rightly so ( Sivakumaran at 169). Indeed, as discussed above, the Tadić judgment and the ICRC's original Commentary to the Geneva Conventions excluded insurrections that were "unorganized and short-lived." For example, the 2016 attempted coup by dissident armed forces in Turkey involved advanced weaponry and resulted in hundreds of deaths and thousands of injuries but lasted less than 24 hours. Although satisfying the organization and intensity criteria, it was generally not characterized as a NIAC because it ended quickly. As Yoram Dinstein has suggested, the duration requirement "cannot plummet down to just a few hours or even a couple of days . . . evanescent violence by mutinous troops does not pass the test of a NIAC" (p. 42-43).

But one must be cautious about according too much weight to the factor of duration. The ICRC has observed in its Commentary on Common Article 3 that "depending on the circumstances, hostilities of only a brief duration may still reach the intensity level of a NIAC if, in a particular case, there are other indicators of hostilities of a sufficient intensity to require and justify such an assessment" (GC III Commentary, ¶474). Earlier, the ICTY had noted, "The criterion of protracted armed violence has therefore been interpreted in practice, including by the Tadić Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration" ( Haradinaj, ¶ 49). Similarly, the International Law Association's Report on the Meaning of Armed Conflict concluded that "The two concepts, intensity and protraction, are linked and a lesser level of duration may satisfy the criterion if the intensity level is high." As the report points out, "intensity is the more important criterion" (p. 30). But duration nevertheless matters. And this incident lasted but a day.

Considering that significant violence did not occur and that the Wagner Group terminated its operations in a very short period, the incident is best characterized as falling short of the non-international armed conflict threshold.
Why it Matters: The Law Governing NIACs
When internal violence does not rise to the level of an armed conflict, domestic law (especially criminal law), domestic emergency regulations, and applicable human rights law shape the government's response. But if the situation qualifies as a NIAC, IHL applies alongside, and sometimes in lieu of, domestic and human rights law. That is why the status of the incident matters.

Had the incident qualified as a NIAC, Common Article 3 of the 1949 Geneva Conventions, which also reflects customary IHL, would have applied. That provision sets forth specific prohibitions, limitations, and obligations governing the conduct of the parties to a NIAC, including OAGs. Furthermore, since 1989, Russia has been a Party to Additional Protocol II to the Geneva Conventions (unlike the United States), which sets forth more robust and detailed rules. The instrument only applies, according to Article 1(1), to NIACs in which OAGs "exercise such control over a part of [the State's] territory as to enable them to carry out sustained and concerted military operations." But had the Wagner Group exerted such a degree of control over territory that it could be said it was "in the group's hands," the rules set forth in Additional Protocol II would have bound both Russian and the Wagner Group's forces. For instance, the treaty's provisions extending IHL protections beyond those found in Common Article 3 and customary law, such as special protection for installations containing dangerous forces, would have applied.

Most importantly, customary IHL rules governing non-international armed conflict would have come into play (see San Remo NIAC Manual and the ICRC's Customary IHL study). There is broad agreement that they include, inter alia, prohibitions on attacking civilians or civilian objects, using the Red Cross or other distinctive emblems while engaging in an attack, conducting disproportionate attacks, declaring no quarter, taking hostages, using protected persons or objects to shield, pillage, offering rewards for persons dead or alive, and collective punishment (see DoD Law of War Manual, §§ 17.6 and 17.7).

Had a NIAC been underway, the critical operational significance is that status-based targeting against OAG members would have been permissible. In other words, Russian forces would have been entitled to attack members of the Wagner Group regardless of whether they represented an immediate threat to life (or risk of grievous bodily harm) to oneself or others.

But even in situations amounting to a NIAC, members of an OAG like the Wagner Group enjoy no immunity from domestic prosecution for participation in the conflict, including attacking government forces. Similarly, there is no prisoner of war status during a NIAC, although members of OAGs enjoy some limited IHL protections, such as Common Article 3's prohibition of "outrages upon personal dignity, in particular, humiliating and degrading treatment" and "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
Conclusion
In my estimation, the actions of Yevgeny Prigozhin and his Wagner Group did not spark a non-international armed conflict with Russia. As a result, the actions of the group's members, including Prigozhin, are subject to domestic criminal law (although they appear to have been granted immunity) but not to the IHL rules cited earlier.

That said, had more than skirmishes broken out between the Wagner Group and Russian forces, especially considering the scale and scope of the group's operations, the requirements for a NIAC would have been satisfied. As the incident winds down, a serious risk of further confrontations, and therefore the outbreak of a NIAC, remains.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Photo credit: Fargoh via Wikimedia Commons

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Was Russia at War with the Wagner Group? - Lieber Institute West Point

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Prigozhin-Kremlin standoff on did not trigger a NIAC between Russia and Wagner alongside IAC between Russia and Ukraine underway since 2014.

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U.S. Cooperation with the ICC to Investigate and Prosecute Atrocities in Ukraine: Possibilities and Challenges - Laura A. Dickinson - 20 June 2023

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U.S. Cooperation with the ICC to Investigate and Prosecute Atrocities in Ukraine: Possibilities and Challenges - Laura A. Dickinson - 20 June 2023

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U.S.-ICC Symposium - U.S. Cooperation with the ICC to Investigate and Prosecute Atrocities in Ukraine: Possibilities and Challenges - Lieber Institute West Point

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A workshop at The George Washington University Law School explored issues related to U.S. cooperation with the ICC Ukraine investigation.

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Tracking State Reactions to the Destruction of the Kakhovka Dam - Alonso Gurmendi - 20 June 2023

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Tracking State Reactions to the Destruction of the Kakhovka Dam - Alonso Gurmendi - 20 June 2023

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On the morning of June 6 th, 2023, Ukraine accused Russia of destroying the Kakhovka Dam in the Dnieper River. A few hours later, during the afternoon on the same day, Russia blamed Ukraine for the destruction. Since then, I searched and collected statements by forty-nine other states addressing the destruction. This post analyses and systematises these forty-nine reactions in order to offer a clearer outlook of what the position of the international community is. As an extra tool for researchers, I am also attaching an infographic summarising my findings and a chart collecting all statements.

Before I present these findings, however, a few notes on methodology. As you will see in both the infographic and the chart, the data here collected is organised along two main indicators: "Attitude" and "Attribution". Attitude notes the tone of the state's statement with regards to the destruction. These can be "Negative", meaning that the state considered the destruction to be (to put it simply) "a bad thing"; "Neutral", meaning that the state expressed no approval or disapproval of the destruction; or "Positive", meaning that the state considered the destruction to be "a good thing". Negative statements include wordings such as condemnations, and expressions of appalment or shock. Neutral statements include mere expressions of concern, without actually qualifying the position further, or invocations for "both parties" to respect international law or punish those responsible. While there were no Positive statements, these would in theory include expressions welcoming the destruction or praising the author.

I have further divided the "Negative" indicator to into a smaller category labelled "Illegal". This means that the state not only condemned the attack, but actually thought it breached international law or international humanitarian law. Within this indicator, I have included two more subcategories: those states that thought the destruction was illegal because it was a war crime, and those that thought so because it was an act of terrorism. All states that concluded the latter also concluded the former, so "Terrorism" should be seen as a subcategory of "War Crimes" for the purposes of the graph. To qualify for these subcategories, states had to make express claims. General references to international law and international humanitarian law were not enough. States had to call the destruction a crime (not necessarily a war crime, though) or an act of terrorism.

Attribution relates to whom the state considers to be responsible for the destruction. This is the more nuanced of the indicators, as many states were relatively cryptic in their statements, sometimes even making implied or tacit accusations, like not explicitly mentioning the author of the attack but expressing solidarity to the state or government of Ukraine (as opposed to "the Ukrainian people") in the face of the attack. This means that there will be inevitably some nuance on how I interpreted these tacit statements and there is certainly room for disagreement. This is not meant as a final ruling on the matter and many will read several statements differently than me; which is, in all honesty, why I am providing access to all of them through the attached chart.

One common yet particularly obscure way of phrasing statements involved arguing that the destruction of the dam was "a consequence of Russia's war of aggression". This drafting was used by Bulgaria, Canada, France, Germany, Iceland, Japan, Switzerland, and the US. I have considered these statements as "Unattributed", since the wording could, potentially (albeit, I grant, improbably) denote that even if Ukraine had been responsible for the destruction specifically, the only reason why it had been destroyed was because Russia launched a war of aggression in the first place. This seems therefore like a clever way for Western states to not rush their claim of attribution, while at the same time clearly criticising Russia. The only exceptions to this were Montenegro and North Macedonia. Montenegro issued a statement calling the destruction "a part of the ruthless war of aggression against innocent civilians in Ukraine" and committing to provide help "to friendly Ukraine, which bravely stands in the line of defence of our common values". North Macedonia condemned the attack and ended with an emphatic "Russian aggression must stop!" In my opinion, Montenegro and North Macedonia are saying that the attack itself is a part of Russia's strategy and not simply an unattributed consequence of its war - but of course, readers might disagree.

With these methodological precisions out of the way, what do these statements tell us about the relevance of the destruction of the Kakhovka Dam? One first key aspect is an international law argument. As Marco Milanovic stated over at EJIL Talk!, "IHL does not regard as attacks the sabotage of a party's own dam". Thus, if, as it seems most likely, it was Russia that destroyed the dam with a planned explosion in territory it controlled, it is legally questionable whether such action can be described as an "attack" (even if it does count as a war crime). And yet, several states have clearly stated that the destruction was an attack. This was the case with the statements from Albania, Belarus, Czechia, Estonia, Georgia, Latvia, Lithuania, Malta, North Macedonia, Poland, Romania, Russia, Slovakia, and Ukraine.

From a legal perspective, it is also worth noting that 27 states considered the destruction of a dam (i.e. civilian infrastructure containing dangerous forces) an illegal act, including both Russia and Ukraine. In fact, not a single state defended its legality. This strengthens the ICRC's conclusion that under customary international law, works and installations containing dangerous forces "may not be made the object of attack" and that "particular care must be taken (...) in order to avoid the release of dangerous forces and consequent severe losses among the civilian population".

Beyond these legal claims, it is perhaps most interesting to read this data in the context of the West's continuing bafflement about why the Global South is not joining the West against Russia. When looked at from this perspective, only 13 countries outside of Europe and North America issued statements: Brazil, Chile, China, Georgia, Guatemala, Iran, Israel, Japan, New Zealand, Peru, Syria, Turkey, and UAE. Of these, Brazil, China, Turkey, and Iran issued Neutral statements.

One thing that is sure to complicate this debate about the Global South's position even further is that it took a long time for Russia's traditional allies to speak out; and when they did, the reaction was underwhelming. Belarus, Iran, and Syria, in fact, waited 48 hours and only issued statements on June 8 th. While Syria and Belarus sided fully with Russia, Iran decided to stay neutral. Interestingly as well, Belarus' statement is particularly timid: "You can probably know who destroyed the Kakhovka HPP", said Belarus' President Lukashenko, "[i]t is clear that Ukraine had to disguise its three day counteroffensive (...) that is why they are talking about Kakhovka". While this is clearly implying that Ukraine is responsible for the destruction, it is certainly very far from a clear-cut condemnation. Is it possible, therefore, that it took two days for Russia to convince its closest ally to come out in favour of the attack and this was the best it could get out of them?

Belarus is not the only suspicious case, particularly if we consider which states did not issue statements. In fact, Bolivia, Cuba and South Africa, all had clear opportunities to address the destruction but decided not to. In Bolivia, the Minister of Foreign Affairs gave a long speech about the war before the country's Senate during an impeachment hearing; in South Africa, President Ramaphosa held an extended press conference where he announced the start of a peace mission to Russia and Ukraine; and the Cuban Prime Minister met with the Russian Vice-President. And yet, none of these three countries with strong strategic and/or historic ties to the Kremlin even mentioned the dam (and therefore refused to follow Russia's narrative). Perhaps most surprisingly, the traditionally vocal Venezuelan regime remained absolutely silent, perhaps seeking to avoid complicating its recent rapprochement with the US. Hungary and Serbia, two other states friendly to Russia, also remained silent.

While we can speculate about why Russia had a hard time nudging its allies, it is also undeniable that the attack was perceived by the Global South as mostly a European affair: not a single African state issued a statement and neither did India, South Korea, Indonesia, Saudi Arabia, Pakistan, Mexico, or Argentina. In fact, if we single out those states that made the most condemnatory statements (e.g. those that called the attack an act of terrorism or a war crime and attributed it to either Russia or Ukraine), then the destruction of the Kakhovka Dam was clearly an Eastern European affair: Albania, Croatia, Czechia, Estonia, Georgia, Latvia, Lithuania, Poland, Moldova, Romania, Slovakia, and Ukraine issued such statements condemning Russia, with Syria and Russia itself being the only outliers, issuing similar statements, but in condemnation of Ukraine. Instead, NATO's most powerful members remained relatively moderate: while Canada, France, Germany, the Netherlands, the United Kingdom, and even the US, all condemned the destruction, their statements fell short of attribution. The only non-Eastern European NATO members to blame Russia were Italy, Norway, and Portugal. Three NATO members, in fact, Belgium, Denmark and Turkey, issued Neutral statements, not even condemning the destruction of the dam.

In other words, as a general rule, the further away from Eastern Europe, the less drastically states reacted. This is particularly interesting, considering one of the most popular excuses for Russia's war of aggression: that the West encroached upon its "sphere of influence". With the exception of Hungary, Belarus and the non-NATO Balkans (Bosnia & Herzegovina, Kosovo, and Serbia), all Eastern European states condemned Russia for the attack, including, relevantly, former Soviet or Warsaw Pact states. This seems to confirm, therefore, that the old East-West axis is not the one defining 21 st century international relations: in Europe, the "old East" is now clearly aligned with the West, even in those countries not yet incorporated into NATO. After all, it was not Georgia, Hungary, Moldova, or Serbia that (I believe) Russia took two days to convince to come out in its defence; it was Syria.

Similarly, the emerging powers competing with the West, but trying to find a non-aligned middle-ground to inhabit, not with the West but also not with Russia, are all outside the East-West axis, but rather on a North-South one: Brazil, China, Iran, which issued Neutral statements, and South Africa, which launched a peace mission.

The world painted by the reaction to the Kakhovka Dam, therefore, looks very different to the Cold War's, despite the insistence by some that this East-West split still explains the world - that the "real cause of the war" is the US' desire to "turn Ukraine into a pro-Western liberal democracy". Looking at the reaction from states like Moldova, Georgia, and Ukraine, and considering the outrage by the vast majority of former-Soviet and former-Warsaw-Pact NATO states, these parts of the world are already clearly "pro-Western" and fairly liberal. To find the kind of ideological and geopolitical competition these views seek, one needs to look away from Russia (now rather perceived as a rogue actor) and instead either travel to the South (Brazil, South Africa) or further to the East (China).

This is not to say, however, that the axis is changing from East-West to North-South. As the deafening silence from the Global South shows, most Southern states don't see this as a conflict that requires their constant participation and taking of position. This is especially the case when Russia controls access to fertilisers and feedstocks at a time of high food inflation. Thus, instead of seeing the world with Cold War goggles we should start to look at it in terms of how so-called "emerging powers" (most notably Brazil, China and South Africa) are taking advantage of the war to try to carve what Brazilian scholar, Oliver Stuenkel, calls a "post-Western order" - a "parallel order" that will "initially complement, and later possibly challenge, today's international institutions". As he points out, "[t]hese structures do not emerge because China and others have fundamentally new ideas about how to address global challenges or because they seek to change global rules and norms; rather, they create them to better project their power, just as Western actors have done before them."

I hope this post and its accompanying materials are of use for researchers. I will continue to track major events in the War in Ukraine going forward. For now, you can find the infographic and chart ready for download below.

To download the Chart, click here.

To download the Infographic, click here.

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Tracking State Reactions to the Destruction of the Kakhovka Dam

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On the morning of June 6th, 2023, Ukraine accused Russia of destroying the Kakhovka Dam in the Dnieper River. A few hours later, during the afternoon on the same day, Russia blamed Ukraine for the destruction. Since then, I searched and collected statements by forty-nine other states addressing the destruction.

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Enforcing Sanctions Violations to Fund the Reconstruction of Ukraine - James Patrick Sexton and David Kinnecome - 8 June 2023

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Enforcing Sanctions Violations to Fund the Reconstruction of Ukraine - James Patrick Sexton and David Kinnecome - 8 June 2023

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Enforcing Sanctions Violations to Fund the Reconstruction of Ukraine

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Introduction As the Russian Federation's full-scale invasion of Ukraine continues into its second year, Ukraine's reconstruction and recovery is estimated by the World Bank to cost, at a minimum, $411 billion. With no realistic prospect of a negotiated settlement to the conflict in sight, Ukraine and its international partners are rightfully seeking pathways to fund [...]

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Invoicing Russia for Ukraine’s Recovery: The Complexities of Repurposing Frozen Russian Assets -  Paul Williams and Alexandra Koch - 12 May 2023

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Invoicing Russia for Ukraine’s Recovery: The Complexities of Repurposing Frozen Russian Assets -  Paul Williams and Alexandra Koch - 12 May 2023

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Invoicing Russia for Ukraine's Recovery: The Complexities of Repurposing Frozen Russian Assets

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Dr. Paul R. Williams is the Founder of the Public International Law & Policy Group (PILPG), the Rebecca I. Grazier Professor in Law and International Relations at American University, and a world-renowned peace negotiation lawyer who has assisted over two dozen parties in major international peace negotiations.]

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Understanding Russia’s Actions in Ukraine as the Crime of Genocide -Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian, Volodymyr Venher (2023) Journal of International Criminal Justice

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Understanding Russia’s Actions in Ukraine as the Crime of Genocide -Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian, Volodymyr Venher (2023) Journal of International Criminal Justice

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Understanding Russia's Actions in Ukraine as the Crime of Genocide

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Abstract. The new wave of Russia's aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave

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Environmental Destruction in War: A Human Rights Approach - Daniil Ukhorskiy - 19 June 2023

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Environmental Destruction in War: A Human Rights Approach - Daniil Ukhorskiy - 19 June 2023

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Environmental Destruction in War: A Human Rights Approach

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In the early hours of June 6, 2023, the 468th day of Russia's full-scale invasion of Ukraine, the Kakhovka Dam across the Dnipro River was destroyed. The catastrophic consequences of the destruction are readily apparent. Dozens of settlements have been flooded and thousands of people are fleeing the destruction, having lost their homes and livelihoods.

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No Two Cases are the Same - Stephen Lamony - 12 June 2023

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No Two Cases are the Same - Stephen Lamony - 12 June 2023

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Stephen A. Lamony is an international lawyer.] Last March, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued an arrest warrant for Russian Federation President Vladimir Putin. The arrest warrant has sparked a worldwide discussion on international cooperation with the ICC; mainly whether South Africa will arrest Putin if he visits the country for the 15th BRICS Summit....

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The war in Ukraine and the curtailment of the veto in the Security Council - Anne Peters (2023) 5 Revue Europeenne de Droit

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The war in Ukraine and the curtailment of the veto in the Security Council - Anne Peters (2023) 5 Revue Europeenne de Droit

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Security Council reform on the road to nowhere

Soon after the foundation of the United Nations, the political split of the world into two hostile blocks paralysed the Security Council until 1991. The period of overall Council activism since 1991 has meanwhile given way to a concentration of Council action against non-state actors in the fight against global terrorism, and to selectivity in the field of sanctions against states. The permanent members of the Security Council and their clients, ranging from Israel over North Korea to Syria, remain protected from any Council action. In addition, the Security Council suffers, as mentioned, from the increasingly obvious unfair veto privilege of the 'old' powers.

There was a real window of opportunity for Security Council reform from 1992 to 1997, but this opportunity was missed. After further momentum between 1998 and 2008, the negotiations have been, as Bardo Fassbender put it, 'on a road to nowhere'. The political reasons for the deadlock are the national interests of states which all fear to loose something in comparison to the status quo. The legal difficulty is the requirement of a 2/3 majority of the members of the General Assembly and of a ratification by all five permanent members of the Security Council. This legal threshold would-in the present constellation-seem to constitute an unsurmountable obstacle against a formal revision of Art 27(3) of the Charter which embodies the veto. Therefore, the informal changes of the working methods and reforms 'below' the level of a formal Charter revision are crucial. On this level, the war in Ukraine has catalysed important developments.

The veto initiative of 26 April 2022

The Russian aggression pushed long-standing efforts to curtail the veto towards a procedural reform. Already in 1949, in its resolution 'Essentials of Peace', the General Assembly had called on the Security Council's permanent members '[t]o broaden progressively their cooperation and to exercise restraint in the use of the veto'. Fast-forward seventy years: on 26 April 2022, two months after the Russian invasion in Ukraine, the UN General Assembly adopted the so-called 'veto initiative.' This reform was co-sponsored by 83 states from every UN regional group, including the three Western permanent members of the Security Council. Under GA Resolution 262/76, the President of the General Assembly must 'convene a formal meeting of the General Assembly within 10 working days of the casting of a veto by one or more permanent members of the Security Council, to hold a debate on the situation as to which the veto was cast, provided that the Assembly does not meet in an emergency special session on the same situation'. The permanent member that cast the veto may speak first in the mandatory General Assembly debate. Moreover, the General Assembly 'invites' the Security Council 'to submit a special report on the use of the veto in question to the General Assembly at least 72 hours before the relevant discussion in the Assembly'. The resolution finally foresees a provisional agenda item entitled 'Use of the veto' for the next General Assembly. In result, this important resolution establishes a standing mandate to publicly discuss and criticise each and every veto in the General Assembly, i.e. by all member states.

The US-American self-commitment not to veto of 8 September 2022

The other attempt to restrain the veto was the French-Mexican initiative, first launched by French state representatives in the press in 2013 and then tabled in the 70 th General Assembly of 2015, as a 'Political statement on the suspension of the veto in case of mass atrocities'. It proposes 'a collective and voluntary agreement among the permanent members of the Security Council to the effect that the permanent members would refrain from using the veto in case of mass atrocities.' This statement has been signed by 104 UN member states and two observers, but among the permanent members only by France. Observers have explained the renunciation on the veto by France and the UK (which signed the ACT code of conduct mentioned above) as these two European middle powers' implicit acknowledgment that the exercise of their veto would be illegitimate. Indeed, the French and British veto competence can no longer obviously be justified by these states' military capacity to guarantee world peace. On the other hand, both states are nuclear powers, and they continue to project military force outside Europe. Moreover, the most recent self-commitment by the US cannot be taken as an admission of relative military weakness. Therefore, it should not be excluded that all three Western veto-powers are driven, inter alia, by the normative convictions about the impropriety of exercising the veto in situations of mass atrocities.

The two earlier initiatives were launched with the scenarios of Rwanda, Bosnia, and Myanmar in mind. They seek to foreclose the exercise of the veto in a situation of imminent or ongoing core crimes which are typicallycommitted by non-state or para-state groups, often orchestrated by a state (not necessarily by a permanent member of the Security Council itself).

The situation of Ukraine since 2014 and more even since 2022 is different. Here a permanent member is itself committing an aggression, a crime that is not mentioned by the ACT-initiative and not normally understood to fall under 'mass atrocities' in terms of the French-Mexican initiative. However, there is an overlap between mass atrocities, war crimes, and aggression. It would seem that the ACT code and the French-Mexican voluntary agreement would a fortiori cover the situation that a state is itself committing these crimes and not only asked to prevent or stop another (non-state) actor from committing them.

In conclusion, all three 'Western' permanent members are now self-committed not to veto Security Council action against core crimes (arguably including their own crimes). The exact normative status of these self-commitments is not fully clear. They have not been framed as formally binding unilateral declarations. The headings such as 'code of conduct' and 'political statement' and 'remarks' rather point in the direction of 'pure' politics. Moreover, all commitments leave loopholes. The French-Mexican initiative has a carve-out for 'vital national interests', and the US 'remarks' leave out 'rare, extraordinary situations' that remain undefined. But even these political commitments may over time (through consistent observance) acquire a soft legal quality. Their normative relevance is secured only by the reputational costs that a breach of the promise would entail. With these caveats, the three powers' commitments are faithful to the historic pledge of the veto powers. They bolster the legitimacy of the Security Council.

The veto initiative in practice

The veto initiative as implemented by the General Assembly in 2022 differs from the pledges just mentioned. It does not foresee a 'responsibility not to veto' as it has been called in scholarship, but 'only' a mandatory General Assembly debate. It operationalises ideas that had been formulated in prior scholarship. For example, Daniel Moeckli and Raffael Nicolas Fasel have elaborated the duty to give reasons in the Security Council. Devika Hovell has drawn out the duties to notify, to inform, to consult, to give reasons, and to account, as part of the Security Council's fiduciary role. Anna Spain has expounded the Security Council's duty to decide in a prima facie Article 39 situation, and its duty to disclose, and to consult. Spain postulates a duty to decide that triggers the Council's duty to examine whether a threat or breach to peace is present. Next, a duty to disclose is prompted when the Council is unwilling or unable to decide (eg due to a veto): in that case, the Council must, according to Anna Spain, issue a public statement and provide justification why it has not decided. Spain argued that this disclosure is a procedural matter in the sense of Art 27(2) of the UN Charter, and that therefore the publication of the statement cannot be prevented by a veto. The reasoning is intriguing but it remains unclear whether the legal construct can be derived from the law as it stands. Along a similar line, the 'Elders Group' (an independent group of global leaders founded by Nelson Mandela in 2007) had in 2015 tabled a proposal on 'Strengthening the United Nations', in which the Elders suggested that the five permanent members of the Security Council should pledge not to use or threaten to use their veto in situations of mass atrocities 'without explaining, clearly and in public, what alternative course of action they propose, as a credible and efficient way to protect the populations in question'.

The procedure was triggered quite soon after being created, with a General Assembly debate on the vetoes cast by Russia and China on a draft Security Council resolution seeking to condemn intercontinental ballistic missile launches and nuclear tests by the Democratic People's Republic of Korea (DPRK), in violation of multiple prior Security Council resolutions. In the General Assembly debate of 8 and 10 June 2022, numerous states from all world regions made explicit and very positive statements on the new procedure as established by GA Res 262/76. At least 11 states qualified the debate as 'historic', as a 'milestone', or as a landmark. 16 states found that the new mechanism would enhance the transparency and accountability of the Security Council. Others saw an improvement of effectiveness or efficiency of the Council. Especially Liechtenstein expressed its hope 'that the prospect of accountability to the General Assembly will lead to more Security Council action and fewer vetoes being cast.'

Several states welcomed the empowerment and the 'vital' role of the General Assembly. The state using veto would no longer have 'the last word', but the Assembly could step in and assume a useful function. GA Res 262/76 marks, according to Uruguay, 'a turning point in the relationship between the Council and the Assembly'. Other states pointed out that the new mechanism serves to upholding, strengthening or improving the multilateral system. Only Syria criticised the new standing debate in the General Assembly, deploring a 'political polarization'. Although it is true that publicity always carries the risk of 'show debates' in which the antagonist positions are hardened, the Syrian critique is in the end not convincing. The publicity of a General Assembly debate might just as well ultimately allow for consensus-building. Syria's lonely voice should rather be taken as a manifestation of complete dependence of the Syrian government on Russia-after all it owes its sheer existence to the Russian military assistance in its criminal oppression of its uprising population.

The third application of the new mechanism again concerned Ukraine. Albania and the United States of America had tabled a draft resolution to condemn and declare invalid the referendums conducted at the end of September 2022 in the occupied zones Donetsk, Luhansk, Kherson und Zaporizhzhya. Russia cast its veto on 30 September 2022. The 'special report' required under GA
Res 262/76 was transmitted by the President of the Security Council to the President of the General Assembly on 4 October 2022. This report was a one pager that merely recapitulated the procedure, listed the relevant documents, and stated that 'the resolution obtained the required number of votes, but was rejected because a permanent member of the Security Council voted against its adoption.' In the future, it is conceivable that such reports become more elaborate, but this does not seem to be necessary to trigger the General Assembly debate.

Assessment and Outlook

A Chinese concern is that the new procedure risks to cause 'procedural confusion and inconsistency'. This is a very old trope, reminiscent of the Soviet opposition to the so-called 'Uniting for Peace' procedure established in 1950. Indeed, Art 12 of the UN Charter establishes a procedural priority of the Security over the General Assembly by prescribing that, '[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.' But this provision does not prevent the General Assembly from pronouncing itself on an issue when the Security Council is precisely not exercising its function due to blockage by a veto. The 'Uniting for Peace' mechanism had been mainly dormant, even throughout the war in Syria, but has now been activated in the Ukrainian crisis. Three days after the Russian invasion, the Security Council decided to call the 11 th Emergency Special Session of the General Assembly because 'the lack of unanimity of the permanent members at its 8979th meeting has prevented it [the Council] from exercising its primary responsibility for the maintenance of international peace and security'. (This is a procedural decision and not subject to the veto (Art 27(2)). Politically speaking, the 'Uniting for Peace' was a baby of US politics, and was occasionally criticised by the USSR. However, the USSR itself has invoked the Uniting for Peace procedure in the 1950s and 1960s (with regard to the Suez crisis and the Six Day Arab-Israeli War). Its application in the Ukraine crisis has placed the lawfulness of the Uniting for Peace-procedure beyond any doubts. The General Assembly has the implied power to act, a contrario Art 12, in the event of a failure or deadlock of the Council.

The difference between Charter amendment and reform of working methods is only-but importantly-that the latter can be legally framed as dynamic interpretation of the UN Charter through subsequent practice. The UN Charter, formally a treaty, may be interpreted (and re-reinterpreted) by 'taking into account' any 'subsequent agreement between the parties regarding the interpretation of the treaty' (Art 31(3) lit. a) of the Vienna Convention on the Law of Treaties) or by taking into account 'any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation' (Art 31(3) lit. b) of the Vienna Convention on the Law of Treaties). If all member states agree on such a course, it would be in the end acceptable in legal terms, because the lines between mere 'interpretation' of the Charter and its tacit amendment are blurry both in legal theory and in fact, and because member states may in an ad hoc fashion agree to change the rules of revision. It is often argued that the UN Charter is particularly prone to and in need of dynamic interpretation due to its constitutional character and due to the difficulty of formal amendment. On the other hand, 'informal' amendments in the guise of dynamic interpretation risk to undermine legal clarity and security.

Another question is whether the new procedures could even morph into customary law. This seems difficult for various reasons. Commitments that are explicitly called 'political' as opposed to 'legal' cannot easily count as a manifestation of opinio juris. Moreover, two permanent members of the Security Council oppose the trend, but they are states whose interests are specially affected and whose opinion and practice would be needed for a maturation of a customary rule. And finally, a custom superseding and deviant from the written Charter law is in normative terms unwelcome because it risks to undermine the Charter.

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The war in Ukraine and the curtailment of the veto in the Security Council - Groupe d'études géopolitiques

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Russia repeatedly vetoed draft Security Council resolutions that concerned its military activities in the neighbouring state of Ukraine, both in 2014 and in 2022. In this context, after the Russian full-blown invasion, the US ambassador to the United Nations stated that 'any Permanent Member that exercises the veto to defend...

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War in Ukraine: Mutation or Resilience of the Principles of the United Nations Charter? - Alain Pellet (2023) 5 Revue Europeenne de Droit

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War in Ukraine: Mutation or Resilience of the Principles of the United Nations Charter? - Alain Pellet (2023) 5 Revue Europeenne de Droit

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It is surely no exaggeration to state that never since 1945 has the international legal order been confronted with existential threats as great as those that have accumulated since the beginning of the 2020s. Some are immediate, others medium- or long-term, but all are due-more or less directly-to the folly of men, the inability of politicians to assume their responsibilities and resist the sirens of nationalism and populism and, sometimes, the demons of their own greed. The Russian aggression against Ukraine is only one of many such threats-the most spectacular without doubt, but not necessarily the most perilous on the long run.

The noble ideals of 1919, 1928 or 1945 of 'outlawing war' have in no way eradicated armed conflicts, neither international nor internal. Russia's aggression against Ukraine, however spectacular and ubiquitous, is far from being unprecedented; the US and UK's aggression against Iraq in 2003 is a recent and lamentable example. The fact remains that never since 1945 have so many of the principles of the United Nations Charter been so cynically flouted by a great power; never since the Cuban Missile Crisis of 1962 has the threat of the use of nuclear weapons been so openly brandished, with the exception of North Korea, a loyal supporter of Russia; never since the Second World War has an armed conflict, albeit limited to the territory of a single state, had such harmful consequences for so many countries.

This has led to major changes in the content and ordering of international legal principles and rules-and many other changes are yet to come. But it is still difficult, if not impossible, to assess with certainty the direct implications of the war in Ukraine and the devastation wrought by all the other crises that have revealed the flaws in the international legal order.

By launching its 'special military operation', the President of the Russian Federation violated almost all the principles set forth in Article 2 of the United Nations Charter.

There is no doubt that Russia violated the principle embodied in paragraph 4, which enjoins members to refrain 'in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations'. This principle allows for only two exceptions: a decision of the Security Council under Chapter VII of the Charter authorizing the use of armed force, which is obviously out of the question in the present circumstances, or a situation of self-defense, contemplated in Article 51. Invoked by President Putin, this circumstance cannot be upheld even if Russia formally complied with the procedural obligation to 'report[] to the Security Council' the measures taken in the exercise of this 'inherent right' by sharing the speech of the Russian President delivered in the early hours of 24 February before the start of the 'special military operation'.. On the merits, the fanciful grounds advanced, without the slightest proof of alleged preparations for aggression by Ukraine and NATO against Russia, cannot deceive, even if one were to admit that preventive or 'preemptive' self-defence could be lawful, which is highly doubtful. The United Nations General Assembly made no mistake and, in a resolution adopted overwhelmingly on 2 March 2022 deplored 'in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter'.

Russia's self-proclaimed annexation of Crimea in 2014, followed by the Luhansk and Donetsk oblasts and the Zaporizhzhia and Kherson regions in September 2022, was a clear and serious violation of the principle of territorial integrity of States, albeit in different ways. In the case of Crimea, which became part of Ukraine in 1954, Russia did not openly use armed force despite the massive infiltration of special units which, without bloodshed or resistance from Ukrainian troops, took control of the main political centers and civilian and military infrastructure of Crimea, as a prelude to an irregular referendum. While it is a clear violation of international law, this operation could not, however, be qualified as an aggression, unlike the annexation of Donbass, which was preceded by a military, political and economic 'effective control' by Russia since May 2014 and violent fighting with the Ukrainian army. This annexation is further a clear violation of the Minsk II Agreement of 12 February 2015. In both cases, the infringement of Ukraine's territorial integrity-which should be assessed by reference to its territory at the date of independence -is blatant and has been condemned by strong UN General Assembly resolutions recalling that 'no territorial acquisition resulting from the threat or use of force shall be recognized as legal'.

By challenging the legitimacy of Ukraine's very existence as an 'artificially created' State, the Russian President is denying the sovereign equality of the Members of the United Nations, the first of the principles proclaimed by the Charter. At the same time, Russia violated both the principle of equal rights and self-determination of peoples and the principle of non-intervention in the internal affairs of States. In his speech of 24 February 2022, and in many others, the Russian head of State proclaimed his aim to 'demilitarize and denazify Ukraine' and requested its neutrality. Paraphrasing a dictum of the International Court of Justice (ICJ) in its famous 1986 ruling in the Nicaragua v. United States case: 'In any event, while [Russia] might form its own appraisal of the situation as to respect for human rights in [Ukraine], the use of force could not be the appropriate method to monitor or ensure such respect'; furthermore, 'in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception'.

By resorting to massive use of armed force to settle disputes with Ukraine-largely based on imaginary grounds-Russia has disregarded the principle set out in Articles 2(3) and 33 of the Charter that '[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered'. In his speech of 24 February 2022, Putin blamed Ukraine: 'For eight years, endlessly long eight years, we have done everything possible to resolve the situation by peaceful, political means. All in vain.' On the eve of the attack, he had declared himself 'always open to direct and honest dialogue in order to find diplomatic solutions to the most complex problems', but adding: 'However, the interests and security of our citizens are non-negotiable for us'. He and other senior Russian politicians have since repeated this 'offer' with more or less specific conditions (but always demanding the demilitarization, neutralization and 'denazification' of Ukraine and the acknowledgement of Russia's territorial gains). This empties negotiations of all meaning; as the ICJ insisted, 'the concept of 'negotiations' [...] requires-at the very least-a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute' and if there are discussions, '[the parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.'

More generally, the result of all these violations is also a clear violation of the principle set out in Article 2, paragraph 2, of the Charter that Members of the United Nations 'shall fulfil in good faith the obligations assumed by them in accordance with the present Charter'. While the principle of good faith, which is 'one of the basic principles governing the creation and performance of legal obligations [...] is not in itself a source of obligation where none would otherwise exist', all the other breaches attributable to Russia are characterized by manifest bad faith.

The result is a systematic undermining of one of the founding principles of international law, that '[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith' ( Pacta sunt servanda) -for the UN Charter is not the only treaty flouted by Russia. The major conventions on 'international humanitarian law', in particular the Geneva Conventions of 1949 (whose provisions largely reflect customary rules), are also systematically violated, justifying indictment not only of those who commit them directly on the ground but also of the head of State and other Russian decision-makers, for war crimes or crimes against humanity, as evidenced by the recent arrest warrants issued by the International Criminal Court for? against? Vladimir Putin and Maria Lvova-Belova, the Russian Children's Rights Commissioner, for their involvement in the deportation and transfer to Russia of Ukrainian children. Other more specific treaties are also violated by Russia-for example the Minsk Agreements of 2014 and 2015, and the Budapest Memorandum of 5 December 1994, in which, together with the United States and the United Kingdom, Russia undertook to 'respect the independence and sovereignty and the existing borders of Ukraine' and 'reaffirm[ed] [its] obligation to refrain from the threat or the use of force against the territorial integrity or political independence of Ukraine, and that none of [its] weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.' This may be little more than a reaffirmation of pre-existing obligations, but their restatement through commitments that are specific to the two States further reinforces their binding nature; and, in the light of the war in Ukraine initiated by Russia, its commitment under Article 4 of the Memorandum 'to seek immediate United Nations Security Council action to provide assistance to Ukraine, as a non-nuclear-weapon state party to the Treaty on the Non-Proliferation of Nuclear Weapons, if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used' sounds bitterly ironic. Moreover, Vladimir Putin's repeated threats about the possible use of such a weapon are contrary to both Article 5 of the Memorandum and the Non-Proliferation Treaty itself, which also prohibits in particularly broad and categorical terms the direct or indirect transfer of nuclear weapons or 'other nuclear explosive devices' 'to any recipient whatsoever'; the announced deployment of 'tactical' nuclear weapons in Belarus would be a further violation.

Rarely, with the exception of Nazi Germany in its time, has a State violated so many principles and rules of international law in such a short period of time. There is no doubt that this is a deliberate policy, part of the Russian dictator's desire to challenge the post-war international legal order-while pretending to aim to restore it to its original purity. Already in 2017, during the enlarged meeting of the Council of the Commonwealth of Independent States (made up of the heads of the States that emerged from the former Soviet Union), Putin had pleaded for 'the construction of a just international order based on the generally accepted principles of international law'. More recently, as his foreign minister was castigating the 'rule-based order of the West', Putin accused the United States of having 'dismantled the post-World War II architecture of international relations'.

There can be no doubt left that the accumulation of violations of the most established norms of international law by a major State-even if it is no longer a major power-with the (albeit cautious) support of China, can in itself contribute to undermining these principles. At their meeting in Moscow on 20-21 March 2023, the Chinese and Russian Presidents made no secret of their desire to radically change the international legal order, as stated by the former: 'Now there are changes that haven't happened in 100 years. When we are together, we drive these changes.' But are changes really happening? That remains unclear.

What is clear is that several factors reinforce the challenges raised to the international order, as imagined in 1945 and strengthened by the fall of the Berlin wall in 1989. Western States, which were the promoters and main beneficiaries of the international order, have themselves cynically violated the rules they claimed to impose on the rest of the world, particularly with regard to the protection of human rights and even the use of armed force; there is no doubt that, among other causes, the addition of Russian violations to the repeated breaches committed by Western countries weakens these principles. Moreover, the bipolar world in which these principles were adopted and flourished has largely been replaced by an unequal multipolarity and what has been called 'polylateralism', characterized by the role played in the definition and implementation of the rules applicable to transnational activities by a wide variety of stakeholders-states, of course, but also, to the detriment of the traditional monopoly of the latter, civil society and transnational companies. Finally, in this new environment, Russia is far from being isolated; the same challenges are raised by a large number of the States of the 'global south' and by China, which, while presenting itself as an alternative to the 'West-South' partnership and the champion of multilateralism, is working to 'confiscate' the multilateral order, thus sparking a new 'cold war'-another way of undermining the international order, undoubtedly more subtle and effective than Putin's brutality.

This being said, in a way, the aggression against Ukraine has contributed, at least in the short term, not only to closing the ranks of the West and to strengthening the EU and NATO, but also, from a legal perspective, to the solemn restatement of the principles transgressed by Russia, notably by the United Nations General Assembly in several resolutions adopted during its eleventh emergency special session. Russia, moreover, was careful not to call these principles explicitly into question and, on the contrary, invoked them with aplomb, even pushing cynicism to the point of organising, on 24 April 2023, a debate in the Security Council chaired by the Russian Minister of Foreign Affairs Sergey Lavrov, dedicated to 'Effective Multilateralism through the Defence of the Principles of the UN Charter'. And, human rights aside-which is not negligible-China also constantly refers to them, attesting to their vitality.

Of course-parodying a famous witticism once applied to Article 2, paragraph 4, of the Charter- the reports of death of the Charter's principles are greatly exaggerated, although the war in Ukraine highlights their frailty. The values of peace that they embody remain as relevant as ever, and there is no reason to give in to calls for relativism in the field of human rights, despite the virulent criticisms of the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and, above all, their-albeit uncertain-implementation mechanisms. The fact remains that the long-term resilience of the principles proclaimed in 1945 would be better assured if they were adapted and supplemented to meet the demands of today's world. A thorough 'upgrade' is needed-first and foremost to make room for the imperative of rescuing the planet, which is not mentioned in the Charter, initially conceived as a response to the traumas caused by the war and Nazi barbarism. Without this aggiornamento, the principles it sets out, frozen in an anachronistic wording, will be open to criticism from their detractors and will be unable to respond to the terrible challenges of our time.

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War in Ukraine: Mutation or Resilience of the Principles of the United Nations Charter? - Groupe d'études géopolitiques

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It is surely no exaggeration to state that never since 1945 has the international legal order been confronted with existential threats as great as those that have accumulated since the beginning of the 2020s. Some are immediate, others medium- or long-term, but all are due-more or less directly-to the folly...

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Self-determination of Ukrainian People and Russian Aggression - Pietro Pustorino (2023) 5 Revue Europeenne de Droit

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Self-determination of Ukrainian People and Russian Aggression - Pietro Pustorino (2023) 5 Revue Europeenne de Droit

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The principle of external self-determination of peoples operates in three well-known cases identified in practice and consolidated case-law: former colonies, foreign military occupation and government that practices apartheid or racial discrimination. As indicated by the ICJ in the Advisory Opinion on Kosovo 'during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.'

In the other cases (ie, not former colonies, foreign military occupation or governments practicing racial discrimination) there is a so-called neutral stance of the principle of self-determination that neither authorizes nor prevents declarations of independence. It should be noted that this is a 'reasoned' neutrality, which is a result of a balance between the right to external self-determination of the local population and the right of the State to maintain its territorial integrity. However, in this case a general limit-stated, once again, by the ICJ in the aforementioned opinion on Kosovo-must be applied. According to the Court, the declaration of independence of the new State must not be 'connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character ( jus cogens).' The importance of this limit in the context of the topic discussed in this contribution is apparent, in light of the Russian practice both in Ukraine and in other Eastern countries.

With regard to internal self-determination, it is equally known that the exercise of this right does not imply the right to secede by local populations. A possible exception is the application of the highly problematic theory of remedial secession in case of gross violation of the right at stake, together with the commission of serious breaches of human rights against a specific part of the national population. With particular reference to Quebec, the Canadian Supreme Court, in its Advisory Opinion of 20 August 1998 on the secession of Quebec, considered that 'when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.' As in the other cases of self-determination, in the secession-remedy case it is necessary to respect not only the substantive requirements indicated above but also the procedural obligations to negotiate in good faith with the central government, in order to balance the principle of self-determination and the principle of territorial integrity of the State, as well as to give adequate time to organize and carry out the referendum. This guarantees local population to be adequately informed of the referendum questions and the consequences of the secession.

In my opinion, although designed to react to a violation of fundamental principles and norms in the international legal order ( erga omnes obligations), remedial secession does not seem to be accepted in international law yet, as implicitly stated again by the ICJ in the above-mentioned Advisory Opinion of 2010. Therein the Court stressed that 'whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of "remedial secession" and, if so, in what circumstances.'

2- General overview on the Russian stance on self-determination issues

For some authors, the Russian practice on the subject of secession, after following a 'conservative' approach, based on the prevalence of the principle of the State's territorial integrity, has changed its course. Mälksoo argues that prior to the annexation of Crimea, even the most prominent representatives of the Russian scholarship of international law 'argued that, in international law, the principle of State sovereignty clearly trumps the right to self-determination', whereas afterwards 'no Russian international lawyer (...) publicly declared the invasion and annexation of Crimea to be illegal under international law.'

According to Christakis, Russia endorsed for the first time the theory of remedial secession in August 2008, in order to justify its decision to recognize the independence of Abkhazia and South Ossetia in Georgia. The same argument was cautiously used by Russia in 2009 in the written statement submitted by Russia to the ICJ in relation to the Kosovo Advisory Opinion proceedings. As claimed by Russia, 'outside the colonial context, international law allows for secession of a part of a State against the latter's will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people.' Russia also clarified that no extreme circumstances existed in the case of Kosovo and that 'the population of Kosovo faced no risk of oppression.'

It seems that Russia has recently changed its opinion not because it is convinced of the validity of the pro-self-determination arguments. On the contrary, it has used and still uses in a specious way the principle of self-determination and other international law principles, such as the self-defense principle, for its purposes of expanding its territory and its area of influence, sometimes suddenly changing its positions as to the legal basis of its conduct, even in relation to the same case of practice.

3- The application of the principle of self-determination of peoples in the conflict in Ukraine: from the annexation of Crimea in 2014 up to the aggression of 2022

The annexation of Crimea is the 'litmus test' of the aforementioned Russian modus operandi in relation to self-determination issues. As noted by Corten, Russia did not refer to the unilateral right to intervene in a civil war in Crimea, but it rather invoked an intervention by invitation, at a first stage, by what it considered the official Ukrainian authority (President Yanukovich), and, in a second phase, by the government of the new Crimean State. At the same time, Russia invoked the application of the principle of self-determination of the Crimean population, awkwardly justifying its intervention in Crimea by affirming that 'Russia created conditions (...) only for the free expression of the will of the people living in Crimea and Sevastopol.'

With regard to the Russian invocation of the self-determination principle and, more specifically, the remedial secession theory on behalf of the Crimean population, it can be said that no legal ground in the current regime on self-determination can be found for the Russian position for multiple reasons.

Russia violated the jus cogens rule on the prohibition of the use of force, thus rendering unlawful and without any legal effect the declaration of independence and the subsequent incorporation of Crimea to Russia. Moreover, in relation to the remedial secession theory, reference has been made by Russia to the human rights violations suffered by Tatars in Crimea, but it is very doubtful that the alleged violations against the Tatars reached the high threshold commonly accepted by the authors who support this theory. Furthermore, the Tatars situation in Crimea got worst after the annexation, with their displacement in significant numbers and in different areas, and this shows how the Russian argument was created just as a pretext. Russia seems even to propose a particularly extensive interpretation of the remedial secession theory, allowing external armed intervention in order to guarantee it. Finally, Russia has not respected any substantive and procedural obligations connected to the application of the self-determination principle in the case at stake.

In general terms, the unfounded application of the self-determination principle in Crimea by Russia has been underlined by the UN General Assembly in its Resolution of 27 March 2014, No. 68/262, on the Territorial Integrity of Ukraine and, in more specific terms, by the Venice Commission of the Council of Europe in the Advisory Opinion of 21 March 2014. Apart from the violations of the Ukrainian Constitution, the Commission, on the basis of international law, considered that 'a number of circumstances make it appear questionable whether the referendum of 16 March 2014 could be held in compliance with international standards.' Among others, such circumstances are 'the massive public presence of (para)military forces [which] is not conducive to democratic decision making', the concerns regarding the 'respect to the freedom of expression in Crimea', the short period (10 days) between the decision to call the referendum and the referendum itself. Moreover, in the Commission's opinion the referendum question was not worded neutrally and in unambiguous way, in addition to the fact that 'no negotiations aimed at a consensual solution took place before the referendum was called.'

4- The application of the principle of self-determination in Russian practice relating to territorial contexts other than Ukraine

In territorial contexts other than Crimea, but always in the area of influence of the former USSR (eg in Abkhazia and South Ossetia, Georgia, or in Transnistria, Moldova), the Russian approach is similar but it is adapted to the local context. The main legal ground, directly or indirectly invoked, is again the remedial secession, not always declared expressis verbis. Moreover, the discussed approach even considers the external intervention by third parties, aimed at supporting the secession by local population, as lawful.

It is well-known that Russia guarantees political, economic, and military support to some secessionist entities in sovereign States located in the former USSR territory or area of influence. In some cases, relying on the objective historical and political ties with Russia, which are sometimes effectively disregarded by foreign States, such guarantees have been accorded with regard to the alleged protection of the rights of the numerous Russian-speaking minorities present in Eastern European countries.

On the one hand, the Russian support for secessionist entities has the intent of reducing and progressively severing the ties with the territorial State that is subjected to separatist requests, also by using very unscrupulous tools-such as the possibility of easily obtaining Russian citizenship for the inhabitants of these entities-thus violating, as far as my opinion is concerned, the principle of non-interference in foreign affairs. In this context, the measures adopted by Russia, entailing the almost automatic granting of Russian citizenship to Ukrainian citizens residing in Crimea, cannot be clearly considered as lawful. Such conclusions shall also be extended to the most recent Russian measures aimed at facilitating the acquisition of Russian citizenship by allUkrainian citizens, included those residing in the four recently annexed regions of Donetsk, Luhansk, Kherson and Zaporizhzhia.

On the other hand, Russia seems to make efforts to feed tensions between the foreign State and the secessionist entity under the Russian support or control, in order to induce that State to react towards the local population and to subsequently invoke the remedial secession also through military intervention, as in the case of South Ossetia, Crimea and Donbass.

From an operational point of view, Russia facilitates, where possible, the holding of referenda in the secessionist entities and subsequently supports, but with different approaches, the request for annexation to Russia. For example, while Russia accepted the request for annexation of Crimea a few days after the referendum on independence, with reference to the independence of the Donetsk People's Republic and the Luhansk People's Republic, proclaimed on 6 and 27 April 2014 after the referenda were held, Russia recognized the independence only in February 2022, accepting at the same time the request of armed intervention by these entities.

As in the case of the referendum and annexation of Crimea, similar considerations of unlawfulness are valid for the referenda of September 2022 on the annexation by Russia of the regions of Donetsk, Lugansk, Kherson and Zaporizhzhia, as again noted by the UNGA in the Resolution of 12 October 2022, in line with Article 41, paragraph 2 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts.

In a further different way, in South Ossetia, which has long declared itself independent in 1990 and has been recognized by Russia only in 2008, the holding of the referendum on annexation by Russia, which should have been held in July 2022, was postponed in May 2022 after a change of government in South Ossetia.

In light of the above, in the context of the application of self-determination on territories under Russian influence, the Russian main legal ground is based on remedial secession, which is invoked in a specious way and interpreted very extensively, so as to justify an armed intervention allegedly in support of the local population. The times and methods of exercising the right of self-determination of peoples under Russian military control or occupation vary according to the different situation on the ground, but, in all of the cases I referred to, there is no respect of the substantive and procedural obligations linked to the self-determination issues under international law.

5- Final considerations on the development of the principle of self-determination of peoples in the recent practice

As far as I am concerned, the Russian recent practice shows the necessity of a rethinking in terms of the content and application of the principle on self-determination, whose compliance is systematically circumvented by Russia (and sometimes by other States, including Western countries), which seeks to exploit the weaknesses of the current international regime on self-determination by invoking it in specious ways, bending the principle to the State's interests.

The time has come to review the aforementioned neutrality of the international law regime outside the consolidated cases of external self-determination, further enhancing the principle of territorial integrity in a very different historical period from that in which the principle of self-determination emerged and thrived as a legal principle, and in which the aggressive conducts of the strong States-Eastern but also sometimes Western countries-take advantage from the said neutrality of the principle at stake.

At the same time, it is necessary to take a clearer and sharper position, by scholars as well as by the States, even on the part of Western countries, on the theory of remedial secession, thus overcoming political opportunisms and positions of political convenience, as happened in the case of Kosovo. In other words, in order to prevent aggressive States from the ill-founded invocation of this theory, time has come to take an explicit position on whether the theory itself has a foundation in international law, even if only in terms of progressive development of the principle of self-determination, provided that precise and stringent substantive and procedural requirements are respected (included the exclusion of foreign armed interventions to enforce the remedial secession). If elaborated in these terms, the remedial secession could be accepted in international law as better balancing the application of the principle of territorial integrity on self-determination issues.

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Self-determination of Ukrainian People and Russian Aggression - Groupe d'études géopolitiques

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1- Brief remarks on the international law regime on self-determination of peoples The principle of external self-determination of peoples operates in three well-known cases identified in practice and consolidated case-law: former colonies, foreign military occupation and government that practices apartheid or racial discrimination. As indicated by the ICJ in the...

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Pursuing Accountability for the Crime of Aggression Against Ukraine - Federica D’Alessandra (2023) 5 Revue Europeenne de Droit

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Pursuing Accountability for the Crime of Aggression Against Ukraine - Federica D’Alessandra (2023) 5 Revue Europeenne de Droit

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A little over one year ago, multilateralism seemingly 'lied on its deathbed' as the world's second largest nuclear power, Russia, invaded neighbouring Ukraine right as the UN Security Council was meeting in New York in an eleventh-hour effort to 'give peace a chance'. For months, a massive military build-up by Russian forces at the border with Ukraine had raised concerns of an imminent and unprovoked invasion, to the Kremlin's full-throated denial. About one hour into the meeting, however, from Moscow, President Vladimir Putin announced the start of his 'special military operation' -or his naked aggression against Ukraine, as the rest of the world would see it. For weeks, the world watched in horror and dismay as Russian missiles rained on Ukrainian cities, indiscriminately targeting civilians and civilian infrastructure across the country, as far west as Lviv on the border with Poland, a NATO member; while Russian infantry and armoured divisions marched in from neighbouring Belarus and the embattled Donbass region towards the Ukrainian capital, in an attempt to overthrow the elected government of President Volodymyr Zelensky.

One year later, Russian forces have lost 54% of their initial territorial gains, but remain hunkered down in the Southern and Eastern parts of Ukraine. From their indiscriminate shelling across the country to the deployment of the ruthless Wagner mercenaries, from the sieges of Mariupol and Bakhmut to the countless, spineless acts of sexual violence, the trafficking of children, or the horrific massacres in cities such as Bucha, the brutality of their tactics is revealed daily in the systematic trail of death and destruction they leave behind wherever they retreat. As shocking evidence of the unspeakable atrocities they have committed continues to mount, compounding the sense of outrage already felt at the illegal invasion, Ukraine and its partners in the international community demand accountability, putting international law front and centre in all debates.

The Centrality of International Law in Ukraine's Response to the Invasion

It is a remarkable statement to the value of international law to those it is intended to protect that, even as it continues to defend itself militarily, Ukraine has chosen to simultaneously pursue any and all opportunities for legal remedy it has available against Russia and its leadership. Ukraine's reliance on a variety of international law mechanisms as part and parcel of its response to Russia's invasion can be understood as having various dimensions. In the context of a war being fought to prevent Ukraine's alignment with European values and transatlantic institutions, the choice to mobilize the international rule of law in response to the invasion is immensely powerful at the symbolic level, for it contrasts Ukraine as a law-abiding nation to the 'lawlessness' of the invader. Equally, by deferring to international judicial processes and institutions wherever they are available, Ukraine can successfully demonstrate that it is pursuing every and all means it has available to resolve its dispute with Russia by peaceful means. This is meaningful especially in light of the fact that, as the victim of aggression, Ukraine is not required to do so under international law, for it has an undisputed right to defend itself militarily; however, by choosing to do so, Ukraine is indirectly demonstrating that Russia could have, in fact, done so itself, and that the recourse to war to settle its dispute with Ukraine was by no means of last resort, thus adding to the case for Russia's responsibility for internationally wrongful acts.

The choice is also meaningful at a strategiclevel: by engaging international law and global institutions as part of its quest for a just resolution of the war, Ukraine is helping the case internationally that the war is not just a European matter, but one of global concern. Most importantly, however, turning to international laws and institutions is key as an immediate instrument of protection and redress, both during and after the war: as the war continues to rage, Ukraine is turning to international judicial bodies to establish the empirical truth about what is taking place, both as a way to counter Moscow's attempts to advance false narratives to justify the invasion, and to lay the foundation for fact-based assessments of culpability for the myriad of violations affecting both Ukrainian citizens and the Ukrainian State. These, it is hoped, will be key to supporting judicial accountability processes moving forward, as well as reparations and a just settlement once the war ends.

Only days after the invasion begun, for example, Ukraine 'sued' the Russian State for violations of the UN Genocide Convention and other key human rights treaties before the UN International Court of Justice, in an attempt to get the international judicial body to finally and officially rebuke (part of) Russia's casus belli, which it had already deployed in Crimea: that isa baseless claim that Ukraine was committing 'genocide' against ethnic Russians in its Eastern oblasts, 'forcing' Russia into a 'humanitarian intervention'. Using the Uniting for Peace Resolution to circumvent Russia's veto on the Security Council, Ukraine asked the General Assembly to make a determination that Russia's conduct amounts to international aggression, and that Ukraine is entitled to war reparations and justice for all victims of the war. Pursuant to the same objective, in May 2023, the Council of Europe (CoE) created a register of damage for Ukraine as the first step towards an international compensation mechanism for victims of Russian aggression.

At Ukraine's request, the UN, the EU and the OSCE have all dispatched investigative teams focusing on upholding both State and criminal liability for violations of the laws of war, committed by all parties. Ukrainian authorities are also investigating and preparing to prosecute domestically over 70,000 such incidents. And, benefitting of protections and remedy enshrined in the Rome Statute of the International Criminal Court (ICC)-to which neither Russia nor Ukraine are States Parties, but whose jurisdiction Ukraine has accepted dating back to 2013-Ukraine asked the ICC to intervene, in a move later backed by 43 ICC member States, which also referred the situation for investigation collectively to the Court. As a result, the ICC swiftly deployed investigators and opened a field office in Ukraine. In an unprecedented move, in March 2023 the Court proceeded with issuing arrest warrants against Putin himself, and his Children's Rights Commissioner Maria Lvova-Belova, for war crimes relating to the illegal deportation and forced adoption of children from Russian occupied territories in Eastern Ukraine. The extraordinary warrant is the first ever issued against the sitting Head of State of a Permanent Member of the Security Council-which is not a party to the Court.

A Gap in the International Justice Architecture

Ukraine's focus on pursuing legal avenues has re-energized many in the international community, particularly those who see the enforcement of fundamental rules of international law-such as protections enshrined in the Geneva Conventions, and the prohibition against aggression-as key to the restoration of global security. Ukraine's US and European partners, in particular, see this as a historical juncture, potentially a 'second Nuremberg moment'-in reference to the trials set up by the Allies at the end of World War II, which became foundational to the post-War global order. A gaping hole exists, however, in today's judicial accountability landscape: if a variety of domestic and international tribunals will sit in judgement over international crimes committed during the war, no court today can exercise jurisdiction on the war itself, or the 'crime of aggression' as it is known in international law.

On this basis, the government of Ukraine has proposed the establishment of a special aggression tribunal. Different models are currently being explored but many legal, policy, and political issues remain to be addressed. Challenges are particularly acute in light of the unique features of the crime of aggression in international law. Against this background, this essay may constitute a primer to some of the key issues arising in this debate. It will first contextualize the nature of the crime of aggression (ie why it is so controversial, and the jurisdictional challenges to which it gives rise), and will then proceed by discussing the key legal and policy questions with the most bearing on the proposed tribunal, as well as models under consideration. It will conclude with the author's own views and recommendations on the way forward for accountability for the crime of aggression, both in and beyond Ukraine.

What is the Crime of Aggression?

In international law, the large-scale use of force by a State against the territorial integrity and political independence of another State is known as 'international aggression'. Today, its prohibition is enshrined in the UN Charter, and considered a peremptory norm of international law binding all States at all times, for it is rightly seen as the bedrock and foundation of international peace and security. In today's world, force can be lawfully used by States only in self-defence, and pursuant to UN Security Council authorization under its Chapter VII powers to enforce, maintain, and restore international peace and security'. In international law, any breach of the prohibition against the unlawful use of force may entail State responsibility for an internationally wrongful act; egregious violations of this prohibition may amount to international aggression; and, at least since Nuremberg, international aggression also gives rise to the criminal liability of the military and political leadership of the aggressor State for the 'planning, preparation, initiation or waging' of the war of aggression. At the end of World War II, both Nazi and Japanese defendants were charged, convicted, and executed for 'crimes against peace', as aggression was then known, for this was considered to be the 'supreme' offense against the international community. After the judgement, the criminality of aggression was also enshrined in the Nuremberg Principles, and today the crime of aggression is defined in both international customary and treaty law, more precisely in provisions contained in the Rome Statute of the ICC, which were informed by-but do not overlap entirely with-the customary law definition of the crime.

The crime of aggression has long been controversial among States, as aggression is by nature a State act and a leadership crime, for it can only be committed by those in a position to direct the action of a State to wage war against another State. Through the years, much of the controversy was aimed at who exactly would meet this leadership requirement, and whether specific iterations of the use of force by States should, in fact, be captured by the definition of a crime of aggression, either because they did not raise to a threshold of gravity comparable to the unleashing of a full-scale war, or because States maintained these should be considered as falling under one of the existing 'exceptions' to the prohibition against the use of force-for example, military operations carried out in self-defence against non-state armed groups operating from the territory of another, non-consenting State, or 'genuine' humanitarian interventions carried out to protect civilians from mass atrocities, even where these might be unsanctioned by the UNSC. However, and although it took twenty years of negotiations to achieve it, the Rome Statute's provision defining the crime of aggression was ultimately approved unanimously by all States Parties to the Court; and also non-States Parties such as Russia, which had also participated in the negotiations, approved the definition of the crime for the purposes of the Statute.

The ICC's definition makes it clear that liability for the crime of aggression attaches only to those in a position to 'effectively exercise control over or to direct the political or military action of a State'. This, in contrast to the customary law standard, which was articulated by the Nuremberg Military Tribunal in the High Command case in reference not to: 'a person's rank or status, but his power to shape or influence the policy of his State'. According to this latter standard, for example, private and industry actors-such as Russian oligarchs-could also be liable for the crime of aggression. In addition, the Rome Statute introduces a 'gravity threshold' differentiating between an act of aggression (only giving rise to State responsibility) and a crime of aggression (impugning the penal liability of specific leaders) where the underlying act of aggression by its 'character, gravity and scale, constitutes a manifest violation' of the UN Charter. This was intended to align as much as possible the Rome Statute provisions with the core 'essence' of the customary law definition of the crime, which is that the unlawful use of force ought to be large scale enough to amount to a war to be criminal. The ICC definition also lists a series of acts of aggression that, meeting the requisite gravity threshold, and where perpetrated against the territorial integrity or political independence of another State, will amount to a crime of aggression. Many of these have been committed by Russia against Ukraine, including, among others: an armed attack, invasion, military occupation or annexation by the use of force, as well as bombardments, blockades, or the sending of mercenaries and irregular armed bands into the territory of another State. Importantly, the list of acts of aggression provided in the ICC definition also covers the 'action of a State in allowing its territory [...] to be used by [...] [an]other State for perpetrating an act of aggression against a third State', which is of relevance to Belarus.

Does the International Criminal Court Have Jurisdiction Over Aggression in Ukraine?

Why Can't We Simply Give the International Criminal Court Jurisdiction?

The fact remains however that, at present, the Court does not have jurisdiction over the crime of aggression itself, and that-at least at the current stage-amending the Rome Statute appears unfeasible, for it would require ratification of such amendments by 2/3 of ICC States Parties, followed by a 7/8 (or consensus) vote by its Assembly -a very high bar that would likely entail protracted negotiations-and, if history is of guidance, possibly years if not decades before the amendments become operational. This, at a time when urgency is paramount. Perhaps even more importantly, it remains unclear-and, in fact, highly unlikely-that the long-standing policy posture of those States that made the ICC aggression regime weak to begin with has indeed changed since the Rome Statute was amended to include the offense in 2010, and even more so since its jurisdiction over the crime was activated in 2017 thanks to ratification of the amendments by 30 ICC member States. That number has since grown to 44, but still falls short of the 82 that would be currently required under the Statute to be amended any further. Indeed, as Professor Reisinger Coracini recently put it: 'if amending the Rome Statute were an available option, many of those [..] arguing for the establishment of a S[pecial] T[ribunal] [..] would do nothing short of embrac[ing] it', continuing 'the reason why many supporters of a [Special Tribunal] argue for a two-tiered approach [..] is their understanding that a quick fix of the Court's jurisdictional regime is unrealistic'.

Who Have Jurisdiction Over Aggression in Ukraine?

Indeed, international law recognizes that certain crimes are so serious that the duty to prosecute them transcends all borders, and this is the basis of a number of universal jurisdiction laws implemented by various States to allow them to prosecute international crimes domestically, irrespective of where they take place. Lithuania, for example, has announced it is investigating Russia's crime of aggression on this basis. However, it is debatable whether universal jurisdiction actually exists for aggression. Poland, too, has announced it is investigating Russia's crime of aggression, but based on the protective jurisdiction principle, a rule of international law that allows a sovereign state to assert jurisdiction over a person whose conduct outside its boundaries threatens the State's security or interferes with the operation of its government functions. However, observers disagree on whether protective jurisdiction can be exercised by States that are indirectly affected by the conduct in question. In fact, on the basis of this principle, Ukraine would have the strongest claim to exercise this form of jurisdiction as the directly affected State. However, any such jurisdictional assertions would run into a significant obstacle with respect to certain Russian and Belorussian high-level officialswho are protected by sovereign immunities.

What Is the Issue with Immunities?

International law is fundamentally, though not exclusively, an inter-State affair, the conduct of which is anchored on the principle of sovereign equality. A corollary of this principle is that par inter parem no habet imperium-ie a sovereign State cannot exercise jurisdiction over another sovereign State. On this basis, various forms of immunities are awarded to representatives of the State to allow them to carry out their sovereign functions. In the context of our discussion, at least two levels of immunities arise: p ersonal immunity, or immunity ratione personae, a status-based immunity applying to a small number of high-level State officials because of their office-specifically the Head of State, Head of Government and Minister of Foreign Affairs-and functional immunity, or immunity ratione materiae, that is a conduct-based immunity applying with respect to acts performed in an official capacity. Personal immunities apply for as long as the person is in office, for both private and official acts; whereas functional immunities protect a State official, both during and after their time in office, but only for official acts they carried out while in office. On this basis, then, both Presidents Putin and Lukashenko, as well as Russian Prime Minister Mikhail Mishustin and Foreign Minister Lavrov are entitled to personal immunity for as long as they are in office, and any of their official acts while in office should also be covered by functional immunity before another State's domestic courts. However, in international law, two grounds for exception exist with respect to the application of these immunities that are worth discussing.

According to the first, immunities ratione materiae cannot be invoked when the relevant act constitutes an international crime. Many authoritative legal scholars are proponents of this view, and the question has been under study by the UN International Law Commission (ILC) since 2008. However, this exception is not firmly established in international law, at least with respect to aggression itself: indeed in its study, the ILC found a ' discernible trend'-not a clear one-in State practice 'towards limiting the applicability of immunity from jurisdiction ratione materiae', but only 'in regard to certain types of behaviour that constitute crimes under international law'. However, many experts (including Members of the ILC themselves, as well as external legal observers ) disagree that this exception exists; and if it does, they disagree that it applies to aggression, which is generally not listed among the types of acts to which this exception would apply, presumably because aggression is by nature a State act. And even if one takes the view that the exception does exist, and that it applies to aggression, this exception only covers functional immunities, and does not apply to personal immunities, at least according to the prevalent view.

The second potential ground for exception, applicable to both immunities ratione personae and ratione materiae, concerns the argument that such immunities (which would be available jointly, or at least with respect to personal immunities in a domestic court) cannot be invoked if the person is to be judged by an international tribunal. This exception is more widely, though not universally, accepted to be grounded in established international law, and has been upheld in the jurisprudence of various international courts, including the ICC. Indeed, Article 27 of the Rome Statute makes it clear that 'Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person'. At the same time, Article 98 of the Statute also requires that: 'The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State', and that it may 'not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court'-that is, unless it can first obtain the concerned State's consent to waive immunity or to proceed with surrendering the suspect.

It is on the basis of these seemingly conflicting provisions that some member States in the past have refused to surrender State officials wanted by the Court-more specifically, sitting Heads of State such as then Sudanese President Omar al Bashir (indicted on charges that include genocide) whom they maintained was protected by personal immunity-even though the ICC's intervention had been mandated by the UNSC. The issue is likely to be relitigated in light of the recent arrest warrant against Vladimir Putin, but thus far the ICC judges have rejected the claim and reiterated that the ICC does not recognize immunities as applicable to suspects wanted by the Court. I anticipate that the same argument will prevail with respect to the Putin arrest warrant as well. In any case, however, as mentioned above, Article 15 bis(5) of the Statute explicitly bars the Court from exercising jurisdiction over aggression when committed by the nationals of a State that is not a party to the Statute (such as Russia); so, insofar as aggression at the ICC is concerned, immunities are not the biggest issue.

Importantly, many remain critical of the position that immunities do not apply-in general-to international tribunals, maintaining that this is, in fact, not a blanket pronouncement, and that the extent to which this exception applies will depend on the characteristics of the international tribunal-ie how it is formed, in whose jurisdiction it is grounded, etc. This is principally because an international court can only be delegated by its members jurisdiction that they themselves possess. Meaning that, unless jurisdiction is already possessed by its members States at the domestic level, some take the more restrictive view that a court-even if created at the international level-may otherwise be able to exercise jurisdiction only with the affected State's consent, or through UN Security Council action under its Chapter VII powers. In the case of Russia's aggression, as mentioned, the strongest jurisdictional claim outside of Russia and Belarus is on the basis of Ukraine's reliance on the territorial or protective principles, and the proposed international tribunal would be anchored in Ukraine's own jurisdiction.

This is extremely important as it has been argued that, as the State victim of aggression, Ukraine might be entitled to override immunities by relying on other cardinal rules of international law, such as the rights to self-defence and to self-help, as well as other principles under the laws of war. If Ukraine can use lethal force to defend itself, the argument goes, including by targeting the commander-in-chief of the adversary, it should also be able to recur to non-lethal measures to repel the aggression-for example, arresting and detaining the enemy command, which is allowed under the laws of war. Under Ukraine's right to self-help, then, what would otherwise be an unlawful exercise of jurisdiction over Russia's officials should be considered a lawful countermeasure in response to the aggressor State's own breach of international law. In my opinion, this argument does have merit. It is untested, however, making its reliance much safer in combination with other legal arguments, such as the second ground for exception identified above concerning the non-applicability of immunities before a tribunal of 'international character'-specifically, one grounded on the jurisdiction of Ukraine as the directly affected victim state.

Why Wouldn't Ukraine Itself Exercise Jurisdiction?

Given it has jurisdiction over aggression and that it could override immunities based on self-help and self-defence, shouldn't Ukraine itself prosecute Russian and Belorussian leaders for aggression? The answer is varied but, at a minimum, Ukraine's status as a victim state could cast concerns over the legitimacy and especially impartiality of any proceedings it would administer alone against the top-level political leadership of its adversary for what is, ultimately, a crime with political implications-no matter the talent and integrity of its judicial appointees. Equally, if Ukraine's jurisdiction might be the gateway to unlock the issue of immunities, an indictment issued by its domestic judicial system would, certainly, have far less repercussions (and, possibly, a weaker jurisdictional claim) than if the indictment were issued by an international judicial authority. In addition, if the tribunal were not only international but also drew from broad membership of States beyond Ukraine, this would immensely benefit the tribunal itself, as a legal duty to cooperate, enforce, and comply with its decisions-which would presumably be written into its Statute-would arise for each of its member-States, as opposed to only Ukraine.

This could result in not only greater expertise, resources, and capacity being available to the tribunal, but at a practical level-based on just how broad its membership would be-it could have the effect to relegate any leader wanted by the court to live their life as a fugitive of the law in many countries, a pariah only able to travel within Russia and perhaps a handful of other States, least they may face the threat of arrest elsewhere. This is, precisely, one of the most immediate effects that-it is hoped-will follow the ICC arrest warrant against President Putin, impacting all 123 of its States Parties. As mentioned above, however, the most important argument for asking an international judicial body-rather than the domestic authorities of Ukraine-to prosecute the crime of aggression is that relying exclusively on the self-defence argument to wave immunities is risky, for the argument remains untested; it would be wiser to leverage it in combination with the argument concerning the inapplicability of immunities before a tribunal of 'international' character, further discussed below.

Pathways to the Creation of a Special Tribunal for Aggression

For a tribunal to be considered 'international' with respect to the inapplicability of sovereign immunities, two conditions would need to be met. First, the tribunal must be established under international law, either through creation on the basis of a source of international law, such as a treaty, or on the basis of authority derived from a source of international law, such as through the decision by an organ of an international organization, which can be the UN or a regional organization such as the EU or the CoE, acting within the competencies given to that organ under the treaty establishing the organization. Secondly, the 'nature of an international criminal court or tribunal must be such that, through its establishment and its institutional design, it is sufficiently detached from national jurisdictions', and that it sufficiently reflects the will of the international community as a whole to enforce crimes under customary international law. As discussed above, the customary international law status of the crime of aggression is uncontested, although many (myself included) take the view that for the cohesive development of international law, it would be imperative that the tribunal indeed adopt the Rome Statute definition of the crime. Arguably, in fact, Ukraine can already prosecute any of the suspects it has identified that do not meet the Rome Statute's leadership requirement; and it is large part for these latter suspects that the issue of immunities might arise. For this reason, the analysis in this section will chiefly be dedicated to the nature and potential modalities of the creation of the tribunal itself, which as mentioned however would be anchored in the jurisdiction of Ukraine as the victim state of aggression. So, how could such a tribunal be created?

1- Creation by Treaty at the Request of the UNGA

2- Creation by Treaty Through a European Regional Organization

A second option would be to create the tribunal independently and regionally in Europe, through authority derived not under the UN Charter, but under one of the regional organizations' founding instruments. This means that the EU and the CoE could also both establish such a tribunal themselves. More specifically, the EU could do so under the scope of its foreign and security policy, 'where the powers of the Union are sufficiently broad and flexible to be adapted to the circumstances of a specific situation'; for this, too, precedent already exists by virtue of the EU's previous establishment of the Kosovo Specialist Chambers, set up by treaty between the EU and Kosovo as the interested State. With respect to the CoE, 'matters relating to national defence do not fall within the scope' of the organization, whose purpose is rather 'to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress'. However, experts have argued that if 'seen under the prism of accountability for the commission of an international crime, the fight against impunity and the need to ensure full reparation for the damage caused by the crime', the establishment of a tribunal would not be ultra vires even if created in such a manner. In fact, the Parliamentary Assembly of the CoE has already called for the creation of an ' ad hoc international criminal tribunal', while the Rapporteur of its Committee on Legal Affairs and Human Rights has called for the creation of said tribunal even 'on the basis of a multilateral treaty', presumably between Ukraine and CoE member States. Equally, the European Parliament has already passed a resolution explicitly endorsing the need for the creation of a special tribunal, with the European Commission also announcing the establishment of a Center for the Prosecution of the Crime of Aggression (ICPA), to be created in the Hague and supported by Eurojust, which the EU could build up into a court. We might hereinafter refer to this option as the 'Regional Model', which differs from the previous one in that, process-wise, UNGA endorsement would not need to be sought a priori, as both the EU and the CoE are regional organizations independent of the UN.

One objection could be made to the fully 'Regional Model', which is that-by definition-such a tribunal would reflect the will of the region, rather than that of the 'international community as a whole'. This is particularly true if the tribunal were created directly by the 27 members of the EU, and perhaps less so if the tribunal were created by the CoE, whose 46 members are representative of a broader variety of legal traditions, as well as political and military alliances. It is precisely for this reason that, although a UNGA resolution would not be a priori necessary in either case, its endorsement would, without a doubt, be politically beneficial, even if it came after the regional organization in question moved independently to create the court. And in fact, if the tribunal were constituted regionally, this might perhaps sway some votes in the UNGA, particularly those from States concerned with the financial burden such an institution might impose on them, or those who might prefer amending the Rome Statute if the idea is to set a precedent potentially at the global level. An additional observation is that, even if the tribunal were created fully regionally, if the treaty was open to universal accession (in addition to, or instead of, UNGA endorsement), this might also be helpful to meet the second criteria above. Making the treaty open to universal accession could also be instrumental for the tribunal's proper functioning, as none of the options currently on the table would, in fact, create a legal obligation to cooperate on non-Member States. A regional court would certainly have a raison d'être, for the strongest consequences of the aggression are being felt regionally within Europe. A regional formulation would also be key to reasserting European stability for it would send the strong signal that European countries and their partners in the region remain steadfast in their commitment to the rule of law and to accountability, and that no aggressive threats will ever again be tolerated against its regional security. That being said, if a UNGA resolution could in fact be obtained, whether a priori or ex-post facto, it would be equally important to reassert - at the political level - that the crime of aggression is indeed a threat to global peace and stability, irrespective of which region is most affected. In fact, a UNGA resolution could be sought to this effect, with the specification that-where regional mechanisms are able and willing to step in, as it is the case here- priority should be given to investing in regional solutions.

3- Creation by Limited Multilateral Treaty

The third option that has been suggested would be the creation of the said tribunal through a multilateral treaty between Ukraine and other 'willing' States (we shall call this the 'Multilateral Treaty Model'). With respect to the 'Multilateral Treaty Model', the biggest issue arising would squarely be that of immunities (although, I believe, it would also raise legitimacy concerns). Proponents of this model often cite the International Military Tribunal (IMT) at Nuremberg as precedent for the inapplicability of immunities before even a tribunal set up by a handful of States. However, such a comparison is misguided because the IMT was established by the Allies pursuant to their authority as occupying powers, meaning that the Allied Control Council could lawfully wave immunities for Nazi officials because the Council was, in fact, itself the government of Germany. In this case, at least at present, it is highly unlikely that the governments of Russia and Belarus would agree to wave immunities for their leaders; and, although, as mentioned, the argument could be made that immunities would still not apply on the basis of Ukraine's rights to self-help and self-defence, it is questionable whether a tribunal built on the basis of a limited multilateral treaty would fulfil the second condition mentioned above, that is that it should 'sufficiently reflect the will of the international community as a whole'. Importantly, accepting the premise that any small group of states can independently come together and create a tribunal before which Head of State immunities would not arise - and even more so doing this specifically for the crime of aggression - would create a worrisome precedent that, in my view, could very easily be politicized or misused in the future, thus detracting to perceptions around the seriousness of aggression as an internationally justiciable criminal offense.

4- An Internationalized Set of Chambers

A fourth option being discussed would be the creation of an internationalized set of chambers anchored in Ukraine's domestic judicial system (following an 'Internationalized' or 'Hybrid' model). Unlike options I-III above, I see this option as relating less to the modality and authority on the basis of which a tribunal would be created (ie. bilateral treaty between the UN and Ukraine, at UNGA request; independent, bilateral treaty between a European regional organization and Ukraine; and limited multilateral treaty), and more to the character and institutional set up of the tribunal itself, irrespective of how it is created. The choice here being between an-ICC like court - ie. an independent international organization (with supranational elements), applying international law and staffed entirely of international judges, counsel and prosecutors - or a 'hybrid' or 'internationalized' tribunal, for which ample precedent also exists. A hybrid/internationalized tribunal (also often referred to as 'hybrid' tribunal, with names such as High, Specialist, or Extraordinary Chambers) would be anchored in-but sufficiently detached from-Ukraine's domestic system, for it would enforce international law (alone or in combination with Ukrainian domestic law), and also draw from the external expertise of international judges and prosecutors attached to or embedded within the court. It appears that some States are indeed pivoting towards this option, particularly the G7, and according to a recent poll conducted among Ukrainian citizens, this would be their preferred option as well. Interestingly, 93% of respondents polled also expressed a preference for the hybrid court to be given jurisdiction over other international crimes alongside the crime of aggression. It is true that no domestic system, alone, could cope with the volume of international crimes prosecutions that Ukraine's current investigations demand, reason why Ukraine's international partners should without a doubt also invest in building up and supporting Ukraine's domestic judicial system. In fact, one proposal out there is concerned, precisely, with setting up a hybrid set of chambers specifically for war crimes, crimes against humanity, and genocide, to complement the jurisdiction of both the ICC and the proposed aggression tribunal.

But if the idea of the proposed tribunal is to fill an accountability gap, then the tribunal's jurisdiction should be complementary to-not overlapping with-that of the ICC.

The Ukrainian government has, thus far, flatly rejected the idea of a hybrid court for aggression, and so have some experts, as well as smaller European nations within the 'core group' of states (which includes but is larger than the G7) pushing for the creation of a tribunal. Critics of the hybrid model prefer instead 'a fully international tribunal' created by the General Assembly. The assumption here being that-if it even were politically realistic-the latter would be a legally superior option. It is important to underscore, however, that the tribunals that are regularly cited as precedent for the UNGA-backed 'international' court-such as the SCSL, or the ECCC- are, in fact, themselves hybrid / internationalized courts, with some degree of anchorage in the domestic system of the affected state for which it was created. By all means, if a tribunal could realistically be created via the UN rather than the EU or CoE, one might reasonably prefer that outcome, politically speaking. If a UN tribunal were not politically viable however (as it currently appears to be the case), critics should not be so quick to discount the possibility of creating what would essentially be the same form of tribunal, but established under proper regional authority by a European institution-at least in my view.

If the apparent constitutional obstacle could be overcome, I see a hybrid set of chambers as be a very-if not the most-suitable option, provided that it had the backing of a competent supranational organization (whether the UN or a European regional institution), that it applied international law (and better yet the ICC substantive definition of the crime of aggression), and only if international judges and prosecutors - rather than simply 'advisors' - could be embedded within it. Such requirements would be key not only to the court's internationalized character, which could be crucial to overcoming the immunities hurdle, but to its very legitimacy, in light of the concerns addressed above with respect to Ukraine carrying out high-level aggression prosecutions alone as the victim State. Once again, ideally, such court would be set up via bilateral treaty between the international authority creating the tribunal and Ukraine. Supporting States that are not member of the international organization in question - including the United States in the case of a European court - could still partake in supporting the effort directly or indirectly by either themselves joining the treaty, or as the US currently does, for example, with respect to the Kosovo Specialist Chambers.

Legitimacy, Enforcement, and Cooperation Matters

As mentioned, whichever option is pursued, the tribunal would benefit of as broad a membership base as possible-for legitimacy, legal (ie immunities), and enforcement reasons. On this latter point, it is crucial to reiterate that the tribunal will need to rely on its member States for enforcement and cooperation, as cooperation by non-member States could only be imposed under Chapter VII powers by the UN Security Council, which do not extend to the UNGA by virtue of the Uniting for Peace mechanism. Equally, it is important to underscore that, given the proven challenges of executing an arrest warrant against a sitting Head of State, the tribunal might either have to wait for President Putin's fall from grace, or carry out his and Minister Lavrov's trials in absentia. However, such trials are highly controversial, for they may violate certain rights of the accused; although, under certain conditions, they are not precluded under international law. And while some say said trials would have 'negligible value and legitimacy' against such high profile defendants, others maintain that 'the symbolic nature of a judgment by an ad hoc tribunal-even in absentia-should not be underestimated'.

Conversely, others have argued that, given the unlikely scenario of a Putin arrest while in office, and the fact the personal immunity would no longer apply if he is surrendered after he leaves office, the question of immunities is largely an academic one, and 'the likelihood of personal immunity ever being an issue in an actual trial is effectively zero'. Arguably, however, the tribunal in question might not need to proceed to the trial stage, whether or not in absentia, to have an impact, for-as it is hoped will be the case with the ICC arrest warrant against Putin-such a warrant might already carry sufficient stigma and entail strong enough consequences for any suspect's ability to travel freely and carry out official duties. A pending arrest warrant could also become crucial to reset the terms of relations in the event of a post-Putin Russia. In fact, precisely on this basis, some also question the political wisdom of creating a tribunal for Russia's aggression while the war continues to rage, with its outcomes being all but predetermined. However, as it is the case with the Rome Statute, legal mechanisms could be built into the tribunal's charter to facilitate a peace process if and when conditions might so require. Indeed, the importance of adopting a long-term perspective cannot be overestimated: from Charles Taylor to Omar al Bashir, from Slobodan Milošević to Hissen Habré, history bears witness to the mantra that the 'long arch of international justice' eventually catches up even with once powerful and seemingly untouchable individuals. For this reason, it is imperative to set up the tribunal in a way that keeps as many options as possible open, and so that -if the question did arise- it would stand the highest chance of having the inapplicability of immunities confirmed by its judges. Importantly, as some observers have noted, whichever form its establishment will take, the tribunal should seek to forge a cooperative relationship with the ICC. This is, at least in part, to support the cohesive development of both substantive and procedural law moving forward, given that many believe-as I do-that the ultimate lesson States should take away from this experience trying to prosecute Russia's aggression is that the Rome Statute should be re-amended to address at least some of its greatest limitations in exercising jurisdiction over this offense.

The Imperative of Accountability for Russia's Aggression

Of course, Russia's aggression against Ukraine is not the first time that force is unlawfully used by States in egregious breach of the UN Charter. In the minds of many outside the Euro-Atlantic region, past instances of Western military adventurism, and frustrations with the lack of accountability for the consequences of devastating military campaigns-such as the 2003 illegal invasion of Iraq-remain raw, and weight heavily in the background of this discussion. Equally, the irony is not lost on many that some of the States taking the proposal for a special tribunal most seriously today are, in fact, the same States that sought to restrict as much as possible the subject-matter jurisdiction of the ICC on the issue. At the same time, however, in light of rising geopolitical tensions, and fears that other powerful States may themselves be considering using armed force against less-powerful neighbours in other regions, many do feel a certain sense of urgency to reinstate the cardinal prohibition against aggression, and the potentiality of criminal consequences for its violation. And if, to some, the response to the crisis in Ukraine has been further evidence of long-decried double-standards, others see the current momentum generated by the war in Europe as an opportunity to reclaim the universal nature of certain core international rules, and the global character of the fight against impunity.

The Way Forward on Accountability for the Crime of Aggression, In and Beyond Ukraine

There can be no doubt that this is a momentous time in world affairs, and that the consequences of any action we take-or refuse to take-today will be felt for generations to come. Each of the models discussed above present unique legal and policy challenges that are difficult, but not impossible, to navigate. By this point, the need to hold Russian leaders accountable for their naked crime of aggression against the sovereign nation of Ukraine should be beyond dispute. Indeed, in my view, I believe European governments and their partners can and should move forward with asserting regional competence and willingness to punish criminally this heinous offense against the region's peace and stability. Of course, proponents of any tribunal formulation could continue to consider seeking a resolution by the UN General Assembly aimed to reiterate that the crime of aggression is a threat to all nations' peace and stability. Alongside general endorsement for a tribunal's creation, the UNGA resolution could also explicitly stipulate that preference should indeed be given to its establishment through regional institutions. This not only on account of the fact that the strongest consequences of the war are being felt in Europe, but perhaps also as a way to 'win over' the votes of those States that for policy, strategic, or financial concerns would oppose its creation through the United Nations. At the same time, for reasons discussed above, if such endorsement were not anticipated to be forthcoming a priori by the UNGA, this should not be seen as a bar to the creation of the special tribunal, for European regional organizations already themselves possess the right to establish such a court-and could, in fact, build on existing initiatives such as the recently announced Center for the Prosecution of the Crime of Aggression precisely to this effect.

It is my opinion that a court created by treaty between Ukraine and a regional organization in Europe, which is sufficiently distinct from Ukraine's domestic judicial system and that entails the full participation of international judges, counsel and prosecutors (alongside Ukrainians) would be the strongest and most viable option. From a legal perspective, the international/lized character of the court would be crucial both to its legitimacy, as well as with respect to the inapplicability of immunities (particularly if the ICC judges were to uphold the Bashir precedent with respect to the arrest warrant now outstanding against President Putin). Equally, however, I believe this model would be preferable also from both a policy and strategic perspective, for it would set a precedent that is at once strong but also not easily abused or replicated with ease-doing so would, in fact, require the bona fide, genuine, and strong diplomatic backing of the entire region most affected by the crime of aggression in the future-something that would require real diplomatic legwork, and that would be hard to 'manufacture' spuriously.

Whichever model is pursued, it should be clearly stipulated that the creation of a special tribunal for aggression today ought to be understood as a one-time, emergency measure aimed at prosecuting one of the most heinous crimes of aggression since the birth of the UN, precisely as a way to restore the cardinal prohibition against aggression and, with it, the global rule of law. Then, it also ought to be clear that establishing a special tribunal to prosecute the crime of aggression against Ukraine is not-and should not be seen-as a long-term substitute or alternative to the ICC, with whom the tribunal should be required to cooperate. In fact, if the establishment of the tribunal is to mean something outside of Europe and of Ukraine, its creation must become the catalyst that finally brings States Parties to the Rome Statute back to the negotiating table to address the limitations imposed on the ICC's exercise of jurisdiction on the offense. By virtue of its permanence and universalist ambition, an ICC with robust authority and jurisdiction over all international crimes-including the 'supreme international crime' that is aggression-might be the best-and, in fact only-way forward to reassert once and for all the central role that criminal accountability for egregious violations of international law should and will play as a key tenet of world affairs.

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Pursuing Accountability for the Crime of Aggression Against Ukraine - Groupe d'études géopolitiques

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A little over one year ago, multilateralism seemingly 'lied on its deathbed' as the world's second largest nuclear power, Russia, invaded neighbouring Ukraine right as the UN Security Council was meeting in New York in an eleventh-hour effort to 'give peace a chance'. For months, a massive military build-up by...

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The Displacement Crisis in Ukraine: Key Legal Issues - Erin Mooney (2023) 5 Revue Europeenne de Droit

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The Displacement Crisis in Ukraine: Key Legal Issues - Erin Mooney (2023) 5 Revue Europeenne de Droit

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This paper sets out key legal issues related to the protection of civilians from arbitrary displacement, to ensuring they are protected and assisted once displaced, and to supporting them to find a durable solution to displacement. The relevant standards are set by international humanitarian law, international human rights law and, as relevant, international refugee law. The UN Guiding Principles on Internal Displacement are also a key reference. The Guiding Principles define 'internally displaced persons' and spell out the rights of IDPs and the responsibilities of States and other authorities towards them in all phases of displacement. Although not a legally binding document in of itself, the Guiding Principles expressly are based on and consistent with the binding sources.

The Guiding Principles have gained broad international standing and recognition. Most notably, in 2005, the Heads of State of all Member States of the United Nations, including the Russian Federation and Ukraine, recognized the Principles as 'an important international framework for the protection of internally displaced persons.' Reaffirming this at the regional level, all Participating States of the Organization for Security and Cooperation in Europe (OSCE) recognize the UN Guiding Principles 'as a useful framework' for addressing internal displacement. The Council of Europe's Committee of Ministers, noting that the UN Guiding Principles 'have gained international recognition and authority', has stated its 'commitment to the spirit and provisions' of the Principles, affirmed that the Principles, along with other relevant international instruments of human rights or humanitarian law, apply to all IDPs, and has recommended that Member States be guided by these Principles when faced with internal displacement including when formulating domestic legislation. Indeed, the Government of Ukraine, in response to the conflict and earlier displacement crisis that began in 2014, adopted that year a Law on ensuring rights and freedoms of internally displaced persons that largely was based on the UN Guiding Principles and, after certain amendments to the law, is now considered by the UN to be in line with them.

1- Protection from Displacement

'Every human being has the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence' affirms Principle 6(1) of the UN Guiding Principles on Internal Displacement. Reaffirming this right, all Member States of the Council of Europe have declared that 'the arbitrary displacement of persons from their homes or place of habitual residence is prohibited, as can be inferred from the European Convention on Human Rights'.

In addition to the general prohibition of directly ordering the displacement of civilians, parties to a conflict have a duty to prevent displacement indirectly caused by their acts, at least those acts which are prohibited under international humanitarian law, such as terrorising the civilian population or carrying out indiscriminate attacks. In the words of a senior legal adviser of the ICRC:

During armed conflict, the civilian population is entitled to an immunity intended to shield it as much as possible from the effects of war. Even in times of war, civilians should be able to lead as normal a life as possible. In particular, they should be able to remain in their homes; this is a basic objective of international humanitarian law.

Protection and Assistance during Displacement

Attention to the specific vulnerabilities and risks that IDPs face infuses the provisions of the UN Guiding Principles regarding protection and assistance during their displacement. Typically, each Principle reaffirms, as a general principle the right of every human being to the particular need, for instance, for safety, freedom of movement, official documentation, education. The relevant provision then details in subsequent paragraphs what specific measures may be required in order to give effect to this right for IDPs.

For example, displacement often results in the separation of families, the reunification of which is especially critical for children, older persons, and persons with disabilities. After affirming that everyone has right to family life, Principle 17 specifies that for IDPs, respect of this right means that family members who wish to remain together during displacement shall be allowed to do so, that families separated by displacement should be reunited as quickly as possible, and that IDP families confined in camps have the right to remain together. Another entire principle is devoted to establishing the fate of, and providing next of kin with information about, any family members of IDPs who are reported to be missing. The Council of Europe elaborates that states' responsibility towards IDPs includes 'locating missing family members, notably those that have been taken hostage' and conveying to relatives any information on missing persons' whereabouts. In contexts where the effective control of territory is divided, UN guidance recommends: 'national and de facto authorities should cooperate pragmatically (eg through humanitarian actors or other impartial intermediaries) to allow for family reunification despite obstacles such as closed boundary lines.'

In the chaos of displacement, IDPs and refugees also often lose their official personal documentation, such as birth and marriage certificates, passports, voter identification cards, property title deeds, and social security cards. It could be that such documents are destroyed as a result of the hostilities or even confiscated, for instance, at checkpoints. IDPs have the right to reissuance, or issuance if they never had them, of such documents, and relevant authorities have the responsibility to facilitate this without imposing unreasonable conditions, such as requiring return to one's area of habitual residence. The Council of Europe emphasizes that IDPs 'shall be provided with all documents necessary for the effective exercise of their rights as soon as possible following their displacement and without unreasonable conditions being imposed'. In situations where a state does not have effective control over parts of its territory, interim practical solutions will be necessary. UN guidance recommends: 'national authorities may recognize papers provided by de facto authorities as prima facie factual proof of personal status, without this implying legal recognition of the entities providing the papers.'

Since the outbreak of the conflict and displacement crisis in Ukraine in 2014, the Government has expressed its commitment to ensure the safety and welfare of IDPs, and to do so in line with international standards. The Government of Ukraine has taken many legal, policy, and institutional measures to respond to the needs and protect the rights of IDPs, including adopting specific legislation on IDPs, establishing a ministry to lead the national response to IDPs, and implementing many programs for IDPs. The 2014 Law on Ensuring the Rights and Freedom of Internally Displaced Persons is the core reference, with many other pieces of national legislation also relevant. A compilation and analysis of Ukraine's national legislation relevant to internal displacement has assessed the compliance of Ukraine's national legislation with relevant international and regional standards, most notably the UN Guiding Principles on Internal Displacement and the European Convention on Human Rights. The findings and recommendations of this study were welcomed by the Government of Ukraine as well as civil society and utilized by the Verkhovna Rada (Parliament) Committee for Human Rights to inform a series of legislative amendments by the Government of Ukraine to enhance protection of the rights of IDPs. To support implementation of domestic legislation, specialized training is being provided to judges on the judicial protection of IDPs and other war-affected people.

However, a tremendous practical obstacle to the ability of the Government of Ukraine to discharge its responsibilities towards IDPs arises in conflict areas currently not under its territorial control. As a result, the situation of IDPs and other, non-displaced, civilians in these areas is especially concerning. Ever since the outbreak of conflict in 2014, the UN reports that restrictions on the movement of humanitarian staff relief supplies across the front lines has 'imposed tremendous challenges and limited humanitarian assistance in these parts of the country.' Since the escalation of the war on 24 February 2022, the UN reports that no inter-agency humanitarian convoys have been able to cross from Ukraine to areas of the control under Russian military control 'despite repeated attempts and notifications to the Russian Federation. International and local non-governmental humanitarian organizations face the same problem, reporting that it remains 'near impossible for aid workers to reach the communities most in need' and that '[s]ome areas have not received any assistance from aid organisations' for now over a year. These severe problems of humanitarian access repeatedly have been flagged to the UN Security Council, with the UN Emergency Relief Coordinator reminding the parties to the conflict that among the 'basic rules of war [...] they must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, wherever they are.' This is a norm of customary international law. Moreover, it is relevant simply to note that under the Statute of the International Criminal Court extermination, defined as including 'the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population' constitutes a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, and with knowledge of the attack.

3- The Right to a Safe, Voluntary, and Durable Solution to Displacement

While the qualifier 'voluntary' connotes that return should be a choice, overemphasis of the principle of 'voluntary return' can be problematic in practice by making it more difficult for displaced persons to exercise their right to choose other possible solutions, to which they also have a right. Epitomizing this risk, the Dayton Peace Accord ending the conflict in Bosnia and Herzegovina in 1995 gave prominence to refugees' and IDPs' right to return. Driving this emphasis were strong moral and political imperatives for the Government as well as the international community, and shared by many displaced persons themselves, to reverse the war's brutal campaign of 'ethnic cleansing' and the resulting dramatic demographic changes in disputed territories. The Agreement stressed many times not only the right of refugees and IDPs to return but the urgency of their doing so, even underscoring that '[t]he earlyreturn of refugees and displaced persons is an important objective of the settlement of the conflict'. However, for many years it remained very challenging for IDPs to pursue a solution other than return to their pre-war residence: under national legislation, even their recognition as an IDP, their access to reintegration assistance, and their ability to repossess their home and property effectively was contingent upon their expressing an intention to return. It was fifteen years after the war had ended, and only after intensive international advocacy and support, before the Government adopted a Revised Strategy for Implementation of Annex VII of the Dayton Peace Agreement which explicitly recognized for the first time IDPs' right not only to return but, should they choose, instead to locally integrate in their place of displacement or resettle elsewhere in the country.

A critically important corollary principle to that of voluntary return is the right of IDPs and refugees 'to be protected against forcible return or resettlement in any place where their life, safety, liberty and/or health would be at risk.' This is the principle of non-refoulement which, in addition to being articulated in international refugee law and having deep roots in international human rights law, particularly in the protections relating to torture, constitutes a principle of customary international law. This principle explicitly is reaffirmed by the Council of Europe, with reference to the European Convention on Human Rights. In Ukraine, the national IDP law explicitly protects IDPs from involuntary return.

Achieving durable solutions to displacement through fulfillment of these criteria inevitably will, the guidance emphasizes, be 'a gradual, often long-term process of reducing displacement-specific needs and ensuring the enjoying of human rights without discrimination' and be 'a complex process that addresses human rights, humanitarian, development, reconstruction and peace-building challenges'. In other words, the physical act of IDPs returning, resettling in another part of the country, or choosing to settle permanently in the location where they have been living while displaced is literally just the first step towards a solution to displacement. In addition to reconstruction and reintegration support, sustained objective monitoring of the security and other conditions in areas of return, local integration, and resettlement, will be essential.

Irrespective of the solution they choose, IDPs and refugees have the right to repossess their housing, land, and property, left behind during their displacement. That the property rights of displaced persons must be respected constitutes a norm of customary international law applicable in both international and non-international armed conflicts. In Ukraine, some IDPs and refugees who already have returned to their place of habitual residence are arriving only to find their homes illegally occupied by other persons. This situation, as experience around the world underscores, can become an additional source of conflict and violence unless judiciously handled. An effective mechanism to adjudicate property claims will need to be established and operate in line with international principles and guidance on the issue. A key principle is that restitution should be the primary remedy unless it is practically impossible or the refugee's or IDP's expressed wish to receive compensation in lieu of restitution. Any eventual peace agreement for the conflict in Ukraine should refer to IDPs' and refugees' right to restitution of their housing, land, and property, specify that this right applies irrespective of the solution to displacement they choose, and provide for the establishment of a credible mechanism for adjudicating disputed property claims.

An eventual peace agreement for the conflict in Ukraine should have resolving the challenges raised by displacement as a specific goal and should lay the foundations for enabling IDPs and returning refugees to achieve a voluntary and durable solution to their plight.

Conclusion

For the many millions of persons displaced by the war who are still in Ukraine, an end to the conflict is essential for them to find a safe and durable solution to their displacement and begin the difficult task of rebuilding their lives. In the meantime, parties to the conflict must be held accountable for meeting their well-established obligations under international law to protect civilians, to safeguard them from arbitrary displacement, and to ensure that all those who already are displaced in Ukraine receive the protection and assistance they so desperately need. Other countries, meanwhile, must continue to uphold their own responsibilities under international law, namely, to respect the fundamental right of individuals, including IDPs, to seek asylum in another country and the principle of non-refoulement protecting any individual from being returned to a country where their life, safety, or security would be at risk. As the conflict in Ukraine continues to drag on, these fundamental principles will continue to be tested.

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The Displacement Crisis in Ukraine: Key Legal Issues - Groupe d'études géopolitiques

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One of the most immediate and dramatic human consequences of the 24 February 2022 invasion of Ukraine by the Russian Federation was of millions of people fleeing for their lives. In what became the world's fastest growing displacement crisis since World War II, nearly 13 million people-more than a quarter...

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Sanctions, Confiscation, and the Rule of Law - Anton Moiseienko (2023) 5 Revue Europeenne de Droit

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Sanctions, Confiscation, and the Rule of Law - Anton Moiseienko (2023) 5 Revue Europeenne de Droit

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Anton Moiseienko Lecturer in Law à l’Australian National University

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Sanctions, Confiscation, and the Rule of Law - Groupe d’études géopolitiques

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One of the many depressing features of Russia’s ongoing war against Ukraine is the dearth of immediately available avenues for accountability. Discussions continue apace as to the establishment of a tribunal to adjudicate international crimes committed, but there is no denying that its effectiveness…

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The New Frontiers of European Sanctions and the Grey Areas of International Law - Regis Bismuth (2023) 5 Revue Europeenne du Droit

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The New Frontiers of European Sanctions and the Grey Areas of International Law - Regis Bismuth (2023) 5 Revue Europeenne du Droit

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Régis Bismuth Professor, Sciences Po Law School

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The New Frontiers of European Sanctions and the Grey Areas of International Law - Groupe d’études géopolitiques

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Following Russia’s invasion of Ukraine, the European Union (EU) adopted an unprecedented series of sanctions (also known as ‘restrictive measures’) between February 2022 and April 2023. Each ‘package’ of sanctions, of which there are ten to date, builds on and amplifies the legal framework of the sa…

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Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law - Polina Dvornikova - 6 June 2023

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Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law - Polina Dvornikova - 6 June 2023

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Ukrainian law students and young lawyers are reporting for JURIST on developments in and affecting Ukraine. This dispatch is from Polina Dvornikova, a law student at Yaroslav Mudryi National Law University in Kharkiv, Ukraine.

This morning, according to Ukrainian officials, the Russian Federation deliberately destroyed the Kakhovka hydroelectric plant, resulting in international condemnation as a clear war crime. Esteemed experts have recognized this incident as a civilians are now at major ecological disaster with profound implications for Europe. The safety and well-being of countless serious risk.
The dam and the damage
The Novaya Kakhovka dam stands as a vital physical bastion, impeding the flow of the Dnieper River, a significant watercourse coursing through the southeastern regions of Ukraine. Stretching downstream, a myriad of urban centers and municipalities grace its banks, the foremost being the city of Kherson, home to an approximate population of 300,000 prior to the extensive incursion launched by the Russian forces into Ukraine.

Last October, Ukrainian President Vladimir Zelenski raised the possibility that the Russian Federation had orchestrated a plan to demolish the Kakhovka hydroelectric plant, with the alleged aim of impeding Ukraine's counteroffensive in the Kherson region. President Zelensky further suggested that the undermining of the dam originated from within, indicating it was not the result of an external attack such as a missile strike.

"Ukrhydroenergo," Ukraine's hydroelectric power generation company, has confirmed that the explosion occurred within the engine room and that restoring the plant is currently unviable. In contrast, Volodymyr Leontiev, the unlawfully appointed mayor of Nova Kakhovka and a member of the Russian Federation's occupying forces, has claimed that multiple strikes had targeted the Kakhovka hydroelectric power plant. However, these assertions remain unverified.

Mikhail Podolyak, a senior advisor to President Zelensky, has expressed grave concerns regarding an ongoing ecological catastrophe in the region, predicting extensive destruction of animal species and ecosystems. Efforts are now underway to evacuate civilians residing within Ukrainian-controlled areas, although no information regarding evacuations from the Russian-controlled territory has been made available at this time.

Approximately 100 villages and towns are estimated to be submerged, as projected by the World Data Center for Geoinformatics and Sustainability. The receding of water levels is anticipated to begin within a week.

The ramifications of the Kakhovska hydroelectric power plant's destruction reverberate significantly in Crimea. The reservoir located upstream of the Kakhovka dam served as the primary source of freshwater for the Dnieper-Crimean canal, which provided the peninsula with vital water supply.

As per assertions from the Russian authorities, the current freshwater reserves on the peninsula are deemed sufficient; however, the true extent of the potential risks will manifest in the coming days.
Legal implications
The targeting of dams in armed conflicts raises complex issues within international humanitarian law. Determining the applicable rules depends on the nature of the conflict (international or non-international) and the adherence of the attacking forces to Additional Protocols I and II of 1977, which supplement the Geneva Conventions of 1949.

International Humanitarian Law encompasses the concept of "," but the classification of the present scenario as an attack, as defined in Article 49(1) of Additional Protocol I, remains ambiguous.

If Russia caused the initial dam damage leading to its destruction, the classification of this event as an "attack" becomes under international humanitarian law.

Destroying a dam is generally not considered an attack. For instance, if Ukraine sabotaged the dam under its control to impede Russian troops, it would not be classified as an attack under international humanitarian law, even if civilian casualties occurred. Determining the presence of an "attack" within the framework of international humanitarian law is a complex and nuanced matter.

Under(5)(b) of Additional Protocol I to the Geneva Conventions of 12 August 1949, an attack is deemed disproportionate if it is expected to cause civilian casualties, harm to civilians, damage to civilian structures, or a combination thereof, that exceeds the specific and direct military advantage anticipated. Without knowledge of the intended military advantage, a definitive evaluation cannot be reached.

However, if we consider the scenario where the Russian forces targeted the dam to hinder an Ukrainian offensive, the extensive destruction and its impact on civilians and downstream infrastructure unquestionably demonstrate a disproportionate attack.

Article 56 of Additional Protocol I addresses attacks on structures containing dangerous forces, such as dams. It states that an attack would violate Article 56, regardless of its limited military objective or proportionality under International Humanitarian Law, if it could potentially lead to the release of hazardous forces and cause substantial civilian casualties.

Regarding the destruction of the dam at Nova Kakhovka, two pivotal considerations arise: the potential gravity of civilian casualties and the potential consequences stemming from the dam's destruction. The threshold for severity would be surpassed in a situation where the risk extends to a substantial number of individuals residing in areas that had not been previously evacuated. The magnitude of the impact is profound, posing a significant threat to civilian lives.

Moreover, it is important to note that the risk threshold in the context of Article 56 is lower than that of the proportionality assessment. (3)(c) of Additional Protocol I stipulates that such an attack constitutes a war crime, thus placing it on par with the bombing of a nuclear power plant.

Prompt initiation of an international investigation is imperative to ascertain the precise circumstances surrounding the explosion incident at the Kakhovska hydroelectric power plant. It is crucial to identify the responsible party for this tragic event, resulting in loss of life and substantial harm to the civilian population. Furthermore, there is a pressing necessity to devise robust measures of influence and deterrence against the Russian Federation, in order to avert potential future war crimes in Ukraine, which may even surpass the severity of the present situation.

# data[].attributes.attachment_link.authors[].name
Polina Dvornikova | Yaroslav Mudryi National Law University, UA

# data[].attributes.attachment_link.title
Ukraine dispatch: Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law

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Ukrainian law students and young lawyers are reporting for JURIST on developments in and affecting Ukraine. This dispatch is from Polina Dvornikova, a law student at Yaroslav Mudryi National Law University in Kharkiv, Ukraine. This morning, according to Ukrainian officials, the Russian Federation deliberately destroyed the Kakhovka hydroelectric plant, resulting in international condemnation as a clear war crime.

# data[].attributes.headline
Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law - Polina Dvornikova - 6 June 2023

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Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law - Polina Dvornikova - 6 June 2023

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Ukrainian law students and young lawyers are reporting for JURIST on developments in and affecting Ukraine. This dispatch is from Polina Dvornikova, a law student at Yaroslav Mudryi National Law University in Kharkiv, Ukraine.

This morning, according to Ukrainian officials, the Russian Federation deliberately destroyed the Kakhovka hydroelectric plant, resulting in international condemnation as a clear war crime. Esteemed experts have recognized this incident as a civilians are now at major ecological disaster with profound implications for Europe. The safety and well-being of countless serious risk.
The dam and the damage
The Novaya Kakhovka dam stands as a vital physical bastion, impeding the flow of the Dnieper River, a significant watercourse coursing through the southeastern regions of Ukraine. Stretching downstream, a myriad of urban centers and municipalities grace its banks, the foremost being the city of Kherson, home to an approximate population of 300,000 prior to the extensive incursion launched by the Russian forces into Ukraine.

Last October, Ukrainian President Vladimir Zelenski raised the possibility that the Russian Federation had orchestrated a plan to demolish the Kakhovka hydroelectric plant, with the alleged aim of impeding Ukraine's counteroffensive in the Kherson region. President Zelensky further suggested that the undermining of the dam originated from within, indicating it was not the result of an external attack such as a missile strike.

"Ukrhydroenergo," Ukraine's hydroelectric power generation company, has confirmed that the explosion occurred within the engine room and that restoring the plant is currently unviable. In contrast, Volodymyr Leontiev, the unlawfully appointed mayor of Nova Kakhovka and a member of the Russian Federation's occupying forces, has claimed that multiple strikes had targeted the Kakhovka hydroelectric power plant. However, these assertions remain unverified.

Mikhail Podolyak, a senior advisor to President Zelensky, has expressed grave concerns regarding an ongoing ecological catastrophe in the region, predicting extensive destruction of animal species and ecosystems. Efforts are now underway to evacuate civilians residing within Ukrainian-controlled areas, although no information regarding evacuations from the Russian-controlled territory has been made available at this time.

Approximately 100 villages and towns are estimated to be submerged, as projected by the World Data Center for Geoinformatics and Sustainability. The receding of water levels is anticipated to begin within a week.

The ramifications of the Kakhovska hydroelectric power plant's destruction reverberate significantly in Crimea. The reservoir located upstream of the Kakhovka dam served as the primary source of freshwater for the Dnieper-Crimean canal, which provided the peninsula with vital water supply.

As per assertions from the Russian authorities, the current freshwater reserves on the peninsula are deemed sufficient; however, the true extent of the potential risks will manifest in the coming days.
Legal implications
The targeting of dams in armed conflicts raises complex issues within international humanitarian law. Determining the applicable rules depends on the nature of the conflict (international or non-international) and the adherence of the attacking forces to Additional Protocols I and II of 1977, which supplement the Geneva Conventions of 1949.

International Humanitarian Law encompasses the concept of "," but the classification of the present scenario as an attack, as defined in Article 49(1) of Additional Protocol I, remains ambiguous.

If Russia caused the initial dam damage leading to its destruction, the classification of this event as an "attack" becomes under international humanitarian law.

Destroying a dam is generally not considered an attack. For instance, if Ukraine sabotaged the dam under its control to impede Russian troops, it would not be classified as an attack under international humanitarian law, even if civilian casualties occurred. Determining the presence of an "attack" within the framework of international humanitarian law is a complex and nuanced matter.

Under(5)(b) of Additional Protocol I to the Geneva Conventions of 12 August 1949, an attack is deemed disproportionate if it is expected to cause civilian casualties, harm to civilians, damage to civilian structures, or a combination thereof, that exceeds the specific and direct military advantage anticipated. Without knowledge of the intended military advantage, a definitive evaluation cannot be reached.

However, if we consider the scenario where the Russian forces targeted the dam to hinder an Ukrainian offensive, the extensive destruction and its impact on civilians and downstream infrastructure unquestionably demonstrate a disproportionate attack.

Article 56 of Additional Protocol I addresses attacks on structures containing dangerous forces, such as dams. It states that an attack would violate Article 56, regardless of its limited military objective or proportionality under International Humanitarian Law, if it could potentially lead to the release of hazardous forces and cause substantial civilian casualties.

Regarding the destruction of the dam at Nova Kakhovka, two pivotal considerations arise: the potential gravity of civilian casualties and the potential consequences stemming from the dam's destruction. The threshold for severity would be surpassed in a situation where the risk extends to a substantial number of individuals residing in areas that had not been previously evacuated. The magnitude of the impact is profound, posing a significant threat to civilian lives.

Moreover, it is important to note that the risk threshold in the context of Article 56 is lower than that of the proportionality assessment. (3)(c) of Additional Protocol I stipulates that such an attack constitutes a war crime, thus placing it on par with the bombing of a nuclear power plant.

Prompt initiation of an international investigation is imperative to ascertain the precise circumstances surrounding the explosion incident at the Kakhovska hydroelectric power plant. It is crucial to identify the responsible party for this tragic event, resulting in loss of life and substantial harm to the civilian population. Furthermore, there is a pressing necessity to devise robust measures of influence and deterrence against the Russian Federation, in order to avert potential future war crimes in Ukraine, which may even surpass the severity of the present situation.

# data[].attributes.attachment_link.authors[].name
Polina Dvornikova | Yaroslav Mudryi National Law University, UA

# data[].attributes.attachment_link.title
Ukraine dispatch: Kakhovka hydroelectric dam destruction is also an attack on international humanitarian law

# data[].attributes.attachment_link.description
Ukrainian law students and young lawyers are reporting for JURIST on developments in and affecting Ukraine. This dispatch is from Polina Dvornikova, a law student at Yaroslav Mudryi National Law University in Kharkiv, Ukraine. This morning, according to Ukrainian officials, the Russian Federation deliberately destroyed the Kakhovka hydroelectric plant, resulting in international condemnation as a clear war crime.

# data[].attributes.headline
the destruction of the dam at Nova Kakhovka - Lawrence Hill-Cawthorne - 9 June 2023

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the destruction of the dam at Nova Kakhovka - Lawrence Hill-Cawthorne - 9 June 2023

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— University of Bristol (@BristolUni) June 9, 2023

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The law is clear: Putin must be arrested if he sets foot in South Africa - Mispa Roux - 4 June 2023

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The law is clear: Putin must be arrested if he sets foot in South Africa - Mispa Roux - 4 June 2023

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OPINIONISTA: The law is clear: Putin must be arrested if he sets foot in South Africa

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The current legal obligation on South Africa in terms of domestic and international law and legal precedent is absolutely clear: the government must arrest and surrender Vladimir Putin to the International Criminal Court (ICC) should he enter South African territory.

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Why blowing up Ukraine’s Nova Kakhovka dam is a war crime - Alexander Gillespie - 8 June 2023

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Why blowing up Ukraine’s Nova Kakhovka dam is a war crime - Alexander Gillespie - 8 June 2023

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Alexander Gillespie is a professor of international law at the University of Waikato, New Zealand.

Rescuers evacuate local residents from a flooded area after the Nova Kakhovka dam breach, in Kherson, Ukraine, June 7, 2023 [Vladyslav Musiienko/Reuters]

The blame game is on. Ukraine has insisted that Russia exploded the Nova Kakhovka dam earlier this week in a part of southern Ukraine currently occupied by the Kremlin's forces. Russia claims the dam was a victim of sabotage by Ukraine.

Yet whatever the truth, one thing should be abundantly clear: In times of war, humanity has an atrocious history in the way that it inflicts pain upon its opposition. And destroying structures like dams, which can cause excessive damage to both people and their surrounding environments, has been a sadly common practice for centuries. The flooding that is now devastating the regions around Nova Kakhovka, forcing the evacuation of thousands of civilians, is only the latest example of this cynical practice.

The intentional destruction of dams or dykes as a method of warfare goes back to at least the 16th century and the Eighty Years' War between the Spanish army and Dutch rebels over territory that is today part of the Netherlands and Belgium. These belligerents discovered that flooding areas made it very difficult for enemies to advance, greatly reducing the mobility and speed of opposing armies.

Such practices of either destroying dams or "scorching the earth" to impede the progress of the opposition continued unabated into the 20th century during times of warfare.

In the second world war, the destruction of dams gained global notoriety with the so-called Dambusters raid during which British forces attacked three German dams in May 1943. During the Korean War, the United States military, working under a United Nations banner, led a bombing campaign against North Korean hydroelectric facilities.

While the ostensible aim of such attacks was always to gain a battlefield advantage and hurt the enemy's industrial capabilities, they invariably also caused extensive damage to civilian populations.

By the time of the Vietnam War, such blunt warfare was frowned upon, and by 1977, the majority of the international community was ready for what is known as Additional Protocol I to the Geneva Conventions. Two new rules attempted to keep acts of warfare from being excessively inhumane, disproportionate and/or indiscriminate.

First, with regard to the environment, it was decided that: "Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population."

Second, in terms of "works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations", these areas "shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population".

The only time that this special protection against attacks on dams and dykes does not apply is if the installation is effectively being used to support military operations and if attacking it is the only way to terminate that support. There is no evidence that the Nova Kakhovka dam was being used to support military actions.

Despite the clear humanitarian value of these rules, the US never ratified Additional Protocol I and although Russia originally ratified it, President Vladimir Putin removed Moscow's signature from these obligations in 2019. Ukraine remains a signatory.

As Russia is no longer a signatory, it could be argued that these rules do not apply to them. The counterargument is that whether countries sign up or not, these obligations are so common now that they are considered customary and binding on all countries, at all times. The problem with this assertion is that no one has ever been brought to justice for attacking dams, and some countries have continued to target such structures. This occurred when the US in its war against ISIL (ISIS) reportedly bombed Syria's Tabqa Dam in 2017, despite warnings that the strike could lead to tens of thousands of deaths.

Where there might be greater clarity is with the International Criminal Court (ICC). This body, set up at the end of the 20th century is clear that war crimes include "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".

Although the US, Russia and Ukraine are not parties to the statute that undergirds the ICC, Kyiv has twice exercised its prerogatives to accept the court's jurisdiction over alleged crimes occurring on its territory.

The ICC has accepted this jurisdiction and has already issued its first arrest warrants, including for Putin, for the alleged war crime of unlawful deportation of children and the unlawful transfer of children from occupied areas of Ukraine to Russia. It would be a very small step for the ICC to now start investigating the destruction of the dam as another potential war crime.

While there are strong arguments for setting a new precedent to punish these brutal practices of attacking dams, the greater challenge is whether accountability will ever be achieved for such crimes and whether restitution for damage caused will ever be delivered. When eventually this war stops, these questions of accountability and restitution for crimes committed will go to the heart of any eventual peace deal that is concluded.

Until that is decided, what we are watching is the continual erosion of norms that are meant to keep restraints on warfare. The implications of this are much larger than just the loss of the dam or even debates about war crimes.

Whoever is responsible for the destruction of the dam is trying to force the principles of humanity backwards to a point where acts against civilians - causing indiscriminate and disproportionate damage - become acceptable. And where one such crime occurs, others may easily follow as the wider world becomes desensitised to such barbarity.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial stance.

# data[].attributes.attachment_link.title
Blowing up Ukraine's dam is a war crime - with a long history

# data[].attributes.attachment_link.description
Alexander Gillespie is a professor of international law at the University of Waikato, New Zealand. The blame game is on. Ukraine has insisted that Russia exploded the Nova Kakhovka dam earlier this week in a part of southern Ukraine currently occupied by the Kremlin's forces.

# data[].attributes.headline
Why blowing up Ukraine’s Nova Kakhovka dam is a war crime - Alexander Gillespie - 8 June 2023

# data[].attributes.subject
Why blowing up Ukraine’s Nova Kakhovka dam is a war crime - Alexander Gillespie - 8 June 2023

# data[].attributes.attachment_link.readable_text
Alexander Gillespie is a professor of international law at the University of Waikato, New Zealand.

Rescuers evacuate local residents from a flooded area after the Nova Kakhovka dam breach, in Kherson, Ukraine, June 7, 2023 [Vladyslav Musiienko/Reuters]

The blame game is on. Ukraine has insisted that Russia exploded the Nova Kakhovka dam earlier this week in a part of southern Ukraine currently occupied by the Kremlin's forces. Russia claims the dam was a victim of sabotage by Ukraine.

Yet whatever the truth, one thing should be abundantly clear: In times of war, humanity has an atrocious history in the way that it inflicts pain upon its opposition. And destroying structures like dams, which can cause excessive damage to both people and their surrounding environments, has been a sadly common practice for centuries. The flooding that is now devastating the regions around Nova Kakhovka, forcing the evacuation of thousands of civilians, is only the latest example of this cynical practice.

The intentional destruction of dams or dykes as a method of warfare goes back to at least the 16th century and the Eighty Years' War between the Spanish army and Dutch rebels over territory that is today part of the Netherlands and Belgium. These belligerents discovered that flooding areas made it very difficult for enemies to advance, greatly reducing the mobility and speed of opposing armies.

Such practices of either destroying dams or "scorching the earth" to impede the progress of the opposition continued unabated into the 20th century during times of warfare.

In the second world war, the destruction of dams gained global notoriety with the so-called Dambusters raid during which British forces attacked three German dams in May 1943. During the Korean War, the United States military, working under a United Nations banner, led a bombing campaign against North Korean hydroelectric facilities.

While the ostensible aim of such attacks was always to gain a battlefield advantage and hurt the enemy's industrial capabilities, they invariably also caused extensive damage to civilian populations.

By the time of the Vietnam War, such blunt warfare was frowned upon, and by 1977, the majority of the international community was ready for what is known as Additional Protocol I to the Geneva Conventions. Two new rules attempted to keep acts of warfare from being excessively inhumane, disproportionate and/or indiscriminate.

First, with regard to the environment, it was decided that: "Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population."

Second, in terms of "works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations", these areas "shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population".

The only time that this special protection against attacks on dams and dykes does not apply is if the installation is effectively being used to support military operations and if attacking it is the only way to terminate that support. There is no evidence that the Nova Kakhovka dam was being used to support military actions.

Despite the clear humanitarian value of these rules, the US never ratified Additional Protocol I and although Russia originally ratified it, President Vladimir Putin removed Moscow's signature from these obligations in 2019. Ukraine remains a signatory.

As Russia is no longer a signatory, it could be argued that these rules do not apply to them. The counterargument is that whether countries sign up or not, these obligations are so common now that they are considered customary and binding on all countries, at all times. The problem with this assertion is that no one has ever been brought to justice for attacking dams, and some countries have continued to target such structures. This occurred when the US in its war against ISIL (ISIS) reportedly bombed Syria's Tabqa Dam in 2017, despite warnings that the strike could lead to tens of thousands of deaths.

Where there might be greater clarity is with the International Criminal Court (ICC). This body, set up at the end of the 20th century is clear that war crimes include "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".

Although the US, Russia and Ukraine are not parties to the statute that undergirds the ICC, Kyiv has twice exercised its prerogatives to accept the court's jurisdiction over alleged crimes occurring on its territory.

The ICC has accepted this jurisdiction and has already issued its first arrest warrants, including for Putin, for the alleged war crime of unlawful deportation of children and the unlawful transfer of children from occupied areas of Ukraine to Russia. It would be a very small step for the ICC to now start investigating the destruction of the dam as another potential war crime.

While there are strong arguments for setting a new precedent to punish these brutal practices of attacking dams, the greater challenge is whether accountability will ever be achieved for such crimes and whether restitution for damage caused will ever be delivered. When eventually this war stops, these questions of accountability and restitution for crimes committed will go to the heart of any eventual peace deal that is concluded.

Until that is decided, what we are watching is the continual erosion of norms that are meant to keep restraints on warfare. The implications of this are much larger than just the loss of the dam or even debates about war crimes.

Whoever is responsible for the destruction of the dam is trying to force the principles of humanity backwards to a point where acts against civilians - causing indiscriminate and disproportionate damage - become acceptable. And where one such crime occurs, others may easily follow as the wider world becomes desensitised to such barbarity.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial stance.

# data[].attributes.attachment_link.title
Blowing up Ukraine's dam is a war crime - with a long history

# data[].attributes.attachment_link.description
Alexander Gillespie is a professor of international law at the University of Waikato, New Zealand. The blame game is on. Ukraine has insisted that Russia exploded the Nova Kakhovka dam earlier this week in a part of southern Ukraine currently occupied by the Kremlin's forces.

# data[].attributes.headline
the destruction of the dam at Nova Kakhovka - Lawrence Hill-Cawthorne - 9 June 2023

# data[].attributes.subject
the destruction of the dam at Nova Kakhovka - Lawrence Hill-Cawthorne - 9 June 2023

# data[].attributes.wish_content.attachment_props.text
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

Expert in International Humanitarian Law, Dr Lawrence Hill-Cawthorne, explains 👇🧵 (1/4)

#Ukraine @BristolUniLaw

# data[].attributes.wish_content.attachment_props.original_text
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

Expert in International Humanitarian Law, Dr Lawrence Hill-Cawthorne, explains 👇🧵 (1/4)

#Ukraine @BristolUniLaw https://t.co/nM4H2Lhjb0

# data[].attributes.attachment_link.embed_code
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

Expert in International Humanitarian Law, Dr Lawrence Hill-Cawthorne, explains 👇🧵 (1/4)#Ukraine @BristolUniLaw pic.twitter.com/nM4H2Lhjb0
— University of Bristol (@BristolUni) June 9, 2023

# data[].attributes.attachment_link.metadata.attachment_props_source.data.text
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

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#Ukraine @BristolUniLaw https://t.co/nM4H2Lhjb0

# data[].attributes.attachment_link.metadata.attachment_props.original_text
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

Expert in International Humanitarian Law, Dr Lawrence Hill-Cawthorne, explains 👇🧵 (1/4)

#Ukraine @BristolUniLaw https://t.co/nM4H2Lhjb0

# data[].attributes.attachment_link.metadata.attachment_props.text
🚨 Explained in 60 Seconds 🚨

Was the destruction of the dam at Nova Kakhovka a war crime?

Expert in International Humanitarian Law, Dr Lawrence Hill-Cawthorne, explains 👇🧵 (1/4)

#Ukraine @BristolUniLaw

# data[].attributes.headline
Could the Nova Kakhovka Dam Destruction Become the ICC’s First Environmental Crimes Case? - Thomas Hansen - 9 June 2023

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Could the Nova Kakhovka Dam Destruction Become the ICC’s First Environmental Crimes Case? - Thomas Hansen - 9 June 2023

# data[].attributes.attachment_link.readable_text
Ukraine's president, Volodymyr Zelenskyy, is likely right when he labels the Nova Kakhovka Dam destruction the "largest man-made environmental disaster in Europe in decades." Accountability for those responsible for the disaster is already being called for - and more voices will be added in the days ahead. If, as most now suspect, Russia is somehow behind the attack, many will look towards the International Criminal Court (ICC) to make that happen. But is the ICC Prosecutor likely to investigate the Nova Kakhovka Dam destruction, and if so, what are the conditions?

The ICC, which already has opened an investigation covering crimes in the Ukraine war and in March this year issued arrest warrants for President Vladimir Putin and his associate, Maria Lvova-Belova, claims to "belong" in the so-called " rules-based international order " - and this is central for understanding the conditions of what could potentially become the Court's first environmental crimes investigation.

Legal Requirements Under Article 8(2)(b)(iv)

Without digging too much into the legal details, the Nova Kakhovka Dam destruction could in principle be prosecuted under various provisions in the ICC Statute, including the war crime of intentionally directing attacks against civilian objects and a provision discussed below concerning attacks that cause serious damage to the natural environment. It could possibly also be prosecuted as a crime against humanity, potentially with reference to utilizing environmental destruction to attack the civilian population.

There are several reasons why the ICC might want to demonstrate capacity to investigate the Nova Kakhovka Dam destruction as an environmental crime. While the Court's mandate is fairly limited in that regard, Article 8(2)(b)(iv) does permit the prosecution of the war crime of "intentionally launching an attack in the knowledge that such attack will cause [...] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." The cumulative requirements of widespread, long-term, and severe are difficult to meet in most situations involving environmental damage in conflict situations.

Without yet knowing the full details concerning the long-term impact of the Nova Kakhovka Dam destruction, it appears exactly the type of situation that could meet these three cumulative requirements. The damage happening already is indisputably widespread, a term normally understood to require impact on an area of at least several hundred square kilometres. It is also clearly severe from what we know at this point. The longer-term impact for the environment can of course not be fully assessed yet, but will almost certainly be felt for generations.

As Marko Milanovic explains here, the more complex legal point concerns whether the act of blowing up the dam amounts to an "attack." While Milanovic's observations are focused on international humanitarian law, similar considerations would apply in the context of interpreting the term "attack" in Article 8(2)(b)(iv) (and other war crimes provisions requiring an "attack") in the ICC Statute. This term is subject to some uncertainty, but the prevailing view is that sabotage of "a party's own dam" does not normally amount to an attack. The fact that Russia occupied the Nova Kakhovka Dam could, depending on how "own" is understood, prove a challenge to successfully prosecuting a potential Article 8(2)(b)(iv) case against Russian actors.

However potential challenges on that note at the prosecution stage - should it ever come to one - are unlikely at this point to be the main factor in the ICC Prosecutor's decision-making concerning whether the Nova Kakhovka Dam destruction should be in the first place investigated.

Incentive for the ICC Prosecutor to Investigate the Nova Kakhovka Dam Destruction

To date, no charges have been brought under Article 8(2)(b)(iv), despite the stated commitment of the ICC Prosecutor to "give particular consideration" to prosecuting crimes that are associated with "the destruction of the environment," and despite the fact that various serious environmental crimes have in the past been brought to the attention of the Prosecutor (see, e.g., here and here). Critique has been mounting in recent years for the Prosecutor failing to give effect to these commitments, and there are calls for adopting a new crime of " ecocide " in the ICC Statute which, if adopted, would vastly expand the Court's jurisdiction over environmental crimes.

The Nova Kakhovka Dam destruction provides the ICC Prosecutor with exactly the incentive needed to counter this criticism by investigating the incident under existing ICC Statute provisions, mainly because it would permit the Court to prove its relevance to a global audience increasingly demanding accountability for environmental crimes. The Court's Prosecutor could therefore see this as an "opportunity" to boost institutional interests by proving that the ICC is willing to direct its attention towards crimes affecting the environment. In this case, declaring an investigation of the incident could be portrayed as a timely response to the nearly global, outcry over the dam's destruction and calls for accountability for an act of war with indisputable massive, long-term environmental implications along with devastation for the communities along the Dnipro River.

Additionally - and assuming for now that actors aligned with Moscow are indeed responsible for the incident - it is in a sense an "easy case" for the ICC to investigate (not to confuse with successfully prosecuting and enforcing). Key funders and supporters of the Court in the rules-based international order, who have already provided unprecedented support for the ICC's Ukraine investigation, would without doubt welcome an investigation targeting persons responsible for the Nova Kakhovka Dam destruction - that is, in so far as these persons are linked to Moscow. As Sergey Vasiliev explains, the ICC's actions in Ukraine are in "perfect alignment with the consolidated position of powerful Western/Global North military and economic alliances (NATO and EU) against a common foe they are determined to defeat on all fronts, including the legal one." If that "common foe" appears responsible for what could be among the worst environmental catastrophes happening in an armed conflict in decades, key audiences of the Court will call for it to act, and they will do so with a determined voice.

At the same time, the fact that Russia, a nuclear power and permanent member of the U.N. Security Council, is in some ways a "powerful" State permits the ICC Prosecutor to portray a potential investigation of the dam destruction as confirming the Court's commitment to go after "the powerful" in instances of environmental crimes, something that would please ecocide campaigners and other environmentalists. Of course, such as narrative does not account for the ICC's futile attempts to challenge powers in the West, for crimes in Afghanistan or Iraq, but it may still be seen as a good selling point in the Prosecutor's Office.

What if it Wasn't Russia, but Ukraine, Blowing Up the Dam?

The above considerations assume agents of Russia are behind the attack, but at this point it is by no means clear that Moscow is actually responsible for the dam destruction, itself claiming innocence, just like Kyiv. If, as perhaps was the case with the Nord Stream pipeline attack, it looks more likely that Moscow is not the culprit here, the ICC's options would perhaps be perceived differently.

Human rights and environmental groups would presumedly call for the Court to proceed with an investigation regardless of what way the evidence will point. And doing so could, in principle, be an opportunity for the ICC to demonstrate an unbiased approach to its investigations - and thus an opportunity to counter criticism of selectivity. But as European leaders already on the day of the dam's destruction blamed Russia for the attack and in light of the general instrumentalization by Western actors of the ICC's investigation in Ukraine pointed to above, any ICC activity that runs counter to this narrative will inevitably be a much harder sell for the Court.

Longer Term Implications for Environmental Crimes Accountability

The Nova Kakhovka Dam destruction, already labelled an act of "ecocide" by some, including the Ukrainian leadership, will undoubtedly reinforce calls for the ICC to focus more on environmental crimes and further energize the ecocide movement. Depending on how circumstances develop in the time ahead, the ICC could be tempted to open its first-ever environmental crimes investigation. This would be symbolically significant and a major development in international criminal justice.

However, even if such an investigation moves forward, we should not forget the challenges experienced with enforcement at the ICC level. Neither should we forget that potential environmental crimes accountability at the ICC will assumedly operate on similar conditions to those defining the Court's operations to date. This results that the Court can proceed with confidence when operating in line with the interests of key players in the rules-based international order but is drastically limited in its options if seeking to challenge these interests - and that is a real obstacle to providing meaningful accountability for environmental crimes at the ICC in the longer run.

IMAGE: Local residents sail on a SUP board past servicemen of the National Guard of Ukraine delivering food to the residents of a flooded area in Kherson on June 8, 2023, following damages sustained at Kakhovka hydroelectric power plant dam. (Photo by Genya SAVILOV / AFP) (Photo by GENYA SAVILOV/AFP via Getty Images)

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Could the Nova Kakhovka Dam Destruction Become the ICC's First Environmental Crimes Case?

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Ukraine's president, Volodymyr Zelenskyy, is likely right when he labels the Nova Kakhovka Dam destruction the "largest man-made environmental disaster in Europe in decades." Accountability for those responsible for the disaster is already being called for - and more voices will be added in the days ahead.

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Oil Tankers as "Environmental Time Bombs," or Not - Mark Jessup - 12 August 2022

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Oil Tankers as "Environmental Time Bombs," or Not - Mark Jessup - 12 August 2022

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Ukraine Symposium - Oil Tankers as “Environmental Time Bombs,” or Not - Lieber Institute West Point

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Oil tankers, regardless of the potential environmental damage, are valid military objectives according to LOAC and not prohibited time bombs.

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Destroying the Environment Is a War Crime, Too - Eugene Z. Stakhiv - 27 July 2022

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Destroying the Environment Is a War Crime, Too - Eugene Z. Stakhiv - 27 July 2022

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Each month, the scope and scale of Russia's atrocities in Ukraine expand almost exponentially. There are now millions of refugees, tens of thousands of deaths, and a devastated Ukrainian economy that the World Bank estimates will contract by 45 percent by the end of the year. Russia's Dresden-level infrastructure destruction has created a humanitarian crisis in Ukraine, with widespread poverty, misery-and grave long-term human health consequences.

Beneath the human and socioeconomic catastrophe is an evolving array of environmental disasters that will afflict Ukraine's ecosystems for generations to come.

Environmental damage falls under two broad categories, both of which are relevant in Ukraine: the direct adverse impacts on ecosystems and ecological bioreserves, and the associated human health effects on populations dependent on the services of the environment for the air we breathe, the water we drink, and the food we eat.

The wanton destruction by constant indiscriminate Russian artillery volleys and missiles includes energy infrastructure, oil storage tankers, oil refineries, drilling platforms, gas facilities, gas distribution pipelines, mines, industrial sites, agro-processing facilities, wastewater treatment plants, water supply treatment facilities, pumping stations, and other pipelines.

Most prominently, according to U.N. Environment Program reports, nuclear facilities have been damaged, as well as nuclear waste disposal sites and other sites storing hazardous and toxic chemicals. After each flood and heavy rainfall, these toxic chemicals infiltrate into groundwater and spill over into Ukraine's waterways. These destroyed sites will become Ukraine's equivalent to the nearly 1,900 toxic Superfund sites scattered around the United States.

Hundreds of industrial facilities, warehouses, and factories have also been damaged, some storing a range of hazardous substances ranging from toxic chemical solvents to ammonia and plastics. Hazardous substances have been released from explosions in agro-industrial storage facilities, including fertilizer and nitric acid plants. Billowing clouds of orange noxious fumes could be seen for miles after attacks on such chemical plants. These poisonous gases are extremely hazardous to humans and livestock.

War, an anarchic and lawless activity, is nonetheless superficially governed by international conventions, such as the Geneva Conventions, which prohibit drastic and permanent damage to the environment. Under certain circumstances, the International Criminal Court considers such actions as war crimes.

For example, during the first Gulf War in 1991, Iraq set fire to hundreds of oil wells in Kuwait and dumped millions of gallons of oil into the Persian Gulf. Kuwait sought reparations from Iraq. Because there were numerous U.N. Security Council censures on which to build a case, the U.N. Compensation Commission ordered Iraq to pay nearly $53 billion for the damages it caused, a part of which went for environmental and human health related damages.

The problem is that international environmental laws are vague and largely unenforceable by the U.N. system. The International Criminal Court tries individuals for war crimes. Ukraine's case, which is unable to rely on censures from the Security Council due to Russia's veto power, would have to go through the U.N. International Court of Justice. And, in any case, it would be difficult to separate Ukraine's prior diffuse environmental degradation during the Soviet era from current wartime damages.

Work is underway at the U.N. to better define a set of legal principles that would guide future prosecution. A division of the U.N. called the International Law Commission has developed a set of 28 nonbinding principles that clarify how international war laws apply to the environment and the conduct of invading and occupying forces, as well as responsibility for post-conflict reparations and reconstruction.

The recent U.N. International Law Commission Report on protection of the environment in relation to armed conflicts covered many of the causes of environmental harm during a conflict. A great many directly address Russia's clear culpability in destroying Ukraine's infrastructure and its environment.

For example, Draft Principle 17 on protected zones states that "An area of major environmental and cultural importance designated by agreement as a protected zone shall be protected against any attack, as long as it does not contain a military objective." Russian forces stationed in the Black Sea Biosphere Reserve, along the southern coast near Kherson, caused fires that could be seen from space.

Documentation of such war crimes is essential. To that end, on April 21, Ukrainian President Volodymyr Zelensky established a National Council for the Recovery of Ukraine from the War. A working subgroup on environmental security has been formed within the council and is headed by Minister of the Environment Ruslan Strilets. As a first step, the environmental security group is recording all cases of environmental crimes by the occupying Russian forces, aiming to seek future compensation for damages in international courts.

When Russia invaded the Donbas region in 2014, it included the provinces of Donetsk and Luhansk, which are at the center of Ukraine's coal-mining and industrial region. At that time, the separatist administration shut down and abandoned many coal mines. As a consequence, many mines were flooded through normal rainfall, and rising groundwater levels resulted in overflows of acidic mine waters into the receiving rivers.

Acid mine drainage is one of mining's most serious threats to aquatic ecosystems. Without continuous pumping and treatment of mine drainage waters, the acidic waters can devastate rivers, streams, and aquatic life for more than a generation.

Destroyed wastewater treatment plants are spewing raw sewage into Ukraine's rivers, and the Russian devastation of Mariupol, centered on the Azovstal steel plant, poses a grave threat to the nearshore coastal ecosystems of the Sea of Azov. The siege of Mariupol began on March 2 and ended May 20, when the remaining Ukrainian forces at Azovstal surrendered. During that time, the Azovstal plant was bombarded mercilessly, destroying all the ground-level infrastructure, along with chemical storage facilities and waste disposal sites. Toxic chemicals have leaked from those sites into the groundwater and the Sea of Azov.

Wastes from iron ore processing and smelting generate a broad array of toxic chemicals and waste byproducts called slag. Under the best of circumstances, the treatment, disposal, and storage of such waste imposes a wide spectrum of environmental hazards and human health risks, if not managed properly. Neglected and unmanaged toxic waste disposal areas that have been collaterally or intentionally damaged by heavy shelling greatly amplify those ecological risks.

On May 18, the Mariupol City Council said that a leak from a waste storage facility at the Azovstal plant could result in thousands of tons of concentrated hydrogen sulfide solution ending up in the surrounding waters, potentially causing an ecological catastrophe in the Sea of Azov. The slag and waste storage site sits precariously at the very edge of the sea. The site is enclosed by retaining walls, called berms, that have been weakened by the constant proximate monthslong Russian bombardment and require repair.

When the invasion of Ukraine began on Feb. 24, Azovstal took measures to reduce the potential environmental damage in the event of being hit. Coke oven batteries and blast furnaces were shut down, no longer posing a danger to the residents-though most fled the ensuing bombardment.

But while Ukrainians are doing what they can to curb the damage to environmental infrastructure, Russians will use all means of propaganda and misinformation to deny and deflect attention for their own culpability in these environmental war crimes. Russian propaganda is high-volume, rapid, repetitive, and continuous.

A recent Rand National Defense Research Institute study calls it "the firehose of falsehood" because of two of its distinctive features: high numbers of channels and messages, and a shameless willingness to disseminate partial truths or outright fictions.

A little-known but catastrophic event occurred on Aug. 18, 1941, when the Dnipro hydroelectric power station, located near the Ukrainian city of Zaporizhzhia, was destroyed by the Red Army as it retreated eastward before the advancing German army.

It is estimated that the resulting flood surge from the dam killed as many as 100,000 unsuspecting civilians downstream, who were given no warning to evacuate. The destruction of that dam was one of the war crimes listed at the Nuremberg trial, implicating Germans, although the Soviets were actually to blame. The world cannot allow such blatant falsifications to smear Ukraine when it comes to accounting for Russia's war crimes.

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Destroying the Environment Is a War Crime, Too

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Each month, the scope and scale of Russia's atrocities in Ukraine expand almost exponentially. There are now millions of refugees, tens of thousands of deaths, and a devastated Ukrainian economy that the World Bank estimates will contract by 45 percent by the end of the year.

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The Role of the Environmental War Crime in the Russian Invasion of Ukraine - Elliot Winter - 25 April 2022

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The Role of the Environmental War Crime in the Russian Invasion of Ukraine - Elliot Winter - 25 April 2022

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Elliot Winter, lecturer in international law at Newcastle University in the United Kingdom, discusses the possibility of Russia facing charges of environmental war crimes in connection with its invasion of Ukraine...

The Russian invasion of Ukraine has entered its third month. The suffering of Ukrainian civilians has been awful and the prosecutor at the International Criminal Court (ICC) is satisfied that there are " Media attention has, quite rightly, focused on the plight of those individuals caught up in the carnage-many of whom have died in reasonable grounds" to believe war crimes have been committed. terrible circumstances. However, in the background, there is another victim of the invasion: the environment. This brief piece is intended to highlight instances of environmental destruction that have occurred in the context of the invasion and to show that-despite the rigorous tests that apply-these too might qualify as war crimes.
Russian Acts of Environmental Destruction in Ukraine
The Environmental Peacebuilding Association (EnPAx)-an organization that promotes the protection of the environment by coordinating researchers and policy makers-issued an open letter in March 2022 that collated various incidents of environmental destruction in Ukraine. It noted, for example, that the seizure of the Chernobyl nuclear disaster site "mobilized radioactive dust and increased detectable radiation [that] may spread radioactive material into new areas." It also observed that attacks against cities such as Kharkiv "have caused major fires in fuel storage areas threatening serious air, ground, and water pollution." Finally, EnPAx flagged up the fact that fighting in the Black Sea Biosphere Reserve has "generated fires that can be seen from space." These events, and the countless others that have not yet come to light, raise the question of the extent to which international criminal law might be used to bring the perpetrators of environmental destruction to account.
The Environmental War Crime
The Ukrainian government has previously issued a Rome Statute of the International Criminal Court (Rome Statute) was adopted in 1998 and provides the main statement of international crimes. Ev en though neither Russia nor Ukraine are parties to the Rome Statute, the ICC has jurisdiction over events in Ukraine as Ukraine is the locus of the alleged crimes and because the In the context of environmental destruction in times of war, the Rome Statute states that it is a war crime to " special declaration accepting the jurisdiction of the ICC. intentionally [launch] an attack in the knowledge that such attack will cause ... widespread, long-term and severe damage to the natural environment" (the "environmental war crime"). Given the ICC's jurisdiction over events in Ukraine and given the existence of the environmental war crime, it is certainly possible that individual Russians-up to and including Vladimir Putin-could be held personally accountable for acts of environmental destruction in Ukraine. The difficulty is that the criteria the prosecutor must satisfy to secure a conviction are exceptionally rigorous.
The Rigors of the Environmental War Crime
As with most crimes, the criteria of the environmental war crime can be split into two categories: (i) those concerned with the conduct itself ( ) and (ii) those concerned with the mindset of the accused ( ). On both counts, the bar is set high and so the ICC prosecutor-currently the British barrister Karim Khan-would have a tough job proving his case.

In terms of the , the damage must be "severe," "widespread" and "long-term." The Rome Statute omits any definition for these terms. So too does the However, the Geneva Conference of the Committee on Disarmament (the CCD) has issued Environmental Modification Convention (ENMOD Convention) which is the usual point of reference for all things that sit at the intersection of environmental destruction and war. interpretive guidance for the ENMOD Convention that is instructive here. Regarding the "severe" criterion, the CCD defines this as "involving serious or significant disruption or harm to human life, natural and economic resources or other assets." Regarding the "widespread" criterion, the CCD defines this as "encompassing an area on the scale of several hundred square kilometres." Finally, regarding the "long-term" criterion, the CCD refers to "long-lasting" as meaning "lasting for a period of months, or approximately a season." These tests are individually rigorous and, notably, they are also "conjunctive" in the sense that all three must be satisfied-one or two will not suffice.

In terms of , the environmental war crime requires that the attack was intentional and that the accused had knowledge of the damage that would result. "Intent" requires that a person "means to engage in the conduct [or] means to cause that consequence or is aware that it will occur in the ordinary course of events." " Knowledge" requires "awareness that a circumstance exists or a consequence will occur in the ordinary course of events." According to Heller, the ICC interprets "knowledge" in this context very strictly and requires that the perpetrator is aware that his or her actions are "virtually certain" to result in the unlawful outcome.
Applying the Environmental War Crime to Ukraine
The rigors of the environmental war crime become apparent when one applies them to a real situation. For example, the diffusion of radioactive material caused by the columns of Russian vehicles churning up ground around Chernobyl might well be "severe" (in the sense that it can cause death) and might also be "long-term" (in the sense that this particular radioactivity persists for decades-which we know given that the initial Chernobyl disaster occurred in 1986). However, it is harder to argue that it would be "widespread" in the sense of covering "several hundred square kilometres" unless one took an extremely liberal approach and considered, for example, the mere transportation of radioactive material in tyre treads to be sufficient. "Knowledge" might also be difficult to establish-especially given that Russian personnel seem to have been spectacularly under-informed about the nature of their mission even in the most general terms (many seem to have believed they were embarking on training exercises). Even commanders might not have known of the peculiar risks associated with maneuvering heavy vehicles on a radioactive site and, even if they did, it would be hard to show that they were aware of a "virtual certainty" that the dust may go on to kill or otherwise harm civilians in later years (assuming the ICC adheres to that strict interpretation of ).

Similar challenges would likely arise if prosecutions were attempted based on the pollution of Kharkiv or the Black Sea coastal areas. These challenges are not insurmountable by any means, but they would need to be taken very seriously and the prosecutor would need to strain every sinew to overcome them. The ICC itself would likely also need to demonstrate willingness to interpret the Rome Statute somewhat more flexibly than it has been prepared to do in the past and to evolve its jurisprudence in line with the greater awareness that exists today of the need for environmental safeguarding. This was encapsulated by the United Nations Secretary General, Antonio Guterres, who stated in 2020 that " humanity is waging war on nature ... biodiversity is collapsing ... one million species are at risk of extinction ... ecosystems are disappearing before our eyes ... [however] ... human action can help to solve it."

Added to these substantive difficulties are some more practical considerations. The ICC might have a very difficult time getting hold of any Russians in the first place in the absence of extradition from Russia and, even if it did manage to get someone into the dock, the Court has an uninspiring conviction record with only ten convictions according to the ICC itself. Again, these challenges could be overcome. It is possible, for example, to imagine a future in which Vladimir Putin and his allies are deposed and forced into exile with the effect that international justice might be able to catch up with them as they flee around the world. The ICC might also be furnished with a fuller budget in the future precisely so that it is positioned to address the Russian invasion of Ukraine convincingly. We simply need to be clear-eyed about the prospects of such an endeavor and the timescales that might be involved.
Conclusion
The environmental war crime as stated in the Rome Statute offers an additional route by which Russians responsible for the devastation in Ukraine could be held to account for their actions. Its thresholds are rigorous and the prospects of successful convictions are contingent on forceful and innovative legal advocacy, a sympathetic and well-funded court and-most likely-significant political upheaval within Russia. Nonetheless, pursuing additional charges on the basis of the environmental war crime would send a strong message to politicians, policy makers and military personnel around the world that environmental destruction is taken seriously. Even if the charges were to fail, that very failure might serve to incite change by highlighting the need for reform in this area of law.
Elliot Winter is a lecturer (assistant professor) in international law at Newcastle University in the United Kingdom.
Suggested citation: Elliot Winter, The Role of the Environmental War Crime in the Russian Invasion of Ukraine, JURIST - Academic Commentary, April 25, 2022, https://www.jurist.org/commentary/2022/05/elliot-winter-ukraine-conflict-environmental-war-crime/.

This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org

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The Role of the Environmental War Crime in the Russian Invasion of Ukraine

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Elliot Winter, lecturer in international law at Newcastle University in the United Kingdom, discusses the possibility of Russia facing charges of environmental war crimes in connection with its invasion of Ukraine... The Russian invasion of Ukraine has entered its third month.

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Unprecedented Environmental Risks - Karen Hulme - 12 April 2022

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Unprecedented Environmental Risks - Karen Hulme - 12 April 2022

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Ukraine Symposium - Unprecedented Environmental Risks - Lieber Institute West Point

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The Ukraine conflict presents all the common wartime threats to the environment—and some new ones due to the presence of chemical and nuclear facilities.

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts - Marko Milanovic - 6 June 2023

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts - Marko Milanovic - 6 June 2023

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts

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This morning the Nova Kakhovka dam in Ukraine was destroyed, in circumstances which remain unclear. Thousands of people are in peril, while the devastation of downstream communities and the environment will be immense. The dam appears to have collapsed, and the reservoir behind it is now draining at speed.

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Could the Nova Kakhovka Dam Destruction Become the ICC’s First Environmental Crimes Case? - Thomas Hansen - 9 June 2023

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Could the Nova Kakhovka Dam Destruction Become the ICC’s First Environmental Crimes Case? - Thomas Hansen - 9 June 2023

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Ukraine's president, Volodymyr Zelenskyy, is likely right when he labels the Nova Kakhovka Dam destruction the "largest man-made environmental disaster in Europe in decades." Accountability for those responsible for the disaster is already being called for - and more voices will be added in the days ahead. If, as most now suspect, Russia is somehow behind the attack, many will look towards the International Criminal Court (ICC) to make that happen. But is the ICC Prosecutor likely to investigate the Nova Kakhovka Dam destruction, and if so, what are the conditions?

The ICC, which already has opened an investigation covering crimes in the Ukraine war and in March this year issued arrest warrants for President Vladimir Putin and his associate, Maria Lvova-Belova, claims to "belong" in the so-called " rules-based international order " - and this is central for understanding the conditions of what could potentially become the Court's first environmental crimes investigation.

Legal Requirements Under Article 8(2)(b)(iv)

Without digging too much into the legal details, the Nova Kakhovka Dam destruction could in principle be prosecuted under various provisions in the ICC Statute, including the war crime of intentionally directing attacks against civilian objects and a provision discussed below concerning attacks that cause serious damage to the natural environment. It could possibly also be prosecuted as a crime against humanity, potentially with reference to utilizing environmental destruction to attack the civilian population.

There are several reasons why the ICC might want to demonstrate capacity to investigate the Nova Kakhovka Dam destruction as an environmental crime. While the Court's mandate is fairly limited in that regard, Article 8(2)(b)(iv) does permit the prosecution of the war crime of "intentionally launching an attack in the knowledge that such attack will cause [...] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." The cumulative requirements of widespread, long-term, and severe are difficult to meet in most situations involving environmental damage in conflict situations.

Without yet knowing the full details concerning the long-term impact of the Nova Kakhovka Dam destruction, it appears exactly the type of situation that could meet these three cumulative requirements. The damage happening already is indisputably widespread, a term normally understood to require impact on an area of at least several hundred square kilometres. It is also clearly severe from what we know at this point. The longer-term impact for the environment can of course not be fully assessed yet, but will almost certainly be felt for generations.

As Marko Milanovic explains here, the more complex legal point concerns whether the act of blowing up the dam amounts to an "attack." While Milanovic's observations are focused on international humanitarian law, similar considerations would apply in the context of interpreting the term "attack" in Article 8(2)(b)(iv) (and other war crimes provisions requiring an "attack") in the ICC Statute. This term is subject to some uncertainty, but the prevailing view is that sabotage of "a party's own dam" does not normally amount to an attack. The fact that Russia occupied the Nova Kakhovka Dam could, depending on how "own" is understood, prove a challenge to successfully prosecuting a potential Article 8(2)(b)(iv) case against Russian actors.

However potential challenges on that note at the prosecution stage - should it ever come to one - are unlikely at this point to be the main factor in the ICC Prosecutor's decision-making concerning whether the Nova Kakhovka Dam destruction should be in the first place investigated.

Incentive for the ICC Prosecutor to Investigate the Nova Kakhovka Dam Destruction

To date, no charges have been brought under Article 8(2)(b)(iv), despite the stated commitment of the ICC Prosecutor to "give particular consideration" to prosecuting crimes that are associated with "the destruction of the environment," and despite the fact that various serious environmental crimes have in the past been brought to the attention of the Prosecutor (see, e.g., here and here). Critique has been mounting in recent years for the Prosecutor failing to give effect to these commitments, and there are calls for adopting a new crime of " ecocide " in the ICC Statute which, if adopted, would vastly expand the Court's jurisdiction over environmental crimes.

The Nova Kakhovka Dam destruction provides the ICC Prosecutor with exactly the incentive needed to counter this criticism by investigating the incident under existing ICC Statute provisions, mainly because it would permit the Court to prove its relevance to a global audience increasingly demanding accountability for environmental crimes. The Court's Prosecutor could therefore see this as an "opportunity" to boost institutional interests by proving that the ICC is willing to direct its attention towards crimes affecting the environment. In this case, declaring an investigation of the incident could be portrayed as a timely response to the nearly global, outcry over the dam's destruction and calls for accountability for an act of war with indisputable massive, long-term environmental implications along with devastation for the communities along the Dnipro River.

Additionally - and assuming for now that actors aligned with Moscow are indeed responsible for the incident - it is in a sense an "easy case" for the ICC to investigate (not to confuse with successfully prosecuting and enforcing). Key funders and supporters of the Court in the rules-based international order, who have already provided unprecedented support for the ICC's Ukraine investigation, would without doubt welcome an investigation targeting persons responsible for the Nova Kakhovka Dam destruction - that is, in so far as these persons are linked to Moscow. As Sergey Vasiliev explains, the ICC's actions in Ukraine are in "perfect alignment with the consolidated position of powerful Western/Global North military and economic alliances (NATO and EU) against a common foe they are determined to defeat on all fronts, including the legal one." If that "common foe" appears responsible for what could be among the worst environmental catastrophes happening in an armed conflict in decades, key audiences of the Court will call for it to act, and they will do so with a determined voice.

At the same time, the fact that Russia, a nuclear power and permanent member of the U.N. Security Council, is in some ways a "powerful" State permits the ICC Prosecutor to portray a potential investigation of the dam destruction as confirming the Court's commitment to go after "the powerful" in instances of environmental crimes, something that would please ecocide campaigners and other environmentalists. Of course, such as narrative does not account for the ICC's futile attempts to challenge powers in the West, for crimes in Afghanistan or Iraq, but it may still be seen as a good selling point in the Prosecutor's Office.

What if it Wasn't Russia, but Ukraine, Blowing Up the Dam?

The above considerations assume agents of Russia are behind the attack, but at this point it is by no means clear that Moscow is actually responsible for the dam destruction, itself claiming innocence, just like Kyiv. If, as perhaps was the case with the Nord Stream pipeline attack, it looks more likely that Moscow is not the culprit here, the ICC's options would perhaps be perceived differently.

Human rights and environmental groups would presumedly call for the Court to proceed with an investigation regardless of what way the evidence will point. And doing so could, in principle, be an opportunity for the ICC to demonstrate an unbiased approach to its investigations - and thus an opportunity to counter criticism of selectivity. But as European leaders already on the day of the dam's destruction blamed Russia for the attack and in light of the general instrumentalization by Western actors of the ICC's investigation in Ukraine pointed to above, any ICC activity that runs counter to this narrative will inevitably be a much harder sell for the Court.

Longer Term Implications for Environmental Crimes Accountability

The Nova Kakhovka Dam destruction, already labelled an act of "ecocide" by some, including the Ukrainian leadership, will undoubtedly reinforce calls for the ICC to focus more on environmental crimes and further energize the ecocide movement. Depending on how circumstances develop in the time ahead, the ICC could be tempted to open its first-ever environmental crimes investigation. This would be symbolically significant and a major development in international criminal justice.

However, even if such an investigation moves forward, we should not forget the challenges experienced with enforcement at the ICC level. Neither should we forget that potential environmental crimes accountability at the ICC will assumedly operate on similar conditions to those defining the Court's operations to date. This results that the Court can proceed with confidence when operating in line with the interests of key players in the rules-based international order but is drastically limited in its options if seeking to challenge these interests - and that is a real obstacle to providing meaningful accountability for environmental crimes at the ICC in the longer run.

IMAGE: Local residents sail on a SUP board past servicemen of the National Guard of Ukraine delivering food to the residents of a flooded area in Kherson on June 8, 2023, following damages sustained at Kakhovka hydroelectric power plant dam. (Photo by Genya SAVILOV / AFP) (Photo by GENYA SAVILOV/AFP via Getty Images)

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Could the Nova Kakhovka Dam Destruction Become the ICC's First Environmental Crimes Case?

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Ukraine's president, Volodymyr Zelenskyy, is likely right when he labels the Nova Kakhovka Dam destruction the "largest man-made environmental disaster in Europe in decades." Accountability for those responsible for the disaster is already being called for - and more voices will be added in the days ahead.

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What are the legal effects of the ICC arrest warrant against Putin? - Sarah Nouwen - 31 May 2023

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What are the legal effects of the ICC arrest warrant against Putin? - Sarah Nouwen - 31 May 2023

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Sarah Nouwen: What are the legal effects of the ICC arrest warrant against Putin?

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In our fifth episode, we discuss with Professor Sarah Nouwen, who is the Co-Director of the Academy of European Law in the European University Institute, in Florence, Italy, what are the legal effects of the International Criminal Court arrest warrant against Putin. Our Guest Bio:Sarah Nouwen is th…

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts - Marko Milanovic - 6 June 2023

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts - Marko Milanovic - 6 June 2023

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The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts

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This morning the Nova Kakhovka dam in Ukraine was destroyed, in circumstances which remain unclear. Thousands of people are in peril, while the devastation of downstream communities and the environment will be immense. The dam appears to have collapsed, and the reservoir behind it is now draining at speed.

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Ukraine war: ‘false flag’ operations – long used as weapons of mass distraction under the rules of conflict - David Turns - 31 March 2023

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Ukraine war: ‘false flag’ operations – long used as weapons of mass distraction under the rules of conflict - David Turns - 31 March 2023

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The alarmist tone of recent tit-for-tat reports from the war in Ukraine has refocused attention on so-called "false flag operations" and their legality under international law.

At the beginning of March, Ukraine dismissed as "provocation" a Russian claim that Ukrainian "terrorists" or "sabotage groups" were behind a series of disputed attacks and exchanges of fire in Russia's Kursk and Bryansk regions, near the Ukrainian frontier.

Overnight on March 9-10, Russia launched a barrage of 81 missiles against targets all over Ukraine, including six hypersonic missiles, labelling them retribution for those earlier attacks.

In the week of the first anniversary of the start of Russia's "special military operation" in Ukraine, the Institute for the Study of War published a report claiming that Moscow was setting up attacks on Belarusian territory and inside the Moldovan secessionist republic of Transnistria to make it look as though they had been carried out by Ukrainian troops.

This would potentially justify Belarus' formal entry into the war on Russia's side. In turn, this would force Ukraine to divert troops and materiel away from the currently "hot" military operations in Donbas towards the northwestern and southwestern frontiers of the country.

On February 19, Russia's Ministry of Defence alleged that Ukraine was preparing to stage an unspecified "nuclear incident" on Ukrainian territory with radioactive substances imported from an unnamed European country, in order to blame it on the Kremlin.

But no evidence supporting such allegations was produced and, needless to say, no such incidents have actually taken place.

False flags

False flag operations - hostile statements made or acts committed with the intention of pinning the blame on another party, usually one's adversary - are a long-recognised tactic of organised warfare. They aim to deceive the enemy in order to gain a military advantage. As such there is nothing inherently illegal about them within the framework of international humanitarian law (IHL).

The term "false flag" probably originated in naval warfare dating back to the 16th century. A warship might occasionally fly the flag of a neutral - or even enemy - nation in order to get as close as possible to a hostile warship before opening fire.

The practice made sound military sense in an age when the range of warships' cannons was quite limited. It was highly desirable to close with an enemy ship in order to disable and, if possible, board it in order to take it as a prize. As a tool in the hands of the weaker party to a conflict, it could also help to even the odds.

Such conduct, and other similar acts of deception, were not considered illegal, provided the correct flag was flown during actual combat.

This practice continued into both world wars. In 1914 the German light cruiser SMS Emden, possessing a distinctive three-funnel silhouette, rigged up a fourth (dummy) funnel to make herself look more like a British light cruiser of equivalent class.

In 1941 the German commerce raider Kormoran used the call-sign and flag of a Dutch merchantman to tempt the Australian cruiser HMAS Sydney to approach as close as possible. This reduced Sydney's advantages of superior gun range and heavier armour; Kormoran hoisted the German battle ensign on opening fire, resulting in Sydney's loss with all 645 of its crew.

The legal position

So-called ruses de guerre ("tricks of war") like this have long been permitted by IHL. They were first acknowledged in the 1863 Lieber Code (the first attempt to codify the rules of war, by US academic Francis Lieber during the American Civil War). In modern warfare, they are expressly allowed by Article 24 of the 1907 Hague Regulations and Article 37(2) of the 1977 1st Additional Protocol to the Geneva Conventions. The International Committee of the Red Cross also recognises this as a rule of customary IHL.

But to be considered legal such acts must not violate another rule of IHL. In particular a false flag action must not constitute perfidious or treacherous behaviour - abusing a flag, emblem or uniform to claim protection under IHL when no such protection is warranted. An example would be concealing weapons in or firing them from an ambulance painted with the Red Cross (a protected emblem under the Geneva Conventions, reserved for designating medical units or facilities).

Improper use of Red Cross insignia, like other acts of perfidy, is clearly a war crime and can be prosecuted as such under international law (as in the 1946 Trial of Heinz Hagendorf, who was convicted of firing on US troops from a German ambulance marked with the red cross in January 1945.

The wearing of enemy uniform, on the other hand, has been subject to much controversy. A famous post-World War II trial involved the acquittal of SS Lieutenant-Colonel Otto Skorzeny. The German officer (who was also famous for the daring 1943 paratroop raid which freed Benito Mussolini from pro-Allied custody) had dressed his men in US uniforms during the Battle of the Bulge in 1944. He was found not guilty, on the grounds that they did not actually fight while wearing the wrong uniform.

Weapon of distraction?

The interpretation and application of these rules, depending as they do on notions of honour and good faith in warfare, may seem anachronistic in the 21st century. In particular, the omnipresence of modern media and observation technology makes it harder for a belligerent to get away with this behaviour.

But the continuing discussion of Russian false flag operations in Ukraine and mutual denunciations for propaganda shows that it still has a place on the modern battlefield. It's one way of distracting attention when all is not going according to plan. So the Kremlin's escalating use of such tactics may, in that sense, be a sign of a campaign that is not going well.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Ukraine war: 'false flag' operations - long used as weapons of mass distraction under the rules of conflict

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The alarmist tone of recent tit-for-tat reports from the war in Ukraine has refocused attention on so-called "false flag operations" and their legality under international law. At the beginning of March, Ukraine dismissed as "provocation" a Russian claim that Ukrainian "terrorists" or "sabotage groups" were behind a series of disputed attacks and exchanges of fire in Russia's Kursk and Bryansk regions, near the Ukrainian frontier.

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The Lithuanian Case for an International Special Tribunal for the Crime of Aggression Against Ukraine - Gabija Grigaitė-Daugirdė - 1 June 2023

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The Lithuanian Case for an International Special Tribunal for the Crime of Aggression Against Ukraine - Gabija Grigaitė-Daugirdė - 1 June 2023

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Ukraine's struggle for its survival and identity continues in the aftermath of unprecedented aggression by one of the permanent members of the UN Security Council - Russia. Not only its gravity, scale and brutality make this aggression unprecedented, but so too does the character of the aggression which encompasses an extreme Russian ideology of erasure of national sovereignty. Every day we witness indiscriminate attacks on civilians, terror, torture, massive and systematic war crimes, including deportation of children, and cynical propaganda on the highest level reflecting what Putin's Russian world imagines and brutally seeks to create. The ideology of the Russian world glorifies the Soviet past, denies the existence of the independent and sovereign state of Ukraine, claims a broader Russian sphere of exclusive interests and influence, and fails to respect the international rule of law and fundamental principles of democracy. Putin's pursuit of this ideology had not been repelled by the international community in Chechnya, Georgia, or Crimea. Thus he kept implementing his imperial and communist Russian ambitions toward previously occupied lands and nations and denying their sovereignty and independence. Today the question remains if the international community will have courage, political will and unity to legally address the crime of aggression against Ukraine and the ideology fueling it in the most effective way: an international special tribunal on the crime of aggression against Ukraine.

Aggression against Ukraine has been recognized and condemned by the UN General Assembly and other international and regional organizations, including NATO, the Council of Europe, the African Union, and others. The crime of aggression is defined in international law, but in the case of the crime of aggression against Ukraine an impunity gap exists because the International Criminal Court does not have jurisdiction in this concrete situation and is not likely to have it in the nearest future. For this reason, discussions on the establishment of an ad hoc criminal tribunal for the crime of aggression being committed against Ukraine continue. There are high expectations among the international community that the legal path chosen is capable of accommodating international law and the manifest violation of the UN Charter being committed by Russia against Ukraine. The goal must be to condemn the Russian ideology and hold Putin and his entourage to account for the core international crime of aggression against Ukraine that continues to be planned, prepared, and brutally executed in our own times.

While perfect international law solutions are deadlocked because of Russia's seat in the UN Security Council, politicians, experts and international lawyers keep discussing two different models for establishment of the tribunal for the crime of aggression committed against Ukraine. The first option is an international tribunal established following the recommendation of the UN General Assembly for the UN Secretary-General to negotiate an international agreement between the UN and Ukraine establishing the court (the "Special Tribunal"). The second option is a hybrid or internationalized national tribunal as it was named by U.S. Ambassador for Global Criminal Justice Beth Van Schaack, a court that would be established within the Ukrainian judicial system (see Ambasadorę Van Schaack's Remarks on the U.S. Proposal to Prosecute Russian Crimes of Aggression - United States Department of State). In his recent address in The Hague, President of Ukraine Volodymyr Zelenskyy sent the clear message that Ukraine needs bold decisions that will correct shortcomings of the current international legal system - "not something hybrid that can formally close the topic" in terms of the diplomatic conversations, but that will not truly and fully address the problem at hand (see Speech by Volodymyr Zelenskyy to representatives of the public, political and expert circles of the Kingdom of the Netherlands and international institutions based in The Hague - Official website of the President of Ukraine).

In the end any decision on the establishment of the criminal tribunal for the crime of aggression against Ukraine will be a political decision. And even though in the enforcement, application, and development of international law the fusion of international politics and international law is inevitable, the modality of an internationalized national tribunal is more about foreign policy than legal choice. The second option compromises international law at a critical time when the legitimacy of international law must be restored to effectively confront, both militarily and judicially, the crime of aggression against Ukraine that is being committed by Russia, a permanent member of UN Security Council.

- The legitimacy of international law can only be restored by establishing a fully-fledged international tribunal for the crime of aggression under recommendation of the UN General Assembly.

The definition and establishment of the crime of aggression under international law protects fundamental values of the international community, a prominent one being international peace and security. According to the International Law Commission, the prohibition of the use of force protects not only the survival and security of individual states, but more than their sum, namely the interests of the international community as a whole (see Yearbook of the International Law Commission 2001 Volume II Part Two (un.org)).Theoretically, a national criminal trial established within the Ukrainian judicial system could implement the objective of ending impunity and ensuring accountability for the crime of aggression against Ukraine. But it could never restore the legitimacy of international law to defeat the crime of aggression being committed against Ukraine, as that is the task of institutions responsible for the restoration and maintenance of international peace and that apply international law directly. Therefore, the UN General Assembly resolution recommending establishment of an international criminal tribunal for the crime of aggression against Ukraine is of crucial importance for ensuring the continuing legitimacy of rules on the prohibition of the use of force and proving that accountability under rules of international law is inevitable for such manifest violations of the UN Charter.

According to the liberal theory of international relations, the fundamental interest of the international community, namely international peace, is served by the certainty that acts of aggression are met by the collective opposition of states. According to the realism theory of international relations, the functioning of the collective security system is considered from the sovereign policy perspective. According to scholar S. D. Krasner, the defining characteristic of the international system for realists is anarchy. The most important empirical reality is that national power, including but not limited to the ability to wage war, matters more than anything else (see S. D. Krasner "Realist views of international law" in ASIL Proceedings (2002)). Probably for realpolitik reasons, even though the UN Charter prohibits war as a means for solving political conflicts, in the current era "aggressiveness" occasionally has been easily forgiven and probably would still need to be forgiven for some states instead of being prosecuted in a special criminal tribunal or the International Criminal Court.

But international law as it stands today already includes compromises for two different forms of aggressive uses of force. Not all acts of aggression as defined by the 1974 UN General Assembly resolution on the definition of aggression can be and will be prosecuted as crimes of aggression under international law because the level of manifest violation of the UN Charter will not be found. The gravity and scale of aggression against Ukraine, framed by the character of Russian ideology holding that Ukraine as a sovereign and independent state does not exist, is the very kind of situation that international community will consider as an act of aggression constituting a manifest violation of the UN Charter. This has already been and will continue to be the case for the international community had to and must still consolidate its efforts to ensure accountability and restore faith in fundamental rules of international law concerning non-use of force in international relations.

The legitimacy of the decisions at stake depends on the international legitimacy of the tribunal that indicts and sentences political and military leaders of an aggressor state that is a permanent member of the UN Security Council. To avoid the risk of illegitimacy, the tribunal must be established under international law and have the mandate for prosecution of the crime of aggression entrusted by the whole international community. The crime of aggression has special inter-state political dimensions in comparison to other international crimes, the direct object of which is not individuals, but the whole state. In this case that means the independent sovereign state of Ukraine and the integrity of its borders and political independence that the UN Charter and international law have promised to protect and defend. The fact that the crime of aggression involves complex political judgements also was acknowledged in the Draft Code of Crimes against the Peace and Security of Mankind. Even though not corresponding to state practice, it provides that an obligation to prosecute or extradite could be applicable to all international crimes, except the crime of aggression, which because of its political dimension should be prosecuted in the international court as national courts would not be able to effectively carry out such prosecutions of the crime of aggression.

This sounds like a purely legal argument. One can argue that in the case of the crime of aggression against Ukraine, on 2 March 2022 the UN General Assembly adopted a resolution entitled, "Aggression against Ukraine," which deplored in the strongest terms the aggression by Russia against Ukraine as being in violation of Article 2(4) of the UN Charter-prohibition of the use of force-with 141 votes in favour, 5 votes against and 35 abstentions. Thus Russia's acts of aggression as being in violation of the UN Charter has been acknowledged by the UN General Assembly. Sentencing individuals in an internationalized national court for the crime of aggression might then be viewed as legally feasible. Maybe. But the question remains if it is legally right or legitimate to close our eyes to the extraordinary nature of the crime of aggression in comparison to other international crimes.

The Kampala resolution on the crime of aggression adopted by the ICC's Assembly of States Parties states that the aggression amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State (see ICC-ASP-16-24-ENG.pdf (icc-cpi.int)). This means that the crime of aggression, unlike the other core crimes of the Rome Statute, should rather not be prosecuted at the national level. Yoram Dinstein in War, Aggression and Self-defence submits that the nature of crimes against peace is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judge. Any panel of judges comprised exclusively of enemy (or former enemy) nationals, for example, will be suspected of irrepressible bias.

One of the features of an internationalized national tribunal that has been suggested is incorporation of international judges. But this and other elements of so-called internationalization, such as acceptance of an international law definition of the crime of aggression or incorporation of international human rights standards, will not create the international mandate for prosecution of the crime of aggression against Ukraine. It will only reduce doubts regarding the legitimacy of the national prosecution, but it will not turn a national judicial institution into the international one which would be entrusted with the essential interest of the whole international community to ensure accountability for the crime of aggression against Ukraine.

- Making the internationalized national tribunal legal will be as difficult as making it legitimate.

Article 125 paragraph 5 of the Constitution of Ukraine explicitly prohibits the establishment of extraordinary and special courts. Besides the particular domestic legal difficulties of changing this constitutional provision while martial law applies, special national procedures will have to be drafted, discussed, considered and adopted for the appointment of international judges to become possible. Even though the argument is being made that for such a purpose martial law could be lifted, in order to change this provision of the Constitution, the approval of two consecutive parliamentary sessions and the Constitutional Court's opinion on constitutionality would also be needed. Even in the countries not suffering from unprecedented aggression, such processes take a long period of time and are hardly predictable.

Furthermore, international support for an internationalized national accountability effort for the crime of aggression against Ukraine could help solve problems of finances and human resources for such a tribunal. But international support could not make the national process of the establishment faster or avoid being undermined by different political obstacles and configurations that could arise in the country still facing internal challenges including from Russia's collaborators. For these reasons, the argument that an internationalized national tribunal could be established within the Ukrainian judicial system faster and in a more effective way than a favorable vote in UN General Assembly lacks credibility. International financial support for the tribunal will be needed in any modality chosen and voluntary contributions of states committed to fighting impunity and ensuring accountability for the supreme international crime of aggression against Ukraine will be crucial. But the more international legitimacy is vested in the establishment of the tribunal, the more likely that states will see it as being an international and consolidated accountability effort standing for fundamental interests of the global community as a whole. This would definitely lead to broader trust and sustained support (including financial resources and staffing) by states in comparison to leaving international support issues to bilateral agreements with separate states that Ukraine would have to negotiate.

Furthermore, as it was stated in the International Court of Justice Lotus case, jurisdiction is about the potential collision of sovereignty rights. Considering that international accountability interests in the case of aggression against Ukraine are so substantial, objective and subjective impartiality of the accountability mechanism is of crucial importance. Ambassador Van Schaack, for instance, earlier postulated that there is "little in the way of state practice or opinio juris in favor of the exercise of domestic jurisdiction over the crime of aggression." She dismissed Nuremberg and the ensuing elements of state practice and opinio juris since they are "sui generis" and "preceded the development of modern doctrines of foreign sovereign immunity and universal jurisdiction" (see B. Van Schaack, "Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression", Journal of International Criminal Justice, 10 (2012)).

For these reasons, one can understand why Ukraine supports establishment of a full-fledged international tribunal. The state as victim of the crime of aggression has an essential interest grounded in the fundamentals of international law and human rights development to entrust prosecution for the supreme crime of aggression with an impartial international institution that could not be accused of lacking legitimacy, independence, and authority to try the crime of aggression and, most importantly, to try political and military leaders of the aggressor state whether or not they remain in office.

In the case of crime of aggression against Ukraine, fundamental rules in relation to the protection of state sovereignty are being and will be challenged. The definition of the crime of aggression in international law and the development of the human rights agenda demand significant redefinition of the sovereignty concept. The International Criminal Court issued arrest warrants against Putin and Maria-Lvova Belova for the alleged war crime of unlawful transfer of population (children) from occupied areas of Ukraine to Russia. The arrest warrants reflect important developments of international law concerning the obligation to prosecute international crimes and the non-applicability of immunities under international law. Unprecedented decisions that still await the establishment of the tribunal cannot ignore these developments in international law. The pending decisions must be fully international and reflect the interest of the international community to be effective as opposed to decisions of an internationalized national court that will have to be constantly proven to be international in character and enforcement in order to be taken seriously.

The modality of an internationalized national tribunal without the need to achieve a vote in the UN General Assembly allows for some states to stay neutral on modus operandi in relation to the root cause of all atrocity crimes being committed in Ukraine, including the crime of aggression. But there is no place for neutrality in the case of the crime of aggression being committed against Ukraine because the greatest threat to international peace and security relentlessly continues. The decision to prosecute or not to prosecute military and political leaders of the aggressor state, particularly a permanent member of the UN Security Council, Russia, has a direct and lasting effect on the legitimacy of those persons having violated fundamental rules of international law. More importantly, this moment in history is crucially important for restoring trust in international law and international legal order that the UN Charter embodies.

The international community must take a bold step forward after the UN General Assembly condemned the unjustified aggression by Russia and numerous resolutions of international and regional organizations called for a comprehensive accountability system for international crimes being committed in Ukraine. "Comprehensive" does not mean leaving the most responsible for the crime of aggression against Ukraine immune from international law. The International Criminal Court undertook its responsibility within its jurisdictional parameters. The issue remains if the international community will undertake its fundamental responsibility to restore the legitimacy of international law by putting the issue of the tribunal before the UN General Assembly and broadly supporting it.

- Amnesty, immunities, and impunity gaps

The argument sometimes is made in favor of an internationalized national tribunal that Ukraine should maintain certain control over the tribunal for the crime of aggression, most probably for the possibility of granting an amnesty. If an international tribunal were to be established following the recommendation of the UN General Assembly, making trade-offs between peace and justice would be almost impossible as this would be an internationally supported and result-orientated independent institution with separate international legal personality with the fundamental objective of ensuring individual criminal responsibility of Russia's political and military leadership for the crime of aggression against Ukraine.

Indeed, not that long ago amnesties were considered as contributing to promotion of transitional justice and reconciliation within societies that survived massive and systematic human rights violations. But as it was mentioned before, the supreme international crime of aggression is different from all the other international crimes because of its specific object: a sovereign and independent state, its profound context and political dimensions, a focus on leadership, and consequences for the international public order and all-encompassing implications for the victim state, its people and the entire international community. As with war crimes, this is not an international crime that can or should be swept aside by amnesties. Furthermore, on 24 February 2023, the UN General Assembly adopted a resolution on Ukraine's peace formula with a strong justice and accountability dimension for the most serious international crimes committed on the territory of Ukraine. On 17 March 2023, the ICC issued arrest warrants against Putin and Belova. Because of these developments, the argument of maintenance of certain Ukrainian control over the tribunal can be considered as carrying more political than legal weight. Setting the precedent of amnesty for the core international crime of aggression could have devastating effects on the international public order and legacy of international law for the future.

The theoretical possibility of an amnesty does not close the gap of impunity if an internationalized national tribunal were to be established, as personal immunities would be afforded under international law to heads of states, prime ministers and ministers of foreign affairs. The idea behind personal immunities is to respect and protect the sovereignty of states from interference by other states and from being prosecuted before courts of third states. But following the ICJ judgement in the Arrest Warrant case, certain international tribunals having jurisdiction can override international immunities afforded by international law to heads of states and ministers of foreign affairs. Even though in that case the ICJ did not adjudicate the crime of aggression - the international crime that by definition encompasses political leadership of the aggressor state - the ICJ judgment is often rightfully cited in discussions among lawyers on the possible tribunal for the crime of aggression against Ukraine.

Even though the ICJ did not elaborate on what features a criminal tribunal has to possess to fit into the category of international tribunals capable of overriding international immunities, by giving examples the ICJ referred to criminal tribunals being established by the UN Security Council resolutions under the chapter VII of the UN Charter and the International Criminal Court being established by multilateral treaty, the Rome statute. Examples given by the ICJ enable one to conclude that the model of establishment and broad support afforded by states are crucial elements in holding a tribunal as having international legitimacy and being able to override immunities. Indeed, among the legal instruments for international criminal tribunals referenced by the ICJ were also the Charter of the International Military Tribunal of Nuremberg and the Charter of the International Military Tribunal of Tokyo, both of which had jurisdiction over crimes against peace.

For these reasons, if an internationalized national tribunal were to be established for the crime of aggression against Ukraine, international law will protect the aggressor state's leaders more than it protects the victim state and its people. Considering ICC arrest warrants being issued for Putin and Belova for alleged war crimes and bearing in mind both the immunities defense and the leadership clause within the definition of the crime of aggression, taking Putin off the accountability table in the case of the crime of aggression against Ukraine as soon as the internationalized national tribunal is established would result in an unjustified downgrading of the crime of aggression in relation to other international crimes and would send a clear impunity signal to Putin and other dictators and power-hungry authoritarian leaders around the world in what they do on the international stage as well as at home.

* * *

Less can be more, but not when the crime of aggression as a manifest violation of the UN Charter is being committed against the independent and sovereign state of Ukraine pursuant to a Russian world ideology that does not exist beyond Putin's mind. The international community must stand together with Ukraine to defend vital international values. Less will be more when all states having one vote and - devoted to international rule of law, peace and security - consolidate their efforts by voting in the UN General Assembly to mandate establishment of a full-fledged international tribunal for the crime of aggression against Ukraine. Such a global vote will not only have moral and political impact, but it will crucially influence the strength and legitimacy of the judicial institution that will be entrusted with the core responsibility to restore the legitimacy of international law and ensure legal accountability for the supreme crime of aggression against Ukraine. In contrast, an internationalized national court would never be credible if the international community seeks to send the clear deterrent message that individual criminal responsibility of those most responsible for the supreme crime of aggression against Ukraine as a manifest violation of the UN Charter is essentially inevitable.

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The Lithuanian Case for an International Special Tribunal for the Crime of Aggression Against Ukraine

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Ukraine's struggle for its survival and identity continues in the aftermath of unprecedented aggression by one of the permanent members of the UN Security Council - Russia. Not only its gravity, scale and brutality make this aggression unprecedented, but so too does the character of the aggression which encompasses an extreme Russian ideology of erasure of national sovereignty.

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How Ukraine Should Respond to a Russian Ceasefire Proposal - Mark Leon Goldberg - 15 May 2023

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How Ukraine Should Respond to a Russian Ceasefire Proposal - Mark Leon Goldberg - 15 May 2023

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How Ukraine Should Respond to a Russian Ceasefire Proposal - UN Dispatch

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Ukraine is widely expected to soon launch a counter-offensive to reclaim territory captured by Russia. And if Ukraine is successful on the battlefield, Russia may float a ceasefire proposal that more likely than not would be disingenuous and merely an attempt to stall for time. These are some of the…

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Immunities Barring the Prosecution of the Crime of Aggression Against Ukraine: The Contribution of the ECtHR Case Law -  Vassilis P Tzevelekos in (2023) European Convention on Human Rights Law Review

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Immunities Barring the Prosecution of the Crime of Aggression Against Ukraine: The Contribution of the ECtHR Case Law -  Vassilis P Tzevelekos in (2023) European Convention on Human Rights Law Review

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Immunities Barring the Prosecution of the Crime of Aggression Against Ukraine: The Contribution of the ECtHR Case Law

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"Immunities Barring the Prosecution of the Crime of Aggression Against Ukraine: The Contribution of the ECtHR Case Law" published on 22 May 2023 by Brill | Nijhoff.

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Ukraine’s Taken Children - Interview with Yulia Ioffe and Nathaniel Raymond - 19 May 2023

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Ukraine’s Taken Children - Interview with Yulia Ioffe and Nathaniel Raymond - 19 May 2023

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Episode 78 – Ukraine’s Taken Children with Yulia Ioffe and Nathaniel Raymond

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Janet and Stephanie talk about the methods used by the Russian government for the transfer of Ukrainian children to the Russian Federation and what legal classifications could apply with internatio…

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The Moscow Mechanism Expert Report on the Forcible Transfer and Deportation of Ukrainian Children -Veronika Bilkova, Cecilie Hellestveit and Elīna Šteinerte - 17 May 2023

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The Moscow Mechanism Expert Report on the Forcible Transfer and Deportation of Ukrainian Children -Veronika Bilkova, Cecilie Hellestveit and Elīna Šteinerte - 17 May 2023

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The Moscow Mechanism Expert Report on the Forcible Transfer and Deportation of Ukrainian Children

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Before Spring 2022, only the real connoisseurs of the Organization for Security and Cooperation in Europe (OSCE) were familiar with the so-called Moscow Mechanism enabling any OSCE participating State to request the establishment of an ad hoc expert mission to investigate specific questions related to the OSCE human dimension.

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'Alea iacta est: The ICC Issues Arrest Warrants against Vladimir Putin and Maria Lvova-Belova' by Mariagiulia Giuffre and Luigi Prosperi in (2023) Ordine internazionale e diritti umani 394-402.  

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'Alea iacta est: The ICC Issues Arrest Warrants against Vladimir Putin and Maria Lvova-Belova' by Mariagiulia Giuffre and Luigi Prosperi in (2023) Ordine internazionale e diritti umani 394-402.  

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Invoicing Russia for Ukraine’s Recovery: The Complexities of Repurposing Frozen Russian Assets - Paul R. Williams and Alexandra Koch - 12 May 2023

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Invoicing Russia for Ukraine’s Recovery: The Complexities of Repurposing Frozen Russian Assets - Paul R. Williams and Alexandra Koch - 12 May 2023

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[ is the Founder of the Public International Law & Policy Group (PILPG), the Rebecca I. Grazier Professor in Law and International Relations at American University, and a world-renowned peace negotiation lawyer who has assisted over two dozen parties in major international peace negotiations.]

[Alexandra Koch is Co-Chair of the Policy Planning Initiative at the Public International Law & Policy Group (PILPG) and previously worked at the International Criminal Court in The Hague. She graduated Stanford University Phi Beta Kappa with a B.A. in International Relations and Human Rights.]

Russia's war in Ukraine has caused significant damage to Ukraine's economy and infrastructure. The estimated cost of rebuilding Ukraine is in the hundreds of billions of dollars, making it a massive undertaking. In response to this aggression, more than twenty countries and the European Union have imposed economic sanctions on Russia, including freezing a significant amount of assets (~$500 billion) belonging to the Russian State, as well as over $58 billion of assets belonging to individuals and private companies.

Ukraine has called for these frozen assets to be repurposed to fund its recovery efforts and this proposal has gained notable traction and support internationally. Such traction has led to various efforts to repurpose frozen Russian assets, including using the assets to induce Russia into agreeing to reparations, and repurposing revenue from the investment of Russian State-owned assets. Yet, implementation of these and other proposals, especially those that call for a direct transfer of State-owned assets to Ukraine, require a comprehensive understanding of the underlying legal mechanisms that govern the freezing and seizure of these foreign assets.

Whether or not such foreign assets may be seized at all will depend first on the type of asset. Repurposing the assets of individuals and private companies may be possible through establishing a link to criminal activity. However, State-owned assets, such as central bank reserves, are afforded heightened protection under international and domestic law. Typically, any attempt to repurpose State-owned assets must be done without infringing on Russia's legal immunities as a sovereign State.

This blog post outlines some of the next steps that will be needed from advocates and policymakers alike to move forward on efforts to repurpose frozen Russian assets under domestic and international law frameworks. In brief, repurposing frozen Russian assets will likely require policymakers to: (i) develop clear mechanisms for States to change and transfer ownership of assets under existing or new legal frameworks; and (ii) identify and understand the impact of certain legal immunities Russia has as a sovereign State and consider developing mechanisms to use frozen Russian assets that are owned by the State in a temporary and reversible manner. In taking these next steps, policymakers may more effectively harness the momentum of existing moral and legal arguments in support of repurposing frozen Russian assets.

Repurposing of Russian Assets for Ukraine's Reconstruction

Existing sanctions regimes are designed to 'freeze' assets, not seize and transfer assets. Freezing an asset prevents the owner of that asset from using that asset freely, without changing the actual ownership of that asset. Transferring an asset away from its original owner will thus typically require a change in ownership. For this reason, using frozen Russian assets to fund Ukraine's recovery is likely to necessitate clear legal mechanisms that either allow for a change in ownership of the asset or somehow circumvent the ownership requirement.

While there are a few proposals that try to circumvent the ownership requirement (most prominently, the European Commission's proposal to invest frozen Russian State assets, which is already being implemented by some of the EU Member States), the majority of attention has been directed to laws that allow for the change in ownership. Many States already have domestic legislation that allows for the seizure and permanent change of ownership of an asset in certain instances, typically where the assets are linked to a crime or criminal activity ( e.g., civil or criminal forfeiture in the United States). While these laws have limited applicability to the assets of the Russian State, States such as the United St ates, Canada, and France, are already using such laws to repurpose assets of sanctioned Russian nationals and private companies that can be linked to criminal activity.

Helpfully, as a response to sanctioned Russian nationals attempting to hide their assets and evade sanctions prohibitions, many countries have taken steps to make sanctions evasion a crime in of itself. Germany has amended its Sanctions Enforcement Act to allow for the prosecution of any sanctioned person who fails to declare their assets in Germany to the German authorities. United Kingdom lawmakers introduced the Economic Crime Act which would provide the government with the authority to levy civil penalties against sanctions violators on a strict liability basis. The European Union has also proposed that all of its Member States take a uniform approach to criminalizing the evasion of sanctions, and has created a dedicated Working Group that looks at using frozen Russian assets for reconstruction of Ukraine. This Working Group will carry out a legal, financial, economic and political analysis of the possibilities of using frozen Russian assets.

Additionally, a number of major Russian State-owned enterprises began to open their branches in Crimea after the beginning of Russia's full scale invasion of Ukraine in February 2022. Such companies include Sberbank and VTB, two of the largest Russian banks, which held significant amounts of their assets in the United Kingdom, the European Union, and the United States prior the beginning of the full scale invasion of Ukraine. These banks have previously avoided working in Crimea or other Russian occupied parts of Ukraine in order to escape international sanctions, but have begun to do this after President Putin's call for Russian companies to enter the Crimean market in March 2022. There are suggestions that such actions by these Russian State-owned enterprises would pave the way for major Russian private and State-owned telecommunications, retail and oil companies to enter the Crimean market as well.

It could be argued that the opening of Crimean branches would make these companies complicit to the ongoing Russian occupation of Ukrainian territories, directly linking them to criminal activities of the Russian State, including violation of the existing restrictions on working in Crimea and other Russian occupied parts of Ukraine. This could potentially assist the seizure and repurposing of the frozen assets of such companies using the aforementioned domestic civil and criminal forfeiture legislation of many States, including Members of the European Union, the United States, and Canada, which allows that State to change the ownership of an asset linked to a crime or criminal activity by requiring the original owner to forfeit their ownership of that asset. Any effort to move such a process forward will require careful consideration. While operation in Crimea breaches international law, it does not necessarily constitute a crime under the national law of these States given the act does not happen on their territory and is not committed by the companies that are incorporated in these States.

Even where Russian assets are successfully seized, policymakers may face domestic law limits on the use of seized assets. Such challenges may be addressed by following the United States' or Canada's approach in designing legislation to expressly allow for the transfer of such assets to Ukraine. In December 2022, the United States amended its domestic legislation to allow for the transfer of assets seized from Russian oligarchs to Ukraine. This was used by U.S. Attorney General Merrick Garland in February 2023, to authorize the transfer of assets owned by Russian oligarch Konstantin Malofeyev. In May 2022, Canada amended a number of laws (including its Special Economic Measures Act, Magnitsky Act, and Seized Property Management Act) to allow seized Russian assets to be transferred to Ukraine to fund its recovery.

Nevertheless, the approach to repurposing frozen Russian assets will vary depending on the asset type. Specifically, the repurposing of any State-owned asset is likely to require an understanding of Russia's legal immunities as a sovereign State. Although States like Canada and the United States have adopted laws to allow for the transfer of seized assets to Ukraine, more work needs to be done to expand the scope of these laws to include State-owned assets.

Russia's Sovereign Immunity Protection

Any steps to permanently deprive Russia of its State-owned assets will require an understanding of Russia's immunity as a sovereign State under international law. Many have argued Russia's violations of international law have arguably justified the use of 'countermeasures' by other States. Countermeasuresare acts an injured State may take against a State that is responsible for an internationally wrongful act, in order to induce that State to cease the internationally wrongful act or to make reparation for the internationally wrongful act. In essence, such countermeasures are intended to persuade a wrongful State to comply with its obligations. For this reason, and as noted by the International Law Commission in its Articles on the Responsibility of States for Internationally Wrongful Acts, countermeasures must be proportional, temporary, and reversible. Due to the scale of Russia's illegal acts, the proportionality requirement is likely to be easily met. However, policymakers will need to carefully justify how any proposed seizure of State-owned assets is temporary and reversible. One approach that may circumvent this concern is Professor Paul Stephan's proposal to hold the frozen assets until Russia agrees to pay reparations, directly linking the unfreezing of these assets to Russia's fulfillment of its obligations under such agreement.

Identifying a legal justification to permanently and effectively deprive Russia of its frozen assets will require careful consideration of Russia's sovereign immunity under international law. Sovereign immunity plays an important role in international law and international relations, as it protects States and their officials both from being subject to the jurisdiction of another State's courts (jurisdictional immunity) and the enforcement measures of another State (enforcement immunity). There are limited exceptions to sovereign immunity that exist under international and domestic law. Prominently, both Canada and the United States provide an exception to sovereign immunity where a State is designated a "State sponsor of terrorism."

Efforts to designate Russia as a State sponsor of terrorism have gained considerable support, including from the European Parliament, which has urged its Member States to create a similar exception within their domestic laws. While these efforts would allow for lawsuits by individuals and entities harmed by Russia's actions, policymakers attempting to direct funds to Ukraine should consider that such exceptions need to be carefully designed to direct funds to Ukraine. In both the United States and Canada, using this exception provides the potential for their own citizens and companies to sue Russia for damages. This may mean that Russian funds are directed to the United States and Canada, rather than Ukraine.

Another possible exception to Russia's jurisdictional immunity is the non-commercial tort exception. It allows parties to initiate court proceedings to seize State-owned assets for repurposing where such parties suffer personal injuries, death, damage to property, or loss of property that are attributable to the foreign State. While such responsibility cannot arise from damage caused by a State's armed forces, it could arguably arise from damage caused by private military companies. Beyond the now ill-famed Wagner Group, which is responsible for countless military crimes in Eastern Ukraine (including executions of the prisoners of war), there are approximately 30 Russian private military companies, many of which are participating in fighting in Ukraine. While such companies do not have any clear legal status under Russian national law (which, in fact, prohibits mercenary activities) and their factual relationship with the Russian State remains obscure, it may be possible to argue that their conduct is attributable to Russia because the Russian State exercises effective control over them. Recent investigations by Politico and other U.S. and international media have uncovered unprecedented amounts of information about activities of these private military companies. This could link the Russian State to the crimes and violations of international law committed by these companies, and at least partially waive Russia's jurisdictional immunity, allowing Ukraine to initiate court proceedings in relation to Russian State-owned property.

Existing Moral and Legal Arguments to Repurpose

Russia's war in Ukraine has violated clear international laws and norms. The growing international consensus in support of Ukraine offers an unprecedented opportunity to overcome the legal challenges in repurposing the frozen Russian assets. The United Nations General Assembly has denounced Russia's war in Ukraine as illegal. The International Criminal Court has issued an arrest warrant against President Putin and Russia's Commissioner for Children's Rights Ms. Lvova-Belova for the forced deportation and transfer of Ukrainian children. The international community is also uniting to establish a special tribunal to prosecute Russia for the crime of aggression against Ukraine. As actors around the world denounce Russia's actions as illegal, it seems clear that these illegal actions should have legal consequences.

Russia's violations of international law may in of itself justify the development of rules and doctrines of customary international law that allow for the repurposing of the full range of frozen Russian assets, including those owned by the State. Such moments, often called 'Grotian moments,' have existed throughout the history of international law. These Grotian moments led to the development of international law on individual criminal responsibility post-World War II and later again, following moral outrage regarding crimes committed during conflicts in Rwanda and Yugoslavia. Similarly to the rules developed after these former conflicts, new rules that arise from Russia's war in Ukraine may pave the way for resolution of future wars and conflicts.

Ultimately, it will be up to States to work together both internationally as well as internally to construct effective strategies to develop the law to make repurposing of frozen Russian assets possible. Such efforts will require navigation of the realpolitik, as certain States may be concerned that seizing Russian State-owned assets may result in backlash that include Russia and other foreign States withdrawing funds from their economies and Central Banks. The need for thoughtful new domestic or international legislation should not be seen as an insurmountable obstacle, but as an intellectual challenge that requires further concerted support. This post has outlined some of the practical steps that legally repurposing frozen Russian assets will require, including the establishment of a clear legal path to transfer ownership of frozen assets, as well as the development of a solution that considers Russia's sovereign immunity.

* * *
Public International Law & Policy Group (PILPG ), a global pro-bono law firm, convened our Ukrainian friends and colleagues and legal and subject matter experts over the past six months to assess the legal challenges to repurposing frozen Russian assets under domestic and international law in an effort to better identify and action viable solutions, resulting in the production of a policy planning white paper on this topic.

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Invoicing Russia for Ukraine's Recovery: The Complexities of Repurposing Frozen Russian Assets

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Dr. Paul R. Williams is the Founder of the Public International Law & Policy Group (PILPG), the Rebecca I. Grazier Professor in Law and International Relations at American University, and a world-renowned peace negotiation lawyer who has assisted over two dozen parties in major international peace negotiations.]

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The Status of Ukraine's "IT Army" Under the Law of Armed Conflict - William Casey Biggerstaff - 10 May 2023

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The Status of Ukraine's "IT Army" Under the Law of Armed Conflict - William Casey Biggerstaff - 10 May 2023

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Two days after Russia's renewed invasion in February 2022, Ukraine's Minister of Digital Transformation announced a call to digital arms on Twitter:

We are creating an IT army. We need digital talents. All operational tasks will be given [on this Telegram channel]. There will be tasks for everyone. We continue to fight on the cyber front. The first task is on the channel for cyber specialists.

Over a year later, the so-called IT Army has accumulated nearly 200,000 volunteers. These cyber operators have targeted the websites and networks of Russian companies and infrastructure through various cyber operations (see, e.g., here, here, here, and here) and used facial recognition software and social media to notify the families of dead Russian soldiers (see my legal analysis here).

Unsurprisingly, Russia's Foreign Ministry has condemned this private "cyberwar" and warned of "dramatic consequences" for its operators. The International Committee of the Red Cross (ICRC) has separately expressed concern over the practice of "recruit[ing] civilian volunteers to take part in military cyber operations," cautioning, "Even though not every form of civilian involvement on the digital battlefield qualifies as direct participation, the danger is that it may be seen as such by the enemy, thus exposing numerous civilians to a grave risk of harm." In recognition of these admonitions, Ukraine is currently drafting a law "aiming to put an end to uncertainty about [the IT Army's] status" by formally incorporating its members into the reserve component of its armed forces.

These events raise the challenging issue of the legal status under the law of armed conflict of members of the IT Army. This post examines whether they may be made the object of attack by Russia by virtue of being combatants, members of an organized armed group (OAG), or civilians directly participating in hostilities. It also briefly considers several legal implications if the IT Army's members join Ukraine's armed forces.
Combatants and Civilians Distinguished
As used in this post, combatants are persons in an international armed conflict who are privileged to engage in hostilities against the enemy and who, unless specially protected, may be made the object of attack (U.S. DoD Law of War Manual, §§ 4.3, 4.4.1). If captured, they are entitled to prisoner-of-war status and combatant immunity (§§ 4.4.2-.3).

If the IT Army's members are not combatants, they are civilians. Under the 1977 Additional Protocol I (Ukraine and Russia are both parties) and customary international law, civilians are immune from direct attacks and protected from their incidental effects by the prohibition against indiscriminate attacks, the obligation to take feasible precautions in the attack, and the (targeting) rule of proportionality (see ICRC Customary International Humanitarian Law Study, Rules 11, 12, 14, 15, and 17; DoD Law of War Manual, §§ 5.5, 5.11-.12). As will be explained, however, civilians forfeit these protections if they directly participate in hostilities or are members of OAGs.
The Current Status of IT Army Members
There is little difficulty in finding that IT Army members are currently civilians. The two classic categories of combatants are laid out in the Regulations annexed to the 1907 Hague Convention IV ( art. 1) and the 1949 Geneva Convention III ( arts. 4(A)(1)-(2)), widely considered to reflect customary international law (see ICRC CIHL Study, Rule 3; DoD Law of War Manual, §§ 4.5-4.6), and which Additional Protocol I consolidates into one ( art. 43(1); see ICRC 2020 Commentary to GC III, ¶ 1009). They include 1) members of the armed forces (including militias or volunteer corps forming a part thereof) and 2) members of other militias or volunteer corps "belonging to a Party." The sine qua non of the first category is that the individuals in question, regardless of their function, must be formally incorporated (i.e., through enlistment or a similar mechanism) into the armed forces-a condition the IT Army currently lacks.

To fall under the second, the group to which a person belongs must collectively fulfill several conditions (see AP I, art. 43; ICRC 1987 Commentary to AP I, ¶ 1681). Suffice it to say that the IT Army fails to meet this requirement because the decentralized, Internet-based group appears to lack, for one, an organized, hierarchical structure and a commander capable of enforcing an internal disciplinary system (see ICRC 2020 Commentary to GC III, ¶¶ 1013-14; ICRC 1987 Commentary to AP I, ¶ 1672). Consequently, the IT Army's members are civilians, at least for now.
Have They Forfeited Their Protections?
But qualifying as civilians does not mean their protections apply in all circumstances. In considering how current IT Army members may forfeit those protections, it is critical to distinguish civilians acting on an individual or unorganized basis from members of OAGs. Civilians only forfeit their targeting protections "for such time as they" directly participate (AP I, art. 51(3)). By contrast, some States, including the United States, treat membership in an OAG "as a separate basis upon which a person is liable to attack, apart from whether he or she has taken a direct part in hostilities," until their membership ceases (DoD Law of War Manual, § 5.8.2.1). There is significant disagreement over which members may be targeted, however.

By one approach, all members of an OAG are targetable-it is their membership status that matters, not their particular role in the group's hostilities (see DoD Law of War Manual, § 5.8.2.1). Under a more restrictive approach suggested by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities, only those individuals with a "continuous combat function," in contrast to "exclusively political, administrative, or other non-combat functions," may be targeted in the same manner as combatants (p. 33-34). Individuals not serving in such a capacity are targetable only when directly participating in hostilities.

In assessing whether the IT Army qualifies as an OAG in the cyber context, the guidance suggested by the International Group of Experts (IGE) in the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations is instructive.

Such a group is 'armed' if it has the capacity of undertaking cyber attacks. It is 'organised' if it is under an established command structure and can conduct sustained military operations. The extent of organisation does not have to reach the level of a conventional military disciplined unit. However, cyber operations and computer attacks by private individuals do not suffice. Even small groups of hackers are unlikely to meet the requirement of organisation. Whether or not a given group is organised must be determined on a case-by-case basis. ( Tallinn Manual 2.0, Rule 83, ¶ 11)

If one adopts the IGE's approach, there is little doubt that the IT Army is armed. There is less certainty, however, that it is sufficiently organized. Although details in the media are limited, some reports broadly characterize the group-formed around a Twitter post and led through a Telegram channel-as a " decentralized," " loosely corralled" amalgam of " vigilantes," many of whom only associate over the Internet. Bearing such descriptions in mind, and without more specific details regarding the IT Army's structure and organization, it is difficult to conclude that it is an OAG. If it is not, then Russia may only target those individuals whose specific acts, on a case-by-case basis, constitute direct participation.
What is Direct Participation?
The next question is what acts qualify as direct participation in hostilities. No authoritative consensus exists, but the Interpretive Guidance, for its part, suggests three "constitutive elements" (p. 46) that are fairly representative of the "relevant considerations" listed in the DoD Law of War Manual (§ 5.8.3) and helpful for understanding the applicable threshold. Considering the scale and variety of the IT Army's activities, it is essential to note that only those specific acts that satisfy all three elements constitute direct participation.
Threshold of Harm
By the first, "[t]he act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack" (p. 46; see also ICRC's Commentary to AP I, ¶ 1944). As this description makes clear, it encompasses not only those activities that result in physical harm, but also "any consequence adversely affecting the military operations or military capacity of a party to the conflict" (ICRC Interpretive Guidance, p. 47; see also DoD Law of War Manual, § 5.8.3). Thus, even if a cyber operation engaged in by an IT Army member does not qualify as a "cyber attack" (see Tallinn Manual 2.0, Rule 92 and Commentary to Rule 97, ¶ 5), it may nevertheless cross the threshold of harm.
Direct Causation
Next, "there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part" (ICRC Interpretive Guidance, p. 51). As the inquiry is highly contextual, the point at which the causal chain becomes too attenuated has been the source of significant disagreement. In the cyber context, operations that result in or directly enable the impairment of military networks, equipment, functions, or capabilities likely qualify. By contrast, acts adversely affecting the general war effort generally do not suffice (p. 51-53; see also DoD Law of War Manual, § 5.8.3.2).
Belligerent Nexus
Finally, "the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another" (ICRC Interpretive Guidance, p. 46). Considering the IT Army's impetus and stated purpose, and the fact that its targets are provided by Ukrainian officials, there is little question that many, if not all, of its cyber operations satisfy this element.

With respect to the first two elements, many of the operations publicly attributed to the IT Army, in my view, fail to satisfy the applicable standard. A number, for example, have temporarily disabled or defaced Russian websites that have little, if any, connection to the Russian war effort, such as a video streaming service, a consumer electronics chain, and other purely commercial entities. Such acts are not likely to adversely affect Russian military operations.

In addition, many of the IT Army's publicly reported cyber operations are not direct enough. Some operations, for example, have "focused on causing economic damage to Russia in order to weaken its ability to wage war against Ukraine." While such acts may be likely to adversely affect Russian military operations, they are highly attenuated and better characterized as relating to Russia's general war effort (see ICRC Interpretive Guidance, p. 51-52; DoD Law of War Manual, § 5.8.3.2).

On the other hand, although the limited details available in the media make it challenging to form firm conclusions, it is likely that at least some of the IT Army's activities satisfy both elements. Consider, for instance, a report that the IT Army has "helped fend off Russia's massive cyber attacks." Although the precise nature and purpose of the attacks are unclear, assuming that some bear a connection to Russia's military operations, there is little question that repelling them is both harmful and direct.

In another example, IT Army members stole the personally identifiable information of Russian military personnel and posted it online (i.e., a " doxing" operation). Presumably, the purpose of the hack was to disrupt Russian military operations by, at the very least, demoralizing, harassing, or distracting its forces. In this regard, it is critical to note that the act in question need only be likely to affect Russian military operations; there is no requirement that an adverse effect occurs. If one assumes that at least some of the soldiers in question were taking part in Russia's military operations, there is a reasonable argument that the operation-in this case, a military information support operation (MISO)-would satisfy both elements. Again, the facts are uncertain, but given the volume and range of cyber operations conducted by the IT Army's members, it is likely that at least some of them cross the rule's threshold.
For How Long Does the Rule Apply?
The question of for how long the direct participation rule applies is often challenging because the loss of protections under the rule only applies "for such time" as direct participation endures. Assuming that at least some IT Army members' acts qualify as direct participation, it is necessary to determine when such participation begins and ends for a cyber operation.

There is widespread agreement that Russian forces may target an IT Army member engaged in a cyber operation at his or her computer or while "travelling to and from the location where a computer used to mount an operation is based" ( Tallinn Manual 2.0, Commentary to Rule 97, ¶ 8; see ICRC Commentary to AP I, ¶ 1943). But beyond these agreements, the scope of preparatory acts in the cyber context is far from settled. Similarly, the question of how to characterize an individual who repeatedly engages in acts of direct participation-the so-called "revolving door" problem-has been frequently debated (see ICRC Interpretive Guidance, p. 70; DoD Law of War Manual, § 5.8.4). Given the nature of cyber operations and modern capabilities, these open questions may be of little practical consequence for the IT Army. Regardless of where the line is, once an IT Army member permanently ceases their direct participation, they are no longer targetable by Russian forces.

As an aside, readers should briefly note that the preceding analysis, particularly the distinction between civilians and OAGs and the direct participation rule's temporal restrictions, are germane to targeting. Civilians who participate in hostilities are also subject to detention, in which case, subject to limited exceptions, they do not receive prisoner-of-war status or combatant immunity. In that context, it is irrelevant whether they do so individually or as a member of an OAG. Nor does regaining their targeting protections by ceasing their participation bar them from being detained.

In sum, the IT Army's members are currently not combatants; they are civilians. While it is difficult to be certain, some of them are likely engaging in cyber operations that may qualify as direct participation in hostilities. If they are, it is important to emphasize that the law of armed conflict does not prohibit them from doing so (though there may be domestic law consequences, a topic beyond this post's scope). The conclusion that they are civilians will likely change, however, if Ukraine's pending legislation passes.
Implications of the Draft Law
Even under the broad terms described by one media outlet, it is reasonably clear that the IT Army's members would become combatants under Ukraine's draft law through their formal incorporation into its armed forces' reserve cyber component. As such, the applicable privileges and liabilities described above would inure to them. A few additional observations pertaining to this pending status are worth briefly noting.

First, since the IT Army is currently a multinational group, and as another Articles of War post explains, it should be noted that the law of armed conflict does not prohibit foreign nationals from serving in Ukraine's cyber reserve force (see ICRC 2020 Commentary to GC III, ¶ 977). Should they do so, in addition to any practical challenges it would present (of which there are many), the presence of combatants outside Ukrainian territory would also raise significant legal issues beyond the scope of this post, such as those pertaining to neutrality (see here and here), that Ukraine should at least consider during the legislative process.

Second, combatants are obliged to comply with the law of armed conflict, including the obligation to distinguish themselves from the civilian population by, for example, wearing a fixed distinctive sign such as a military uniform (DoD Law of War Manual, § 5.4.8; see also AP I, arts. 44(3), (7)). As examined in another Articles of War post, in addition to the point that States and their forces should endeavor to comply with the law, failure to do so may result in the forfeiture of the offending individual's prisoner of war status upon capture. Although the risks of capture in the cyber context are low, Ukraine would nonetheless be well-advised to implement and enforce such requirements for individuals who become members of its armed forces.

Third, as detailed in other Articles of War posts ( here and here), Ukraine's forces must take feasible precautions to protect the civilian population against the effects of attacks (i.e., "passive precautions"). They include, among others, "avoid[ing] locating military objectives within or near densely populated areas" (AP I, art. 58(b); see also ICRC Customary International Humanitarian Law Study, Rule 23). Related issues involve the prohibition against the use of human shields and the misuse of protected places. Considering that many IT Army members are presumably conducting their cyber operations amidst the civilian population, such as from computers located in their homes or similar locales, Ukraine would be prudent to consider how best to resource, deploy, and regulate its nascent cyber force in observance of legal requirements.
Conclusion
Thus far, the IT Army's civilian volunteers have displayed incredible determination and fortitude in the face of Russian aggression. But their current efforts, however admirable, may subject them to "a grave risk of harm" that they may or may not fully comprehend. Given what's at stake, Ukraine should be commended for its effort to incorporate the IT Army into its armed forces, in which case the benefits, in my eyes, far outweigh the risks. In doing so, Ukraine should take care to consider all the relevant implications and consequences of converting civilian volunteers into combatants.

***
Lieutenant Colonel William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict
Photo credit: Unsplash

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The Status of Ukraine's "IT Army" Under the Law of Armed Conflict - Lieber Institute West Point

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Two days after Russia's renewed invasion in February 2022, Ukraine's Minister of Digital Transformation announced a call to digital arms on Twitter: We are creating an IT army. We need digital talents. All operational tasks will be given [on this Telegram channel]. There will be tasks for everyone.

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Recalling an Outlier for Gauging Russian Responsibility in its Relationship with the Wagner Group - Richard Mackenzie-Gray Scott - 28 April 2023

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Recalling an Outlier for Gauging Russian Responsibility in its Relationship with the Wagner Group - Richard Mackenzie-Gray Scott - 28 April 2023

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[ Dr Richard Mackenzie-Gray Scott is Postdoctoral Fellow at the Bonavero Institute of Human Rights and St Antony's College, University of Oxford. He is the author of State Responsibility for Non-State Actors: Past, Present and Prospects for the Future ().]

Whatever the motivations for doing so, such as providing authority for further sanctions, there may come a point where the relationship between Russia and the Wagner Group will be further scrutinised in order to determine whether the state is responsible for any wrongful conduct of this non-state actor. Whether during reported operations in Armenia, Azerbaijan, Belarus, Burkina Faso, Central African Republic, Cuba, Madagascar, Mali, Mozambique, Libya, Serbia, Sudan, Syria, Turkey, Ukraine, or Venezuela, should evidence show that Wagner has engaged in wrongful conduct, for example, torture or arbitrary deprivation of life, Russian links with the group require review in order to determine whether this state could bear any subsequent responsibility.

There are a number of bases upon which any such involvement can be assessed, including under international law. Recent commentary mentions the oft-cited attribution tests under articles 4, 5 and 8 of the International Law Commission (ILC) Articles on State Responsibility. Yet it is important that outliers are not discounted. Another distinctive effort of the ILC in its work on attribution almost never gets any attention despite its relevance. The focus here therefore falls on this other test that apparently eludes contemplation by many legal eagles. It concerns attributability under Article 11 of the ILC Articles, specifically that of states acknowledging and adopting non-state actor conduct as their own. While there are numerous other bases for assessing Russian responsibility in its relationship with the Wagner Group, including those not based on attribution, the test examined below can also be applied to facts uncovered regarding Russia-Wagner relations and any ensuing wrongfulness.

Perhaps Article 11 gets overlooked because it did not digest for as long in the drafting process compared to its siblings - being introduced roughly three years before the ILC Articles were considered complete. Or maybe the unseen character of the provision arises from readers believing its application only extends to explicit state acknowledgement and adoption of non-state actor conduct - understandable when glancing at its text:

Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

What is intriguing about this attribution test is that satisfying its threshold rests on whether and how a state responds to wrongful conduct of a non-state actor. This is unlike other tests within and outwith the ILC Articles, in that their respective attribution thresholds can still be satisfied regardless of the subsequent responses from states towards conduct of non-state actors. There is an element of state choice that is particular to Article 11.

While some states may be 'loath to adopt conduct which is not their own' ( p. 182), attributability under Article 11 is not limited to explicit statements from a state of its willingness to acknowledge and adopt non-state actor conduct as its own. This understanding was evident during drafting of the provision:

A State might subsequently adopt or ratify conduct not otherwise attributable to it; if so, there is no reason why it should not be treated as responsible for the conduct. Adoption or ratification might be expressed or might be inferred from the conduct of the State in question. This additional possibility needs to be considered.

Although practice on this matter is minimal, the commentary to Article 11 also alludes to the possibility of implicit state acknowledgement and adoption of non-state actor conduct. When a state 'endorses and continues that situation' where wrongful conduct is present, an 'inference may readily be drawn that it has assumed responsibility for it' ( p. 52). Past practice interpreting Article 11 shows that in cases concerning implicit acknowledgement and adoption of conduct, the instance of a state benefiting from such conduct is not sufficient to satisfy the attribution threshold of this provision. Yet questions remain whether attribution could be triggered as a result of combined endorsement by a state of wrongful conduct and its simultaneous facilitation of maintaining a situation where that conduct is occurring.

Taken alone, state approval or endorsement of non-state actor conduct does not satisfy the attribution threshold of Article 11. Marko Milanovic makes an observation worth remembering, which is that a state 'can approve of many things without necessarily assuming responsibility for doing those things'. It is important to differentiate between state expressions communicating support towards the conduct of a non-state actor and willingness to assume legal authorship of it. However, if a state conducts itself in a manner that contributes to facilitating the continuance of wrongful conduct committed by a non-state actor, then the dynamic between the two actors changes, especially if opinion from the state indicates concurrence with that conduct.

A potential method for assessing whether implicit state acknowledgement and adoption of non-state actor conduct has occurred is to determine whether the state in question has 'at the very least not attempted to stop conduct of a non-state actor that it is simultaneously supporting in some form' ( p. 129). Attributability could thus turn on non-state actor conduct that is ongoing and being made easier because of a state's actions or omissions, so long as the state also issues concurrent statements manifesting its backing of that conduct (see paras. 69-75 and 87-91 for further precedent). Coupling verification of both facilitation and endorsement would be necessary. For example, a state expressing support for conduct that occurred with its provision of weapons or financial and logistical assistance. There are two unsettled points here. The first is what state conduct would constitute facilitating the continuance of non-state actor wrongdoing in a given context. The second is what forms of state communications would be satisfactory in this regard of possible affect on attribution. Would an internal memorandum of a government department suffice, a tactical directive from a military commander, a public announcement to the press, or a post from an official government account on social media? Over time, practice has the opportunity to provide clarity on such matters. But in order for that to happen, related arguments first need to be advanced.

Although positive law has yet to elaborate on what implicit state acknowledgement and adoption of non-state actor conduct is required in order to result in attribution under Article 11, development of further precedent need not be constrained. Depending on what facts are applicable when judging allegations that the Wagner Group was acting in fact on behalf of Russia in a particular case, application of the implicit state acknowledgement and adoption test may be worth considering. Legal or political advocacy undertaken for the purpose of attempting to establish Russian responsibility for wrongdoings of the Wagner Group may also mean preference for applying this test becomes more acute should other tests be rendered futile by available facts.

[ With many thanks to Priya Urs and Dapo Akande for their helpful feedback on a previous draft.]

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Recalling an Outlier for Gauging Russian Responsibility in its Relationship with the Wagner Group

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Dr Richard Mackenzie-Gray Scott is Postdoctoral Fellow at the Bonavero Institute of Human Rights and St Antony's College, University of Oxford. He is the author of State Responsibility for Non-State Actors: Past, Present and Prospects for the Future (2022).] Whatever the motivations for doing so, such as providing authority for further sanctions, there may come a point where the relationship...

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Russia’s alleged deportation of Ukrainian children has caused a UN standoff – what international law says and why it matters - Claire Breen and Alexander Gillespie - 6 April 2023

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Russia’s alleged deportation of Ukrainian children has caused a UN standoff – what international law says and why it matters - Claire Breen and Alexander Gillespie - 6 April 2023

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Russia’s alleged deportation of Ukrainian children has caused a UN standoff – what international law says and why it matters

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The deportation of children during war goes to the heart of important and far-reaching human rights conventions. But bringing perpetrators to justice will be a long and complex process.

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Can International Law Bring a Measure of Justice to Ukraine? - Kevin J Heller - 22 March 2023

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Can International Law Bring a Measure of Justice to Ukraine? - Kevin J Heller - 22 March 2023

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On March 17, the International Criminal Court announced that it had issued arrest warrants for Russia's president, Vladimir Putin, and its children's rights commissioner, Maria Lvova-Belova, for war crimes involving the forcible transfer and deportation of Ukrainian children. This is not the first time the court has brought charges against a sitting head of state; in 2009, it sought the arrest of Omar al-Bashir, the now former president of Sudan. But there is no question that the warrant for Putin is the most dramatic moment in the court's two-decade history, given Russia's status as a permanent member of the Security Council and the widespread international condemnation of its unprovoked invasion of Ukraine.

Fourteen years on, and despite losing power, Bashir has still not been surrendered to the ICC. That failure has reinforced the most common criticism of international criminal law: namely, that it purports to hold individuals accountable for war crimes, crimes against humanity, genocide and aggression, yet only an infinitesimal percentage of those crimes committed since Nuremberg have resulted in prosecution. Will the international community be able to make the many international crimes committed during Russia's invasion of Ukraine, including the crime of the invasion itself, the exception?

This article describes the existing venues for prosecuting international crimes, including the ICC and national courts in Ukraine and in other countries, as well as the defendants most likely to face charges before each. As discussed below, the crime of aggression will be the most difficult of all to prosecute. The best hope for justice for Russia's invasion of Ukraine thus lies in creating a new tribunal.

Existing Options for Prosecuting Crimes

Several venues currently exist for prosecuting the war crimes, crimes against humanity and genocide committed in Ukraine. Most notably, despite Russia not being a member, the ICC has jurisdiction over those crimes because Ukraine has accepted its jurisdiction on an ad hoc basis. Indeed, the current investigation by the ICC's Office of the Prosecutor (OTP) is by far the most ambitious in the court's history, involving a team of more than 40 investigators, forensic experts and support personnel, many of them seconded to the OTP by various ICC member-states. Even the non-member United States has expressed its willingness to assist with the Ukraine investigation, despite being legally prohibited from donating money and personnel to the court.

Because the ICC does not hold trials in absentia-without the defendant being present-the OTP will be limited to building cases until Putin, Lvova-Belova or another Russian suspect is captured. It could be a while: Putin and Lvova-Belova are not leaving Moscow anytime soon, and although it is not impossible that a Russian general who ordered, say, the massacre of civilians at Bucha will fall into unfriendly hands and be turned over to the ICC, that prospect will remain remote as long as the fighting continues. That said, the OTP is duty-bound to investigate crimes committed by both sides of a conflict. Ukrainian soldiers are believed to have committed a small number of war crimes, such as executing prisoners of war, but no evidence has emerged that such crimes were ordered or tolerated by officers senior enough to attract the OTP's attention. The OTP may well prosecute Ukrainians if that changes, though, because for the foreseeable future obtaining Ukrainian suspects is likely to be far more feasible than obtaining Russian ones.

It is important to emphasize that prosecuting war crimes, crimes against humanity and genocide committed in Ukraine is not only the purview of the ICC. Universal jurisdiction exists over those crimes, which means that any state with the necessary legislation-more than 160, according to Amnesty International-could prosecute Russian perpetrators in its domestic courts. Although universal-jurisdiction prosecutions remain uncommon, they are becoming an increasingly important part of the international response to atrocity. Just last year, for example, Germany convicted a former Syrian intelligence official of crimes against humanity and sentenced him to life imprisonment. Four states have already initiated universal jurisdiction investigations into war crimes and crimes against humanity committed by Russians in Ukraine-Germany, Sweden, Lithuania and Spain-and nearly twice that number have concrete plans to do so. The Lithuanian investigation is focusing on crimes committed during the siege of Mariupol, including the death of the noted filmmaker and scholar Mantas Kvedaravičius, and the German investigation is focusing on indiscriminate attacks on civilians and the use of cluster munitions, both possible war crimes. The first trial of a Russian defendant outside Ukraine-more about which below-is far more likely to occur at the national level than at the ICC because many states that have a civil-law system, such as Lithuania, permit trials in absentia.

Prosecuting the Invasion Itself and the Leaders Who Started It

The crime of aggression is a different story. Although there is no doubt that Russia's invasion of Ukraine qualifies, very few options currently exist for prosecuting the high-ranking Russian governmental and military leaders who are responsible for the invasion. The ICC cannot prosecute Russian leaders because the court's jurisdiction is much more limited for aggression than for war crimes, crimes against humanity and genocide. Regarding those three, the court has jurisdiction whenever a crime is committed on the territory of an ICC member-state or a state that has, like Ukraine, accepted the court's jurisdiction on an ad hoc basis. That is why the OTP can currently investigate war crimes, crimes against humanity and genocide in Ukraine. By contrast, the court has no jurisdiction over acts of aggression committed by nationals of a non-member state-not even when the state that is the victim of the aggression has joined the court or accepted its jurisdiction. That asymmetry is not accidental. On the contrary, excluding non-member states from prosecution for the crime of aggression was vociferously demanded by a coalition of powerful states, particularly the U.S., the U.K. and France.

In principle, it would be possible to amend the Rome Statute to apply the same jurisdictional regime to aggression that applies to the other international crimes. In practice, however, that is not a near-term solution. Activating the crime of aggression with its current narrow jurisdictional regime took states more than 15 years of negotiation. Modifying the aggression amendments might not take that long, but it would not happen quickly. Moreover, it is an open question how many states would even support extending responsibility for the crime of aggression to non-member states. Although member-states would have nothing to fear from such an amendment themselves, they have shown lukewarm interest at best in the crime of aggression. The ICC's jurisdiction over aggression was activated more than five years ago, yet only 44 of the court's 123 member-states have bothered to ratify the aggression amendments.

States are also unlikely to prosecute Russian leaders for aggression in their domestic courts. Unlike the other international crimes, it is unclear whether states are entitled to exercise universal jurisdiction over aggression, with most scholars-including the current U.S. war crimes ambassador, who is otherwise a strong proponent of prosecuting the crime of aggression-taking the position that they are not. But even if states are entitled to exercise universal jurisdiction over aggression, it is unlikely that many will. Fewer than 20 have the necessary provision in their criminal codes to do so, and only one of those states, Lithuania, is explicitly investigating the crime of aggression on the basis of universal jurisdiction.

There are also sound reasons to question whether states should prosecute the crime of aggression. To begin with, it is uncontroversial that heads of state, heads of government and foreign ministers are absolutely immune from prosecution in domestic courts. That means no state could lawfully prosecute Putin, Russia's head of government or foreign minister for aggression (or for any international crime, for that matter). States would also find it very difficult to obtain the individuals wanted for aggression and the evidence necessary to convict them. Because aggression is considered a leadership crime-one that can only be committed by high-ranking political officials and military leaders-the suspects that states would want to prosecute for aggression will almost certainly be in Russia, safe from capture. Obtaining evidence would be similarly difficult, because the documents necessary to establish that a suspect was involved in "the planning, preparation, initiation or execution" of the act of aggression-the key element of the crime-would presumably be locked away in filing cabinets and archives somewhere in Moscow.

Creating a New Tribunal

Because of the ICC's lack of jurisdiction and the limits on national prosecutions, the international community has spent much of the past year trying to create a new tribunal for holding Russian leaders criminally responsible for aggression. Most notably, 47 states have joined Ukraine to form a Group of Friends of Accountability whose central goal is to reach a common position on what a new aggression tribunal should look like. That group-which consists almost entirely of states in Europe and North America-is considering three different types of tribunals. Two would be ad hoc international tribunals along the lines of those for the former Yugoslavia and Rwanda. The first would be created by a multilateral treaty between Ukraine and a group of interested states, while the second would be created by an agreement between the U.N. secretary-general and Ukraine on the recommendation of the U.N. General Assembly. The third type of tribunal, by contrast, would be a hybrid tribunal consisting of both Ukrainian and international elements. That tribunal would form part of the Ukrainian judicial system, but it would be supported by an international organization-such as the U.N., EU or Council of Europe-and would feature international judges and prosecutors working alongside Ukrainian ones.

There is no way to know which type of tribunal will win out, but it seems likely that a tribunal will eventually be created. Which type is best is debatable. One critical question is whether any of the tribunals would be able to prosecute Putin, Russia's head of government or foreign minister. The International Court of Justice, the U.N.'s main judicial organ, has made clear that personal immunity does not apply before international courts, but there is very little jurisprudence concerning what makes a court "international" if it is not created by the Security Council, as were the ICTY, ICTR and Special Court for Sierra Leone. A coherent legal argument can be made, however, that a tribunal overwhelmingly endorsed by the General Assembly would be sufficiently "international" to set aside personal immunity. Such endorsement has primarily been discussed in the context of the second model described above-an ad hoc tribunal created by an agreement between the U.N. secretary-general and Ukraine-but there is no reason why such endorsement would not also render international a treaty-based or hybrid tribunal.

Personal immunity for aggression, of course, would only be an issue if Putin, Russia's head of government or foreign minister is captured while still in power. That seems exceptionally unlikely, at least in the short term. Indeed, although a new aggression tribunal would almost certainly enjoy greater resources and greater cooperation from the international community than a purely national court, all three types of tribunal would still likely struggle to obtain suspects and evidence-for all the reasons previously mentioned. That consideration counts in favor of a hybrid tribunal, because it would be quicker, easier and cheaper to add a court to the already functioning Ukrainian judicial system than to create a new ad hoc tribunal from scratch. Even with significant international support, an ad hoc tribunal would take a couple of years to get up and running.

Any new aggression tribunal will inevitably face allegations of selective justice. Some of the Western states most active in the Group of Friends-most notably, the U.S., U.K. and France-are the same states whose efforts led to excluding non-ICC members from prosecution for the crime of aggression. Moreover, although Russia's invasion of Ukraine might be the most flagrant crime of aggression committed since World War II, Group of Friends states have committed their own crimes of aggression. To mention one much discussed example, this month marks the 20th anniversary of the invasion of Iraq, a flagrantly unlawful act of aggression that many states and scholars also consider criminal, particularly those in the Global South. Needless to say, no Western government official or military officer was ever prosecuted for their role in the Iraq invasion, nor were such prosecutions ever seriously contemplated. Given those factors, it is not surprising that many states in the South view efforts to create a tribunal limited to prosecuting Russian aggression as further proof that the West cares about aggression only insofar as it is not committed by one of their own.

A Few Words About Ukraine's Judicial System

Where is Ukraine in all of this? The short answer: extremely active in pursuing accountability. Ukraine has jurisdiction over any international crime committed on its territory, and it has already convicted more than two dozen -mostly relatively low-ranking soldiers -of war crimes such as murder, rape and attacking civilian objects. It has also brought charges against nearly 250 more, a number that will no doubt rise significantly over time . According to Ukraine's prosecutor-general, Ukraine has registered 65,000 war crimes since the invasion began.

Unfortunately, Ukraine has convicted Russian defendants without the defendant being present and has made clear that it intends to conduct additional trials in absentia. International law does not prohibit in absentia trials, but they are opposed by human-rights groups because they rarely fully respect a defendant's fair-trial rights. International law also imposes a number of strict procedural requirements on in absentia trials -such as retrial upon capture if there is any doubt that the defendant knew of the earlier proceedings - not adequately respected by Ukraine's Criminal Procedure Code.

Ukraine is also moving forward with plans to prosecute the crime of aggression , having ostensibly identified more than 600 Russian suspects. Although Ukraine has the legal right to do so -as long as it does not attempt to prosecute Putin, Russia's head of government or foreign minister, who are absolutely immune from jurisdiction in national courts -there are reasons to question the wisdom of such prosecutions. Some of those reasons, which were discussed above, apply to any state that attempts to prosecute aggression. But there is also a Ukraine-specific one: the relevant provision in the Criminal Code does not limit responsibility for aggression to individuals who qualify as "leaders" under international law. Prior to the 2022 invasion, Ukraine convicted three individuals of the crime of aggression who did not satisfy the international definition: two low-ranking Russian soldiers and Viktor Yanukovych, who was no longer the president of Ukraine when he asked Russia in 2014 to send troops into the country. Even more problematically, the Office of the Prosecutor General that the 600+ aggression suspects include "deputies" in various ministries, "heads of law enforcement agencies" and "instigators of war and propagandists of the Kremlin." It is exceedingly unlikely that any of those individuals satisfy aggression's leadership requirement.

Given the problems with domestic aggression prosecutions, it is encouraging that Ukraine is committed to creating a more international tribunal that can prosecute the crime of aggression. Ukraine clearly prefers the two ad hoc models discussed above, although it has never explicitly rejected the idea of a hybrid tribunal based in its own judicial system.

To date, few Russians and no Ukrainians have been held accountable for international crimes committed in Ukraine. Nevertheless, because prosecuting atrocities or aggression is very difficult while fighting still rages, it is too early to add Ukraine to the list of armed conflicts in which the commission of international crimes was met with impunity instead of enforcement. Enforcement mechanisms do exist, and at no time since Nuremberg have states and international organizations been so committed to bringing the guilty to justice. Ukraine may yet prove, then, that the international community can avoid impunity when it really wants to.

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Can International Law Bring a Measure of Justice to Ukraine?

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On March 17, the International Criminal Court announced that it had issued arrest warrants for Russia's president, Vladimir Putin, and its children's rights commissioner, Maria Lvova-Belova, for war crimes involving the forcible transfer and deportation of Ukrainian children.

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International Law, Order, and Justice - Daphne Karahalios - 24 April 2023

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International Law, Order, and Justice - Daphne Karahalios - 24 April 2023

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The Russian invasion of Ukraine that began on February 24, 2022, heralded the emergence of an increasingly realist world order. Russia's open aggression with flagrant violations of fundamental norms and rules is a clear challenge to the liberal world order that has flourished since the end of the Second World War. In other parts of the world, military coups in Mali, Myanmar, Burkina Faso, and Chad also indicate the realist turn to the world order, where the self-interest of the governing military regime trumps legal commitments to human rights and liberal values.

These challenges to the liberal world order put U.S. foreign policy to the test as we tackle many unanswered questions of international law in the emerging security environment. In February 2023, the Department of Social Sciences at the United States Military Academy, West Point, hosted a Security Seminar to discuss these normative issues, which this post outlines and summarizes in the order of presentation.

Key issues include whether and at which point States may become a party to an armed conflict by providing arms and intelligence, whether and to what extent States are likely to engage in military intervention in a foreign country under the realist world order, and the future role of multilateral pacification in deterring inter-State wars. As the seminar discussion highlighted, Russia's invasion of Ukraine has brought to the fore many unanswered questions in international law regarding the status of aid-granting States, intervention, and the viability of non-military deterrence methods in an increasingly realist world order.
Military Assistance in International Law: Lessons from Ukraine
February 24, 2022 was a crucial turning point for European security. Russia's invasion of Ukraine required States not only to reevaluate their own security, but also to analyze the domestic and international legal implications of providing aid to Ukraine in support of its war efforts. Many countries responded to Ukraine's call for assistance by delivering weapon systems and military equipment. International law, however, remains an underused asset in the effort to undermine Russian aggression.

Several factors influence a State's stance toward providing military assistance to Ukraine. The provision of military aid is ultimately a political decision, informed by public opinion regarding the war. However, technical expertise is also in the mix, with the military advising politicians on battlefield needs and legal advisers informing them of legal risks associated with aid.

Legal risks are acknowledged because it remains unclear whether military aid can be justified as an exercise of the right of collective self-defense - the right of States to use military force in support of the victim of an armed attack, as provided for in Article 51 of the UN Charter. Under the traditional law of neutrality, neutral States have an obligation to abstain from providing weapons and other military equipment to a belligerent party (§ 15.3.2.1). A breach of neutral obligations, however, could be justified under modern international law as an exercise of the right of collective self-defense when the victim State of an armed attack requests assistance. As the victim of Russia's aggression, Ukraine has indeed requested that western States provide military assistance, satisfying the requisite conditions for an exercise of collective self-defense by other States.

A separate question is whether military aid makes assisting States a party to the international armed conflict with Russia. The answer to this question carries serious consequences for the United States, along with the many States providing material assistance to Ukraine, because their military assets would become a legitimate military target if they were considered at war with Russia.

It is widely understood that a mere violation of neutrality obligations does not make a State a party to an international armed conflict. It is also axiomatic that Russia's violations of international law are not relevant to the status of assisting States in the conflict. However, it remains unclear if there is any tipping point where a neutral State becomes a belligerent party due to the degree or nature of military assistance.

Participants at the West Point Security Seminar agreed that providing arms and sharing intelligence does not make a neutral State a party to the conflict. They noted, however, Professor Michael N. Schmitt's argument that intelligence sharing or other support could, under certain conditions, bring a supporting State into the international armed conflict. That might be the case when the support provided is integral to the conduct of hostile operations or defensive action against the enemy. Although Ukraine's requests for military assistance are lawful, legal risks associated with State action in response to these requests must be carefully considered.

The war in Ukraine has also provided ample opportunity to test many technologies on the battlefield, such as the integration of cyber and space operations, as well as the production of 3D-printed weapons. Legal risks are increasingly difficult to calculate because there is no precedent regarding military assistance by these technological means. States granting aid must therefore consider the political and legal ramifications of their actions both in the short-term, in responding to Russia's invasion, and in the longer term. Their actions may set precedents for future conflicts where States might be involved in an armed conflict, with an interest in imposing legal costs for military assistance provided to their adversary.
Humanitarian Intervention under a Realist World Order
The war in Ukraine is the most recent demonstration of incessant struggles for human rights, despite various mechanisms established under the liberal world order that attempt to advance and protect the rights and interests of individuals without any discrimination. The international human rights regime inherently relies upon a liberal world order, sustained both by normative and institutional frameworks that support its end. Since the horrors of the Holocaust during Second World War, nations began to develop deontological values as the basis for intervening in humanitarian crises, but humanitarian motivation may start losing its grip owing to the increasingly realist nature of the world order.

In the most idealistic vision of the liberal world order, States would always be motivated by ideological values such as democracy and individual freedom. However, international society is built on a multi-value system where sovereign States enjoy a prerogative to determine their own governance structure, economic policy, and socio-cultural values. Conflicting values characterized many of the conflicts during the Cold War, with western democracies occasionally justifying military intervention on humanitarian grounds. Despite this historical characterization, the true motivation behind these interventions in the liberal world order has always been realist as well, and more obviously so in today's security environment.

In his recent publication, Thomas Peak considered how States might respond to genocide in a more realist, post-liberal international order. Regardless of whether the motivations for intervention are realist or liberal, Peak finds that States will continue to intervene to stop genocides out of realpolitik motivations. Great powers, for instance, may be willing to lend their material and political support to generate social capital and to be perceived as good leaders in the eyes of the States they wish to influence.

Participants in the West Point Security Seminar discussed whether the same argument could be applied to collective defense efforts in Ukraine. Third-party States have limited their involvement in the conflict to supplying arms and sharing intelligence. The absence of boots-on-the-ground is a result of their realist considerations taking precedence over moral imperatives for the defense of a liberal world order. A cost-benefit analysis of interference with the Russia-Ukraine war can sufficiently explain why third States continue to respect Russia's red lines, with cautious and incremental increases in military aid while avoiding direct involvement in the conflict.
Multilateral Pacification - A Possible Deterrent?
Despite the inability of current international legal systems to act as a deterrent against human rights violations and illegal warfare, there are other non-military means at States' disposal to exact justice for Russian aggression and prevent similar actions in the future. Participants discussed the idea of multilateral pacification - the use of decentralized inter-State cooperation to threaten the use of sanctions to forestall the use of military power in a particular region or against specific States - to determine whether it can mitigate the risk of conflict escalation by minimizing its scope and intensity through targeted sanctions that can hinder or deter a recalcitrant State's action.

Multilateral pacification can be useful for alliances responding to inter-State aggressions. Multilateral pacification has three main aspects: orientation, function, and membership. Orientation identifies who the alliance desires to pacify, and its function and membership detail which States conduct the pacification and by what means. Multilateral pacification may be a powerful non-military deterrent against inter-State aggressions in an increasingly realist world order, where States increasingly value material self-interest over ideological pursuits.

In practice, however, neither the threat nor the imposition of sanctions deterred Russia from committing an act of aggression and escalating the conflict in Ukraine. Although multilateral pacification has the potential to be a viable tool for preventing the escalation of inter-State wars in the future, the threat and use of sanctions to combat Russian aggression proved ineffective. Reflecting on why multilateral pacification failed in this case will help ensure its effective use in the future.
Conclusion
The outlook of an increasingly realist international order has implications for international law as a political project in managing international relations. Although the emerging realist world order may alter the role that international law plays, it will remain relevant to the future of U.S. national security. The seminar participants discussed policy options that the United States should pursue to strengthen its international standing through its engagement in the Ukraine conflict.

First, the United States and its allies should continue to grant assistance while avoiding direct involvement in an armed conflict. Legal risks associated with military aid should be weighed carefully. International law is the bedrock of the rules-based international order, but the United States and its allies should strive to adapt international law to the reality of modern conflicts where emerging technologies play a significant role.

Second, the United States and its allies should continue to consider intervention as a policy option for humanitarian reasons to promote liberal ideological values. The manner in which States intervene, however, may change from direct deployment of a nation's soldiers ("boots-on-the-ground") to more indirect means consistent with the State's self-interest. The United States should take this change into account in considering how it intervenes in conflicts and the support it can reasonably expect from allies.

Third, the United States and its allies should promote cooperation in imposing sanctions on a particular State (or a threat of sanctions) as a tool to prevent conflict escalation. The United States should take its failure to deter Russia's invasion of Ukraine as an occasion to expand options for multilateral pacification, not as an indication that this means of preventing conflict is obsolete.
The Department of Social Sciences is grateful to all contributors to this thoughtful panel and hopes that these discussions prompt efforts to further the national security of the United States and its partners in their pursuit of fortitude against aggressive adversaries. The author also thanks Professor Hitoshi Nasu at Lieber Institute, Department of Law, for his support and assistance in completing this report.
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Daphne Karahalios is an International Affairs major at the United States Military Academy.
Photo credit: Ministry of Defense of Ukraine

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International Law, Order, and Justice - Lieber Institute West Point

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The Russian invasion of Ukraine that began on February 24, 2022, heralded the emergence of an increasingly realist world order. Russia's open aggression with flagrant violations of fundamental norms and rules is a clear challenge to the liberal world order that has flourished since the end of the Second World War.

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The Law of Neutrality and the Russian/Ukrainian Conflict: Looking at State Practice - Giulio Bartolini - 11 April 2023

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The Law of Neutrality and the Russian/Ukrainian Conflict: Looking at State Practice - Giulio Bartolini - 11 April 2023

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The Law of Neutrality and the Russian/Ukrainian Conflict: Looking at State Practice

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One of the distinctive features of the Russian/Ukrainian conflict is the massive provision of belligerent materials (and intelligence, here and here) to Ukraine (here): around 30 States have provided lethal war materials, including the EU through its European Peace Facility; other countries have only provided non-lethal materials.

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How Russia’s invasion of Ukraine tested the international legal order - Oona A. Hathaway - 3 April 2023

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How Russia’s invasion of Ukraine tested the international legal order - Oona A. Hathaway - 3 April 2023

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How Russia’s invasion of Ukraine tested the international legal order

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Russia put the international legal order at risk when it launched its war a year ago. But what has and will determine the future of the international legal order is how nations respond to that violation.

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Don’t be Fooled By U.S. Smoke and Mirrors on the Crime of Aggression: Weak Proposals Carry the Risk of Weak Results - Jennifer Trahan - 14 April 2023

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Don’t be Fooled By U.S. Smoke and Mirrors on the Crime of Aggression: Weak Proposals Carry the Risk of Weak Results - Jennifer Trahan - 14 April 2023

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Russia's invasion of Ukraine has prompted States, scholars, advocacy groups, and international institutions to consider the best way to hold leaders accountable for the crime of aggression. The approaches include creating international tribunals, hybrid tribunals, and national tribunals.

Those proposals have led to a lot of imprecise talk. To be clear: an international tribunal is one based directly on international law, established through the United Nations Security Council (which created the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the ICTY and ICTR respectively), or created by bilateral agreement between the United Nations and a country (for instance the Special Court for Sierra Leone). Although the latter had hybrid features, its legal basis made it an international tribunal.

There may also be a hybrid tribunal formed through national law within a country's national system, as was the Extraordinary Chambers in the Courts of Cambodia. This type of tribunal is better called a national tribunal with certain international features.

Last month, the United States announced its support for an "internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine." But the U.S. proposal - and efforts to defend it - fail to address some key concerns: (1) the issue of immunities; (2) the weak precedential weight of a domestic tribunal; and (3) the issue of Constitutionality under Ukrainian law. Ultimately, an international tribunal is the better approach given the gravity of the crime of aggression and the future development of international criminal law.

An International Tribunal is Imperative

As I and other colleagues have previously explained, the form a tribunal takes - whether international or national - is quite significant when it comes to piercing the personal immunities of heads of States, heads of government, and ministers for foreign affairs (see this post by Astrid Reisinger Coracini and myself, and this post). In the former case (an international tribunal formed through the U.N. system) they would not apply; but in the case of a national institution, they would shield such a defendant from prosecution.

This is a significant reason why President Zelenskyy has endorsed the creation of an international tribunal on the crime of aggression - the Special Tribunal on the Crime of Aggression (STCoA) - established through the United Nations. In fact, Zelenskyy's Office has publicly stated that the idea of creating a "hybrid tribunal" as an instrument for investigating the crime of aggression committed by the Russian Federation is "unacceptable." For a leadership crime (as the crime of aggression is, see Rome Statute Art. 8 bis) a prosecutor would ideally investigate and charge all those leaders who participated in the decision to initiate an act of aggression, beginning with the top political leaders. In the case of Russia's war on Ukraine President Putin is the tip of the Kremlin's spear.

Along with personal immunities, a court within the Ukrainian national system also faces serious Ukrainian constitutional impediments (see this piece by Oona Hathaway and Alexander Komarov).

Moreover, from the perspective of the future of the international legal order, it is of cardinal importance that faced with Russia's fundamental assault on the prohibition of the use of force, the international community as a whole puts the greatest possible weight behind the judicial precedent against aggression. That would not happen if a special tribunal were essentially national in character.

As I previously wrote, the warrants of a tribunal formed within a national system and judgments of such a tribunal will never be seen to carry nearly the weight of those of an international institution applying international law and presided over by international judges. The rulings of Ukrainian judges could be dismissed as lacking in impartiality or - even if impeccably well-reasoned - lacking the appearance of impartiality. These difficulties would only be exacerbated if trials are conducted in absentia, as Ukrainian law allows (see the Criminal Procedural Code of Ukraine, art. 7.2).

The U.S. Proposal of a National Court

Recently, the dialog seems to have shifted from calling for a "hybrid tribunal" (see the U.K.'s earlier announcement), to an "internationalized" national court. This is evident in both the U.S. proposal pronounced by Ambassador Beth Van Schaack and a recent post by Michael Scharf, Paul Williams, Milena Sterio and Yvonne Dutton of the Public International Law and Policy Group, ( PILPG).

On Mar. 27, Ambassador Van Schaack announced U.S. support for an "internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine."

Admittedly, having the U.S. agree that "there are compelling arguments" for why the crime of aggression must be prosecuted (see Van Schaack's remarks), is a step in the right direction, but, regrettably that is the only step.

Unfortunately, what the United States endorses is a Ukrainian court "rooted in Ukraine's judicial system." And while Ambassador Van Schaack did mention "international elements" in terms of "substantive law, personnel, information sources, and structure" of the proposed tribunal, the U.S. approach failed to address: (1) the issue of immunities; (2) the weak precedential weight of a domestic tribunal; and (3) the issue of Constitutionality. (See Rebecca Hamilton's critique of the U.S. plan).

PILPG's Defense of a National Approach

PILPG's recent post applaud the U.S. proposal, suggesting that the impediments under the Ukraine's Constitution are surmountable, for instance, through substituting "international advisors" for international judges. But this is an even weaker international features of the proposed national tribunal than what the United States called for, as it would basically create an entirely domestic court.

Here is the Catch-22: a significantly new tribunal within the Ukrainian system will run into Constitutionality impediments. In flawed logic, the PILPG authors suggest that because some kind of hybridized or national tribunal was created within the national systems in Iraq, Kosovo, Serbia and Bosnia, there is no impediment to creating a similar tribunal within the Ukrainian system. Whatever the Constitutions of Iraq, Kosovo, Serbia or Bosnia may or may not have permitted is quite irrelevant - the issue here concerns Ukraine's Constitution (which prohibits "special" or "extraordinary" Chambers being created within the Ukrainian court system as well as the use of non-Ukrainian judges).

As for immunities, PILPG attempts to side-step the issue. Its post admits that personal immunities do attach, but suggests that prosecutions of those a level or two down from the top level leaders are possible. That is true in terms of the leadership element of the crime of aggression. But for a crime that is necessarily committed with participation at the top leadership level, it poses a fundamental problem of legitimacy that cannot, and should not, be so easily dismissed. PILPG's approach suggests that one should effectively exonerate, for instance, the commander-in-chief who made the decision to launch an illegal war so their subordinates can take the blame for that choice. Moreover, the Ukrainian Government has specifically rejected an approach that would entail such immunities.

Equally untested and potentially legally unsound is another PILPG workaround to the immunity problem. It suggests to first create a tribunal within the Ukrainian system, and then later obtain a United Nations General Assembly (UNGA) endorsement once the court is established. We have absolutely no idea if that would work. While UNGA endorsement would mean the tribunal would be endorsed by the international community as a whole, the tribunal would not be createdunder international law. Both are required to safely avoid personal immunities from attaching. (See Reisinger Coracini and Trahan).

Finally, in advocating for the use of international advisors to circumvent the Constitutionality impediment, PILPG raises the model of the Iraqi High Tribunal. But instead of supporting PILPG's position, that tribunal provides a clear warning lesson why the international community should be wary of domestic courts with a bit of hybridity. Despite international definitions of the crimes, international funding, international assistance by the United States Regime Crimes Liaison Office in Baghdad, and international advisers, the Iraqi High Tribunal, which was an Iraqi court created under Iraqi law, was never seen as legitimate. The bench was composed of Shiite and Kurdish judges trying their deposed Sunni leader, Saddam Hussein. Executions followed in quick order despite a panoply of fair trial violations at trial and a complete sham of an appeals process. See Trahan here (fair trial violations during the IHT's Dujail trial); see also here (fair trial violations during the IHT's Anfal trial).

Moreover, the PILPG post has done no analysis of how well a domestic Ukrainian court with international advisers is likely to work and what kind of precedent (or lack of precedent) it is likely to set. Those are questions worth unpacking. Ignoring them risks a similarly weak tribunal for the crime of aggression in Ukraine.

Why Debate Weak Tribunal Proposals?

All of this begs the question of why we are even debating a national court within the Ukrainian system with some international elements that could not prosecute the very top leaders who gave the authorization to commit the crime of aggression and the judgments of which would fail to carry the badly needed authoritative weight of an international tribunal established by a treaty between the U.N. and Ukraine.

On the eve of the 20th anniversary of the invasion of Iraq, one might wonder whether something else is occurring when the U.K. (which earlier proposed a hybrid tribunal within the Ukrainian system) and now the United States (with Ambassador Van Schaak's approach) propose a weak tribunal to prosecute the crime of aggression. How convenient it is to call for justice, but self-servingly create a weak precedent that avoids setting international precedent for the future.

Top Leaders Should Not Escape the Rule of Law While in Office

Some have asked - in effect: why worry so much about head of State immunity, given Putin is likely to be tried only once out of power? (See Kevin Jon Heller's post).

When it comes to doing the right thing and pursuing the rule of law, the form a tribunal takes should not dictate its ability to function: the very leaders that initiated the crime must not be automatically exempted simply by endorsing a weak tribunal model where those leaders would have personal immunity.

It is indeed unlikely that Putin will appear in The Hague while he is still in power, but he could be indicted for the crime of aggression (which would not be possible at an internationalized tribunal established under national law). An international court issuing charges for the crime of aggression would send a powerful deterrent message to world leaders about the unacceptability of brazenly invading a neighboring State. To have the highest Russian leaders indicted for the crime of aggression is exactly the deterrent message that needs to be sent (not to mention, the cost of establishing the STCoA would be a mere drop in the bucket compared, for example, to the cost of coming to the military assistance of yet another victim state).

Conversely, to establish a tribunal within the Ukrainian system (as the U.K. and U.S. models propose) that is unable to even proceed against the entire top Russian leadership sends exactly the wrong message that leaders are above the rule of law while they remain in power. And, even then, after they have left power, they would not need to face justice for the crime of aggression at the international level.

After we have made so much headway in prosecuting genocide, war crimes and crimes against humanity at the international level, we must get serious also about prosecuting the crime of aggression as a crime under international law. All of the harm that has been inflicted upon Ukraine through the 2022 invasion (and 2014 before that) shows why it is time to stop putting the crime of aggression on a lesser tier than the ICC's other crimes.

Being on the Right Side of History

States that wish to support both Ukraine and the international legal order need to be on the right side of history - as so many were in pressing for a broad ICC jurisdictional regime over the crime in both negotiations in Kampala and at the 2017 ASP session where the ICC's jurisdiction over the crime was activated (for the negotiations, see here and here).

They need to unite behind President Zelenskyy's call for a STCoA to be created through UNGA. (See also FAQ). This is acknowledged to be the most credible route to truly enforce the foundational provision against aggressive use of force found in Article 2(4) of the U.N. Charter and deter future uses of aggressive force. (See Hans Corell's post on steps for creating the tribunal. Contrary to some suggestions (see Heller), there is nothing that says the STCoA must be created with "overwhelming UNGA endorsement" to avoid immunities; if the General Assembly vote passes, the General Assembly vote passes).

Yes, an ad hoc approach is imperfect, and that is why, as a second step, states will need to revise the Kampala amendment's jurisdictional regime and broaden the ICC's jurisdiction over the crime so that it may investigate and prosecute the crime in future. (See these statements by the Global Institute for the Prevention of Aggression, GIPA, and the Parliamentarians for Global Action, PGA).

States from all regions of the globe - particularly ones that have suffered historically from colonialism, imperialism, and annexation need to come together to ensure application of the rule of law and firmly establish the unacceptability of brazenly invading a neighboring State - but they need to do so through a legitimate, U.N.-backed tribunal. States should not sit back and make the mistake of thinking these issues are only ones for NATO member State or European nations, or in being complacent setting weak precedent. No State, from any region, including island nations, is safe if blatant aggression is permitted to go unchecked. Unequivocal precedent must be set, both through the creation of the STCoA and eventual amendment of the ICC's Rome Statute to broaden the Court's jurisdiction over the crime of aggression. Global stability and the rule of law demands no less.

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

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Don't be Fooled By U.S. Smoke and Mirrors on the Crime of Aggression

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Russia's invasion of Ukraine has prompted States, scholars, advocacy groups, and international institutions to consider the best way to hold leaders accountable for the crime of aggression. The approaches include creating international tribunals, hybrid tribunals, and national tribunals. Those proposals have led to a lot of imprecise talk.

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An Assessment of the United States’ New Position on An Aggression Tribunal for Ukraine - Rebecca Hamilton - 29 March 2023

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An Assessment of the United States’ New Position on An Aggression Tribunal for Ukraine - Rebecca Hamilton - 29 March 2023

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An Assessment of the United States' New Position on An Aggression Tribunal for Ukraine

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On Monday evening, in prepared remarks at a conference in Washington D.C., U.S. Ambassador for Global Criminal Justice, Beth Van Schaack made a significant announcement : "[T]he United States supports the development of an internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine." This clear statement of U.S.

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A Special Tribunal for Ukraine on the Crime of Aggression – The Role of the U.N. General Assembly - Hans Corell - 14 February 2023

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A Special Tribunal for Ukraine on the Crime of Aggression – The Role of the U.N. General Assembly - Hans Corell - 14 February 2023

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I have learned that some UN Member States believe that only the UN Security Council can "create" an international criminal tribunal in the United Nations. However, with respect to Ukraine, a legally available and advisable solution is an agreement between the United Nations and Ukraine through the General Assembly.

Let me first refer to the following proposal:
Proposal for a Resolution by the United Nations General Assembly & Accompanying Proposal for a Statute of a Special Tribunal for Ukraine on the Crime of Aggression. Ukraine Task Force of the Global Accountability Network. 7 September 2022
As one of the lead authors of this proposal, I based my reasoning on my experiences negotiating the agreement between the United Nations and Sierra Leone for the Special Court for Sierra Leone (SCSL) at the request of the Security Council and my negotiations with Cambodia for the Extraordinary Chambers in the Courts of Cambodia (ECCC) at the request of the General Assembly.

The Special Court for Sierra Leone was created by an agreement between the UN and Sierra Leone on 16 January 2002. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (rscsl.org) .

After a request from Cambodia and the establishment of a Group of Experts to study the issue of a tribunal, the promulgation of the Law on the Extraordinary Chambers in the Courts of Cambodia ("ECCC") was "[w]elcome[d]" by the General Assembly. GA Res. 56/169, para. IV.2 (2002); GA Res. 57/228 (requesting resumption of negotiations and "recommending" various features); GA Res. 57/228B (approving draft agreement on cooperation). While the Special Court for Sierra Leone was a freestanding new institution, the ECCC became chambers within the Cambodian court system. Government of Cambodia, Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), NS/RKM/0801/12 (eccc.gov.kh) .

This means that the ECCC were created upon a recommendation by the UN General Assembly. Importantly, when the ECCC's creation was first contemplated, it was not envisioned to be a tribunal within the Cambodian Court system. The original version as well as the final one did not affect the assessment that either could be established with resort to the General Assembly.

Against this background, the model for the structure of the Ukraine tribunal should be the internationalized SCSL. But what about the authorizing action through the United Nations? Ukraine cannot go to the Security Council as Sierra Leone did for the simple reason that Russia will veto such a proposal. That is why I believe that the process when I negotiated the agreement between the United Nations and Cambodia should be applied. Cambodia did not turn to the Security Council. Instead, it turned to the General Assembly and asked for an agreement. Ukraine should therefore turn to the General Assembly requesting a resolution for a Ukraine tribunal. While the model for the tribunal itself should be Sierra Leone.

With respect to the competence of the General Assembly it is highly important to note that in this particular case the Assembly is acting under the "Uniting for Peace" system, in which the fundamental provision reads:

"Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations." (emphasis added)

Surely, if the General Assembly can make recommendations to use armed force in the case of a breach of the peace or act of aggression, the General Assembly can make a recommendation or direct a request to the Secretary-General to negotiate an agreement with Ukraine on a Special Court for the Crime of Aggression, if Ukraine so wishes.

It is against this background the following two paragraphs in the preamble of our proposal of 7 September 2022 for a UN General Assembly resolution are formulated as follows:

"Recalling General Assembly resolution 377 A (V) of 3 November 1950, entitled "Uniting for peace", and taking into account that the lack of unanimity of the permanent members of the Security Council at its 8979th meeting has prevented it from exercising its primary responsibility for the maintenance of international peace and security,"

"Taking note of Security Council resolution 2623 (2022) of 27 February 2022, in which the Council called for an emergency special session of the General Assembly to examine the question contained in document S/Agenda/8979."

In sum, the General Assembly is an appropriate and well-advised option for establishing a Special Tribunal for Ukraine on the Crime of Aggression, and such a path would be well grounded in the practices and law of the United Nations.

IMAGE: Permanent Representative of Russia to the United Nations Vasily Nebenzya speaks during a United Nations General Assembly special session at the United Nations headquarters on October 10, 2022 in New York City.

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A Special Tribunal for Ukraine on the Crime of Aggression - The Role of the U.N. General Assembly

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I have learned that some UN Member States believe that only the UN Security Council can "create" an international criminal tribunal in the United Nations. However, with respect to Ukraine, a legally available and advisable solution is an agreement between the United Nations and Ukraine through the General Assembly.

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The Legal Authority to Create a Special Tribunal to Try the Crime of Aggression Upon the Request of the UN General Assembly - Oona A. Hathaway, Maggie Mills and Heather Zimmerman - 5 May 2023

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The Legal Authority to Create a Special Tribunal to Try the Crime of Aggression Upon the Request of the UN General Assembly - Oona A. Hathaway, Maggie Mills and Heather Zimmerman - 5 May 2023

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The Expert Panel's Review of Amnesty International's Allegations of Ukrainian IHL Violations - Michael N. Schmitt - 1 May 2023

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The Expert Panel's Review of Amnesty International's Allegations of Ukrainian IHL Violations - Michael N. Schmitt - 1 May 2023

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Last week, the New York Times reported that Amnesty International (AI) "sat for months on a report critical of the group after it accused Ukrainian forces of illegally endangering civilians while fighting Russia." The report in question was prepared by a distinguished Panel of Experts that AI appointed to conduct a legal review of an AI August 2022 press release that had sparked widespread controversy. In an earlier Articles of War post, I assessed the allegations leveled by AI in its press release. Here, I offer my thoughts on the legal review of it by the Panel of Experts.
The Controversial Press Release
Amnesty International's August 2022 press release accused Ukrainian forces of putting "civilians in harm's way by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals, as they repelled the Russian invasion." According to Agnès Callamard, AI's Secretary General, the organization "documented a pattern of Ukrainian forces putting civilians at risk and violating the laws of war when they operate in populated areas."

In response, AI was widely criticized, not least by Ukrainian President Zelensky, who charged the press release "shift(s) the responsibility from the aggressor to the victim." His Foreign Minister similarly asserted that "This behavior of Amnesty International is not about finding and reporting the truth to the world, it is about creating a false balance between the criminal and the victim." The press release even caused the organization's Ukraine Director to resign in protest. Three days after its release, AI issued a statement announcing that it "deeply regrets the distress and anger that our press release ... has caused."

In my Articles of War assessment of AI's press release, I concluded that some of the criticism was unfair, such as claims that AI should not be criticizing the behavior of a victim of Russia's clear aggression. Such criticism ignores the principle of IHL's equal application, which lies at the heart of that body of law. But I also felt that the organization went too far.

Amnesty International's allegation of unlawful conduct by Ukraine is unconvincing. IHL is a nuanced body of law because it must carefully balance two sometimes competing interests - military necessity and humanitarian considerations. Even if the facts in the report are accurate, and there is no reason to believe they are not, it lacks the detail necessary to support the charge.

I labeled AI's assertions "irresponsible." Behind the scenes, this view was widely echoed in the IHL community. And Russia skillfully leveraged the allegations for lawfare purposes. For instance, soon after its release, Russia's ambassador to the United Nations claimed, "We don't use the tactics Ukrainian armed forces are using - using the civilian objects as military cover - (...) what Amnesty International recently proved in a report."
Legal Review by an Independent Panel
To its credit, the organization appointed a Panel of Experts to provide a legal review of the press release as part of a broader evaluation into "what exactly went wrong and why." Unfortunately, the Panel's unanimous final report, which considered AI's comments on a draft version, was completed on 2 February but not released publicly. As noted above, this led the New York Times to conclude that the AI Board had essentially buried it (see also The Guardian report). According to a source, the board decided to "merely use [the report] as one of several sources for a lessons-learned document to circulate internally" rather than releasing the whole document, or at least excerpts. Whatever the reason, the failure to make the report public is highly disappointing, especially for an organization that often criticizes States for their lack of transparency.

The report was authored by five distinguished scholars: Emanuela-Chiara Gillard (University of Oxford), Kevin Jon Heller (University of Copenhagen), Eric Talbot Jensen (Brigham Young University), Marko Milanovic (University of Reading), and Marco Sassòli (University of Geneva). I know them all well on both the professional and personal levels. It is a star-studded group with truly exceptional IHL expertise and unquestionable character.

My only hesitation regarding composition when the group was formed (and it was but a slight one) was that it would benefit from more operational expertise, which can be helpful in applying IHL's highly contextual rules. Indeed, with respect to the delicate balance between military necessity and humanitarian considerations that infuses IHL, the group might be said to lean slightly in the direction of the latter.

But the proof is in the pudding. The report is a model of objectivity. As explained below, the Panel defended AI when merited and criticized the organization where it fell short. And their assessments are operationally sound.
The Legal Findings
In preparing its report, the Panel had substantial access to internal AI deliberations about the press release, including confidential evidence that informed it, and conducted extensive interviews with AI personnel. AI asked the Panel to address two questions based on this material.

1. Did the legal analysis in the Press Release fall within an acceptable range of interpretation of IHL?

2. Was the evidence underlying the Press Release sufficient to support the legal conclusions that AI reached?
The Jus ad Bellum and IHL
The Panel began by addressing the relationship between the prohibition on the threat or use of force found in Article 2(4) of the UN Charter and IHL. Pro-Ukrainian sentiment, which is well-justified, led some critics of the press release to disparage it on the basis that Ukraine was merely defending itself pursuant to Charter Article 51. That was not an appropriate criticism. As the Panel emphasized, the principle of equal application means IHL applies to all parties to a conflict; it is irrelevant whether they are using force lawfully or unlawfully.

This principle was most famously recognized in the 1948 Hostages ( U.S. v. List et al.) case before a post-war U.S. Military Tribunal, which held,

Whatever may be the cause of a war that has broken out, and whether or not the cause be a so-called just cause, the same rules of international law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral states.

It also appears in the Preamble to Additional Protocol I, to which Ukraine and Russia are Party.

Based on the principle, the Panel found that the outcry against criticism of Ukraine for violating IHL on the basis that it is the victim is "legally and morally unjustified" (¶ 10). However, it suggested that AI should have discussed the principle of equal application and "for public perception reasons, the more serious and widespread character of the violations of IHL by Russia should have been mentioned" (¶ 16). In retrospect, that is sound advice, although, in fairness, AI had earlier, and frequently, condemned Russian IHL violations, and noted them in its press release.
Passive Precautions
As I noted in my earlier piece, much of the press release dealt with the issue of passive precautions, a defender's obligation found in Article 58 of Additional Protocol I (see also Customary International Humanitarian Law study, ch. 6; DoD Law of War Manual, § 5-14). It requires parties to a conflict to "remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives" and "avoid locating military objectives within or near densely populated areas. Additionally, they must take precautions to protect "the civilian population . . . under their control against the dangers resulting from military operations." These steps must be taken "to the maximum extent feasible," a standard that acknowledges the contextual nature of the duty. Curiously, AI did not cite Article 58 in its press release, although it clearly was referring to that obligation. Nor did it cite Article 51(7), which prohibits using the "presence or movements" of civilians to "shield military objectives from attacks or to shield, favor or impede military operations." This prohibition differs from passive precautions, for it requires intent by the party engaging in the shielding.

The presence of military personnel and equipment near civilians and civilian objects implicates both rules. Concerning shielding, AI did not claim that Ukrainian forces intended to engage in the forbidden tactic, a point the Panel acknowledged. Therefore, it did not examine that issue further. However, as I noted in my earlier post, intent may be inferred from facts, and thus incidents involving co-location should usually be examined for the presence of intent. In this case, the facts contained in the press release do not suggest that Ukrainian forces engaged in intentional shielding, nor can they rule out that possibility.

Compliance with the obligation to take passive precautions is the critical issue. In this regard, the Panel noted that AI documented,

at least 42 specific instances in 19 towns and villages where soldiers were operating in the vicinity of civilians, including 22 incidents involving schools, six involving hospitals, and the rest involving other types of civilian buildings. These incidents included a range of activities, from sleeping and eating to conducting command and control operations to firing weapons systems. In several of these cases, AI determined that attacks by Russian forces that appeared to be targeting the Ukrainian military resulted in death or injury to civilians and damage to civilian objects. (¶ 26).

Importantly, the organization also determined that alternate sites were available to the Ukrainian forces that would have posed less risk to civilians and civilian objects.

There is no prohibition on co-location with civilians and civilians as such. Instead, to breach the obligation of passive precautions by co-location, the party concerned 2) must have available an alternative location that is 2) operationally sensible. Since the Panel appears to have accepted the availability of alternate sites, its assessment hinged on the second prong, military good sense. Key considerations in making such an assessment include the alternative's impact on mission accomplishment, the risk to own forces, the likelihood that the other location will diminish the risk to civilians and civilian objects, and any effect it might have on other operations (see this HNSJ piece and the DoD Law of War Manual, § 5.2.3.2).

I highlighted a number of factors that might bear on such decisions in my earlier piece, as does the Law of War Manual (e.g., § 5.14.1). Commendably, so too did the Panel.

Such considerations might have included, inter alia, the need to position artillery in a specific location to facilitate a necessary angle of attack on Russian forces; establishing positions that facilitated line of sight connectivity for radar or other communication capabilities or for monitoring enemy positions or forces or gaining access to certain infrastructure such as power or lines of communication necessary to facilitate military operations. Similarly, the operational needs of military units might have required them to billet in a sheltered place with electricity, access to sanitation and potable water, and easy access to roads. (¶ 25).

AI reportedly considered several of these factors but did not include them in the press release. As the Panel points out, it is essential to know if and how the Ukrainian forces assessed their feasibility before drawing any conclusions. It concluded,

Without considering potential justifications for positioning of military forces, and without better understanding and knowledge of whether Ukrainian forces attempted to segregate and protect the civilians in the areas AI examined ..., it was not possible for to definitively conclude that the Ukrainian military failed to meet its Article 58 AP I obligations.(¶ 30).

The Panel took special note of AI's concern about the distance of Ukrainian forces from the front lines. In my estimation, AI's fixation on this point displayed a lack of operational understanding. The Panel came to the same operationally perceptive conclusion: "AI's determination failed to account for the actual context of the conflict, in which the front lines were often neither narrow nor static due to modern weapon systems with extended reach and high mobility" (¶ 31).

Regarding co-location, the Panel ultimately found that,

the PR's [press release] insistence that Ukraine had violated its obligations to take passive precautions was too emphatic. Without input and insight from the Ukrainian military concerning whether its troops assessed the feasibility of locating elsewhere and if so, what its feasibility assessments were, legal conclusions should have been caveated appropriately .... At the very least, given the lack of input from the Ukrainian military, AI should have used more cautious language in the PR, such as noting that Ukraine could or might have violated its obligations under Article 58 AP I and calling for greater scrutiny of the Ukrainian military's decisions concerning where to locate its forces. (¶ 32).

As will be discussed below, the finding is sound.
Evacuation of Civilians
AI also noted that it was unaware whether the Ukrainian military asked or assisted civilians to evacuate locations near their forces, allegedly "a failure to take all feasible precautions to protect civilians." I criticized AI's conclusion on the basis that evacuation is only required if it diminishes the risk to the civilian population and is operationally sensible, a point emphasized in the DoD Law of War Manual (§ 5.14.2). The Panel agreed,

[F]rom a legal perspective, absent engagement on this specific issue with the Ukrainian armed forces, AI could not have definitively concluded that evacuations would have been feasible from a military or, indeed, a humanitarian perspective. An exchange on this issue would have indicated whether evacuating civilians from the buildings in question could have been feasible from a military perspective in the circumstances ruling at the time. Moreover, and very significantly, evacuations might not have been feasible or advisable from a humanitarian perspective. There is no indication of what alternative arrangements for civilians existed or whether forcing them to leave their homes might not have put them in an even more vulnerable situation. There is also no indication in the record of what the specific civilians concerned actually wanted, in particular whether they wanted to leave their homes. (¶ 41).

The Panel came to a similar conclusion about warnings. As I explained more fully in my earlier post, Article 58 of Additional Protocol I contains no express obligation to issue warnings. The only such requirement is found in Article 57, which applies to an attacker's warning to civilians in the target area (so-called "active precautions"). However, I believe a passive precautions duty to warn is a reasonable inference from Article 58(c)'s requirement to take "other necessary precautions to protect the civilian population." This would include not only warning of enemy attacks but also of its own operations that might put civilians at risk. Of course, this interpretation of the Additional Protocol I obligation, which the Panel labels "progressive" (¶ 49), is subject to a condition of feasibility (including operational considerations like force protection and mission effectiveness). And as I noted previously, the mere presence of the Ukrainian military personnel and equipment may have sufficed to place civilians on notice of the risk, thereby obviating a need for an express warning.

The Panel acknowledged that there might be a duty to warn where "the civilian population is genuinely unaware that they are exposed to an elevated risk of attack by the adversary because defending forces are nearby" (¶ 49). But it correctly emphasized the feasibility condition: "There are many possible military reasons why such specific warnings could not feasibly be given, for example because the defending forces were concerned that civilians might deliberately or unwittingly disclose the location of the military forces and expose them to targeting by posting on (say) social media" (¶ 49). It found that "because IHL does not specifically require defending belligerents to issue such warnings, and in view of the limited information at its disposal, AI's conclusion that the Ukrainian armed forces violated their obligation to take passive precautions by failing to issue warnings was not sufficiently substantiated" (¶ 51). This finding was, in my estimation, on the mark.
Presence In or Near Schools
In its press release, AI highlighted the presence of Ukrainian troops in and near schools and hospitals. Concerning the former, it noted that the "Ukrainian military has routinely set up bases in schools in towns and villages in Donbas and in the Mykolaiv area. Schools have been temporarily closed to students since the conflict began, but in most cases the buildings were located close to populated civilian neighbourhoods." While acknowledging that there is no "special protection" in IHL for schools that are not in session, it asserted that "militaries have an obligation to avoid using schools that are near houses or apartment buildings full of civilians, putting these lives at risk, unless there is a compelling military need. If they do so, they should warn civilians and, if necessary, help them evacuate." In other words, the passive precautions rules apply.

In fact, schools enjoy no "special" protection, whether in session or not. Rather, they are protected by IHL's rules prohibiting attacks on civilians and civilian objects, forbidding indiscriminate attacks, and requiring compliance with the rule of proportionality and the obligations to take active and passive precautions. The Panel correctly pointed out that by citing a threshold of "compelling military need," AI arguably set a higher standard than the textual "to the maximum extent feasible" standard (¶ 61). In my view, military need to use a school suffices to allow use. Still, that use immediately triggers the rules just mentioned, the most relevant in this case being passive precautions.

Interestingly, the Panel noted AI's reference to the Safe Schools Declaration and associated Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict. They are non-binding political commitments that reflect "responsible State behavior." With respect to the use of abandoned or evacuated schools or universities, Guideline 2 provides that they

should not be used by the fighting forces of parties to armed conflict for any purpose in support of their military effort, except in extenuating circumstances when they are presented with no viable alternative, and only for as long as no choice is possible between such use of the school or university and another feasible method for obtaining a similar military advantage.

AI appears to treat schools that are not in session as analogous to abandoned or evacuated ones, a reasonable conclusion. The alternative would be to treat them as "functioning schools," which "should not be used by the fighting forces of parties to armed conflict in any way in support of the military effort" (Guideline 1). The Safe Schools declaration has been endorsed by Ukraine but not by Russia (or the United States). Although drawing attention to these non-legally binding norms, AI did not allege their violation.

However, in the Panel's opinion, the "separate section of the PR on schools nevertheless gives the impression that the use of schools is a special case, which is legally incorrect for the conduct qualified by as IHL violations but might have been justified by the effect of destroying schools on the future right of education" (¶ 62). The Panel did not develop its mention of a human right to education (a legally complex matter legally and factually), nor was it mentioned by AI. Rather, it reemphasized its conclusions as to co-location and feasibility, which, as discussed above, I support fully.
Presence In or Near Medical Facilities
AI also identified five locations where Ukrainian forces were using hospitals as military bases, two areas where soldiers were in the vicinity of hospitals and eating meals there, and one incident of soldiers firing from near a hospital. It stated that the use of hospitals is a "clear violation of international humanitarian law."

Article 12(4) of Additional Protocol I provides, "Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety." Article 18 of Geneva Convention IV less prescriptively states, "In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives." But as the Panel rightly observed, "Mere presence of members of the armed forces and medical establishments does not violate these rules" (¶ 56).

Additionally, the discussion concerning co-location applies equally to this situation. And there is an obligation to "respect and protect" medical facilities (e.g., GC I, art. 19; GC IV, art. 18; AP I, arts. 12-14; Customary International Humanitarian Law Study, Rule 28). However, the protection ceases if medical facilities are used " to commit, outside their humanitarian function, acts harmful to the enemy," subject to a warning to desist (GC I, art. 21; GC IV, art. 19; AP I, art. 13; DoD Law of War Manual, § 7.10.3.1). Harmful acts include using the facilities to shelter troops or conducting military operations from them (ICRC Commentaries here, here, and here).

The Panel concluded that it "seems logical that if certain conduct may lead to the loss of protection of hospitals from attacks and a defending party has an obligation to protect hospitals, it may not engage in co-location itself" (¶ 57). Although I did not address this point in my original post, I agree with the Panel's logic, subject, as always, to a condition of feasibility (as in unavoidable presence during a rapidly evolving troops-in-contact situation). The duty "to respect" further confirms the need to take the passive precautions discussed above, even beyond loss of protection situations. As explained in my original post, it is questionable whether simply being near a medical compound would render the hospital a military objective. However, proximity would certainly trigger passive precautions obligations.

The presence of troops in or near medical facilities is the likeliest basis cited by AI for a Ukrainian IHL violation, especially the alleged use as a location from which to conduct operations. Yet, as the Panel noted, it is difficult to understand the basis for the AI's allegation without an explanation of which IHL rule was violated and how. Thus, I find it appropriate for the Panel to conclude, "AI should either have explained why it considered any presence of soldiers in or near hospitals to be unlawful or should simply have treated those cases in the same manner as other cases of co-location" (¶ 58).
Engagement with Ukraine
Importantly, the Panel determined that AI did not "meaningfully engage" with Ukrainian authorities during the investigation and failed to give it a "right of reply" before publishing its conclusions. As the Panel perceptively noted, "This deprived [AI] of the opportunity to gather information that would have provided a stronger basis for its findings." Moreover,

in view of the absence of information from the Ukrainian authorities on why members of the armed forces were positioned in civilian areas, the conclusion in the PR that the Ukrainian armed forces had categorically violated the obligation to take passive precautions is insufficiently substantiated. AI would, however, have been justified in concluding that Ukrainian forces could or might have violated IHL even without further potential input from Ukrainian authorities. (¶ 64).

I agree. It cannot be said definitively that Ukraine violated IHL without hearing from Ukrainian authorities. Of course, it is often the case that a party to the conflict refuses to cooperate with such investigations. But failing to exert sufficient efforts to engage with that party, as was apparently the case here, undercuts the credibility of findings. Moreover, absent that attempt, even a suggestion that IHL might have been violated rests on very thin ice.
Concluding Thoughts
From a legal perspective, the most significant point made by the Panel is that,

Without information from the armed forces, it is impossible to categorically determine that a violation of the rules governing the conduct of hostilities has occurred unless there are other clear indications based on patterns of conduct or other circumstantial evidence.

The rules on passive precautions require similar engagement as outlined above, they are not absolute obligations, but instead require belligerents to take precautions to the maximum extent feasible. Feasibility is understood as referring to what is practicable or practically possible, taking into account all of the circumstances ruling at the time, including humanitarian and military considerations. (¶¶ 66-67).

I could not agree more. What the Panel understood, and a point that needed to be more evident in the AI press release, is that IHL is highly contextual. And IHL rules subject to a condition of feasibility sit at the pinnacle of wartime contextuality. Neither the AI press release nor the Panel's review suffices to rule out the possibility that Ukrainian co-location violated IHL. But the AI press release did not provide the evidentiary basis necessary to conclude that it did.

The Panel must be applauded for producing an objective analysis deeply embedded in the law. As for Amnesty International, I see no reason to deviate from my original assessment that,

Amnesty International has acted irresponsibly by making the claim without providing supporting evidence, citing the specific rules that it believes have been violated, or laying out its legal analysis.These failures have deprived Ukraine of a meaningful opportunity to respond and the international community of an ability to properly assess it.

Fortunately, AI's establishment of the Panel was responsive to such concerns. But failure to release the Panel's report when completed, whether in an attempt to bury it or not, was likewise irresponsible; it constitutes a continued failure of leadership. As with the original press release, the delay facilitated Russia's use of lawfare against Ukraine and unfairly tarnished perceptions of Ukraine's conduct more broadly. Amnesty International has long contributed measurably to the implementation of IHL and human rights during armed conflict. It can do better than this incident suggests.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Photo credit: Unsplash

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The Expert Panel's Review of Amnesty International's Allegations of Ukrainian IHL Violations - Lieber Institute West Point

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Last week, the New York Times reported that Amnesty International (AI) "sat for months on a report critical of the group after it accused Ukrainian forces of illegally endangering civilians while fighting Russia." The report in question was prepared by a distinguished Panel of Experts that AI appointed to conduct a legal review of an AI August 2022 press release that had sparked widespread controversy.

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We Need to Talk About Grave Breaches of the Geneva Conventions - Andrew Clapham - 25 April 2023

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We Need to Talk About Grave Breaches of the Geneva Conventions - Andrew Clapham - 25 April 2023

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[ Andrew Clapham is Professor of International Law at the Geneva Graduate Institute and the author of "Human Rights: A Very Short Introduction and War ".]

The arrest warrants issued by the International Criminal Court (ICC) for Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova have generated a lot of talk about the absence of any obligation on Russia to comply due to Russia not being a party to the Statute of the ICC. In addition, we have seen a secondary debate about the personal immunity of a head of state from a non-party to the ICC Statute. Thirdly, the discussions around the various proposals for a tribunal to prosecute the crime of aggression have in turn often focused on the possibility of trying a sitting head of state from a state that objects to the creation of such a tribunal. Kevin Jon Heller has recently appealed to international lawyers not to get too distracted with these questions of personal immunity, on the grounds that the threat of an international tribunal prosecuting a sitting head of state is 'largely academic' as there is little chance that 'such a tribunal would ever get its hands on one'. I think he is right to present this debate about sitting heads of state as a distraction. In fact, I think we could instead be looking at all those who shape and influence an aggression, and be thinking about complicity in aggression, including, as explained by Nikola Hajdin, the responsibility of individuals in the private sector.

In this piece, however, I wanted here to highlight a fourth issue arises in the wake of the arrest warrants issued by the ICC: the need to talk about the regime that is universally accepted by all states under the Geneva Conventions of 1949. This is the grave breaches regime for the prosecution or surrender of those alleged to have committed grave breaches of those Conventions. Russia is a party to these Conventions and to Additional Protocol I which defines further relevant grave breaches. The regime created obligations for every state whether or not they have signed up for the ICC Statute. Grave breaches of the Geneva Convention create crimes of universal obligation.

The ICC's press release refers to the 'the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation'. Under Article 147 of the Fourth Geneva Convention 1949 it is a grave breach to unlawfully deport or transfer a protected person from occupied territory. Whether or not Russia is a party to the ICC Statute is irrelevant for the purposes of talking about the individual international criminal responsibility of Russians who are alleged to have committed this crime. Every state in the world is under an obligation (as set out in Article 146) 'to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a "prima facie" case.' Whether the allegation comes from the ICC, or someone else, all states have this treaty obligation to act on allegations. The updated ICRC Commentary (2020) to this provision in the Third Geneva Convention, however, states: 'It is not clear whether prosecutors or investigating magistrates know that they are under an obligation to investigate allegations of grave breaches.' (Para 5156). As pointed out by Revaz Tkemaladze the same updated Commentary explains that the drafters of the Geneva Conventions foresaw surrender to an international court under this provision. In fact, while some prosecutorial authorities may be unaware of the state's obligations, the possibilities should not be limited to the immediate prospects of an arrest of someone present on the territory. The obligation to search for alleged perpetrators need not be limited graphically, as explained by Paola Gaeta in a Commentary to the 1949 Conventions: 'if a state has sufficient information to believe that a person has committed a grave breach and has grounds to believe that this person is under the jurisdiction of another state, it can submit to the latter a request for surrender or extradition.' (Para 39).

The press release refers to President Putin's alleged responsibility for 'for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).' These subordinates would seem also to be guilty of the grave breach of the Geneva Conventions and could be prosecuted in any state in the world. There is no reason to believe that they would be covered by any immunity, in particular as Russia is a state party to the Geneva Conventions which foresees such prosecutions by foreign states. Whether or not arrest warrants are forthcoming from the ICC, these subordinates are liable to arrest and prosecution everywhere that has the relevant legislation.

The point is that the war crime of transfer or deportation from occupied territory applies to everyone irrespective of whether their state has ratified the ICC Statute, and they can be tried in multiple states around the world, irrespective of whether those states are parties to the ICC Statute. The idea that anyone can avoid accountability for grave breaches by sticking to non-ICC states for one's trips is fallacious when that person is alleged to have committed grave breaches of the Geneva Conventions.

Interestingly, earlier this year the United States adopted new legislation entitled the ' Justice for Victims of War Crimes Act' which now allows for prosecutions for grave breaches of the Geneva Conventions in the United States where there is no connection to the USA apart from the presence of the alleged perpetrator in the United States. President Biden signed this into law on 5 January 2023. The fact that neither the United States nor Russia are parties to the ICC makes no difference, the regime is the grave breaches regime of the 1949 Geneva Conventions, which has been accepted by every state. Indeed the United States defines the relevant war crimes in this context by reference to this regime Title 18 §2441(c)(1). Other states, such as the UK or Uganda, have legislation simply entitled the 'Geneva Conventions Act' which operate in a similar way. These Acts predate the ICC and operate separately from it.

Importantly, the UK Geneva Conventions Act 1957 (as amended) includes the grave breaches in Additional Protocol I, which are applicable in the Ukraine-Russia conflict as both states have ratified this treaty. Such grave breaches include: wilfully launching an indiscriminate attack causing death or serious injury to body or health, affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Section 1A(b) of the Act and Articles 85(3)(b) and 57(2)(a)(iii) of the Protocol.

In the coming months and years more allegations will be made about war crimes in Ukraine. Whatever the nationality of the alleged perpetrator, every state in the world has an obligation either to investigate and prosecute or 'hand such persons over' (note not extradite) to another state. Rather than suggesting that only part of the world could or should react to the indictments, it is worth remembering that the particular war crimes mentioned in the indictment are crimes of universal jurisdiction. Future allegations, whether coming from the ICC or other sources, will most likely relate to grave breaches of the Geneva Conventions and Additional Protocol I. States around the world will have obligations to address these allegations. It's time to talk about grave breaches.

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We Need to Talk About Grave Breaches of the Geneva Conventions

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Andrew Clapham is Professor of International Law at the Geneva Graduate Institute and the author of "Human Rights: A Very Short Introduction and War".] The arrest warrants issued by the International Criminal Court (ICC) for Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova have generated a lot of talk about the absence of any obligation on Russia to comply due to...

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The Gravity of Russia’s Cyberwar against Ukraine - Lindsay Freeman, Amanda Ghahremani and Sophie Lombardo - 19 April 2023

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The Gravity of Russia’s Cyberwar against Ukraine - Lindsay Freeman, Amanda Ghahremani and Sophie Lombardo - 19 April 2023

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[Lindsay Freeman is the Director of the Technology, Law and Policy Program at the Human Rights Center, UC Berkeley School of Law. Amanda Ghahremani is a lawyer specializing in international criminal law and a Research Fellow at the Human Rights Center, UC Berkeley School of Law.
Sophie Lombardo is a second year law student at UC Berkeley School of Law and a Graduate Student Researcher at the Human Rights Center. ]

With so many atrocities committed in the context of Russia's aggression against Ukraine-from the killing of civilians to the torture of POWs to the deportation of children-why should prosecutors care about cyber-attacks? This is the question that the Human Rights Center at the UC Berkeley School of Law sought to answer in its recent submission to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). In March 2023, the Berkeley team submitted its second article 15 communication on cyberwar in the Russia-Ukraine conflict, which presents the case for charging five Russian cyber-attacks against Ukraine's critical infrastructure as war crimes either because they were directed at civilian objects or were indiscriminate in nature.

While the harms associated with cyber-attacks may appear negligible when compared to the physical destruction, injury, and death inflicted by traditional arms in Ukraine, cyber weapons can cause massive economic, political, and psychological damage, particularly on civilian populations. They can also inflict the same types of physical harm caused by kinetic attacks. As a consequence, cyber-attacks can satisfy the ICC's gravity threshold. Professor Jennifer Trahan argues that the ICC's gravity threshold will be an obstacle to charging most cyber operations under the Rome Statute. While true, the cyber-attacks in the Center's submission meet the requisite threshold.
The Gravity Threshold at the International Criminal Court
The proposed case comprises five incidents involving the most dangerous cyber threats facing the world today: (1) malware that disrupts systems controlling operational technology; and (2) malware that is indiscriminate by design. The cyber operations documented by the Berkeley team have caused extensive damage to critical infrastructure, such as power grids, satellite communications networks, and computer systems. They have also impacted millions of direct and indirect victims, both inside and outside of Ukraine. This post synthesizes the ICC's jurisprudence regarding gravity and demonstrates how Russia's cyberwar against Ukraine meets the gravity threshold.

While article 17(1)(d) of the Rome Statute requires all cases to be sufficiently grave, the Prosecutor wields discretion to consider a case's gravity during case selection and prioritization. Thus, gravity is both a prerequisite for the admissibility of a case (as determined by the judges) and a criterion for case selection (as determined by the Prosecutor). Gravity is assessed based on the case as a whole and not on individual incidents. As the ICC Elements of Crimes specifies, war crimes are particularly grave when they are "part of a large-scale commission" or committed "pursuant to a plan or policy."

By virtue of the crimes within the ICC's jurisdiction, all cases will necessarily be grave, and admissibility will hinge on additional serious characteristics. However, the Court has applied a permissive standard, requiring it not "to choose only the most serious cases" but rather "not to prosecute cases of marginal gravity" or "peripheral" to its mandate. Over the past twenty years, the ICC has clarified in numerous decisions that a case's gravity will be assessed holistically, on the basis of both qualitative and quantitative factors.

The OTP's policy paper establishes the guiding principles by which the Office exercises its discretion, considering the "scale, nature, manner of commission and impact of the crimes" in making its assessment. It identifies gravity as the "predominant case selection criteria," embedded into considerations of both the "degree of responsibility of alleged perpetrators and charging." In light of that fact, "the Office's strategic objective [is] to focus its investigations and prosecutions [...] on the most serious crimes within a given situation," as the "international community as a whole" would view them.

ICC jurisprudence has consistently affirmed the role that qualitative factors play in determining whether a case meets the threshold, holding that the number of victims alone cannot form the basis of a gravity determination, and that factors such as "'the nature, manner[,] and impact of the [alleged] attack'" are central to the inquiry. This standard has been extended to situations such as the Situation in the Republic of Kenya, in which Pre-Trial Chamber II reasoned that "it is not the number of victims that matter[s], but rather the existence of some aggravating or qualitative factors attached to the commission of crimes."

In Prosecutor v. Abu Garda, the Appeals Chamber considered whether an intentional attack on a Darfuri peacekeeping mission satisfied the gravity threshold. Although the number of direct victims was relatively low-twelve peacekeepers were killed, and eight others' lives were threatened-the Court observed that the offense impacted not just the immediate victims and their families, but also the "millions of Darfurian citizens" whom they had been charged to protect. In Prosecutor v. Al Mahdi, the Trial Chamber found that a mid-level perpetrator's targeted attack on historic mosques and mausoleums in Timbuktu, Mali, satisfied the gravity threshold because it struck a blow at the heart of the community's religious, historic, and cultural life. The Court found that "[t]he targeted buildings were not only religious buildings but also had a symbolic and emotional value for the inhabitants of Timbuktu," reflecting their commitment to Islam. While the Court noted it generally considered crimes against persons to be more grave than crimes against buildings, here, the alleged crime's careful execution, duration, number of victims, and emotional impact on the broader population rendered it sufficiently grave.
The International Criminal Court's 'Expressivist' Function
The findings on gravity in both Abu Garda and Al Mahdi demonstrate the 'expressivist' function of the ICC, which, as international law expert Matthew E. Cross explains, "places emphasis on the significance of criminal prosecution and punishment as symbolizing the legal and moral condemnation of the constituents of international criminal law." Therefore, the ICC must not only consider cases that provide justice for individual victims, but also "impact cases" that can identify norms, clarify and strengthen existing laws, create progressive jurisprudence, and send a message to perpetrators of atrocities around the world that no one is above the law.

As shown above, the exercise of the Court's symbolic power is not unprecedented. When Sudanese militia forces killed twelve African Union peacekeepers in Darfur, it was not merely an attack on those twelve individuals, but an attack on the millions of civilians those peacekeepers were sent to protect. Thus, the Abu Garda case sought to strengthen legal protections for peacekeepers around the world. When Mali-based jihadists destroyed ten mosques and mausoleums in Timbuktu, it was not simply an attack on ten buildings, but an attack on all of the inhabitants in the region who vested the cultural property with great religious and emotional significance. Thus, the Al Mahdi case established legal protections for cultural heritage property.
The Threat of ICS-Targeted Malware and Indiscriminate Attacks
Similarly, when Russian government hackers took out the Ivano-Frankivsk power grid in the winter of 2015, the Kyiv power grid in the winter of 2016, and a third power grid in 2022, they were not just attacks on three power grids, but attacks on every home, office, hospital, and essential service running on that power. As argued in the Human Rights Center's filing: "they were attacks on the heating that keeps people warm in winter; the refrigeration that keeps food from spoiling; the traffic lights that ensure public safety; the financial services that protect people's livelihoods and support the exchange of critical goods and services; the medical facilities people rely on for their health; the systems that insulate hazardous nuclear and chemical sites from urban centers; and the transportation, utilities, and communications that connect the Ukrainian community with each other and the outside world." Thus, a case against Russian cyber forces would recognize strong legal protections for the civilian critical infrastructure that sustains daily life in the Digital Age.

Modern societies rely daily on industrial control systems (ICS), which are, as cybersecurity expert Sergio Caltagirone explains, "the 'hidden computers' and networks that underpin modern life." These systems support power generation, "keeping the heating on and economies running," reinforce levies that prevent flooding, "protecting lives and maintaining millions of acres of usable farmland," and sustain the safe and efficient processing of food, "feeding more people and preventing illnesses."

As described by threat analysts at Mandiant, Malware targeting ICS represents "an exceptionally rare and dangerous cyber-attack capability." ICS-targeted malware is built to attack the systems controlling operational technology (OT) as opposed to information technology (IT). While the harm caused by IT-based cyber operations should not be taken lightly, they tend to fall below the threshold of "attack" under international humanitarian law (IHL). On the other hand, OT-based cyber operations can result in disruption, sabotage and, most significantly, physical destruction.

To date, only a few known ICS-targeted malware capabilities have been developed: Stuxnet, Triton, Havex, BlackEnergy3, Industroyer, Industroyer2, and Incontroller. Due to the technical skills, time, and financial resources needed to create this rare breed of malware, they all have been attributed to state actors. Other than Stuxnet, which was used on Iranian centrifuges to slow uranium enrichment and was attributed to the United States and Israel, the others have all been attributed to the Russian government and government-owned labs. The latter four- BlackEnergy3, Industroyer, Industroyer2, and Incontroller -all emerged in the Ukraine conflict. In recent years, ICS-specific malware have become more complex, advanced, and easier to use. Thus, this type of malware is evolving in a dangerous direction with each new iteration increasing in its sophistication.

Cyber-attacks intended to cause physical destruction are the clearest violations of IHL if they occur in the context of an armed conflict and target civilian objects. As Laurent Gisel and Lukasz Olejnik explain, specialized cyber operations against ICS and other OT can cause "intended or unintended physical effects (e.g. destruction or explosions), which may lead to a loss of human life (directly or indirectly)." Even though it may be difficult to assess the full scale potential human cost, these effects can be severe. As Sergio Caltagirone observes:

"With increasing connectivity and the proliferation of malware and knowledge, all of this is at risk of cyber-attacks. Without these industrial systems, millions or more may suffer from the lack of medical care, food, drinking water, or heating during winter and cooling during summer. It is a humanitarian imperative to protect these systems from disruption and to protect human life."

A second mounting threat in our modern existence is malware that cannot distinguish between civilian objects and military objectives and cannot be controlled once it has been deployed, which is analogous to biological or chemical weapons traveling through the air or land mines buried in the ground. Indiscriminate cyber-attacks involving destructive, self-spreading malware like NotPetya or malware that causes excessively broad effects such as some wipers present a paramount risk that must be deterred. Since the internet consists of interconnected networks, a small localized attack can snowball into a worldwide catastrophe, as was the case with Sandworm's NotPetya attack. In what became the costliest cyber-attack in history, the NotPetya code directed the malware to spread, as stated in a U.S. Department of Justice indictment, "automatically, rapidly, and indiscriminately," reaching networks in 65 countries and rendering computer systems around the world inoperable.
Russian Cyber-Attacks Against Ukrainian Infrastructure are Sufficiently Grave
Although the internet's intrinsic connectedness and lack of territorial boundaries deliver huge benefits to users, those assets are also vulnerabilities. These types of malware exploit the architecture of the internet, weaponizing its interconnected networks, interoperable systems, and open information channels to wreak global havoc. The sheer reach of the internet enables crimes to be committed from remote distances, presenting new risks to the safety and security of civilians around the world.

Over the past year, the world has witnessed a barrage of Russian cyber-attacks aimed at civilian targets, deployed at an unrelenting pace, and posing a persistent threat to civilians and critical infrastructure in Ukraine. As Russia fails to achieve its desired outcomes on the battlefield, the number and severity of cyber-attacks will continue to escalate. The ICC Prosecutor has a unique opportunity to bring a case that could set meaningful legal precedent and take an essential first step towards protecting civilians against 21st century threats during armed conflicts.

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The Gravity of Russia's Cyberwar against Ukraine

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Lindsay Freeman is the Director of the Technology, Law and Policy Program at the Human Rights Center, UC Berkeley School of Law. Amanda Ghahremani is a lawyer specializing in international criminal law and a Research Fellow at the Human Rights Center, UC Berkeley School of Law.

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Options for a Peace Settlement for Ukraine: Option Paper XIX – Minority and Language Rights - Kristin Henrard - 18 April 2023

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Options for a Peace Settlement for Ukraine: Option Paper XIX – Minority and Language Rights - Kristin Henrard - 18 April 2023

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[ Kristin Henrard is Professor of International Law at the Brussels School of Governance, Vrije Universiteit Brussel, where she co-directs the Fundamental Rights Centre. The views expressed in this paper are the author's alone.]
A. Introduction
When identifying minority issues of most relevance to the war and peace negotiations between Russia and the Ukraine, a first step is the identification of the minorities concerned.

As it stands, there is no generally accepted legal definition of 'minority'. Nevertheless, a certain understanding has crystallized about core characteristics, namely having a distinct ethnic, religious and/or linguistic identity, being in a numerical minority position, having the wish to maintain a distinct identity and being in a non-dominant position. The requirement of 'nationality' is no longer considered appropriate, particularly in case of state dissolution (see Berkes).

Looking at demographics, the latest official census (2001) (relied on in the 2022 Council of Europe Project "Strengthening the protection of national minorities, in Ukraine") identifies Russians as the main minority group, with more than 15%. Other minority groups stay below 1% of the total population, some around 0.5% (Belarussians, Moldovans, Crimean Tatars and Bulgarians), several even smaller (Poles, Romanians, Armenians, Hungarians, and also Roma and Jews).

In relation to peace negotiations between Ukraine and Russia, the position and rights of the Russian minority are key. The Russian community in Ukraine is the largest outside Russia, and thus particularly important for kin-state Russia. At the same time, the history of Russian domination, also in terms of official language, makes Ukraine keen to promote its own identity and language, while not giving too strong a protection to the Russian ethnic and linguistic group. There is a particularly strong sensitivity about the position of the Ukrainian language in relation to the Russian language.

Having regard to the sensitivities of both Ukraine and Russia, it is important to 'fit' minority (language) rights that benefit Russians, into an overall frame of minority (language) rights. Minority rights are framed with many qualifiers, that call for a proportionate adaptation to circumstances, particularly relative numerical strength and territorial concentrations of the groups concerned. The suitable (proportionate) protection of other minorities with neighboring kin-states (Romania, Moldavia, Bulgaria, Hungary), also having areas of relative territorial concentration in Ukraine, could thus facilitate negotiations for both sides, while contributing to regional security.

This options paper will outline the importance of minority rights and especially language rights for any peace negotiations, in light of (recent) historical developments and sensitivities. Then, it will analyze the international legal and soft law standards concerning minority language rights and their implications for peace negotiations.
B. Role of Minority and Language Issues in Negotiations
The question of minority and language rights is bound to play an important role in peace negotiations between Russia and Ukraine. Ball and Arel both underscore how Russia launched its more recent incursion into eastern Ukraine 'on the pretext of protecting ethnic Russians and Russian speakers in the region'. Clearly, Russia's kin-state connection will require due consideration.

During a considerable part of the Soviet era, both Russian and Ukrainian were considered 'generally used languages' in Ukraine. Since the 1920-1930s an increasing Russification took place and in 1990 Russia became the official 'all Union language'. Since Ukraine's independence in 1991, the country's Constitution ( Article 10) proclaims Ukrainian as the only state language, which is to be developed for use in all spheres of social life and throughout the entire territory. The article also guarantees 'free development, use and protection of Russian and other languages of national minorities'. While this provision seems to offer a balanced position, everything depends on the respective regulation of the use of the 'state language' and the language rights of national minorities.

Ever since independence, a hot debate has raged in Ukraine about the status of the Russian language: accepting Russian as the second state/official language or countering the ongoing dominance of Russian in many (urban) areas. The 2012 Language law favored languages spoken by 10% or more of the population of a region or city, by granting such languages the status of 'regional language'. This status implied that such languages could be used in courts, schools and government institutions. In the many regions/cities where Russian became the 'regional language' it was not really necessary to learn Ukrainian. It has been claimed that the intended abolition of this law in 2014 was seen by Russia 'as an aggressive gesture against the "Russian-speaking population" of Ukraine and later used as a pretext to justify the annexation of Crimea and military aggression in the Donbas'.

While abolition of the 2012 Language Law never eventuated, the 2014 Maidan revolution, mainly concerned with forging a new Ukrainian nation, triggered a shift in nationalism with undeniably negative effects on the Russian speaking population, particularly in Eastern Ukraine. Subsequently, several laws were adopted to strengthen Ukrainization in relation to: toponomy (2015); the media (2016), imposing 60% language quota; education (2017), imposing Ukrainian as the medium of instruction in state schools from the 5 th grade onwards; and public institutions more generally (2017), by imposing 'Ukrainian only'. Relatedly, Russian lost its status as 'regional language' in several regions and cities.

When the Constitutional Court declared on 28 February 2018 the 2012 Language Law unconstitutional ( 1-1/2018), this opened the way for a new Language Law. The 2019 Language Law aims to ensure the functioning of Ukrainian as state language. The first step concerned language use by public authorities, and the medium of instruction in public schools. Subsequently, it has been extended to a range of spheres of public life, from health and science, to advertising, and to media and culture. Gradually, Ukrainian has been made compulsory in ever more spheres of life, each time with minor exemptions. Strikingly, these exemptions benefit the indigenous language Crimean Tatar and EU languages, but not other national minority languages, including Russian. Put differently, the 2019 Language Law clearly fulfills the constitutional obligation to ensure the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory. However, it is questionable ( CDL-AD(2019)032) whether the ensuing restrictions on the use and protection of non-EU minority languages are in line with the Constitution's guarantees of the 'free development, use and protection of Russian and other languages of national minorities'.

Both Russians and Ukrainians focus on protecting their respective languages as representative of their distinct identity. Russian rhetoric and Russian controlled media further converted the promotion of the Ukrainian language into a physical threat to ethnic Russians, requiring Russian intervention. When identifying key points for peace negotiations, the bulk of the issues will concern language rights, against the background of overarching principles concerning minority protection and minority rights.
C. Language Rights: Protecting Russian as Minority Language vs Promoting Ukrainian as State Language C.1 International Legal 'Frame'
Regarding minorities' fundamental rights generally, already in a 1935 Advisory Opinion of the PCIJ regarding Minority Schools in Albania(par 48-52), the three overarching concerns of minorities, and the way these three concerns are interrelated, are identified, namely:(real, substantive) equality, identity and participation (and integration) in the broader society.

Importantly, the right to equal treatment does not imply an absolute prohibition of differential treatment, nor an absolute duty to differential treatment. Instead, the 'reasonable and objective justification' formula implies substantial room for proportionality considerations, which also play a crucial role in relation to minorities' fundamental rights generally. Proportionality considerations 'work' differently for minority specific fundamental rights in comparison to general human rights. General human rights, such as those in the European Convention on Human Rights (ECHR) or International Covenant on Civil and Political Rights (ICCPR), for the most part allow for limitations to their enjoyment. These limitations must be proportionate to the legitimate aim pursued by the state ('necessary in a democratic society in the interests of ...' (ECHR, Articles 8-11 and ICCPR, Articles 18-22). In contrast, the minority specific rights, found in the Framework Convention for the Protection of National Minorities (FCNM), do not have limitation clauses. Instead, the rights formulations are replete with qualifiers, such as 'as far as possible', 'where appropriate', 'if those persons so request and where such a request corresponds to a real need', and 'in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers'. These qualifiers can be understood as referring to proportionality considerations, and thus the balancing of respective interests.

Whereas Ukraine has ratified the ECHR and FCNM, this is not or no longer the case for Russia. Both states have ratified the ICCPR though. An important reference point for minority specific rights for both parties is the UN Minorities Declaration, adopted by the UN General Assembly, as it can be considered an interpretative guide to Article 27 of the ICCPR.

In both the FCNM (articles 4-6) and the UN Minorities Declaration (Articles 2, 4 and 5) (substantive) equality, identity and participation indeed function as overarching principles of minority protection. In addition, various sets of recommendations/guidelines developed in the framework of the OSCE High Commissioner on National Minorities could constitute useful reference points in negotiations as they flesh out the overarching principles and legal standards and provide guidance on how to apply the central reference points of equality, identity, and participation as modulated by proportionality considerations. In addition to the several recommendations and guidelines of relevance to language rights (see infra), the 1999 Lund Recommendations confirmed the crucial importance of national minorities participation in 'public life' for their integration in society, without forced assimilation (with respect for their distinct identity) (see also the 2012 Ljubljana Guidelines).

The 2008 Bolzano Recommendations are of overarching relevance in the context of the Ukraine-Russia conflict, including its possible ripple effects, as this plays out in the post-Soviet setting with substantial Russian minorities in states emerging from the USSR's dissolution in 1991. Indeed, the Bolzano Recommendations were developed because of concerns for exactly these kinds of tensions. They confirm the obligations of the state of residence towards minorities, such as the right to preserve and develop their linguistic identity, which may require special (substantive equality) measures (Recommendations 5 and 6) tailored by proportionality considerations. The Bolzano Recommendations also remind states of the importance of societal integration, which would imply that minorities have an effective voice at all levels of governance (Recommendation 7). Additionally, these recommendations signal that the kin-state needs to respect the principle of territorial integrity and should not undermine good inter-state relations (Recommendations 10, 11 and 13). This in itself points to the importance of proportionality considerations in shaping the respective expectations of kin-states and kin-minorities.

The centrality of language rights in tensions between Ukraine and Russia is mirrored by a strong focus on language rights in minority rights provisions and soft law standards alike. These standards concern the protection of the expression of ideas in the minority language and its use in public and private. The provisions concerning use of minority languages in education, in communication with public authorities and for topographical indications, are always 'qualified', and thus support proportionality considerations (and the related room for negotiations). The European Charter on Regional or Minority Languages may not enshrine rights for speakers of languages, it does provide a menu of obligations concerning use of minority language in an even broader range of spheres, namely also encompassing judicial authorities, media, cultural activities, and economic and social life. Also, here, states' discretion is infused by proportionality considerations.

The central importance of language rights for minority protection are also confirmed and further specified in many of the thematic recommendations endorsed and published by the OSCE's High Commissioner on National Minorities, not least the 1998 Oslo Recommendations regarding the Linguistic Rights of National Minorities.
C.2 State Language and Minority Languages: Overarching principles and their assessment in Ukraine
The 1998 Oslo Recommendations provide useful pointers for peace negotiations concerning language rights, as they take up several of the linguistic themes, also visible in legal standards, in relation to questions of names/topographical indications, media, economic life, administrative and judicial authorities. Throughout the Oslo Recommendations, it is obvious that international fundamental rights, as interpreted dynamically, leave room for proportionality considerations, which allow the interests of both sides to be balanced.

It should be noted that some linguistic rights are stronger, in the sense that there is less room for 'balancing'. This is the case for the official recognition of names in the minority language, and the right to operate NGOs and private enterprises in a minority language (Principle 1, Principle 6, and Principle 12). Other rights, requiring more active state support as they imply the provision of documents and services in the minority language, are strikingly more qualified by proportionality considerations.

The following paragraphs discuss the extent to which the overarching principles of equality, participation and proportionality are reflected in Ukrainian laws and practice.

A particularly important point, made in the HCNM Recommendations, concerns the required balance between a state's desire to promote its state language and 'reasonable and fair accommodation of the needs and interests of the different linguistic groups in society'. The need to strive for balance between these two concerns, and the underlying proportionality consideration, is a steady component in the international supervisory practice (see 2017 FCNM Advisory Committee Opinion, para 118, and the Venice Commission Report on the 2019 Ukrainian State Language Law, paras 31-32).

In this respect, Ukraine's ratification of the European Language Charter reveals a rather positive baseline towards linguistic minorities in that it recognizes 13 languages under Part III of the Charter. Furthermore, in relation to the Russian language, the 2017 Committee of Experts Report concluded that the overwhelming majority of commitments on ensuring the use of the Russian language in Ukraine are satisfied (para 87). Admittedly, at that time, the 2012 Language Law was still in effect, allowing minority languages to be recognized as 'regional languages' when spoken by at least 10% of the population of a territorial administrative unit.

The perceived preponderance of Russian in the public space inspired the 2019 Language Law, with its stronger focus on promoting Ukrainian as state language to strengthen Ukrainian identity. This law makes use of Ukrainian obligatory in most aspects of public life (and is being gradually rolled out). The 2019 Language Law was passed the day after Russia enabled applications for Russian passports by residents of separatist territories in east Ukraine, and thus constituted a clear countermove which triggered severe criticism from the Kremlin.

While there is room for exemptions and deviations (using a different language) by mutual agreement, the Venice Commission report does conclude that in several respects the 2019 Language Law does not strike a fair balance between protecting the national identity and Ukrainian language, and safeguarding the rights of linguistic minorities. The Commission also problematizes the use of administrative fines for using minority languages and calls on Ukraine to promote the new state language through positive incentives instead of punitive measures (paras 127-129). Particularly relevant for peace negotiations, the Venice Commission highlights that this positive approach would be beneficial for Ukraine and the Ukrainian wish to promote its national language and identity, as it would be more effective (para 129). Underscoring the extreme complexity and sensitivity surrounding language issues in Ukraine (para 132), the Commission confirms the central role of the proportionality principle and the need to balance respective interests (para 136).

2. Equality

The 2019 Language Law also received considerable criticism in terms of equal treatment. The Venice Commission reiterates in its 2019 report the criticism voiced in relation to the 2017 Ukrainian Education law about differential treatment between categories of minority languages. While the Commission acknowledges that differentiation is possible, this requires a reasonable and objective justification for it to respect the prohibition of discrimination (para 41). The Commission identifies three levels of protection in the state language law and accepts that the highest level of protection goes to indigenous minorities without kin-states (para 43). However, it does not accept the justification of differential protection for minority languages that are EU official languages and others, including Russian and Yiddish (paras 42, 44). While the past oppression of Ukrainian justifies positive measures to promote the national language, this should not go hand in hand with the disregard of rights of linguistic minorities (para 44). Concretely, the Commission suggests that the level of protection for minority languages that are EU official languages should be extended to other minority languages.

3. Participation of Minorities

A third important and recurring criticism regarding Ukraine's state language law concerns the lack of proper minority participation in the drafting process. The Venice Commission does not accept that this participation can be realized in the future law on the rights of minorities: these two laws should have been developed in tandem. The 1999 Lund Recommendations highlights that language issues are a topic requiring minority involvement in relevant decision-making, as it is a crucial dimension of their distinct identity (Recommendation 12).
C.3 Language rights in Spheres of Public Life
1. Education

The teaching of or in the minority language has been a crucial element of minority protection because of its important role in passing the language from one generation to the next. This is reflected in the UN Minorities Declaration (Article 4(3)) and the FCNM (Article 14). In addition to the identity element, there is also a crucial equality argument made by social linguists: to ensure the equal psycho-social development of children, they need education in their mother tongue, particularly throughout the first phase. At the same time, the provisions acknowledge the resource intensiveness of providing education in minority languages in the multiple qualifiers, opening the door to proportionality considerations. These identity, equality and proportionality considerations concerning minority language education are reflected in the 1996 The Hague Recommendations (HCNM). The first paragraph also emphasizes the importance of acquiring a proper knowledge of the state language for minorities' integration.

Whereas both the 2017 FCNM Advisory Committee Opinion, released prior to the 2017 Law on Education, and the 2017 Opinion of the Committee of Experts under the Language Charter confirms the high level of protection for teaching in and of Russian, the Venice Commission was critical about the 2017 Law on Education provisions on minority language education. The three differential levels of protection it provided for minority language education are problematized, particularly because of the low level of protection of Russian and other non-EU minority languages. The differentiation would not be justifiable and would thus amount to discrimination, while the lowest level of protection would fall below the required standard. This division into three categories of languages is repeated in the 2019 Language Law and is similarly criticized by the Venice Commission as discriminatory.

Considering the important identity and equality considerations inherent in education in the minority language, as well as its crucial socialization function, finding a balanced and structured approach enabling sufficient education through the minority language medium, while ensuring optimal knowledge and proficiency in the state language, seems key.

2. Public Authorities

The 1998 Oslo Recommendations confirm that communications by public authorities in the minority languages are strongly qualified by proportionality considerations, requiring sufficient numerical presence (territorial concentration) and/or traditional presence. The latter requirements are arguably satisfied for the Russian speaking minority in several regions of Ukraine.

More recent recommendations confirm that the provision of services in minority languages is considered to improve the equal and effective enjoyment of these services, also in relation to the police and judges ( 2006 Recommendations on Policing in Multi-Ethnic Societies and the 2017 Graz Recommendations on Access to Justice).

The Venice Commission's evaluation of the 2019 Ukrainian Language Law is rather critical, both in relation to the working language of public authorities, and proficiency requirements for access to state positions. The Commission underscores that Ukraine now falls below its commitments under the Language Charter, as the numerical threshold they use is too high (para 58-60). Proficiency requirements for official positions may have a legitimate aim, but they do need to be proportionate in being tailored to the requirements/specificities of different positions (para 52-54), and not be overly demanding. The latter would also be difficult to reconcile with the right of minorities to participate in public life.

3. Media

Visibility and representation in the media are important for minorities in at least two respects. First, it contributes to protecting and promoting the distinct minority identity. Second, it enhances public knowledge and understanding of minority identities and languages, and acknowledges their status as part of the national society, thus contributing to mutual understanding, inclusion and integration. It is thus not surprising, that minority specific international standards regulate access of minorities to their own media channels in their own languages, as well as proportionate representation and presentation of minorities, and their cultures, religions and languages, in public media channels (see 1998 Oslo Recommendations, see also 2003 Guidelines on the Use of Minority Languages in the Broadcast Media).

Turning to developments in Ukraine, the Venice Commission in its 2019 Opinion is particularly critical about the disproportionately high language quota requirements, certainly for private broadcasters (para 97). It also flags the chilling effect on publishing in minority languages of the requirement to have Ukrainian translations for the print media (para 100). Similarly, in its latest opinion, the FCNM's Advisory Committee urges Ukrainian authorities to reconsider their rigid approach to quota requirements in broadcasting media (para 110). The Committee of Experts on the Language Charter (para 32) and the FCNM's Advisory Committee (para 114) both express concern about the lack of clear procedures and rules for financial support of newspapers in minority languages, which leads to very few newspapers benefitting from public support.

4. Personal Names and Topographical Indications

Regulation of personal names and topographical indications in minority languages are important symbolic matters for both minorities and states: for minorities, they concern their inclusion with recognition of their distinct identity; for states, they concern recognition of the national linguistic identity. At the same time, the relative 'strength' of these minority rights needs to be underscored. The right to official recognition of names in the minority language is formulated strongly, similar to general human rights; whereas, having topographical indications in the minority languages is strongly qualified by proportionality considerations, given it requires more active state support and resources.

The actual practice in Ukraine has been found wanting by the FCNM's Advisory Committee. This is particularly striking for the recognition of personal names in minority languages, also because the national language law recognizes the strength of this right (paras 130-134). The Advisory Committee welcomes the positive approach in the legal framework, of providing for toponyms in minority languages alongside the Ukrainian language (bilingual signs), at least in those municipalities with at least 10% minority language speakers (paras 135-137). However, the Committee is critical of the de facto lack of state support, as the cost is borne by local government, which does not have a budget for this. The end result is that toponyms are only in Ukrainian, a matter also criticized by the Venice Commission in its 2019 Opinion.
D. Conclusion: Implications for Peace Negotiations
As the historical background in Section B demonstrated, one of the main underlying tensions of the armed conflict is between, on the one hand, the wish and concern of the Ukrainian people to full self-determination as a people with a distinct state and official (state) language, and on the other, the Russian concern to counter that development, allegedly in order to protect the Russian minority living in Ukraine. The Ukrainian goal to forge a distinct Ukrainian nation has emphasized strengthening the Ukrainian language as state language. Legislative and policy changes to realize those aims triggered unrest amongst Russian communities. Russia's reaction can be seen to reveal not only a concern to safeguard the de facto dominant position of the Russian language but also its desire to maintain overall Russian control in the territory concerned.

The preceding discussion of international legal standards points to several elements of relevance for peace negotiations on minority and language rights.

In line with the latest review of Ukraine by the Advisory Committee on the FCNM in 2017 (para 49, 56 and176-177), the development of a legislative and enforcement framework regarding minority rights more generally, with due participation of the minorities concerned, should be a priority. Regarding Ukrainian language laws, the international supervisory bodies have been critical about the working language of public authorities, and the proficiency requirements for access to state positions, which are too restrictive for minority languages, and certainly the Russian language. In relation to education in minority languages, the current differentiation between categories of minority languages, to the detriment of Russian, is criticized and thus invites revision. Media laws and particularly the quota system and requirements with potential chilling effect also invite revision.

Since the overall size of the Russian minority is much bigger than any other minority (18% versus less than 1% of the total population), Ukraine will need to acknowledge that the Russian minority, as one of the several minorities with kinstates in its territory, is special because of that strong numerical size, and traditional presence.

Although proportionate protection of the Russian minority may be less than what is demanded by the Russian side, it would be in line with Ukraine's international obligations, and could form part of a more general framework concerning minority protection with appropriate standards and institutional backup. This approach not only ensures the longevity of the agreed standards, but also promotes overall regional security (as it also benefits minorities of other regional kinstates). Regarding the respective responsibilities of the kinstate and state of residence, the HCNM's Bolzano Recommendations could provide useful pointers.

Ensuring the equality, identity, and participation principles, while taking into account proportionality considerations, also enables Ukraine to tailor the norms to the specific circumstances of its regions. When the rights would be resource intensive, such as language rights, relative numbers and territorial concentrations determine what can reasonably be expected from a government. This confirms the possibility of differential levels of protection between regions, each time depending on relative territorial concentrations. There will undoubtedly be differences of opinion about what qualifies as the appropriate (proportionate) level of protection. Nevertheless, the legal frame and related principles provide both sides with important negotiation space.

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Options for a Peace Settlement for Ukraine: Option Paper XIX - Minority and Language Rights

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Kristin Henrard is Professor of International Law at the Brussels School of Governance, Vrije Universiteit Brussel, where she co-directs the Fundamental Rights Centre. The views expressed in this paper are the author's alone.] A. Introduction When identifying minority issues of most relevance to the war and peace negotiations between Russia and the Ukraine, a first step is the identification of...

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Does Russia Exercise Overall Control over the Wagner Group? Expert Q&A from Stockton Center’s Russia-Ukraine Conference - Jenny Maddocks - 5 April 2023

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Does Russia Exercise Overall Control over the Wagner Group? Expert Q&A from Stockton Center’s Russia-Ukraine Conference - Jenny Maddocks - 5 April 2023

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Editor's Note: This Q&A is part of a series following the 4th Annual Stockton Center Law of Armed Conflict Conference, Russia-Ukraine: Full-Spectrum Conflict and the Law, held at the U.S. Naval War College in Newport, Rhode Island over December 13-15, 2022 and co-sponsored by the Norwegian Defence University College and the Swedish Defence University. While the conference was held under the Chatham House Rule, several of the expert participants are taking part in a public question and answer series to illuminate some of the pressing issues addressed during the conference sessions that merit further analysis. The first Q&A in this series is available the second is available here and the third is available here.
Q. On the issue of the Wagner Group and whether Russia bears State responsibility for its actions, the ICRC and the International Criminal Court both support the "overall control" test, rather than the "effective control" test, for attributing the acts of a non-State group to a State. So, if you accept for the sake of analysis that the lower-threshold "overall control" test is the correct one, would the acts of the Wagner Group be attributable to Russia?
Jenny Maddocks: The Wagner Group, has played a critical role throughout Russia's operations in Ukraine. First appearing in Crimea in 2014, the private military company (PMC) later participated in the 2015 Debaltseve offensive and acted as Moscow's enforcers in the Donbas. More recently, the group's members have taken a leading role in the battle for Bakhmut, using waves of Russian prisoners as " cannon fodder."

Russia's use of the Wagner Group to promote its aims in Ukraine raises questions of accountability. It is alleged that like Russia's conventional forces, members of the PMC have committed numerous violations of the law of armed conflict (LOAC). For example, reporting indicates that Wagner Group fighters played a key role in the massacres at Bucha, caused the deadly attack on a building housing Ukrainian prisoners of war, and brutally execut ed a former fighter. It is important to consider whether these actions are attributable to Russia, thereby leading to Russia's State responsibility.

I have considered this issue in previous posts for Articles of War. In those posts, I addressed various grounds on which the Wagner Group's conduct could be attributed to Russia, including attribution based on the factual relationship between Russia and the PMC. If the fighters responsible for the LOAC violations acted under Russia's instructions, direction, or control at the relevant time, their conduct is attributable to the State ( Article 8 of the International Law Commission's Draft Articles on State Responsibility (ASR), widely considered to reflect customary international law). Given the enduring relationship between the Russian government and the PMC, the key question is whether Wagner Group fighters acted under Russia's control. However, the appropriate threshold of control for these purposes has been the subject of considerable debate.
The Appropriate Threshold of Control
When thinking about Russia's relationship with the Wagner Group, the notion of "control" has various potential meanings. It could apply at the strategic level, meaning that it is necessary to prove only that the Wagner Group conducted missions in furtherance of Russia's strategic interests. In this scenario, the State's influence over the PMC's operations might extend only to high-level planning, with State officials exerting no control over the group's means and methods of warfare or how individual fighters act on the battlefield.

At the opposite end of the spectrum, Russia might exercise tactical control over the Wagner Group, meaning that State officials have the authority to direct the way in which individual fighters behave during specific operations. If this is the appropriate control threshold for the purposes of attribution, evidence would be required that Russian officials acted in command of Wagner Group fighters at the time they committed the specific acts that potentially violate LOAC.

These different interpretations of control are apparent in the judgments of the International Court of Justice (ICJ) and the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICJ concluded that a narrow test of "effective control" should apply for the purpose of attribution, meaning that evidence is required of the State's detailed or tactical control over the acts that violate international law (para 396-406). In contrast, when addressing the degree of control a State must exercise over a non-State actor in order to internationalize a conflict, the ICTY advocated for a wider "overall control" test (para 116-145). This is a looser threshold, which considers the broader relationship between the State and the non-State actor.

Although the ICTY was competent to rule only on matters of individual criminal responsibility, not State responsibility, it asserted that the lower threshold of "overall control" should also apply for the purposes of attribution. The International Committee of the Red Cross (ICRC) supports this approach, arguing that the test used to classify a conflict under LOAC should be the same as the test used to attribute private conduct to a state under the law of State responsibility (para 298-306). The International Criminal Court additionally approved the test, but only for the purposes of conflict classification (para 541).

These differing views on the appropriate control threshold for attribution highlight the delicate balance that must be struck when attributing private conduct to a State. In conflict situations, humanitarian concerns call for a less stringent control threshold to ensure that States are held to account when the non-State actors they support violate LOAC. But counter to this is the principle that States should bear responsibility only for conduct that can be truly categorized as their own. Holding States accountable for a wide range of private conduct, with which they might be only marginally involved, could extend States' responsibility too far. This is a particular concern when considering the conduct of actors such as the Wagner Group, which act with considerable autonomy.

Applying the more authoritative "effective control" test formulated by the ICJ, I have previously concluded that attributing the Wagner Group's conduct to Russia presents a challenge. This is principally due to a lack of evidence to prove that Russia's control extended to tactical-level decisions on the battlefield. However, it is pertinent to consider whether the outcome would be different if, instead, the "overall control" standard is the appropriate test.
Did Members of the Wagner Group Act Under Russia's Overall Control?
As an initial observation, it is worthy of note that the test formulated by the ICTY applies only to organized and hierarchically structured groups (para 120). As the Wagner Group is a military formation that operates under a military command structure, it clearly meets this requirement.

Under the ICTY's test, conduct on the part of a hierarchically structured group is attributable to a State if that State wields "overall control" over the group, not only through the provision of equipment and financing but also by coordinating or assisting in the planning of its military activity. These factors are assessed in respect of the wider relationship between the entity and the State, rather than by focusing on the specific operations in which the relevant violations occur.

Importantly, there is no requirement for the State to plan or direct the particular private conduct that violates international law. It is sufficient if those acts form part of broader activity on the part of the non-State actor over which the State exerts control. The threshold might therefore be met if a private entity is not strictly subordinated to the State's authority but, instead, has " autonomous choices of means or tactics " in the conduct of its operations (para 47).

In a recent judgment related to the downing of Flight MH17, the Hague District Court considered whether Russia exercised "overall control" over rebels in the Donbas. Concluding that the test was satisfied, the Court pointed to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted " mutually coordinated military operations."

It is likely that similar evidence is available regarding Russia's relationship with the Wagner Group. For instance, close links exist between Wagner's leader, the oligarch Yevgeny Prigozhin, and senior officials in Moscow, including President Putin. Wagner works closely with Russia's military intelligence service, the GRU, as illustrated by their shared basing in Molkino and the GRU-issued passports used by Wagner's members. In addition, the PMC relies on Russia for military equipment, including aviation and artillery assets. And reporting indicates that the Wagner Group sometimes coordinates its military operations with Russia's conventional forces, such as in the Battle of Severodonetsk.

Regarding Wagner's operations in Ukraine, it is also relevant that " the controlling State in question [Russia] is an adjacent State with territorial ambitions on the State where the conflict is taking place [Ukraine], and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls" (para 140). This geographical proximity leads to an enhanced ability on Russia's part to influence the Wagner Group's actions and, according to the ICTY, means that the "overall control" threshold may be easier to satisfy.

Taking these factors into account, it appears likely that a court considering the matter would conclude that Wagner forces in Ukraine operate under Russia's "overall control." Therefore, if this is the appropriate test for the purposes of attribution, all the Wagner Group's conduct in Ukraine is potentially attributable to Russia. Depending on the available evidence, it is possible that the same conclusion might also be reached regarding Wagner's operations elsewhere.
Is Overall Control the Appropriate Test?
As noted above, the ICTY formulated the "overall control" test in order to determine whether the conflict at issue was international in character. Thus, the primary purpose of the test relates not to attribution but rather to assessing whether a non-international armed conflict is internationalized via State support to a non-State party to the conflict. Nonetheless, in its judgment, the ICTY criticized the "effective control" test formulated by the ICJ and asserted that the looser threshold of "overall control" should apply for the purposes both of conflict classification and attribution.

Some legal scholars and the ICRC welcomed the ICTY's judgment, viewing the "overall control" test as a much more effective means of determining when private conduct should be attributable to a State. Yet, in seeking to satisfy humanitarian concerns, the test is potentially over-inclusive. This is because the test's focus on the wider relationship between the entity and the State is replicated in the effects of attribution. Therefore, if a State exercises "overall control" over a private entity, all the entity's actions performed under that control are attributable to the State, even if the State has no knowledge of, or influence over, the particular conduct that violates international law. This might mean, for example, that Russia bears international responsibility for the Wagner Group's conduct in attacking the building housing Ukrainian prisoners of war even if the attack was conducted without the knowledge or involvement of Russian officials.

Such a conclusion might be acceptable in the context of Russia and the Wagner Group because of the way in which Moscow uses the group to perform combat functions on its behalf, without seeming to exercise any control over the manner in which it operates. But the law of State responsibility does not apply exclusively to situations such as this. It governs States' responsibility for all violations of international law, including those outside of conflict situations. Moreover, private actors frequently operate with considerable autonomy. Therefore, attributing all their conduct to a supporting State based upon a relatively loose threshold of State control might be a step too far, and one that proves unacceptable to States.

To illustrate, consider a State's support to a non-State actor that conducts detention operations against a terrorist group. If the State's wider relationship with the private entity satisfies the "overall control" threshold, and that test applies for the purposes of attribution, all the non-State actor's conduct falling within the scope of the State's control is attributable to the State. Therefore, if the non-State actor tortures detainees, the State might bear international responsibility for that conduct, irrespective of its officials' knowledge of or influence over the mistreatment.

From a humanitarian perspective, this outcome could be viewed as beneficial, by acting as an incentive to States to exert greater control over the non-State actors they support. However, the State concerned would bear international responsibility for conduct with which it was not involved, and which cannot properly be categorized as its own. Fear of such a result could cause the State to disassociate itself from the operations - even though it might otherwise enable better conditions for those detained - to avoid incurring responsibility should the non-State actor engage in unlawful conduct. In short, the use of the "overall control" test in this context upsets the delicate balance that must be struck when attributing private conduct to a State and leads to a result that States, as the principal architects of international law, would be unlikely to accept.
Concluding Thoughts
Attributing the Wagner Group's conduct to Russia via the "overall control" test is appealing due to the lower threshold it sets and the likely outcome that under this test, Russia would bear international responsibility for the PMC's many LOAC violations. However, when considering the test's application to other factual scenarios, there is some merit to the ICJ's concern that this " stretches too far, almost to breaking point, the connection which must exist between the conduct of a State's organs and its international responsibility" (para 406).

Rather than extending the notion of control for these purposes, there might be a better basis on which to attribute the Wagner Group's conduct to Russia. Attribution based on a State's instructions, direction or control is just one out of a number of possible grounds on which private conduct may be attributed to a State. Regarding the Wagner Group, it is notable that Russia has authorized the PMC to perform combat functions on its behalf, which are clearly governmental in character. There is another basis of attribution that addresses exactly this situation and does not include any requirement for State control over the entity when it performs public functions pursuant to the State's authorization ( Article 5 ASR).

As I have argued elsewhere, this latter rule of attribution should be interpreted so as to encompass conduct on the part of private entities like the Wagner Group that act as an alternative fighting force for States, whether or not the entity is authorized to act in a manner that accords with the State's domestic law. This is a more appropriate basis of attribution when thinking about Russia and the Wagner Group, which avoids over-extending the notion of control.

IMAGE: Ukrainian servicemen with a T64 tanks move towards Bakhmut direction, in Donetsk Oblast region, on March 20, 2023. The head of Russia's Wagner mercenary group said on March 20, 2023 that his forces control more than half of the embattled eastern Ukraine town of Bakhmut. (Photo by ARIS MESSINIS/AFP via Getty Images)

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Does Russia Exercise Overall Control over the Wagner Group? Expert Q&A from Stockton Center's Russia-Ukraine Conference

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Editor's Note: This Q&A is part of a series following the 4th Annual Stockton Center Law of Armed Conflict Conference, Russia-Ukraine: Full-Spectrum Conflict and the Law , held at the U.S. Naval War College in Newport, Rhode Island over December 13-15, 2022 and co-sponsored by the Norwegian Defence University College and the Swedish Defence University.

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Do States Party to the International Criminal Court Statute have the Obligation to Arrest Vladimir Putin? - Yunqing Liu - 14 April 2023

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Do States Party to the International Criminal Court Statute have the Obligation to Arrest Vladimir Putin? - Yunqing Liu - 14 April 2023

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Do States Party to the International Criminal Court Statute have the Obligation to Arrest Vladimir Putin?

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Background On 17 March 2023, Pre-Trial Chamber II of the International Criminal Court ('ICC' or 'the Court') issued two arrest warrants for people related to the Ukraine situation, including one for Vladimir Putin, who as President of the Russian Federation is the head of a state that is not a party to the Rome Statute [...]

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From Facts to Norm Violations and Accountability? The Independent International Commission of Inquiry on Ukraine - Farnaz Dezfouli Asl und Max Lesch - 11 April 2023

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From Facts to Norm Violations and Accountability? The Independent International Commission of Inquiry on Ukraine - Farnaz Dezfouli Asl und Max Lesch - 11 April 2023

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The Independent International Commission of Inquiry on Ukraine-established by the United Nations Human Rights Council in March 2022-published its report on 15 March 2023, detailing numerous violations of international human rights, criminal and humanitarian law, primarily carried out by Russian forces. Such commissions of inquiry are essential when other enforcement mechanisms are blocked, and can provide avenues for accountability in national, regional, and international courts. The full-scale attention of international institutions on Ukraine is a critical moment to strengthen the work of international fact-finding missions for future and existing armed conflicts.
Russia's invasion of Ukraine on 24 February 2022 prompted an unprecedented response from several international institutions, including but not limited to the UN General Assembly and the International Court of Justice. As the war progressed, allegations of violations of international humanitarian law (IHL), international human rights law (IHRL), and international criminal law (ICL) mounted - mostly regarding Russian forces - including but not limited to the massacres in Bucha, the deportation of children, and attacks on residential areas. According to the UN High Commissioner for Human Rights, the war in Ukraine has claimed more than 8,000 civilian lives and millions have fled the country or been internally displaced. While most attention has recently focused on the arrest warrants issued by the International Criminal Court for Vladimir Putin and Maria Alekseyevna Lvova-Belova, several actors - including international fact-finding missions and commissions of inquiry - have been gathering evidence of international crimes committed during the war with the ultimate aim of holding those responsible to account.

International fact-finding missions and commissions of inquiry

International fact-finding missions and commissions of inquiry are increasingly used by international institutions to establish credible facts in conflict situations and to assess them in light of international norms. Several international institutions have recently made increasing use of this instrument. At the UN level, such commissions are mandated by the UN General Assembly, the UN Security Council, the UN Secretary General, and the UN Human Rights Council (HRC). Over the past 25 years, the HRC has been the most active mandating body, having established more than forty of such commissions. While fact-finding missions themselves are often controversial, they are essential for generating and disseminating impartial knowledge about violations that can inform and facilitate political and legal responses at the national, regional and global levels. For example, the reports of the UN Independent International Commission of Inquiry on the Syrian Arab Republic were used as evidence in the landmark case on torture in Syria before the Koblenz Higher Regional Court in 2022. International courts and tribunals also begin proceedings following fact-finding reports and cite them as evidence. More broadly, documenting and condemning norm violations is essential to maintaining the legitimacy of, and respect for, international law.

The Independent International Commission of Inquiry on Ukraine

The Independent International Commission of Inquiry on Ukraine (IICIU), was established by the HRC on 4 March 2022. The constitutive resolution was adopted by a large majority of thirty-two votes in favor, two votes against (Russia and Eritrea), and thirteen abstentions (including, for example, India); Russia did not participate in the vote following its suspension from the HRC. The commission is mandated to investigate all alleged norm violations; to collect, verify, and analyze evidence, including through field visits and to identify those responsible. It is worth noting that the IICIU is mandated to investigate both sides of the conflict, making it a fairly balanced mandate - essential for the legitimacy of the commission as a whole. The IICIU published an interim report on 18 October 2022 and its comprehensive report on 15 March 2023.

Procedures: On-site visits and interviews

While the Ukrainian authorities have cooperated with the commission, providing written responses and access, the commission has so far received no cooperation from Russia. A central aspect of the commission's work has been to conduct on-site visits (eight to date) to Ukraine (but not to the occupied territories absent Russian consent). Visits have included places of detention and sites of destruction to investigate the use of certain weapons. Similar to the approach of most fact-finding missions, a central source of the commission's reports has been first-hand information, including more than 600 interviews with witnesses and victims of alleged violations and abuses. The commission collected information based on video and photographic sources, as well as satellite imagery, in order to corroborate information gathered by field visits and interviews. In addition, it has issued a call for submission of information and documentation relevant to its mandate (A/77/533, para. 9).

Findings: Violations of international law by parties to the conflict

The IICIU, citing its constitutive resolution, states that the applicable legal framework for the evaluation of its findings are IHL, IHRL and ICL ( A/77/533, para. 14). The second report details violations of these legal frameworks in four broad areas: conduct of hostilities, personal integrity rights, laws of occupation, and forcible transfer and deportation of children. As several violations amount to "grave breaches" of the Geneva Conventions, they must be prosecuted by the high contracting parties to the Geneva Conventions based on the principle of universal jurisdiction. Many states have adopted the necessary legislation for universal jurisdiction, but in reality only a few of them have the necessary resources and means to do so.

In general, the IICIU attributes the majority of violations and war crimes to Russian forces, but also details, albeit in much smaller numbers, violations, including war crimes, committed by Ukrainian forces. This section highlights some of the IICIU's findings in each category - noting that the report is more comprehensive and detailed.

In the conduct of hostilities, Russia has committed the war crime of willful killing as a result of its indiscriminate attacks. The Russian attacks examined are depicted as indiscriminate for two reasons: means and methods (use of unguided bombs dropped from aircraft; cluster munitions, etc.), and lack of a military objective. Some documented attacks in this category include attacks on the besieged city of Mariupol, a railway station and a shopping center in Kramatorsk (paras. 28-35). In addition, Russian attacks on energy-related infrastructure amount to war crimes of causing excessive incidental death, injury, or damage. The disproportionate nature of these attacks has impaired millions of people's access to heating, water, sanitation, food and health care (A/HRC/52/62, paras. 40-43).

In the category of personal integrity rights, the facts documented by the IICIU demonstrate that Russian armed forces have committed the war crime of willful killing of civilians or persons hors de combat in Bucha and 17 other localities. The IICIU has confirmed that Russian forces were responsible for the execution of at least 56 men, two women and a 14-year-old boy. The killings were often preceded by 'detention, interrogation, torture, or ill-treatment'. ( A/HRC/52/62, paras. 33, 53-56). The report also details several cases of sexual and gender-based violence, including the war crime of rape, which are attributed to the Russian armed forces (paras. 78-85). The finding of IICIU, also show widespread and systematic torture committed by Russian armed forces in the context of unlawful confinement, amounting to the war crime of torture and inhumane treatment.

With regard to the laws of occupation, the IICIU states that both the annexation of Donetsk, Kherson, Luhansk, and Zaporizhzhya and the holding of referendums in these areas (contrary to the requirements of the Ukrainian constitution) constitutes violations of international law. Under IHL, the occupying power has the responsibility to maintain the status quo ante (i.e. as it was before) in the occupied territory as far as practically possible ( A/HRC/52/62, paras. 90-94). Therefore, the referendums violate this prohibition. Additionally, the IICIU states that the annexations constitute a violation of the prohibition on the use of force in Article 2 (4) of the UN Charter, and a clear case of aggression and territorial conquest in breach of international law ( A/HRC/52/62, para. 90).

Forced transfers and deportations of children have been the focus of recent ICC arrest warrants. The IICIU has investigated incidents involving the transfer of 164 children between the ages of four to eighteen years from the Donetsk, Kharkiv, and Kherson regions, which have also been documented by the Russian authorities. The commission concludes that these transfers and deportations amount to war crimes of unlawful deportation and unjustifiable delay in the repatriation of civilians under IHL.

While most norm violations are attributed to Russia, the commission concludes that Ukrainian armed forces are also 'likely responsible' for a limited number of violations of IHL and IHRL, including war crimes. The IICIU has documented the use of rocket-delivered anti-personnel landmines and cluster munitions by Ukrainian armed forces, making some of their attacks indiscriminate. In two cases, Ukrainian armed forces were also documented to have tortured wounded and captured Russian prisoners of war ( A/HRC/52/62, paras. 86-89, 36-39). While noting that Ukraine is also investigating some of these cases, the IICIU has called for further investigations into these incidents.

Outlook

The Independent International Commission of Inquiry on Ukraine is a crucial tool to establish facts in a rapidly evolving conflict situation, coupled with uncertainty and disputes about the facts on the ground. The report provides the basis for naming and shaming norm violations in international organizations and the international community. On 4 April 2023, the Human Rights Council adopted its resolution on the situation in Ukraine, including the IICIU reports, with 28 votes in favor, two against (China and Eritrea) and 17 abstentions, underlining once again the broad - but not universal support - to uphold international law in the war in Ukraine. In this resolution, the HRC condemns documented norm violations and calls on all parties to the conflict to comply with international law.

Towards accountability?

The IICIU's report also places a strong emphasis on accountability. In a separate document - not available to the public - the IICIU has listed the names of perpetrators and military units responsible for the above-mentioned crimes. ( A/77/533, para. 22). The findings of fact and lists of perpetrators can inform several potential avenues for establishing accountability for crimes and norm violations committed in the course of the war in Ukraine. While the proceedings of the ICC are currently the most prominent example, ad hoc tribunals, regional courts, and national legal proceedings (both inside and outside Ukraine) also offer viable and proven avenues. States parties to the Geneva Conventions are even obliged to prosecute perpetrators of "grave breaches" of the Conventions, such as willful killing, torture and inhuman treatment, and unlawful transfer or deportation.

Beyond selectivity?

The well-founded focus of several international institutions on the war in Ukraine should be used as an opportunity to strengthen the international responses to other ongoing armed conflicts elsewhere. Strengthening the work of commissions of inquiry is crucial, particularly in cases such as Syria or Yemen, where a lack of political will or the limitations of other international mechanisms have blocked any prospect of accountability or justice. It will also be interesting to see how European states - not usually targeted by such mechanisms - will further react to the findings of the Independent Fact-Finding Mission on Libya on the commission of crimes against humanity by the Libyan Coast Guard who directly or indirectly has received monetary and technical support from EU and its member states ( A/HRC/52/83, para. 4).

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From Facts to Norm Violations and Accountability? The Independent International Commission of Inquiry on Ukraine - PRIF BLOG

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The Independent International Commission of Inquiry on Ukraine-established by the United Nations Human Rights Council in March 2022-published its report on 15 March 2023, detailing numerous violations of international human rights, criminal and humanitarian law, primarily carried out by Russian forces.

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Are States Aiding and Assisting Ukraine and Russia Using Force? - Michael N. Schmitt and William Casey Biggerstaff - 7 April 2023

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Are States Aiding and Assisting Ukraine and Russia Using Force? - Michael N. Schmitt and William Casey Biggerstaff - 7 April 2023

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The provision of military aid and assistance from States supporting Ukraine and Russia has been a salient theme in their international armed conflict following Russia's renewed invasion in February 2022. As of late March 2023, for instance, over fifty States have contributed more than $45 billion in security-related support to Ukraine alone. In addition to non-lethal equipment, major aid packages have included such lethal items as Javelin anti-armor and Stinger anti-air missiles, High Mobility Artillery Rocket Systems ( HIMARS), integrated air defense systems, main battle tanks, and even MiG-29 fighter jets. Non-materiel assistance has also been considerable. For example, the United States has provided a " revolutionary" amount of real-time intelligence to Ukraine, enabling its forces to sink Russia's flagship of the Black Sea Fleet and target senior Russian military leaders on the battlefield.

Other States are supplying similar military support to Russia, albeit on a smaller scale. Iran, for example, has provided Russia with drones used to infamously attack Ukraine's energy infrastructure (for analysis on the legality of these attacks, see here and here). Media reports indicate that North Korea has also provided Russia with vital ammunition for its artillery batteries. And China is currently considering whether to supply Russia with similar support.

As observed in a previous Articles of War post, the provision of such aid and assistance to the parties to the Russia-Ukraine conflict implicates several international law issues. For instance, it has renewed the long-running debate over whether it violates the law of neutrality (see, e.g., here, here, here, here, and here). Another pertinent question is when the provision of arms and other assistance makes a supporting State a party to the conflict or, in other words, when the law of armed conflict applies between the supporting State and the supported State's adversary. Finally, as examined in a piece in Just Security's Stockton Center Russia-Ukraine Q&A Series, it raises the critical issue of whether, and if so, when, aid or assistance that contributes to another State's use of force constitutes a separate threat or use of force under Article 2(4) of the U.N. Charter and its customary international law analog.

That challenging question lies at the heart of an article we recently published in International Law Studies. Concluding that aid or assistance can, under certain conditions, qualify as a use of force, we propose several non-exclusive factors that States are likely to consider when assessing whether aid or assistance from a supporting State crosses the prohibition's threshold. This post summarizes our approach and conclusions. It begins with a review of the prohibition of the use of force before turning to whether, and if so, when, aid or assistance might constitute the use of indirect force.
The Prohibition of the Use of Force
Article 2(4), which is widely recognized as reflective of customary international law, states, "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." In the absence of one of two universally recognized "circumstances precluding wrongfulness"-a Security Council authorization to use force under Chapter VII of the U.N. Charter or individual or collective self-defense under the Charter's Article 51 and its customary law counterpart-a State's violation of this obligation constitutes an "internationally wrongful act" triggering various international legal consequences (see International Law Commission, Articles of State Responsibility, art. 2, Ch. V). These may include reparations (art. 31), countermeasures (art. 22), or, if the force rises to the level of an "armed attack," the necessary and proportionate use of force in response pursuant to the individual or collective self-defense of the injured State (art. 21).

With respect to States supporting Ukraine and Russia, the relevant question is whether their military aid or assistance constitutes a "threat or use of force." The issue looms especially large for those States that are militarily supporting Russia as the aggressor in the conflict (e.g., Iran) and those deliberating whether to do so in the future (e.g., China). Unlike the States aiding and assisting Ukraine, those supporting Russia would not enjoy a claim of collective self-defense to preclude the wrongfulness of any activities that may qualify as a use of force in violation of the prohibition.

Unfortunately, there is no authoritative definition of what constitutes "force" under international law with which to guide States' analyses. And to complicate matters, States' understanding of what constitutes the use of force continues to evolve. When the Charter was adopted, there was a general consensus that the rule only included armed force, such as that being used by Russian and Ukrainian troops engaged in conventional combat within Ukraine, in contrast to other forms of coercion, such as political and economic pressure. If this standard still prevailed, there would be little question that States supporting Ukraine or Russia without engaging in military hostilities directly would not be using force.
Can Military Support Qualify as an Indirect Use of Force?
Later interpretations of the Charter, however, indicate that "force" is broader than just armed force. As an example, modern cyber operations are increasingly testing the premise that force must be physical, kinetic, or involve conventionally "armed" forces at all. Other contexts likewise counsel in favor of a flexible interpretation of force. The U.N. General Assembly's 1970 Friendly Relations Declaration, for instance, asserts that States have a duty to refrain from the use of force by "organizing, instigating, assisting, or participating in acts of civil strife or terrorist acts in another State... when [such acts] involve a threat or use of force." Similarly, with respect to the related concept of State aggression, the U.N. General Assembly's 1974 Definition of Aggression indicates that the use of force includes, for example, "[t]he sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts [of armed force], or its substantial involvement therein" (art. 3(g)). For the purposes of our analysis, these latter employments of force are necessarily indirect.

Authoritative, albeit non-binding, judgments of the International Court of Justice also endorse an expansive interpretation of force that includes indirect force. For instance, in its 1986 Paramilitary Activities judgment, the Court concluded that the United States used unlawful force in contravention of customary international law by arming and training the contras engaged in an insurgency against the government of Nicaragua (para. 228). Similarly, in its 2005 Armed Activities judgment, the Court determined that Uganda violated the prohibition by supporting a non-State armed group militarily in its fight against the Democratic Republic of the Congo (paras. 161-63). While these judgments may have been criticized on other grounds, the Court's reasoning as to the use of indirect force has garnered little, if any, State criticism. And although the cases involved non- international armed conflicts, not applying the same logic to the Russia-Ukraine conflict, in our assessment, would be counterintuitive and run counter to the object and purpose of the prohibition.

Thus, there should be little controversy that force includes the notion of indirect force. What is less clear, however, are the conditions under which aid or assistance, such as the military support States are providing Ukraine and Russia, crosses the prohibition's threshold. Indeed, not all aid and assistance are equal in terms of their quantitative or qualitative contributions to Ukraine's and Russia's uses of force. Military support from some States, for example, includes uniform items, body armor, or similarly innocuous items. On the other end of the spectrum, other States are providing highly lethal arms, such as HIMARS or Iranian drones, or potent assistance, such as intelligence-sharing, wargaming, and real-time consulting. And the support from some States falls somewhere in between. China, for instance, is contemplating expanding its support to Russia to include the transfer of some lethal weapons. Thus, it is critical to determine the precise threshold at which aid or assistance falls within the prohibition, especially considering that any qualifying support provided to Russia would not fall within any recognized circumstance precluding wrongfulness under the law of State responsibility-and therefore constitute a violation of a peremptory norm of international law.
A Factor-Based Approach
The challenges illustrated above beg the question of how States should determine when the use-of-force threshold is met. Yet, despite this urgency, States have failed to engage in meaningful dialogue to clarify this essential question. Therefore, with the hope of stimulating discussion amongst States, we propose in our article that,

the most pragmatic approach to operating in the face of this ambiguity is to identify factors that States are likely to consider when deciding whether to characterize support as indirect force. While States may consider a range of factors, the most compelling, we suggest, are based in the nature of the relationship between the aid or assistance provided and the ultimate application of force by the supported State (p. 205).

We emphasize that the factors below are not exhaustive; as use-of-force determinations are highly contextual, States will undoubtedly consider others. Nor do we think they should be treated as a checklist. Rather, we believe they are simply unique considerations likely to be influential when States assess whether aid or assistance constitutes a use of force. Finally, we note that we have not made our approach "out of whole cloth;" it is similar to, and inspired by, that taken by the International Group of Experts in the Tallinn Manuals and in proposing a set of non-exclusive factors States would likely consider in the cyber context-an approach that has generally found favor with a gaining number of States.

Drawing on their approach, we suggest looking to the following factors, which are summarized here but examined in more detail in our article, to assess when aid or assistance that contributes to another State's use of force qualifies as its own use of force:

- Intent-The clearer the intention to contribute to a supported State's use of force, the more likely it is that aid or assistance will be considered a distinct use of force. By intent, we mean the purposeful or conscious design to enhance the supported State's use of force.

- Timing-With respect to the timing of the aid or assistance, the more immediate the impact on the supported State's use of force, the greater the weight it will likely have.

- Directness-When considering the causal nexus between the aid or assistance and the supported State's use of force, the more direct the connection, the more likely States will consider it an indirect use of force.

- Nature-States' assessments will likely focus on the nature of the support provided. Aid or assistance of a nature that directly contributes to a supported State's use of force is likely to weigh more heavily than that which, for instance, only broadly sustains the war effort or simply increases a State's general military capacity.

- Geopolitical context-The geopolitical context, which includes those variables that impact relations between States (e.g., geography, economics, demographics, etc.), in which the conflict and the relevant support occur, will likely influence how States characterize the actions of their fellow States.

- Impact-The extent to which the aid or assistance meaningfully impacts the supported State's use of force will probably prove the most significant factor when assessing whether military support crosses the applicable threshold.

We further note that in applying these and other factors, States are likely to find-as we do-that the qualifying threshold for the use of indirect force is quite high. As described above, many States are providing a diverse array and range of aid and assistance to the parties in the conflict. And as the judgments of the International Court of Justice indicate, the use of force requires more than the mere provision of support to qualify.

Still, after reflecting on the factors above and the aid and assistance that States have provided Ukraine and Russia, we believe that some States are probably engaging in the use of force due to both the quantity and quality of their military support. But, more importantly, we emphasize that in the event States are providing qualifying support to Russia, their aid and/or assistance is clearly unlawful, in contrast to those that are providing support in the collective-and unequivocally lawful-self-defense of Ukraine.
Conclusion
States are providing an unprecedented degree of aid and assistance to the war in Ukraine. Russia, for one, has implicitly alleged that much of the support, especially that provided by the United States and its NATO allies, constitutes the use of force (see, e.g., here, here, and here). Yet, to date, States have not fully grappled with these accusations. Nor have States engaged in any meaningful debate to clarify what the use of indirect force entails, much less flesh out its precise requirements. Accordingly, we are optimistic that current events will spark a dialogue amongst States and reflection within academia to clarify when aid or assistance qualifies as a use of force. In our eyes, the best approach to doing so is through the examination of the factors described in our article, the bulk of which pertain to the relationship between the aid or assistance in question and the supported State's application of force.

***
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College. Lieutenant Colonel William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.
Photo credit: Pexels

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Are States Aiding and Assisting Ukraine and Russia Using Force? - Lieber Institute West Point

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The provision of military aid and assistance from States supporting Ukraine and Russia has been a salient theme in their international armed conflict following Russia's renewed invasion in February 2022. As of late March 2023, for instance, over fifty States have contributed more than $45 billion in security-related support to Ukraine alone.

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The United States’ Proposal on Prosecuting Russians for the Crime of Aggression Against Ukraine is a Step in the Right Direction - Michael Scharf, Paul R. Williams, Yvonne Dutton and Milena Sterio - 6 April 2023

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The United States’ Proposal on Prosecuting Russians for the Crime of Aggression Against Ukraine is a Step in the Right Direction - Michael Scharf, Paul R. Williams, Yvonne Dutton and Milena Sterio - 6 April 2023

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The International Criminal Court (ICC) recently issued an arrest warrant for Russian President Vladimir Putin for war crimes committed in the abduction of Ukrainian children and their transfer to Russia for adoption by Russian parents. Unfortunately, because of the way the 2010 Aggression Amendment to the Rome Statute is drafted, the ICC cannot prosecute Putin for the crime of aggression. The European Parliament, nongovernmental organizations, academics, and members of the United Nations have made various proposals to create a tribunal to prosecute Russian aggression to fill the gap in the ICC's jurisdiction. Ukrainian President Volodymyr Zelenskyy he favors a hybrid tribunal established by a vote of the U.N. General Assembly.

Last July, the Public International Law and Policy Group (PILPG) made one such proposal in the form of model legislation to establish a Ukraine High Court for War Crimes, which we discussed in Opinio Juris . The model legislation - which PILPG developed in partnership with Ukrainian and international experts, including the law firm Weil, Gotshal & Manges - would create an "internationalized" domestic court modelled on the existing High Anti-Corruption Court of Ukraine to prosecute high-level cases of war crimes, crimes against humanity, and aggression.

For over a year, the United States appeared skeptical about efforts to address the crime of aggression. But on Mar. 27, U.S. Ambassador for Global Criminal Justice, Beth Van Schaack, that the United States supports the creation of an internationalized domestic court in Ukraine to prosecute the Russian crime of aggression. The U.S. proposal hues closely to the model set forth last summer by PILPG and its partners.

Following Ambassador Van Schaack's announcement, Professor Rebecca Hamilton wrote an essay critiquing the U.S. plan in Just Security . The essay described two downsides to an internationalized domestic tribunal, which we would like to specifically address here.

The Ukrainian Constitution is Not an Insurmountable Obstacle

First, Article 125 of the Ukraine Constitution prohibits the establishment of "special and extraordinary tribunals." Ukraine judicial experts have explained to us that this provision is intended to prohibit temporary courts created by executive authority. The prohibition would not likely apply to an internationalized domestic court like the United States is suggesting if created through the normal legislative processes. In 2018, Ukraine established the High Anti-Corruption Court , which includes international advisers of the type envisioned by internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine. Ukraine could presumably use the same model and legal pathway to create an internationalized tribunal without running afoul of its Constitution.

While Ukraine is fairly unique in its prohibition of special and extraordinary tribunals, it is worth noting there are ample comparative state practice precedents for creating internationalized domestic courts throughout the globe, including the Regulation 64 Panels of Kosovo, the War Crimes Chamber of the Court of Bosnia and Herzegovina, the Special Department for Adjudicating Trials Against Perpetrators of War Crimes of the Belgrade District Court, and the Iraqi High Court , whose prosecutors were assisted by U.S. Department of Justice attorneys, whose defense counsel were foreign attorneys, and whose judges were assisted by foreign judges associated with the International Bar Association.

Head of State Immunity Would Not Block All Prosecutions for Those Responsible for the Crime of Aggression

Second, there is concern that, unlike a hybrid tribunal created through an agreement between Ukraine and the United Nations General Assembly, an internationalized domestic tribunal would not be able to prosecute the two Russian leaders who may be most responsible for the Russian Aggression - President Vladimir Putin and Foreign Minister Sergei Lavrov - under existing International Court of Justice (ICJ) regarding domestic prosecution of heads of state and foreign affairs ministers. But in announcing the new U.S. policy, Ambassador Van Schaack pointed out that an internationalized domestic court could nevertheless prosecute others responsible for the planning and execution of the crime of aggression against Ukraine. Such persons might include certain members of the Russian parliament, the Minister of Defense, and the Chiefs of the General Staff. Even if Putin and Lavrov are out of reach, an indictment of such persons for the crime of aggression could be an important symbolic and strategic development.

Moreover, head of state immunity is a complex legal doctrine and its contours have never been fully tested against a sitting head of state. In the Belgium Arrest Warrant case, the ICJ stated that head of state immunity does not apply to proceedings before international courts. What makes a court international enough for this purpose remains an open question. While Ambassador Van Schaack said the United States did not favor an effort to obtain an initial authorization from the United Nations General Assembly because of difficulties in obtaining a sufficiently large majority vote, in response to evolving events on the ground it is plausible that U.N. politics will make it possible to get a General Assembly endorsement after the Court is established, which along with imbedded international advisers might render the institution international enough to pierce head of state immunity under the precedent of the Special Court for Sierra Leone .

In addition, if Putin and Lavrov one day relinquish their positions, they could potentially be tried by an internationalized domestic court since their personal immunity (ratione personae) ends when they leave office, and functional immunity (ratione materiae) may not apply to the crime of aggression. In 1999, the U.K. House of Lords that former Chilian President Augusto Pinochet was not immune from prosecution for the international crime of torture. With no precedent on the application of head of state immunity to former leaders accused of the crime of aggression, it is possible that a former President Putin or a former Foreign Minister Lavrov could be prosecuted in an internationalized domestic court once out of office.

Ambassador Van Schaak's announcement was a game changer. As documented in Michael Scharf's in the Harvard Journal of International Law, since the conclusion of the Nuremberg trials, the United States had opposed the creation of an international court with jurisdiction over the crime of aggression as well as the use of universal jurisdiction to prosecute the crime in domestic courts. Whatever shape an aggression tribunal ultimately takes, we applaud the new U.S. position which is likely to generate momentum for the prosecution of Russia's crime of aggression against Ukraine.

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

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The United States' Proposal on Prosecuting Russians for the Crime of Aggression Against Ukraine is a Step in the Right Direction

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The International Criminal Court (ICC) recently issued an arrest warrant for Russian President Vladimir Putin for war crimes committed in the abduction of Ukrainian children and their transfer to Russia for adoption by Russian parents. Unfortunately, because of the way the 2010 Aggression Amendment to the Rome Statute is drafted, the ICC cannot prosecute Putin for the crime of aggression.

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Putin e Belova "ricercati" dalla Corte Penale Internazionale - Alice Riccardi and Luigi Daniele - 2 April 2023

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Putin e Belova "ricercati" dalla Corte Penale Internazionale - Alice Riccardi and Luigi Daniele - 2 April 2023

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Ep 10 (2023) Putin e Belova "ricercati" dalla Corte Penale Internazionale

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Listen to this episode from Ehi SIDI! on Spotify. Il 17 marzo 2023 la Corte Penale Internazionale annuncia al mondo intero di aver spiccato dei mandati d'arresto contro Vladimir Putin e Maria Belova. Per quali crimini? Con quali chance di successo? Come leggere questa mossa della Corte, stretta tra un "passato" di sfiducia e un "futuro" ancora incerto?

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Special Tribunal for Aggression: Worth the Risk(s)? - Nataliia Hendel, Patryk Labuda and Lorenzo Palestini - 4 April 2023

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Special Tribunal for Aggression: Worth the Risk(s)? - Nataliia Hendel, Patryk Labuda and Lorenzo Palestini - 4 April 2023

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Geneva Academy of International Humanitarian Law and Human Rights

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Special Tribunal for Aggression: Worth the Risk(s)?

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Der Haftbefehl des Internationalen Strafgerichtshofs gegen Putin – Eine völkerrechtliche Einordnung -  Kristoffer Burck - 4 April 2023

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Der Haftbefehl des Internationalen Strafgerichtshofs gegen Putin – Eine völkerrechtliche Einordnung -  Kristoffer Burck - 4 April 2023

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Am 17. März 2023 hat der Internationale Strafgerichtshof (IStGH) Haftbefehle gegen Vladimir Putin und eine Präsidialbeamt in erlassen. Diese Entscheidung hat große Teile der Fachwelt überrascht und wirft einige Fragen auf: Auf welcher Basis kann der IStGH Putin verfolgen? Was wird ihm und der Präsidialbeamtin vorgeworfen? Ist er als amtierender Präsident vor Verfolg u ng besonders geschützt? Welche Staaten sind verpflichtet, den Haftbefehl umzusetzen? Was sind die politischen Folgen für Putin, das Gericht und das Völkerrecht? Der Blogbeitrag geht auf diese Fragen vor allem aus völkerrechtlicher Sicht ein.
Die Grundlage des Internationalen Strafgerichtshofes, das 2002 in Kraft getretene Römische Statut, ist ein internationaler zwischenstaatlicher Vertrag. Dieser hat das Ziel, hochrangige Entscheidungsträger:innen für schwerste internationale Verbrechen zur Verantwortung zu ziehen. Ursprünglich umfasste der Vertrag drei Kategorien von schwersten Verbrechen: Genozid, Verbrechen gegen die Menschlichkeit und Kriegsverbrechen. In 2010 wurde in einer Überprüfungskonferenz als vierte Kategorie das Verbrechen der Aggression hinzugefügt.

Das Römische Statut wurde seither von 123 Staaten ratifiziert. Während zu den Unterzeichnerstaaten die meisten Staaten Südamerikas, Europas und viele Staaten Afrikas zählen, haben bevölkerungsreiche Staaten wie China, Indien und die USA den Vertrag nicht ratifiziert. Auch Russland und die Ukraine sind keine Mitgliedsstaaten des Römischen Statuts. Jedoch ermöglicht Artikel 12(3) des Statuts, dass Nicht-Mitgliedsstaaten die Zuständigkeit des Gerichts anerkennen, was die Ukraine in 2014 getan hat. Damit können schwerste internationale Verbrechen, die nach 2014 auf ukrainischen Territorium stattgefunden haben, verfolgt werden. Die Ausnahme bildet das Verbrechen der Aggression, für das die Zuständigkeit für Nicht-Mitgliedstaaten in den Verhandlungen in 2010 ausgeschlossen wurde.

Die Situation in der Ukraine

Kurz nach Kriegsbeginn im März 2022 hat Chefankläger Karim Khan formelle Ermittlungen in der Ukraine eröffnet. Diese mündeten Anfang 2023 darin, dass die zweite Vorverhandlungskammer des IStGH einen hinreichenden Anfangsverdacht auf mögliche Kriegsverbrechen bestätigt sah und auf deren Basis einen internationalen Haftbefehl für den Russischen Präsidenten Vladimir Putin und die Russiche Präsidentielle Sonderbeauftragte für Kinderrechte Maria Lvova-Belova ausstellte. Speziell wird beiden die Verantwortlichkeit für die Kriegsverbrechen nach Artikel 8(2)a)(vii) und 8(2)b)(viii) vorgeworfen. Diese beinhalten und verbieten die rechtswidrige Vertreibung und Überführung von Teilen der Zivilbevölkerung, unter anderem aus besetzen Gebieten. Im konkreten Fall verweist der Vorwurf auf die systematische Verschleppung von zwischen 6.000 und 16.000 ukrainischen Kindern, vor allem Waisen, aus den besetzten Gebieten nach Russland.

Laut der Vorverhandlungskammer besteht der ausreichende Anfangsverdacht, dass diese Praxis direkt durch Lvova-Belova angewiesen wurde und Putin sowohl direkte als auch indirekte Befehlsgewalt ausgeübt habe. Diese Annahme wird durch eine Vielzahl an öffentlich zugänglichen Informationen gestützt, unter anderem einem auf der Website des Kremls veröffentlichten Protokoll eines Treffens zwischen Putin und Lvova-Belova, in welchem die Details des Verschleppungsprogrammes besprochen werden.

Der IStGH kann über diese speziellen Verbrechen hinaus beliebig viele weitere mögliche Anklagepunkte hinzufügen, sobald ausreichende Hinweise für andere Tatbestände vorliegen. Medienberichten zufolge könnte dies bald vor allem für das Kriegsverbrechen gezielter Angriffe auf zivile Infrastruktur der Fall sein, aber auch mögliche Anklagepunkte von Verbrechen gegen die Menschlichkeit und des Genozids werden diskutiert.

Die Frage der Immunität Putins

Jedoch wird durch diesen Haftbefehl eine völkerrechtliche Fragestellung wieder besonders relevant: Besitzen amtierende Staatsoberhäupter Immunität vor internationalen Gerichten?

Grundsätzlich besteht im Völkergewohnheitsrecht die Annahme, dass bestimmte Personengruppen wie Staatsoberhäupter, aber auch Außenminister:innen und Regierungsvorsitzende, während ihrer Amtszeit einen besonderen Schutz vor strafrechtlicher Verfolgung durch andere Staaten genießen. Dieser besondere Schutz vor Verfolgung vor nationalen Gerichten wurde durch den Internationalen Gerichtshof für zwischenstaatliche Rechtsfragen - nicht zu verwechseln mit dem IStGH - selbst für den Vorwurf von Kriegsverbrechen und Verbrechen gegen die Menschlichkeit bestätigt ( IGH Haftbefehl Entscheidung Paragraf 58).

Der IStGH hat durch eigene Rechtsprechung jedoch die Annahme entwickelt, dass sich diese Immunität nicht auf Internationale Gerichte erstreckt. In mehreren Urteilen in Bezug auf die mögliche Festnahme von Sudans ehemaligem Diktator Omar al-Bashir haben die verschiedenen Kammern geurteilt, dass diese Immunitäten keinen Schutz vor dem IStGH gewähren ( Vorverhandlungskammer 1 Malawi Entscheidung Paragraf 36, Vorverhandlungskammer 2 Südafrika Entscheidung Paragrafen 84, 88 und 91, Berufungskammer Jordanien Entscheidung Paragraf 117). Nach Artikel 89 (1) des Römischen Statutes wären damit alle 123 Mitgliedsstaaten verpflichtet, Putin auf ihrem eigenen Territorium festzunehmen und an den Strafgerichtshof zu übermitteln. Auch Nicht-Mitgliedsstaaten könnten nach Artikel 87(5)a) mit dem IStGH kooperieren und dadurch den Internationalen Haftbefehl umsetzen.

Diese Rechtsauffassung ist jedoch unter Expert:innen nicht unumstritten, da der IStGH in solchen Fällen in „eigener Sache" urteile und nicht immer sauber argumentiert habe. So haben auch Staaten wie die USA und China in der Vergangenheit die Position vertreten, dass der IStGH nicht die Kompetenz besäße, Staatsoberhäupter von Nicht-Mitgliedsstaaten zu verfolgen, zumindest nicht ohne UN-Sicherheitsratsbeschluss. Diese Ansicht vertritt Russland nun in Bezug auf Putin vehement und erhält teilweise auch Unterstützung von Mitgliedsstaaten des Römischen Statutes, beispielsweise durch Ungarn. Einige, vor allem westliche, Staaten unterstützen die Entscheidung jedoch explizit und haben angekündigt, diese umsetzen zu wollen.

Was bedeutet der Haftbefehl politisch?

Für den IStGH wird die Entscheidung, einen Haftbefehl gegen Putin auszustellen, bereits als richtungsweisend und eine der wichtigsten Entwicklungen in der Geschichte des Gerichtshofes beschrieben. In der Tat ist die mögliche Anklage eines Staatspräsidenten ohne einen UN-Sicherheitsratsbeschluss, noch dazu eines so einflussreichen Landes wie Russland, ein möglicher Meilenstein in der Weiterentwicklung des Strafvölkerrechts. Dies sendet das Signal, dass Verbrechen, selbst wenn sie durch die mächtigsten Personen der Welt begangen werden, nicht unverfolgt bleiben.

Wie oben beschrieben bleibt diese Entscheidung jedoch nicht ohne Widerstand, sowohl aus der Fachwelt als auch durch Staaten. Es wird daher wichtig sein, nicht zu hohe Erwartungen an den Haftbefehl selbst zu knüpfen. Praktisch bleibt es äußerst unwahrscheinlich, dass Putin in näherer Zukunft verhaftet und in Den Haag vor der Anklagebank stehen wird. Mitgliedsstaaten werden Russland aller Wahrscheinlichkeit nach über diplomatische Wege mitteilen, ob sie sich durch den Haftbefehl gebunden sehen, und die Reisen Putins werden dementsprechend geplant werden. Der ehemalige russische Präsident Medvedev verkündete bereits, dass auf eine Festnahme Putins sofortige Raketenschläge gegen den festnehmenden Staat folgen würden. Es ist unwahrscheinlich, dass ein Staat zu diesem Zeitpunkt eine Überraschungsfestnahme und damit verbundene mögliche (Militär)-Maßnahmen riskiert. Dennoch wird der Haftbefehl Putins Bewegungsfreiheit einschränken sowie, zumindest teilweise, seiner Wahrnehmung in der Welt schaden.

In der Vergangenheit wurde teilweise gewarnt, dass Haftbefehle gegen hohe Entscheidungsträger:innen den Friedensprozess behindern könnten.​​ In der Wissenschaft ist diese Angst jedoch weitgehend widerlegt. Darüber hinaus gäbe es insbesondere in der vorliegenden Situation eine weitere Option, um Putin einen Ausweg zu bieten. Nach Artikel 16 des Römischen Statutes können Verfahren des IStGH durch einen Beschluss des UN-Sicherheitsrats temporär ausgesetzt werden und damit könnte, zumindest theoretisch, ein Friedensschluss gegen die Aussetzung der Verfolgung Putins getauscht werden.

Diese Aussetzung würde die Zustimmung der anderen ständigen Mitglieder des Sicherheitsrats erfordern. In der gegenwärtigen Situation erscheint dies unwahrscheinlich, vor allem weil die ukrainische Regierung einen solchen Deal ablehnt. Langfristig bietet Artikel 16 damit allerdings eine Möglichkeit, zusätzlichen Druck auf Putin auszuüben, um ein Friedensabkommen als eine gesichts- und freiheitswahrende Option in Betracht zu ziehen.

Fazit

Es bleibt abzuwarten, wie die Mitgliedsstaaten mit dem Haftbefehl verfahren werden. Sollte eine Vielzahl an Staaten diesen ignorieren - der IStGH hat keine ernstzunehmenden eigenen Durchsetzungsmöglichkeiten - kann dies dem Ansehen des Gerichtshofes schaden. Wie bereits bei der Nicht-Festnahme Bashirs wird der Gerichtshof sich der Frage stellen müssen, ob der Anspruch, Verbrechen bis zur höchsten Ebene zu verfolgen, mit der Realität übereinstimmt. Allerdings hat der Gerichtshof mit der Ausstellung des Haftbefehls bewiesen, dass dieser Anspruch noch immer besteht. Damit profiliert sich der IStGH weiterhin als Gericht mit dem Potential, das geltende Völkerrecht weiterzuentwickeln. Sofern diese Weiterentwicklung langfristig zu höherer Verantwortlichkeit von Kriegsverbrecher:innen führt, ist das bereits ein positiver Schritt.

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Der Haftbefehl des Internationalen Strafgerichtshofs gegen Putin - Eine völkerrechtliche Einordnung - PRIF BLOG

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Am 17. März 2023 hat der Internationale Strafgerichtshof (IStGH) Haftbefehle gegen Vladimir Putin und eine Präsidialbeamtin erlassen. Diese Entscheidung hat große Teile der Fachwelt überrascht und wirft einige Fragen auf: Auf welcher Basis kann der IStGH Putin verfolgen? Was wird ihm und der Präsidialbeamtin vorgeworfen? Ist er als amtierender Präsident vor Verfolgung besonders geschützt?

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Sexu­elle Gewalt: ein Plä­doyer für die umfas­sende Unter­stüt­zung Überlebender - Kateryna Busol - 23 March 2023

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Sexu­elle Gewalt: ein Plä­doyer für die umfas­sende Unter­stüt­zung Überlebender - Kateryna Busol - 23 March 2023

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Vergewaltigungen und sexuelle Folter gehören bereits seit 2014 zum Kriegsalltag in der Ukraine. Die strafrechtliche Verfolgung ist kompliziert und oft leidvoll für die Opfer. Eine neu gegründete Abteilung der ukrainischen Staatsanwaltschaft entwickelt deshalb spezielle Ermittlungsstrategien für sexuelle Gewalttaten.

Bis inklusive März 2023 hat die unabhängige Commission of Inquiry on Ukraine des Hohen Kommissars der Vereinten Nationen für Menschenrechte in neun Regionen der Ukraine „konfliktbezogene, sexuelle Gewalt" („conflict-related sexual violence", kurz CRSV) festgestellt.

Russische Kräfte begingen sexuelle Gewalttaten „mit vorgehaltener Waffe, auf extrem brutale Weise und als Folter". Vor allem in zwei Kontexten geschahen die Verbrechen: bei Razzien in privaten Wohnungen sowie an in Gewahrsam genommenen Personen. Dabei beschimpften die russischen Kräfte ihre Opfer oder deren Angehörige als „Nazis" oder als angeblich Unterlegene, sie rechtfertigten die Gewalt als „Bestrafungen", weil Ukrainisch gesprochen wurde, oder als „Umerziehung". Eine häufig angewandte Foltermethode wird „Anruf bei Putin" genannt: Kabel werden in die Genitalien der Opfer eingeführt und dann unter Strom gesetzt.

Schon seit 2014 gab es Übergriffe

Sexualisierte Gewalt steht besonders seit der flächendeckenden russischen Invasion im Fokus, begangen wurde sie allerdings schon seit Beginn der russischen Aggression gegen die Ukraine 2014. In den sogenannten „Republiken" der Ostukraine und auf der annektierten Krim wurde von unrechtmäßigen Gefängnissen berichtet, in denen vergewaltigt und gefoltert wurde. An den Checkpoints in den besetzten Gebieten und in den umliegenden „Grauen Zonen" wurden LGBTQ+-Personen dezidiert aufgrund ihrer Genderidentität und sexuellen Orientierung ins Visier genommen.

Auch Russland hat Abkommen unterzeichnet

Gleich mehrere internationale Abkommen, die sowohl Russland als auch die Ukraine unterzeichnet haben, verurteilen CRSV, darunter die Genfer Konvention zum Schutz von Zivilpersonen (Artikel 27, 97, 117) und Kriegsgefangenen (Artikel 14, 17, 97) sowie ihr 1. Zusatzprotokoll (Artikel 76). Der Internationale Strafgerichtshof, der derzeit hinsichtlich der Lage in der Ukraine ermittelt, kann sexuelle Gewaltdelikte im Rahmen seiner Zuständigkeit als Kriegsverbrechen, Verbrechen gegen die Menschlichkeit oder Völkermord verfolgen.

Die strafrechtliche Ahndung ist kompliziert

Verschiedene Faktoren erschweren die Bemühungen, ukrainischen Opfern von CRSV Gerechtigkeit widerfahren zu lassen. Erstens zählt konfliktbezogene sexuelle Gewalt international zu den Verbrechen, die am seltensten angezeigt und untersucht werden. Die Ukraine bildet hier keine Ausnahme: Unter den 74.952 konfliktbezogenen Verbrechen, die dem Büro des Generalstaatsanwalts bis zum 19. März 2023 gemeldet wurden, sind nur 171 Fälle von CRSV. Fortdauernde Gefechte oder Besetzung, gesellschaftliche Stigmata und Sicherheitsbedenken zählen zu den Hauptgründen dafür, dass Überlebende darauf verzichten, sich zu offenbaren, oder eine Anzeige hinausschieben. Vielfach wissen die Opfer auch schlicht nicht, dass Verhaltensweisen wie das Erzwingen von Nacktheit oder das Androhen einer Vergewaltigung bereits CRSV darstellen.

Die Opfer fürchten Stigmatisierung

Zudem fehlt es an weiblichem Personal bei den Strafverfolgungsbehörden, das sensibel für die von Opfern wie Zeugen erlittenen Traumata ist und die Verbrechen mit dem notwendigen Respekt dokumentiert und untersucht. Durch zu direkte Fragen oder zu viele Termine mit Ermittlern, Menschenrechtsanwälten, Journalisten und Wissenschaftlern werden Opfer häufig retraumatisiert und entscheiden sich dagegen, das lange und komplexe Verfahren auf sich zu nehmen. Auch haben Überlebende häufig akut dringendere Bedürfnisse, etwa den Zugang zu medizinischer Versorgung und psychologischer Betreuung. Eventuell ist eine Abtreibung notwendig, ein neuer Wohnort und ein gesichertes Einkommen. Daher verschieben viele Betroffene ihren Wunsch, die Täter zur Verantwortung gezogen zu sehen, auf bessere Zeiten in der Zukunft.

Neue Abteilung zur Verfolgung konfliktbezogener sexueller Gewalt

Die Ukraine geht die genannten Herausforderungen an. So hat die Generalstaatsanwaltschaft eine auf CRSV spezialisierte Abteilung ins Leben gerufen. Dieser steht eine weibliche Staatsanwältin mit Erfahrung im Bereich häuslicher und sexueller Gewalt vor, die die Feinheiten solcher Ermittlungen und die Gefahren der Stigmatisierung kennt. Ihr Team entwickelte in Kooperation mit internationalen Partnern und der ukrainischen Zivilgesellschaft - insbesondere mit JurFem, der Ukrainian Women Lawyers Association - eine spezielle, gegenüber den Opfern von CRSV sensible Ermittlungsstrategie.

Erste Gerichtsverfahren bereits eröffnet

Die ersten Gerichtsverfahren wurden bereits eröffnet, oft in Abwesenheit der Angeklagten. Es häufen sich Hinweise, dass Befehlshaber der russischen Streitkräfte sexualisierte Gräueltaten unterstützt haben. Deshalb konzentrieren sich die ukrainischen Ermittler und ihre internationalen Berater darauf, auch auf dieser Ebene gerichtsfeste Beweise zusammenzutragen.

Medizinische, finanzielle und psychologische Unterstützung nötig

Strafprozesse wegen Kriegsverbrechen erfordern oft Jahre der sorgfältigen Beweisaufnahme und eine sehr genaue Begründung vor Gericht. Die strafrechtlichen Untersuchungen sollten mit allem den Opfern gebührenden Respekt geführt werden. Allerdings sind Strafverfahren nicht die einzige Voraussetzung, um ihnen Gerechtigkeit widerfahren zu lassen. Ukrainische Überlebende von CRSV, auch diejenigen, die bereits vor der flächendeckenden Invasion betroffen waren, benötigen dringend medizinische, psychologische und finanzielle Unterstützung sowie Wohnraum. Zugeschnitten auf das individuelle Trauma sollte ihnen medizinischer Beistand und psychologische Behandlung bzw. Begleitung während der Dauer des Strafprozesses und auch darüber hinaus gewährt werden.

Zur Gerechtigkeit gehört die Wahrheit

Dieser ganzheitliche Ansatz wird im Internationalen Menschenrechtsschutz vorgeschrieben und entspricht den Empfehlungen der Commission of Inquiry on Ukraine der Vereinten Nationen. Die Kommission unterstreicht, dass zur Gerechtigkeit die Wahrheit, eine Entschädigung und eine Garantie gehören, dass sich Gewalttaten dieser Art nicht wiederholen.

Bestimmte Maßnahmen, wie etwa ein Opferregister und Angebote psychologischer Unterstützung können unmittelbar in die Wege geleitet werden - auch vor einem Ende der Kampfhandlungen.

Trotz der zahlreichen und vielschichtigen Herausforderungen kann und sollte die Ukraine, als Staat wie als Gesellschaft, im Verbund mit ihren internationalen Partnern diese breit angelegte Vision von Gerechtigkeit verfolgen - um denen unverzüglich beizustehen, die besonders gelitten haben.

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Sexuelle Gewalt: ein Plädoyer für die umfassende Unterstützung Überlebender

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Bis inklu­sive März 2023 hat die unab­hän­gige Com­mis­sion of Inquiry on Ukraine des Hohen Kom­mis­sars der Ver­ein­ten Natio­nen für Men­schen­rechte in neun Regio­nen der Ukraine „kon­flikt­be­zo­gene, sexu­elle Gewalt" („con­flict-related sexual vio­lence", kurz CRSV) festgestellt. Rus­si­sche Kräfte begin­gen sexu­elle Gewalt­ta­ten „mit vor­ge­hal­te­ner Waffe, auf extrem brutale Weise und als Folter".

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Putin’s Nuremberg MomentThe ICC’s arrest warrant against the Russian president was historic. But where will it lead? - Reed Brody - 28 March 2023

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Putin’s Nuremberg MomentThe ICC’s arrest warrant against the Russian president was historic. But where will it lead? - Reed Brody - 28 March 2023

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The decision by the International Criminal Court to issue an arrest warrant for Vladimir Putin over the deportation of thousands of children from Ukraine to Russia is by far the boldest assertion of international justice in history. Faced with Russia's naked aggression in invading Ukraine, followed by a daily stream of brazen war crimes, the world, or at least part of it, is living a Nuremberg moment, pushing the boundaries of the possible.

The ICC's prosecutor, savvy British barrister Karim Khan, seized the moment right after Russia's full-scale invasion to get an unprecedented 43 ICC member states, almost all Western, practically overnight to request an investigation in Ukraine. He has made four trips to the country, which he declared " a crime scene," opened the ICC's largest investigation ever, and raised unprecedented amounts of earmarked contributions and seconded personnel, again almost exclusively from Western states. But a year into the invasion, as Russian atrocities mounted, everyone was wondering where it would all lead.

Khan's groundbreaking Putin indictment-the first ever against the sitting leader of a permanent member of the UN Security Council-rewarded that impatience and brought welcome succor to Ukrainian victims. It was also certainly calculated to deflate growing calls for a new special tribunal on Russia's crime of aggression-a so-called "leadership crime"-which, its similarly Western proponents contended, was the easiest way to hold Putin directly accountable, but which Khan has argued would fragment justice efforts. Khan's decision to lead with the child transfers, a choice also publicly urged on him by President Volodymyr Zelensky, allowed him to go straight to the top by using Putin's own interviews and decrees as evidence of his direct responsibility in orchestrating a state policy of taking Ukrainian children. Khan's expected future Ukraine indictments will presumably reflect the more painstaking business of linking Putin through the chain of command to battlefield-type crimes like bombings of civilian targets as well as massacres and torture chambers.

Russia has predictably dismissed the ICC charges, arguing that the court has no jurisdiction over nationals of nonmember states, and mounting a symbolic prosecution of its own against ICC officials. Former president Dmitry Medvedev threatened to target The Hague with nuclear missiles, telling judges to "look carefully at the sky."

Russia's blustery reactions are reminiscent of those in the United States not so long ago-when no American official was even close to being investigated. In 1998, under President Bill Clinton, the US was one of only seven countries to vote against the ICC Rome Statute after failing to win a guarantee that no national of a nonmember state (i.e., Americans) could ever be prosecuted, even for crimes committed on the territory of a member state. Under George W. Bush, Congress passed the so-called " Hague Invasion Act" allowing the president to "use all means necessary and appropriate to bring about the release" of an American or an allied person detained by the ICC. Under Donald Trump, Washington imposed sanctions on previous prosecutor Fatou Bensouda for her timid investigations into Palestine and alleged US crimes in Afghanistan. Even in 2021, when the Biden administration lifted those sanctions, Secretary of State Anthony Blinken said, "We maintain our longstanding objection to the Court's efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel." The new Nuremberg moment has seemed to banish those qualms, at least temporarily. The US welcomed the Putin warrant, though Russia is also a nonmember state, and Blinken urged ICC members to arrest Putin and his co-indictee Maria Lvova-Belova and turn them over to The Hague. New bipartisan legislation permits Washington to support the ICC's Ukraine investigation (though the Pentagon is reportedly balking at giving the ICC evidence on Russian war crimes).

International justice is a long game, and no one expects to see Putin in handcuffs unless and until there is a radical change of regime in Russia. Indeed, the main reason that in its 20 years of existence the ICC has never put away a single state official for atrocity crimes is that it can't get its hands on them. And despite the overwhelming evidence of Russian crimes, if the ICC is seen as the legal arm of NATO, non-Western states, which have remained silent so far on the warrant, may be no more willing to detain or isolate Putin than they were in 2009, when the ICC sought to arrest Sudanese President Omar el-Beshir for genocide in Darfur. Beshir thumbed his nose at the court, visiting dozens of countries, including seven ICC states such as South Africa-which Putin is scheduled to visit in August. South Africa's foreign minister confirmed the invitation to Putin following the warrant and complained of "double standards.... There are many other countries that have been involved in wars, invasion of territory and killing people, arresting activists and none of them have been called up by the ICC."

The optics could not have been worse when, just three days after the warrant, Khan took a victory lap of sorts at a London meeting of justice ministers organized by the United Kingdom and the Netherlands to support the ICC's work on Ukraine. Fewer than a handful of the 40 countries in London were from the Global South, and speakers intermingled their support for Ukraine (an "ally," noted the Dutch minster) with their pledges of new financial support totaling $4.9 million for the ICC's work. Amnesty International, among others, has long warned "that the court's legitimacy risks being eroded by an increasingly selective approach to justice" and that earmarked contributions allow states "to support only those situations which align with their interests," leaving the court "vulnerable to manipulation by powerful states." In contrast to the well-funded Ukraine inquiry, ICC prosecutors have often cited limited resources elsewhere, as when Khan " deprioritized" investigations into the Bush administration's torture program in Afghanistan, and when Bensouda could not advance her probes on Nigeria and Ukraine itself in 2020, despite finding possible crimes against humanity.

When observers talk about ICC selectivity, they most often talk about Palestine, where Israel is credibly accused of apartheid, persecution, and war crimes including illegal settlements. After Palestine requested an investigation in 2015, the court slow-walked the case though procedural hurdles for six years until Bensouda opened a formal investigation in 2021, just months before leaving office. Since then, nothing visible has transpired. As Raji Sourani, director of the Palestinian Centre for Human Rights, who supports the Ukraine probe, has lamented, Khan never referenced the ICC's Palestine investigation in resource requests and never spoke about the occupied territory as a "crime scene." He was even silent when Israel shut down NGOs that were providing his office with evidence. Khan's announcement at the ICC Assembly in December 2022 that he wanted to go to Palestine in 2023 has nevertheless raised some cautious hopes for progress.

Khan has shown that he is willing to break barriers and apply the law to the president of one of the most powerful states in the world, and to do so even when that country is not an ICC member. A harder question may be whether he is willing to confront his main supporters and apply the law to Israeli and other Western-backed officials. Since the Nuremberg tribunal, international justice has always had the taint of "victor's justice," which is not applied to the sponsors themselves. Could today's Nuremberg moment be one to transcend Nuremberg itself?

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The decision by the International Criminal Court to issue an arrest warrant for Vladimir Putin over the deportation of thousands of children from Ukraine to Russia is by far the boldest assertion of international justice in history.

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Implications of ICC's Arrest Warrant against President Putin - Aman Kumar - 24 March 2023

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Implications of ICC's Arrest Warrant against President Putin - Aman Kumar - 24 March 2023

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The overlooked 'crimes against children' ICC arrest warrant - Brian Gran and Agnes Lux - 29 March 2023

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The overlooked 'crimes against children' ICC arrest warrant - Brian Gran and Agnes Lux - 29 March 2023

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As the world immediately knew within minutes of its announcement, on 17 March the International Criminal Court (ICC) issued an arrest warrant for Russian president Vladimir Putin. Putin is accused of the war crimes of unlawful deportation of population and unlawful transfer of population (including children) from occupied areas of Ukraine to Russia.

An unprecedented component of this announcement has received less attention: the ICC also issued an arrest warrant for Maria Alekseyevna Lvova-Belova, Putin's commissioner for children's rights. Lvova-Belova is accused of deporting and unlawful transfer of Ukrainian children to Russia.

Maria Alekseyevna Lvova-Belova, Putin's commissioner for children's rights. She is accused by the ICC of the deporting and unlawful transfer of Ukrainian children to Russia since 24 February, 2022 (Photo: Wikimedia)

The crimes were allegedly committed in Ukrainian occupied territory at least since 24 February, 2022.

There are reasonable grounds to believe Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), according to the ICC.

Working directly for Putin, Lvova-Belova has led Russia's efforts to deport thousands of Ukrainian children to Russia. She has directed forced adoption of Ukrainian children into Russian families, the so-called 'patriotic education' of Ukrainian children, legislative changes to expedite the provision of Russian Federation citizenship to Ukrainian children, and deliberate removal of Ukrainian children by Russia's forces.

Lvova-Belova is accused by Ukraine officials of violently taking more than 2,000 vulnerable children from the Luhansk and Donetsk regions to Russia, then orchestrating a new policy to facilitate their forced adoptions in Russia.

The Russian government has not denied taking Ukrainian children and has made their adoption by Russian families a centrepiece of its propaganda. In April 2022, Lvova-Belova and her office indicated that around 600 children from Ukraine had been placed in orphanages in Kursk and Nizhny Novgorod before being sent to live with families in the Moscow region.

From the start, Lvova-Belova's office has made a mockery of children's rights. The full title of Lvova-Belova's office is commissioner for children's rights in the office of the president of the Russian Federation. Her office is supposed to be a type of children's commissioner or children's ombudsperson, sometimes called an independent children's rights institution (ICRI).

Instead, the Russian commissioner is appointed by and must do what the Russian president directs her to do - even when those directions are in opposition to children's rights and violently harms young people.

As a children's rights commissioner, Lvova-Belova not only should have tried to stop Putin from committing these war crimes against children, she should have advocated for these children's rights, rather than using her office to violate them.

Lvova-Belova's office is fraught with problems that not only led to committing these war crimes, but indeed prevented her from stopping Putin from committing war crimes against children.

A central feature and also main source of legitimacy and strength of ICRIs is their independence. Endowed with legal powers, ICRIs are supposed to monitor and protect children's rights. The United Nations Committee on the Convention on the Rights of the Child has called on all member parties to the UN Convention to establish ICRIs that advocate for and advance rights of children. That includes Russia, which ratified the Convention in 1990.

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The warrant and accusations emphasise the importance of independence to ICRIs, a feature Lvova-Belova's office fatally lacks.

The failures and war crimes of Lvova-Belova have not gone unnoticed. The governments of Australia, Canada, Switzerland, the United Kingdom, and the United States, as well as the European Union, have sanctioned Lvova-Belova.

The European Network of Ombudspersons for Children (ENOC), a network of ICRIs based in Council of Europe member states, has expressed its deepest concerns regarding the safety and well-being of children trapped in the outbreak of the war in Ukraine.

The warrant and, more importantly, the accusations are warnings to leaders of other countries, UN member parties, and human-rights advocates across the world. The warrant points to fundamental problems in how children's rights and interests are protected. These grave failures illuminate weaknesses in how we protect children and enforce their rights that we must overcome.

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[Opinion] The overlooked 'crimes against children' ICC arrest warrant

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As the world immediately knew within minutes of its announcement, on 17 March the International Criminal Court (ICC) issued an arrest warrant for Russian president Vladimir Putin. Putin is accused of the war crimes of unlawful deportation of population and unlawful transfer of population (including children) from occupied areas of Ukraine to Russia.