Update: On March 16, the International Court of Justice ordered Russia to halt its invasion of Ukraine. As detailed in the article below, the ruling is largely symbolic, but is nonetheless important as it expresses the conscience of the world.
Is there a legal remedy for Russia's brutal invasion of Ukraine?
The answer, sadly, is probably not. International law consists of a constellation of treaties, conventions, customs, rules of commerce and engagement, and high-minded principles. All, however, are dependent on the voluntary cooperation of sovereign nations, especially the great powers. In times of war, the law of the jungle all too often prevails.
In the short run at least when it comes to Ukraine, the jungle has overtaken the rule of law. Yet even as the carnage accelerates, there are some hopeful signs in the legal proceedings currently underway at the world's two most prominent tribunals--the International Court of Justice (ICJ) and the International Criminal Court (ICC), both of which are based in The Hague, Netherlands.
On March 7, the ICJ held a public hearing on the invasion in response to Ukraine's emergency request for the issuance of "provisional measures," the rough equivalent of a preliminary injunction, to stop the invasion. A decision could be rendered in a matter of days. In the meantime, the ICC has opened what promises to be a lengthy investigation into the conflict, focusing on the commission of war crimes, crimes against humanity and allegations of genocide.
I have more than a passing familiarity with both institutions. In 1985, I traveled to the ICJ to report on the case of Nicaragua v. United States. In 2014, I turned my attention to the ICC, conducting a series of interviews with human-rights experts and court personnel, and writing a set of columns on Palestine's request for an investigation of alleged Israeli war crimes.
These experiences have given me a deep appreciation of the strengths and weaknesses of both courts.
Also known as the "World Court," the ICJ sits in the Peace Palace, a regal red-brick Neo-Renaissance mansion that opened its doors in 1913. The court is the principal judicial organ of the United Nations, and is the successor of the Permanent Court of International Justice, which operated under the auspices of the League of Nations from 1920-1945.
Like its predecessor, the ICJ hears disputes between nations. It does not hear cases involving individuals.
Since convening its first disputed matter in 1947, a maritime controversy between the United Kingdom and Albania over the Corfu Channel, the ICJ has heard some 182 cases. Many have involved boundary, aviation and fisheries disputes, but a few have addressed weighty issues such as charges of genocide and human-rights abuses in the former Yugoslavia, Iran and elsewhere.
Although every member of the United Nations is also a member of the ICJ, not all contested cases are submitted to the court for resolution. The court's jurisdiction is limited by the provisions of the U.N. Charter. It can hear contested cases involving countries that have assented to its compulsory jurisdiction or have agreed to submit disputes to it under the terms of international treaties that they have signed. The court also can issue advisory opinions on legal issues at the request of the U.N. Security Council.
The court is composed of 15 judges elected to nine-year terms by the U.N. General Assembly and the Security Council. Joan Donoghue, an American lawyer, has served as a judge on the court since 2010. She was elected as its president in 2021.
Currently, 73 countries have accepted the ICJ's compulsory jurisdiction. They include most of the nations of western and northern Europe. The Russian Federation and the U.S. do not recognize the court's compulsory jurisdiction.
The court's jurisdiction on the Ukraine invasion has been invoked under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both Russia and Ukraine have signed. Ukraine argues not only that the court has jurisdiction to entertain the case under the convention, but also that Russia has used false claims of Ukrainian genocide committed in the eastern Donbas region as a pretext to justify what has now become a full-scale invasion of the entire country.
Ukraine is asking the court to order Russia to immediately suspend its military operations. Judging from the tone and tenor of the March 7 hearing, the ICJ appears poised find it has jurisdiction, and to issue the requested order. Should the court do so, the case will move to a trial on the merits, at which stage, if Ukraine is again successful, the court could order Russia to make reparations for the catastrophic damage it has inflicted on Ukraine's economic infrastructure and the enormous and mounting loss of innocent life it has caused.
Apart from its advisory opinions, the ICJ's decisions are technically binding on all parties. Enforcement of the court's decisions, however, is left to the Security Council. And since Russia is a member of the council and every council member wields veto powers, Russia is certain to block any remedies from being implemented.
In many respects, the Ukraine case is similar to the application brought by the Sandinista government of Nicaragua against the United States. In 1984, Nicaragua took the U.S. to the ICJ, charging the U.S. with violating international law by arming the Nicaraguan Contras and mining the country's harbors. After the ICJ determined it had jurisdiction to hear the controversy, the Reagan administration withdrew from the court's compulsory jurisdiction and refused to appear for the subsequent trial on the merits, which took place in 1985 the absence of the U.S. In 1986, the ICJ issued a final ruling in Nicaragua's favor and awarded reparations to the Central American nation--a debt now estimated at $17 billion that the U.S. has yet to pay.
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Following the U.S. playbook, Russia notified the ICJ on March 1 that it would boycott the hearing on Ukraine's request for provisional measures. As a result, the court canceled a session originally set for March 8 to consider Russia's side of the case.
In an open letter released in late February, Russia's longtime legal counsel at the ICJ--the renowned French human-rights lawyer Alain Pellet, who I met at the Peace Palace in 1985 during the Nicaragua trial--declared that he could no longer work for his former client. Pellet wrote: "...enough is enough...lawyers can defend more or less questionable causes. But it has become impossible to represent in forums dedicated to the application of the law a country that so cynically despises it."
Although Russia undoubtedly will ignore the court's ultimate findings, it will do so at its long-term peril. A decision against Russia will strengthen the sanction regime imposed by the international community, and will isolate Russia from the modern world for decades to come.
The ICC was founded after a 1998 conference attended by 160 nations in Rome. The conference produced an agreement known as the Rome Statute, which took effect in July 2002, establishing the ICC as the first treaty-based international criminal court for the purpose of investigating and trying individuals — both governmental and non-state actors — accused of genocide, war crimes, crimes against humanity and crimes of aggression, as defined by the Geneva Conventions, the Rome Statute and other sources of international law. The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those convicted.
Although the ICC is affiliated with the United Nations, it is legally independent. An agreement reached in 2004 permits the U.N. Security Council to refer cases directly to the ICC. The court is also authorized to conduct investigations at the behest of member states, or at the request of a non-member state that willingly submits to the court's jurisdiction.
Today, 123 nations are parties to the Rome Statute, acceding to the ICC’s jurisdiction. Membership in the court and cooperation with the enforcement of its judgments are voluntary. The tribunal has no police or arrest powers of its own.
The United States signed the Rome Statute in 2000 but withdrew from it in 2002 over fears that the court would one day charge American soldiers or officials with international crimes. Russia withdrew in 2016 after the court issued preliminary findings that classified Russia's takeover of Crimea and hostilities in the Donbas region as international conflicts warranting further investigation.
The ICC consists of 18 judges elected by its Assembly of State Parties. It also employs a full-time independent prosecutor. The current chief prosecutor is Karim Khan, a London-based barrister who took office last year.
On March 2, Khan announced he was opening an investigation into the war in Ukraine after receiving requests from 39 state parties to the Rome statute, an unprecedented number. Khan pledged to “immediately proceed” to probe alleged war crimes perpetrated in Ukraine by any and all individuals dating back to 2013, when protests erupted against a Russia-friendly government in Kyiv.
According to the its website, the court has opened 30 cases since its inception, with some cases having more than one suspect. ICC judges have issued 35 arrest warrants, including those for the apprehension of Ugandan rebel leader Joseph Kony, and the deceased Libyan strongman Muammar Gaddafi. As a result of cooperation from member states, 17 people have been detained in the ICC's detention center in a Dutch prison complex on the outskirts of The Hague. Thirteen suspects remain at large.
Trials afford defendants due process protections similar to those in the U.S. No trials are conducted in absentia. To-date, the court has returned ten convictions and four acquittals. Upon conviction, defendants are transferred to prisons located in member states outside the Netherlands.
The ICC has been criticized for targeting African human-rights violators and overlooking European and American malefactors. But in an important turnabout, the court opened investigations in 2020 into alleged war crimes committed in Afghanistan, and Israel and Palestine. The Trump administration responded by revoking the visas of the court's lead and assistant prosecutors and freezing their U.S. assets. The Biden administration lifted the sanctions, but continues to oppose both probes.
Khan appears determined to be more aggressive than his predecessors. As the Ukraine investigation gets underway, he has appealed not only to legal experts for relevant evidence to determine if indictments should be issued, but to members of the general public. Anyone with information can email his office via email@example.com.
The fact that Russia is not a member of the ICC will not insulate either its soldiers, their commanding officers or Vladimir Putin himself from charges of war crimes, crimes against humanity or genocide. Under the terms of the Rome Statute, aiders and abettors--including those who provide the means for the commission of crimes--can be held as accountable as direct perpetrators. [The crime of aggression is off the table, however, as the Rome Statute limits prosecutions for that offense to nationals of member states.]
What this means for Putin and his cronies is that once indicted, they will remain subject to arrest if apprehended in the territory of a cooperating member state. We may never see Putin in the dock, but given the growing and overwhelming worldwide condemnation of the war, it's a possibility that can no longer be dismissed.
As Americans, we can do our part for peace by demanding an end to the war. We can also insist that that our government accept the compulsory jurisdiction of the ICJ, and sign the Rome Statute to become a member of the ICC. As moral beings who value human life, we have a duty to do no less.