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Ukraine has few legal options to hold Russia accountable for invasion

Despite the expansion of international law since World War II and the establishment of a variety of courts aimed at settling conflicts between nations, it is unlikely Russia will face legal consequences for its invasion of Ukraine.

THE HAGUE, Netherlands (CN) — Early on Thursday morning, Russian forces invaded Ukraine while the world watched on in horror. While many ask how this is possible in 2022, legal experts see few avenues to bring Moscow to justice. 

President Joe Biden has called the full-scale attack on Ukraine “a flagrant violation of international law." His words are technically correct, as the United Nations charter forbids acts of aggression. But there’s no clear path to hold any person or the Russian state legally liable for the ongoing attack.

The International Criminal Court

The world’s only permanent court for atrocity crimes would seem like the exact place the perpetrators of an illegal invasion would be brought to justice. The International Criminal Court already has an investigation open into the conflict in Ukraine, but The Hague-based court also has a complicated history with the crime of aggression.

Aggression is one of the core crimes established by the Rome Statute, which created the court in 2002. But ICC member states couldn’t agree on a definition of aggression, according Astrid Coracini, a senior lecturer in international law at the University of Vienna. So they kicked the can down the road, including the crime in the treaty but only later creating a definition at the Kampala Review Conference in 2010. The definition includes a carve-out for non-member states, mostly as a concession to the United States. The Russian Federation isn’t a party to the Rome Statute, so no act of military aggression it perpetuates could be prosecuted at the court. In a press release late on Thursday night, the court confirmed that it could not act. "The court cannot exercise jurisdiction over this alleged crime in this situation," chief prosecutor Karim Khan said in a statement. 

However, if Russia, or Ukraine, commits other crimes covered by the Rome Statute – for example, war crimes such as recruiting child soldiers or pillaging – the ICC could get involved. Ukraine is also not an ICC member but has given the court permission to investigate crimes on its territory since 2013.

Coracini says the court could either amend the existing investigation, in which outgoing prosecutor Fatou Bensouda found there was a reasonable basis for violations, or open a separate investigation into the latest conflict. 

The United Nations
There is another route to The Hague, namely through the U.N. Security Council, which can refer matters to the ICC for investigation. That requires a unanimous vote, and since Russia is a permanent member of the council that seems exceedingly unlikely.

"For any meaningful action, you need approval from the Security Council. And Russia will veto it,” said Tamsin Phillipa Paige, senior lecturer at Deakin University School of Law in Australia. 

Russia’s membership on the council would also prevent the U.N. from establishing an ad hoc tribunal to prosecute any crimes that occur during the conflict, as it did with Rwanda and the Former Republic of Yugoslavia. 

Like the Rome Statue, the U.N. charter also outlaws the crime of aggression. According to the first article, the purpose of the U.N is to maintain international peace and security, and to that end "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.”

Acts that violate the charter, like invading another country, can only be brought to the International Court of Justice, or ICJ, the principal judicial organ of the U.N., if both parties have opted in. Neither Russia nor Ukraine have signed the so-called optional clause declarations. 

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The World Court
A number of human rights treaties also direct conflicts to the ICJ, also known as the World Court, which is located near the ICC in The Hague. The court ruled in 2019 that it had jurisdiction to hear a dispute between Ukraine and Russia over Moscow's funding of rebel groups in eastern Ukraine and discrimination against an ethnic group in the annexed Crimea region. Those complaints were brought under two treaties: the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. Neither of them, nor any other treaties the court adjudicates, forbid the crime of aggression, according to Ori Pomson, a researcher in international law at the University of Cambridge. 

If Russia commits other violations, like genocide, Ukraine could complain to the ICJ. But not immediately – many treaties require countries to go through mediation before bringing their dispute t the court. 

The U.N. General Assembly could ask the ICJ for an advisory opinion on the Russian invasion. Though not legally binding, it does “carry a lot of weight,” said Pomson. According to U.N. rules, the assembly, the main policy-making body of the U.N., can’t take up matters that are currently before the Security Council. As the group was meeting on Thursday, Russian President Vladimir Putin announced his invasion into Ukraine. 

Ukraine has been floating an idea to attempt to remove Russia from the Security Council. The normal path to removing a member requires unanimous consent, meaning Russia would have to vote itself out, which is unlikely. Instead, some have been claiming that the Russian Federation is not the legitimate successor to the U.S.S.R., which was given the seat in 1945. Following the fall of the Soviet Union, however, a number of former Soviet states signed an agreement declaring the Russian Federation as the successor state.

Paige, an expert on the workings of the council, finds the idea unworkable.

The European Court of Human Rights
Unlike the ICC or the ICJ, both Russia and Ukraine are full members of the European Court of Human Rights. Established in 1959 by the European Convention on Human Rights, the Strasbourg-based court adjudicates political and civil rights disputes among its 47 member states. 

Ukraine has already brought multiple complaints against Russia for the annexation of Crimea and incursions into eastern Ukraine, joined by the Netherlands in a case over the 2014 downing of Malaysia Airlines Flight 17. However, Isabella Risini, a visiting professor at the University of Augsburg in Germany, said the crime of aggression or even the use of military force more broadly is not outlawed by the convention.

“There is no prohibition on the use of force,” Risini said. In fact, even prominent human rights organizations like Amnesty International and Human Rights Watch have taken a neutral stance on the use of military force. 

Individuals could bring complaints against Russia or Ukraine if they are injured or their property is destroyed. But that wouldn’t hold Moscow to account for the invasion, only for damage resulting from it. The three Ukrainian government cases and the more than 8,000 individual cases against Russia at the human rights court stem from allegations that it unlawfully detained Ukrainians and suppressed the Ukrainian language in schools in the occupied territories, among other claims. 

Elsewhere
The Russian Federation itself outlaws the crime of aggression, so Russian officials could be held to account in their own territory. That option only seems likely in the event of regime change in Moscow.

Ukraine does as well, and Kyiv has prosecuted a few Russian nationals for the conflict in eastern Ukraine and the annexation of Crimea. Those trials have been largely held in absentia or were of low-level personnel who were ultimately returned to Moscow in prisoner swaps. 

Marieke de Hoon, a law professor at the University of Amsterdam, is curious about what other countries will do. Under the legal principle of universal jurisdiction, some egregious crimes can be prosecuted in national courts regardless of where they occur. 

“A number of countries have outlawed the crime of aggression,” de Hoon said, including Germany, Sweden and the Netherlands.

The crime of aggression is one committed by leadership. Rank-and-file soldiers aren’t expected to understand whether a conflict is legal, unlike other violations such as torture or murder. Most countries require the perpetrator to be within their borders to arrest them, meaning Putin or other high-ranking officials would need to travel to Amsterdam or Berlin to be arrested.

It doesn’t seem likely any of them are taking a vacation soon.

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