International Criminal Court —the Central Figure of Transitional Justice? Tailoring Post-violence Strategies, with Special Reference to Ukraine (original) (raw)
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THE FUNDAMENTAL ROLE OF INTERNATIONAL (CRIMINAL) LAW IN THE WAR IN UKRAINE
Orbis, 2022
This article examines the most relevant decisions adopted at the international level, related to the conflict between Russia and Ukraine. It identifies possible solutions to prosecute and punish international crimes perpetrated in the country. It concludes that International (criminal) law and cooperation between states and international organizations will play a crucial role in the fight against impunity for those responsible for the worst atrocities carried out in the ongoing conflict.
e-publica, 2023
The armed conflict that began in 2022 between Russia and Ukraine provides a good case-study on how International Courts may be called to rule on wars. Shortly after the first large-scale attacks, Ukraine seized both the International Court of Justice and the European Court of Human Rights, asking for the enactment of judicial provisional measures aimed at suspending the Russian offensives. In this Article, the UN Court's order is studied in detail, as it may represent a landmark decision on the matter, due to its findings both on jurisdiction and on the merits, due to the number of intervenient States and also due to the complex questions that it deals with. The European Court of Human Rights also enacted a decisive measure in this regard. However, there is the risk that both decisions remain mainly symbolic, as their enforcement remains a mirage one year after the beginning of the war.
The Effects of the Ukrainian War on the Legal System and International Order
Strategic Impact
Russia’s invasion in Ukraine, in February 2022, marked the re-emergence of war as a social phenomenon on the European continent, but it also represented a clear signal of challenging the international order based on the UN legal system. Moreover, the continuation of this conflict, despite the measures taken by the international community, has triggered doubts regarding the system’s degree of functionality underlying the international order, in the context of new global challenges. Also, as the conflict in Ukraine prolongs, the policies of the great powers, but also that of small and medium-sized states fearful for their survival, are changing, which will obviously lead to a recalibration of the international order. Therefore, the purpose of this research focuses on establishing the degree of resilience of the current international security system and what transformative trends are identified in the international law system and in the global order in general, but also as effects of t...
Unfinished Business: Acceptance of International Criminal Justice in Ukraine
Since Russia’s seizure of Crimea and the beginning of the armed conflict in eastern Ukraine, many in Kyiv have taken to the idea of enlisting the help of the International Criminal Court (ICC) in The Hague to punish those responsible and discourage further belligerence. Political leaders in Ukraine, including President Poroshenko, like to publicly invoke ‘The Hague’ as a judicial instance of last resort when describing the future of President Putin, senior Russian officials, the militants in parts of the Donbas region, and those responsible for the killings during the Euromaidan protests. At the same time, the widespread use of such a vague term as ‘The Hague’ or ‘The Hague tribunal’ to mean the International Criminal Court indicates that many Ukrainians – including senior officials – do not understand what the ICC stands for and how it works. At the same time, due to the lack of experience of Ukrainian national courts in prosecuting international crimes, the unprecedented scale of crimes committed, and the general lack of confidence in the judiciary, the ICC may be an important transitional justice mechanism for Ukraine.
War Crimes Committed During the Armed Conflict in Ukraine: What Should the ICC Focus On
"The Use of Force against Ukraine and International Law: Jus Ad Bellum, Jus In Bello, Jus Post Bellum", T.M.C. Asser Press, 2018
Despite the claims that the ongoing armed conflict in Ukraine has become a “frozen zone”, the reality demonstrates such a characterization runs afoul of the facts: hostilities continue on, with the increasing number of cases of massive human rights violations following the use of force by the Russian Federation in Crimea and its participation in the conflict in Eastern Ukraine. According to multiple reports, those violations in many cases amount to war crimes. It is thus necessary to ensure a proper compliance with legal rules applicable in the course of armed conflict, i.e., rules of international humanitarian law. Making sure the perpetrators of such crimes are brought under proper responsibility in accordance with relevant international criminal law standards is of equal importance. The matter of analyzing and properly qualifying the human rights violations as crimes under the jurisdiction of the ICC will be a central substantive task of the Prosecution team and the Court if the situation makes it to the case. This Chapter deals with the qualification of war crimes as pertains to the armed conflict in Ukraine. Its main aim is to consider the relevant IHL norms and apply them to the alleged acts. This is instrumental in a proper determination of what criteria could be helpful for the ICC in ensuring the criminal responsibility of those who committed – and continue to commit, the horrible acts on both sides of the conflict. Eventually, the Chapter will argue that adjudicating war crimes committed in Ukraine by all parties at the ICC level represents an imperative task if the claimed purpose of international criminal law to bring the perpetrators of international crimes to justice is viable at all.
2017
The present research looks into the inter-state and quasi-inter-state cases examined by the European Court of Human Rights (“the Court”) linking them with the context of Ukrainian conflict in Crimea and its Eastern part. It puts emphasis on the challenges that the Court has met in its previous cases, from the perspective of the States in dispute, and wonders on the outcomes of the Ukrainian inter-State and quasi-inter-State pending litigations. The paper observes briefly the executional perspectives and, finally, proposes some short-term scenarios of how these litigations may evolve. It starts by a general introduction into the contexts and developments of inter-state and quasi-interstate adjudication under the European Convention on Human Rights (“the Convention”), underlining in particular aspects relevant for the pending Ukrainian disputes. Then it outlines the general question of extraterritorial States’ jurisdiction and the Court’s specific interpretation from the Convention Human Rights Law perspective, in comparison to general meaning as given by other international adjudication bodies. All relevant elements from both summaries are supported by the Court’s case-law leading cases. Turning to the Ukrainian conflict situation, the paper surveys landmark Convention cases concerning the so-called “frozen conflicts”, reflecting rather the Court’s reasons between the lines and behind its official rulings; what tactic the Court usually employs dealing with the inter-States disputes and how these cases have been evolved so far under the Convention mechanism, including their execution stage. The paper will list similar zones with “on-going” and/or “frozen conflicts” that already gave raise to systemic problems and massive violations leading to multiple cases being brought before the Court (such as the Transnistrian region of the Republic of Moldova; the Nagorno-Karabakh region of Azerbaijan and its conflicting jurisdiction with Armenia; the Northern Cyprus region and the extensive jurisdiction of Turkey, as well as Abkhazia and South Ossetia, conflictual zones of Georgia). The author assesses how the autonomous interpretation of the jurisdiction under the Court’s case-law has been applied to all these cases and, therefore, what are the effects in terms of the state’s positive or negative obligations under the Convention in these zones. Then, the paper will illustrate types of cases and applications coming from conflictual zones, in particular inter-State cases and individual applications, which may become quasi-inter-States disputes. In the end, the present paper dares to make some assumptions concerning a potential development of the Ukrainian human rights complaints brought before the Court (be that inter-State or quasi-inter-State cases). It will be mainly a hypothetical exercise and speculative scenario, which however will be construed on the above research and overview of the previous cases. It will refer solely to the on-going international disputes over the Crimea region and military conflicts in the Eastern regions of Ukraine, from jurisdictional perspective of both States in dispute. However, no valuable predictions will be possible concerning the merits of the Ukrainian cases and the executional reaction, though some general ideas and examples will be mentioned.
FUTURE OF INTERNATIONAL LAW: Ukrainian war (Atena Editora)
FUTURE OF INTERNATIONAL LAW: Ukrainian war (Atena Editora), 2022
International law is a specific branch of law that, perhaps more than others, is confronted with geopolitical reality. Furthermore, despite the undeniable advance of dogmatics and the realization of paradigms of respect for human rights after the formation of the United Nations and the establishment of several rights and the creation of numerous international organizations, the war in Ukraine raises questions about the limitation of the right international law to avoid violating universal rules. Certainly, Russian action is contrary to international law, it vilifies Ukrainian sovereignty, the self-determination of peoples, human rights, the United Nations Charter and the 1949 Geneva Conventions. However, the crucial question arises for international law, what consequences can come in the face of such Russian mockery against the principles of law. In this sense, international law institutes and their possible consequences will be analyzed.
International and Comparative Law Review
Summary This commentary discusses the decision taken by the Prosecutor of the International Criminal Court (ICC) to open an investigation into the situation in Ukraine on the basis of referrals by a number of state parties to the Rome Statute. In particular, it is interested in the prior decision that the Prosecutor had to make and actually made for that move to be procedurally possible. Indeed, the Prosecutor had to renounce to his steps towards an investigation proprio motu, i.e. on his own initiative. The most important of these steps was the request of judicial authorisation by the ICC Pre-trial Chamber. This commentary argues that for that reason, the Prosecutor’s decision was ill-advised, despite being in conformity with the Rome Statute. It argues that in that specific situation where neither Ukraine nor the Russian Federation are parties to the Rome Statute and where the Security Council has not and could not play its Rome Statute role, judicial oversight was an important – ...
International Law After Ukraine: Introduction to the Symposium
AJIL Unbound
The Russian invasion of Ukraine has brought on unspeakable suffering. It has already injured and killed scores of people. It has displaced millions who now face an uncertain future. It raises the specter of all-out cyber war that threatens to draw other countries into the conflict. It is raging not only on the ground in Ukraine, but also on internet platforms where disinformation has spread. It tests the resilience of international partnerships and alliances. Beyond these immediate implications, the Russian attack on Ukraine also violates the prohibition on aggressive use of force, a foundational principle of the post-World War II international order. Facing these alarming prospects, many are pessimistic about what the war in Ukraine may portend for the future of international law and international relations. Surprisingly, however, some of the bleakest predictions have not yet been realized. Quite the contrary. We argue that there is a lot to be optimistic about when it comes to the...
This article aims to study the challenges faced by the ICJ in the international dispute resolution processes by analyzing the case between Ukraine v. Russia emphasizing the decision of the court on claims of provisional measures to stop Russian military operation in Ukraine. The qualitative approach was utilized in this research referring to both primary and secondary sources. The finding shows that ICJ has been facing challenges which is revealed in Ukraine's case too. Regardless of the marvelous efforts of ICJ, state parties are quitting the jurisdiction of ICJ by rejecting the principle of international law of treaties. Besides, the gap in institutional independence in the process of election of judges has involved the veto power of the Security Council which is a political organ. Even more, the election of ad hoc judges is based on the intention of national representation. To this effect, the verdict on Ukraine's claim has been decided by the split majority vote and judges' individual independence in decision-making has been influenced by national interest, the political orientation of judges, ideology, and, diplomatic relations of states. The worst is that the judgment enforcement UN Security Council's structural posture caused failure to execute decisions.