In recent days, we have sat at our desks, transfixed by the news on the television, in the newspapers, and all over the internet regarding the Russian invasion of Ukraine.
For members of my generation, this is the second time in living memory that there has been a large-scale armed conflict on European soil, the first being the Balkan war of the early 1990s. The current armed conflict is far more unpredictable, as we are unsure of what Russian president Vladimir Putin hopes to gain from his invasion of Ukraine.
Does he want to annex Ukrainian territory that is home to Russian speakers, or does he want to take over the whole country?
Regardless of Putin’s motives, the international community should take all action possible to end the armed conflict and bring humanitarian relief to civilians, to the soldiers who have been injured, and to the people who have taken up arms to participate in the hostilities.
Similarly, international institutions should take all measures to uphold international peace and security.
Russia’s invasion of Ukraine has been universally condemned as illegal under international law. It violates Article 2(4) of the United Nations Charter, which prohibits the use of force, and potentially Article 8(bis) of the ICC Rome Statute, which defines the crime of aggression. Russia is not a State Party to the ICC, so the Court cannot exercise jurisdiction over the crime of aggression in the present context.
Earlier this month, Chatham House, a think tank located in London, convened a high-level panel to discuss what will inevitably be a vital issue in the future: accountability for alleged international crimes being committed in Ukraine. The central question was whether a new tribunal should be established with jurisdiction over the crime of aggression. Commentators included former prime minister Gordon Brown and Ukrainian foreign minister Dmytro Kuleba. Foreign minister Kuleba’s participation was short, as he joined the webinar from a vehicle against the backdrop of the active invasion.
The need to discuss whether a new tribunal should be established shows the paralysis of the international community, namely the United Nations Security Council and the International Criminal Court. It is unlikely that either the ICC or the Security Council will be able to take definitive action regarding international criminal accountability for acts of aggression committed during the invasion.
Although Ukraine is not a state party to the ICC, it has issued two declarations accepting the Court’s jurisdiction over Russia’s 2013-2015 invasion and annexation of Crimea. Therefore, ICC may exercise jurisdiction over some of the crimes in its Statute, such as war crimes in cases that may arise regarding Ukraine.
However, the ICC cannot exercise jurisdiction over the most important issue at hand: aggression. Similarly, the Security Council cannot issue a resolution mandating UN member-states to act in this situation. Russia is a member of the permanent five members of the Security Council and has the power to veto such a resolution. The international institutions that could otherwise impose potential criminal investigations and prosecutions are simply unable to do so.
With the Security Council and the ICC effectively impotent for the time being, the international community has nowhere to go within the existing international framework. This situation also points to a crucial failing and gap in the ICC and the United Nations frameworks, specifically with regards to holding individuals criminally accountable for violations of international law.
How, then, can Putin be brought to justice? In the Chatham House discussion, Professor Philippe Sands, an active practitioner, proposed an innovative solution that might fill the gap: an agreement might be entered between the United Nations and the government of Ukraine. Such an agreement would form the basis of an international criminal tribunal with jurisdiction over the crimes being committed in Ukraine. Another option might be enlisting the support of the European Union in forming a tribunal or a special court, such as the Kosovo Specialist Chambers.
There is cause for legitimate concern regarding the selectivity of international justice in establishing a tribunal potentially focusing on Ukraine and not on other international acts of aggression. However, the bottom line is that people are suffering in Ukraine, and the architects of the invasion should be investigated and prosecuted, including Vladimir Putin. This should be done now. After World War II, the international community said, ‘never again’. We must live up to that statement.
* Parisa Zangeneh is a PhD student at NUI Galway.
