#aggression - Maastricht Blog On Transitional Justice

Bringing fresh ideas to an ongoing debate of some duration and substance rarely happens. But do read on for my brief take on why establishing a boutique tribunal to try Putin for the crime of aggression is unrealistic, and why there may be a more practical and achievable solution in investigating and prosecuting those most responsible for crimes being committed in the Russo-Ukrainian war – save for the crime of aggression.

Most agree that Putin’s war-making was unprovoked, unjustified, and unlawful. I say most because there are some who believe that Russia had legitimate reasons for initiating what Putin has characterized as Russia’s “special military operation.” Most also agree – or seem to agree despite any legitimate findings by an independent international tribunal – that Putin is guilty beyond any doubt of the crime of aggression. And many of those who have made their findings and conclusions of Putin’s guilt, call for the establishment of a tribunal with the singular purpose to try and convict Putin, expeditiously, for aggression. Of course, they envisage that a few others would also be charged and tried as well for aggression, but Putin is the great white whale (though it should be remembered that Moby Dick was both Ahab’s obsession and the prize he could not have).

Due process niceties aside (apologies for being a stickler), by all media accounts, academic panel discussions, and political rhetoric, Putin has been found guilty – and not just for the crime of aggression, but for war crimes and crimes against humanity. As those pushing for this boutique tribunal see it, setting up a tribunal to try Putin just for aggression would simplify matters of proof, and though not publicly espoused, could/would also serve as a midwife for establishing the crime of aggression as customary international law (CIL). Its adoption by the International Criminal Court (ICC), such as it is, does not make it so. Were a recognized and legitimate international tribunal for aggression established that would be a game-changer, perhaps crystalizing the crime of aggression as CIL – even if the United States, China, Russia, India, and most likely France and the United Kingdom and many more states would hold otherwise.

If only we had this boutique tribunal on aggression. How simplistically naive.

I remain optimistic that the day will come when the crime of aggression is unquestionably accepted as CIL. And yes, it is noble to herald the establishment of an international tribunal on aggression with jurisdiction to investigate, prosecute, and convict any head of state and others engaged in aggression wherever they may hail from.

But let’s get real.

It is an article of faith that Putin – an autocrat presumably running Russian affairs unimpeded by liberal democratic refinements and unconstrained by his inner circle of oligarchs and upper echelon-cum-latter-day apparatchiks – is responsible for and guilty of all crimes that have been and are being committed. Perhaps so. But as in any conflict or war, nothing is ever black and white – especially if viewed from all sides. Admittedly, some of my personal views are shaped by what I see in the media, but I also know, from professional experience, that there is much that I do not know. That is why I am a firm believer in both substantive and procedural justice.

Support for one side of the conflict, even if it seems morally and legally just, does not prove guilt of the other side. For that, we need independent tribunals with a level playing field for any accused, irrespective of his or her national origin. Troublingly, we hear nothing of crimes or atrocities having been committed by Ukrainian soldiers, officers, or political elite, and thus query whether the legion of motley investigators collecting evidence against the Russian forces and associated private armies and mercenaries, are conducting any serious investigations against Ukrainians forces for any alleged crimes (see Amnesty International’s press release about Ukrainian fighting techniques endangering civilians here). If this war is like any other war since time immemorial, it is highly likely that crimes are being committed by all sides – though not necessarily (and certainly not in this war) on the same scale.

I have not heard of anyone objecting to Ukrainians not being subject to prosecution, but then I have not heard of any investigations being conducted against any Ukrainians. I raise this to stress that if we are committed to the rule of law and to eradicating impunity in all forms, then we should be up to objectively investigating and robustly prosecuting anyone alleged to have committed crimes. For that we need impartial tribunals.

Even were it possible (I think not, but do read on) to establish a tribunal to try Putin for aggression, it seems so result-oriented as to call into question its legitimacy – irrespective of the soundness of the ultimate quality of justice rendered. Yes, perceptions matter. And it’s as if it is a zero-sum game: aggression or nothing.

Let’s take stock – realistically.

We know that the United Nations Security Council (UNSC) will not countenance the notion of a tribunal dedicated exclusively to aggression or even inclusively to other crimes – whether it is established for Putin or others. The permanent members of the UNSC with veto power – the United States, China, Russia, the United Kingdom, and France (the big five) – will not tolerate the existence of such a court. Their heads of states could easily find their heads on the proverbial chopping block. None of these states (as well as many more) have genuinely embraced the ICC’s adoption of the crime of aggression. Neither China nor Russia will countenance a UNSC tribunal as in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), even if the crime of aggression was not included as one of the statutory crimes.

That leaves the United Nations General Assembly (UNGA). The UNSC’s big five have no veto power to stop any discussion in its tracks, but virtually all have sufficient clout and persuasive influence (it would be a perversion to call it soft power considering the pressure attached with stimulative measures of negative consequences some if not all of the big five will apply), to sink any efforts by the UNGA to establish a tribunal that either exclusively or inclusively has aggression as one of its enumerated crimes. Another non-starter, though some are convinced otherwise.

The ICC, we know, has no jurisdiction to try Putin on aggression.

National courts which exercise universal jurisdiction may be less inclined to prosecute a head of state for aggression considering the immunity issue (arguably not an issue at an international court) – though not an issue with war crimes and crimes against humanity.

Where does that leave us?

The simple answer – which others I am sure have considered – is for the UNGA to establish an ad hoc international tribunal, dedicated to try war crimes, crimes against humanity, and genocide committed by anyone during the Russo-Ukrainian war, with a temporal jurisdiction to encompass events as far back as 2014 and spanning the territories of Russia, Belarus, Ukraine, and perhaps elsewhere. Without the crime of aggression, this is feasible. And the best option.

Were the UNGA to establish such a tribunal, it should take precedence over the ICC. Despite the headline-grabbing rhetoric of the Prosecutor and the abundance of resources offered to his office for investigating crimes in Ukraine, the ICC is only really suited to try but a very few cases – and even that may be a stretch if it is to seriously fulfill its mandate in dealing with other mass atrocity crimes in areas under its jurisdiction. Why, it can barely manage to eke out an occasional conviction as it is – even after years and years of preliminary examinations and investigations. No doubt there will be some turf-war push-back from the ICC’s Office of the Prosecutor (ICC OTP), but to paraphrase a line from the film Pulp Fiction, that is pride [and ego] talking. The simple truth is that it is much more efficient and effective to have an ad hoc tribunal dedicated to investigating and prosecuting anyone alleged to have committed mass atrocity crimes in the Russo-Ukrainian war.

My point is that the UNSC and the ICC are not the only game in town. The UNGA established the Extraordinary Chambers in the Courts of Cambodia. Hardly a perfect example, but a partnering model has much to be said for it. From a legitimacy point of view, a tribunal is more likely to be widely accepted when it will investigate, prosecute, and judge all sides to the conflict – not just Putin, his cronies and stooges, Russian officers, and soldiers. Such a tribunal would require Ukraine to commit. The crime of aggression not being on the table even for discussion, should enable a more focused and less detractive discussion for a quick establishment of a court.

The procedure can (and I advise should) be inspired by/modeled after the ICTY. Lessons learned over the years and from Mechanism for the International Criminal Tribunals can be applied – especially in the selection of judges (bluntly, some ICTY and ICTR judges were ill-qualified, and there should be no second tier judges as at the ICC). The office of prosecution should have a unified structure with functional control over the investigative section, which should be subordinate to and under the direct supervision of the prosecutor and his or her deputies.

In sum, my humble advice is for those pushing for a boutique tribunal on aggression to abandon their Quixotic efforts (and rhetoric), as well as for the ICC OTP to support the establishment of a UNGA ad hoc tribunal dedicated to investigating and prosecuting anyone alleged to have committed mass atrocity crimes in the Russo-Ukrainian war.

Editor’s note: this post was first published on michealgkarnavas.net on 23 February 2023. I thank Michael very much for authorising the reproduction of the post on Maastricht Blog on Transitional Justice.

This post is based on the presentation delivered by its author at Maastricht University on 16 March 2022, on the occasion of the academic event organised by the European Law Students Association (ELSA).

During the last three weeks, we have had the chance to read lots of information about the situation in Ukraine. Given the nature of the situation – an international armed conflict – and the gravity of the conflict in terms of the scale of the military operations and the high number of victims reported, much has been said about the conflict. For us, international lawyers and law students, the interesting thing is that many questions raised in the media and in social media concern international law: whether international law is really law, whether States can have recourse to armed force whenever they deem fit, whether anyone or anything can be a lawful military target in times of armed conflict, etc. True, raising questions is fine, but taking the time necessary to examine such questions in detail is even better. However, neither the media, nor social media devotes much time or space to such endeavor, which seems to be in keeping with so many other aspects of life in times of modern liquidity.

In this post I will adress the issues of recognition of States and the legality of the use of armed force in international relations, in light of the situation in Ukraine.

Ukraine | History, Flag, Population, President, Map, Language, & Facts | Britannica — Source: Encyclopaedia Britannica

Having said that, I would like to make my substantive points right now: one, Russia’s recognition of Luhansk and Donetsk as States is unlawful; two, the use of force by Russia against Ukraine is also unlawful; and three, Russia is internationally responsible towards Ukraine, which generates legal consequences not only for Russia, but also for other States.

The recognition of Luhansk and Donetsk as States is unlawful

In March 2014, Russia occupied the Ukrainian region of Crimea, claiming it was necessary to protect the rights of Russian citizens residing there. In the same month, Russia annexed Crimea, after Crimeans voted to integrate with Russia in a controversial referendum (see here). Two months later, pro-Russian separatists in Donetsk and Luhansk declared themselves as independent States (see here).

donetsk Premium Photos, Pictures and Images by Istock — Donetsk. Credit: Gety Images/Stockphoto

The armed conflict between the Ukrainian government and the separatists have killed thousands of people since April 2014. Even if Russia has denied its involvement in the armed conflict, Ukraine and NATO have reported the presence of Russian troops near Donetsk, as well as cross-border military attacks from Russian territory (see here).

Russia recognised Donetsk and Luhansk as independent States on 21 February of this year, while the armed conflict between the Ukrainian government and the separatists was ongoing and the possible outcome of the conflict was still uncertain. In fact, only approximately one third of the territories of Donetsk and Luhansk were under the effective control of the separatists (see here). Both separatist regions have been completely dependent on Russia since 2014: Russia has distributed approximately 800,000 passports among residents of Donetsk and Luhansk; it has provided considerable financial support to the authorities of the separatist regions; these authorities adopted the Russian ruble as the official currency of the territory under their control; etc. (see here).

So, against this background, are Donetsk and Luhansk really States?

The criteria for statehood are laid down in the Montevideo Convention of 1933 and in customary international law. Neither Russia nor Ukraine is a State party to the Montevideo Convention, but they are bound by customary law, like any other State.

According to the Montevideo Convention and customary law, a State should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with the other States (generally interpreted by scholars as meaning independence of the other States) (see here).

It was evident for everyone, including Russia, that Donetsk and Luhansk did not meet the criteria for statehood at the time of Russia’s recognition: only a fraction of these regions was under the effective control of the separatists; and the separatists were in complete dependence of Russia.

Moreover, under international law, minority groups do not have the right to secede from the parent State, without the latter’s consent. In this situation, Ukraine has not consented to the secession of both regions.

Donetsk and Luhansk are thus not States under international law.

So, what are the legal consequences of the Russian recognition of the two separatist regions as States, under international law?

The recognition of a State by another simply means that the recognising State accepts the international legal personality of the other State, with all the attending international rights and obligations (see here), such as the right of sending and receiving diplomatic legations, treaty-making power, and immunity from domestic jurisdiction.

Recognition of States is an act of free will (see here); it is a sovereign act of States. However, recognition is lawful only if it is not made in breach of an international obligation.

States shall respect the sovereign equality of States – including their territorial integrity and political independence – and they are bound to not intervene in the internal affairs of another State (see here). These obligations have become part of customary international law (see here).

As noted above, Russia’s recognition was made when the separatists did not have effective control over a substantial part of the territories of the separatist regions, and when the possible outcome of the conflict was uncertain. In so doing, Russia’s recognition was premature and it was thus a breach of the principle of non-intervention (see here) and of the principle sovereignty equality of States.

For these reasons, Russia’s recognition of Donetsk and Luhansk constitutes an internationally wrongful act.

Why did Russia recognise both regions as States?

States do not admit violations of international law, at least not in public. To avoid international responsibility, they will typically deny the alleged facts, they will allege different facts, or they will put forward legal justifications.

Russia was obviously aware of the illegality of the act of recognition, but it needed to recognise those regions as States, in order to rely on the right of collective self-defence, as a legal justification for the upcoming armed attack on Ukraine.

The use of armed force against Ukraine by Russia is unlawful

As you probably know, the prohibition of the threat or use of armed force is a general principle of international law and one of the cornerstones of international relations.

And as you probably also know, there are two exceptions to the prohibition of the use of armed force: authorisation of the UNSC and the right of individual or collective self-defence (see here).

Russia claims to be using armed force in defence of Donetsk and Luhansk (see para. 15 of the submission to the ICJ by Russia and the Address by the President of the Russian Federation annexed to the submission, here).

Clearly, the argument is unpersuasive.

According to the UN Charter and customary law, the right of self-defence is triggered when an armed attack occurs against a State.

However, given that Donetsk and Luhansk are not States, they cannot exercise a right that they do not have and Russia cannot exercise the right of collective self-defence, because both separatist regions do not hold the right of self-defence in the first place.

Therefore, Russia’s conduct constitutes a breach of the prohibition of the use of armed force in international relations. In light of the scale of the military operations carried out by Russia and the number of victims so far, the use of armed force by Russia is so serious as to constitute an armed attack in the sense of the UN Charter and customary law, triggering the right of self-defence by Ukraine.

The UN General Assembly is about to start. Here's what to watch for - CNN — UNGA. Source: cnn.com

Also, given the nature of the armed attack, namely a military invasion of Ukraine, the armed attack by Russia amounts to an act of aggression (see here). It is thus unsurprising that last week the UNGA qualified the Russian invasion as an act of aggression (see here). States consider aggression so serious that the prohibition of aggression has become a rule of jus cogens, that is, a peremptory norm of international law from which no State can derogate (see here).

Legal consequences for Russia and third States

To sum up, Russia is internationally responsible towards Ukraine for the breach of the principle of non-intervention in the internal affairs of another, the principle of sovereign equality of States, and the prohibition of aggression. Consequently, considering the customary law of State responsibility (see here):

One, Russia is bound to revoke its unlawful recognition of Donetsk and Luhansk as States.

Two, Russia is bound to withdraw its armed forces from the internationally recognised borders of Ukraine (that is, including eastern Ukraine) and to refrain from any further unlawful threat or use of armed force against Ukraine.

Three, Ukraine is entitled as the injured State to invoke the responsibility of Russia for the breach of those international obligations.

Four, any State other than Ukraine is entitled to invoke the responsibility of Russia with respect to the breach of the prohibition of aggression.

Five, any State other than Ukraine has the right to adopt retorsion measures to ensure the cessation of the act of aggression, such as the broad range of economic and diplomatic sanctions adopted so far (see e.g. here).

Finally, the preceding considerations are without prejudice to any issue of individual responsibility under domestic or international criminal law. Think, for example, of the possible exercise of jurisdiction by domestic courts over war crimes, crimes against humanity, and the crime of aggression (see here), or the exercise of jurisdiction by the ICC over war crimes or crimes against humanity (see here).

Fabián Raimondo is Associate Professor of Public International Law (Maastricht University) and the Executive Editor of Maastricht Blog on Transitional Justice.