Legal wrangles pertaining to Russian invasion of Ukraine

| Updated: March 21, 2022 21:15:25

Legal wrangles pertaining to Russian invasion of Ukraine

As Russia continues to strike key cities in Ukraine, the humanitarian cost of the Russian invasion is steadily increasing. The number of people fleeing Ukraine has continued to rise.

The media has reported that consistent with statistics prepared by the United Nations the number of refugees from Ukraine since the invasion began on February 24 has, in all likelihood, reached more than 2 million. Of those, more than 1.2 million have entered Poland. Hundreds have also been killed in Ukraine, according to United Nations figures, with the real toll feared to be significantly higher.

This has led UN Secretary-General Antonio Guterres to tell the UN General Assembly, "The fighting in Ukraine must stop. It's raging across the country from air, land and sea. It must stop now, the guns are talking now, but the path of dialogue must always remain open."

It has been alleged that Russia was planning to invade Ukraine, insisting that it had legitimate security concerns about Kyiv's deepening alliance with the West and its interest in joining NATO. However, numerous rounds of talks between Russian, European and American officials have failed to end the impasse.

We have also seen how, after the invasion, the United States and its allies -- European Union, United Kingdom, Canada and some other countries -- have been piling sanctions on the Russian economy and hitting the Russian Central Bank with penalties.

All the criticism against Russian actions has recently led Moscow to approve a list of countries and territories taking "unfriendly actions" against Russia, its companies and citizens in the wake of severe economic sanctions over the Ukraine conflict. The list followed a presidential decree on March 5 allowing the Russian government, companies and citizens to temporarily pay foreign currency debts owed to overseas creditors from "unfriendly countries" in rubles.

 This dynamic with its different connotations have led several legal analysts to recommend that there is reasonable basis to believe that crimes occurred in Ukraine during the on-going conflict need to come within the purview of the International Criminal Court (ICC) for its consideration. Established in 2002, the Hague-based court investigates and prosecutes genocide, war crimes, and crimes against humanity. There is particularly a loud and growing chorus of calls for the International Criminal Court to pursue Vladimir Putin. This has also been reflected in the comment made by former Ukrainian Prime Minister Arseniy Yatsenyuk-- "I want to be very clear about this, that Mr. Putin is a war criminal. He has to sit behind the bars in International Criminal Court."

It would be fitting at this point to mention that the term genocide was coined by Polish-Jewish lawyer Raphael Lemkin in the 1940s, who lobbied the United Nations to recognise it as a crime in 1948. The definition of genocide, according to the UN, is "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such". This encompasses not only mass murder but the destruction of their way of life, separating children from parents and raising them separately, and stopping new members of the group from being born. Since genocide is seen as an exceptionally odious crime, particularly after the Holocaust, it is a powerful charge to throw at one's opponents, who will rarely admit to such a stain on their national honour.

When a missile is fired with a cluster bomb, it explodes thousands of feet in the air, releasing smaller bombs that each detonate when they fall to the ground. Amnesty International has pointed out that a Russian cluster bomb fell on a Ukrainian pre-school and caused massive damage. Similarly, Vacuum bombs, are thermo baric weapons, that suck in the oxygen from the surrounding air to generate a powerful explosion and a large pressure wave that can have enormous destructive effects. Russia previously used them in Chechnya.

On the other hand, it would also be necessary to note here that on February 16, the Investigative Committee of the Russian Federation opened a criminal case over four mass graves discovered in the Donetsk and Luhansk regions in Ukraine and claimed that these people had been murdered by Ukraine authorities only because they considered Russian as their native language. American officials apparently have repeatedly brushed off Moscow's claims as propaganda.

This evolving situation has led Karim Khan associated with the ICC to warn the warring parties that his Office has jurisdiction over Ukraine because the Ukrainian government accepted the ICC's mandate in 2015, despite the country initially not being a party to the Rome Statute that established the Court. He has also called Russia for "restraint and strict adherence to the applicable rules of international humanitarian law".

It would be fitting to point out that the International Criminal Court is located in the Hague, Netherlands, and was created through the Rome Statute. The ICC operates independently. Most countries in the world - 123 of them - are Parties to this Treaty, but there are very large and notable exceptions, including Russia and the US.

Interestingly, both the US and Russia are signatories to the Treaty that created the Court - meaning their leaders signed it - but neither is a member of the Court. Russia pulled out of the Court in 2016, days after an ICC report published a damning verdict on Russia's occupation of Crimea in 2014. The Court also launched a probe in 2016 into Russia's 2008 efforts to support the breakaway regions in Georgia. At the time, France had also accused Russia of committing war crimes in Syria.

As for the US, while President Bill Clinton signed the Treaty creating the Court in 2000, he never recommended the Senate to ratify it. The George W. Bush Administration, to a fair amount of criticism, also refrained from the US becoming a Party to the Treaty in 2002. The Pentagon and many US policymakers have apparently opposed for a long time joining such an international court system as it could open US service members to allegations of war crimes. The then White House press secretary Ari Fleischer said at that time- "The President (George W. Bush) thinks the ICC is fundamentally flawed because it puts American servicemen and women at fundamental risk of being tried by an entity that is beyond America's reach, beyond America's laws and can subject American civilians and military to arbitrary standards of justice."

However, opposing the United States joining the Court did not mean that the Bush Administration opposed the Court itself. It supported ICC efforts to seek justice for genocide in Sudan. Barack Obama also applauded ICC efforts to bring justice to people like former Serb General Ratko Mladic

It may be observed here that anyone accused of a crime in the jurisdiction of the court, which includes countries that are members of the ICC, can be tried. The court tries people, not countries, and focuses on those who hold the most responsibility: leaders and officials. Ukraine, as noted earlier, has accepted the Court's jurisdiction.

The ICC is meant to be a court of "last resort" and is not meant to replace a country's justice system. The Court, which has 18 judges serving nine-year terms, tries four types of crimes: genocide, crimes against humanity, crimes of aggression and war crimes. ICC also has specific definitions for genocide, war crimes, crimes against humanity and the crime of aggression. Legal analysts feel that specifically targeting civilian populations, specific groups of people and violating the Geneva Conventions could be potential Russian war crimes.

It has also been observed that Putin could, theoretically, be indicted by the Court for previously ordering war crimes in Crimea. There is however a theoretical difficulty in this regard. The ICC does not conduct trials in absentia. Consequently, if the Russian leader is to be tried by the ICC, he would either have to be handed over by Russia or arrested outside of Russia. That seems unlikely.

Referring to a possible new investigation into Russia's possible war crimes, the ICC has said it will look at all actions in Ukraine from 2013 to the present. This has been suggested because Russia first entered Crimea, which has been part of Ukraine, in 2014. A preliminary investigation into the hostilities in eastern Ukraine lasted more than six years - from April 2014 until December 2020. At that time, the prosecutor said there was evidence of war crimes and crimes against humanity but subsequent steps were slowed down by the Covid-19 pandemic and a lack of resources at the Court, which was conducting multiple investigations.

Russia has also not attended a hearing on March 7 convened by the International Court of Justice (ICJ) in the Hague, Netherlands to discuss the parameters of human rights violations in Ukraine resulting from the Russian invasion and Ukraine's request for an immediate halt to Moscow's intrusion in that country. The Ukraine delegation responded to Russia's absence in the hearings by stating that the "empty Russian seats speak loudly". It may be recalled that Kyiv filed the case shortly after the Russian invasion started on February 24. It accused Russia of illegally justifying its war by falsely alleging genocide in Ukraine's Donetsk and Lugansk regions.

The Court had set two days for urgent oral hearings at the Peace Palace in the Hague. However, the Russian Ambassador Shulgin responded to the Court that "his government did not intend to participate" in the hearings. The ICJ President Joan Donoghue has expressed regrets at this response. Ukraine authorities have drawn the attention of world leaders by pointing out that "Russia must be stopped, and the Court has a role to play in stopping the invasion". There are certain legal ramifications that need to be observed consistent with international law and the ICJ appears to have failed to do so.

Such an evolving scenario is clearly also being followed carefully by the Myanmar Army Authorities regarding the on-going cases in the ICJ pertaining to the Rohingyas and the injustice meted out to them by the authorities of that country. The ICJ, after nearly two years, has failed to take the expected judicial steps until now. Their latest hearings held in this regard in the last week of February this year at the Hague were also far from satisfactory. 


Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance.
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