By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
Last month, I mentioned how both the United Nations’ International Court of Justice (ICJ) and the International Criminal Court (ICC) are taking action on the war in Ukraine. During April, we saw more developments.
First, there has been the continued news of war crimes committed against civilians, especially in Mariupol, Bucha and Kharkiv. Second, the ICJ issued a decree ordering Russia to cease all of its hostilities in Ukraine. The ICJ also noted that there was no proof of a planned genocide by Ukraine against ethnic Russians in eastern Ukraine, as Russia has claimed.
The ICJ Grants Ukraine’s Request for Provisional Measures
The International Court of Justice made a decision in mid-March, with the majority of the justices (13 out of 15) granting Ukraine’s request for provisional measures. The ICJ – with the abstention of the Russian and Chinese justices – decided that Russia seems to have no basis for the genocide claims it has made and should therefore stop the “military operation” it is conducting in Ukraine to allow for an investigation.
The ICJ President, Joan Donoghue of the United States, read the decision finding that the ICJ has jurisdiction based on the 1948 “Convention on the Prevention and Punishment of the Crime of Genocide,” otherwise known as the “Genocide Convention.” The Court also found that Ukraine is linked to the treaty and that stopping the Russian military operation in Ukraine should be ordered.
According to the ICJ’s decision, “The Court considers that the civilian population affected by the present conflict is extremely vulnerable. The ‘special military operation’ being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries.
“It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population.
“Many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.”
The minority opinion of the Russian and Chinese justices was based on the opinion that the Ukrainian position is based on a question of use of force, not the Genocide Convention. With this line of thinking, Russian activities in Ukraine would be outside the jurisdiction of the ICJ.
This decision from the ICJ is binding, but Russia refuses to follow it. Consequently, the ICC has begun a criminal investigation of Russian war crimes in Ukraine.
The ICC’s Investigation into Russian Crimes in Ukraine
Reports of war crimes have begun to surface in recent weeks, and those crimes quickly attracted the attention of the ICC. The reports include testimonies of mass violations of human rights of civilians caught at the war’s front and in the besieged cities of eastern Ukraine. Reports by The New York Times and other news outlets uncovered evidence pointing to mass murders of civilians by Russian troops.
According to the Associated Press, for instance, hundreds of civilians died in Bucha in Ukraine. The Associated Press reported, “Now that the Russians have left, bodies are being collected by searchers wary of booby traps and mines. The body bags are placed in rows at a cemetery.
Some bags aren’t fully closed. A glimpse shows the bloodied face of a young person. Another shows a pair of white sneakers. Mayor Anatoliy Fedoruk said the count of dead civilians was 320 as of Wednesday. Most died from gunshots, and some corpses with their hands tied were ‘dumped like firewood’ into mass graves.”
These reports caused the chief prosecutor of the ICC, Karim A.A. Khan, QC, to decide that an investigation of war crimes is warranted. Multiple ICC members requested this investigation.
According to Khan, “With an active investigation now underway, I repeat my call to all those engaged in hostilities in Ukraine to adhere strictly to the applicable rules of international humanitarian law. No individual in the Ukraine situation has a license to commit crimes within the jurisdiction of the International Criminal Court.”
What Is Next in the Prosecution of Russia?
As I tell the students in the international law courses I teach in the University, the force of international law is connected to the international resolution to enforce it, which is an outcome of realpolitik. The ICJ has the power to ask for international arrest warrants against Russian officials.
The ICC decision can be brought to the UN’s Security Council, which can order sanctions against Russia even though that decision could be influenced by Russia’s veto power in the UN. Also, UN member-states can use the information discovered in the ICJ’s investigation in their own jurisdictions to prosecute Russian officials and seize Russian assets in certain situations. The question is: Will we see other nations using their political will to take action against Russia?
There are procedural obstacles to taking action against Russia for its activities in Ukraine. Also, the ability of the UN to sanction Russia is limited by Russia’s veto power. Some Russian officials will likely be protected by immunity, and many nations do not have the laws that enable them to prosecute crimes committed by Russia outside their jurisdiction.
Ultimately, however, there is enough legislation in place to take some action against the Russian Federation. It seems the Russian government has cause for concern in the future.