Global Impact of the Ukraine Conflict: Perspectives from International Law 9819943736, 9789819943739

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Shuichi Furuya Hitomi Takemura Kuniko Ozaki   Editors

Global Impact of the Ukraine Conflict Perspectives from International Law

Global Impact of the Ukraine Conflict

Shuichi Furuya · Hitomi Takemura · Kuniko Ozaki Editors

Global Impact of the Ukraine Conflict Perspectives from International Law

Editors Shuichi Furuya Waseda Law School Waseda University Tokyo, Japan

Hitomi Takemura Graduate School of Law Hitotsubashi University Tokyo, Japan

Kuniko Ozaki Faculty of Law Chuo University Tokyo, Japan

ISBN 978-981-99-4373-9 ISBN 978-981-99-4374-6 (eBook) https://doi.org/10.1007/978-981-99-4374-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

The invasion of Ukraine by the Russian Federation on February 24, 2022, and the subsequent military campaigns entail several classical aspects of armed conflict. First, it is a type of international armed conflict between two sovereign States that had been prevalent until the middle of the twentieth century but not in the last several decades. It is also a direct intervention by a superpower into a neighboring State with the former’s aspiration of territorial expansion. This action evokes a scheme of war reminiscent of the nineteenth or early twentieth century. At the same time, however, the invasion is generating in the international community a sense of new phenomena, leading to a new era that may be different from the past three decades following the end of the Cold War. In fact, the hostilities between the Russian Federation and Ukraine, as well as reactions by other States and international organizations, have raised legal and political issues that require scholars to reexamine existing frameworks of the international community and individual rules of international law. The process of applying international law to States is a dynamic one. Rules of international law may and should regulate the behavior of States and provide standards to decide whether a particular act by a State is permissible. At the same time, however, States may change or replace existing rules, and a significant event or series of such events may be a strong motivator to create a new legal framework. In this regard, rules of international law and the conduct of States are in a dialectical relationship. International law can both shape a mode of conduct and be shaped by that conduct—being its creator as well as its creation. The Ukraine conflict is not an exception. We can discuss the conduct of the Russian Federation, Ukraine, other States, and international organizations and evaluate their legality and legitimacy from the viewpoint of existing rules. However, we may also reevaluate the current rules of international law through the lens of the Ukraine conflict and discuss possible changes to those rules in the future. Inspired by the latter aspect of the international legal process, the present book aims to examine the impact of the Ukraine conflict, whether salient or potential, on various rules of international law. Most of the authors are from Japan and other Asian countries that are geographically remote from the site of the conflict. It is often true, however—and particularly in this case—that those keeping an appropriate distance v

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can look at relevant issues in a broader view and from a more objective perspective. To what extent and in what manner may the Ukraine conflict have an impact on the legal framework of the international community and the rules of international law? This book is the first to answer those questions in a comprehensive manner. The book is composed of four parts which include several chapters examining the various impacts identified in some relevant fields of international law. Part I discusses the impact on the existing rules relating to the prohibition on the use of force. From the theoretical point of view, it examines whether and, if any, in what ways the invasion has affected and/or is affecting the application and interpretation of the UN Charter, relevant customary law, and rules concerning State responsibility. It also attempts to evaluate the activities of the UN organs and the reactions of other States. While the Security Council could not work facing the alleged violations by one of the permanent members, the General Assembly convened its Emergency Special Session relying on the “Uniting for peace” resolution. The International Court of Justice is dealing with the issue of whether the invasion can be legitimatized under the Genocide Convention or for the purpose of preventing or punishing alleged acts of genocide. On the other hand, many States have taken measures to impose sanctions against the Russian Federation without any particular resolutions by the Security Council or General Assembly. These reactions and activities in the wake of Russia’s invasion include many significant issues to be examined for their impact on international law. At the same time, the invasion relates to issues under international human rights law. It generated a flood of refugees, particularly in Europe, and military operations by Russian armed forces reportedly committed violent acts against vulnerable people including women and children. In response to those issues, the UN organs and agencies like the Human Rights Council, OHCHR, UN human rights treaty bodies as well as regional organizations like the Council of Europe and OSCE have taken various measures. Part II examines the impact that may change or is actually changing the practices of human rights protection under the UN and regional frameworks. Part III, on the other hand, deals with the issues of international humanitarian law (IHL). By definition, the rules of IHL are to be applied equally between an invading State and an invaded State and also require third States to respect rules concerning neutrality. However, with increasing accusations against the invasion by the Russian Federation from the perspective of jus ad bellum, the basic stance of IHL is confronting the risk of being eroded. In addition, concrete military operations of both Russian and Ukrainian armed forces have suggested various new aspects, such as the participation of voluntary soldiers and members of private military companies, and the use of outer space and digital space for hostilities and intelligence activities. Those facts occurring in the particular context of the Ukraine conflict may pose important legal issues to be discussed in considering the changing aspects of IHL in present-day international armed conflicts. Lastly, Part IV discusses issues of international criminal law. The Prosecutor of the ICC started the investigation of alleged crimes in the situation of Ukraine on March 2, 2022, and the Pre-Trial Chamber II issued warrants of arrest for two individuals including Russian President Putin on March 17, 2023. These movements and possible subsequent proceedings may raise some substantive and procedural issues

Preface

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on the ICC, which include the jurisdiction and admissibility, relation to the Security Council, cooperation with the State Parties and Non-Parties of the Rome Statute. On the other hand, some national or regional investigative authorities, in addition to those of Ukraine, have also showed positive attitudes toward investigation, prosecution, and punishment of those responsible for war crimes and/or crimes against humanity. Several European States are also taking the initiative to establish an ad hoc international tribunal for trying those responsible for the crime of aggression on which the ICC does not have jurisdiction. In this regard, international crimes allegedly perpetrated in Ukraine may also have an impact on principles of state jurisdiction as well as the customary status of the crime of aggression beyond the Rome Statute. These issues are examined in Part IV. The idea of publishing a book on the Ukraine conflict was born from repeated dialogues among us and Ms. Juno Kawakami, a senior editor at the publisher Springer, in September–October 2022, although basically through online and emails under the situation of the COVID-19 pandemic. We all were strongly motivated by the feeling that we should do something for Ukraine as individuals facing daily the information on the miserable situations of people there, even though we are in Japan, far from the sites of conflict. In this regard, the book is definitely a product of our deep sympathy and solidarity with Ukraine and the Ukrainian people. At the same time, we were also driven by the professionalism of cool-headed international lawyers witnessing a significant event that could be considered a turning point for the international community. In this light, we have tried to argue relevant topics as objectively and fairly as possible. This professionalism is shared by all the contributors to this book. We sincerely hope that our attempt to discuss the impact of the Ukraine conflict on international law can contribute, even if just a little, to the end of the conflict and the development of international law to support the reconstruction of Ukraine thereafter. We are most grateful to the contributors who invested so much in researching, drafting, and revising the chapters in the short period of six months, despite the many other demands of their personal and professional lives. Our gratitude also extends to the Springer publishing team for its outstanding assistance at the different stages of the production of this book. Last but certainly not least, our special thanks goes to Juno Kawakami, whose wealth of experience and commitment brought the book to its successful completion. On behalf of my co-editors, Tokyo, Japan May 2023

Shuichi Furuya

Contents

Part I 1

2

3

4

5

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Challenge from Russia Against Jus Contra Bellum Under Contemporary International Law and Legal Responses to Be Taken by the International Community . . . . . . . . . . . . . . . . . . . . . . . . . Naoki Iwatsuki

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Impacts on Jus Cogens: Impact on the Law of State Responsibility and Law of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hiroyuki Banzai

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The Uniting for Peace Resolution Used in the Ukraine Case: Could It Open a New Window of the General Assembly? . . . . . . . . . . Naozumi Kurokami

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Locating the Veto Power in the International Legal Order: When a Permanent Member of the UN Security Council Becomes an Aggressor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yohei Okada Sanctions on Russia: What Impact Do They Have on the Question of “Third-Party Countermeasures”? . . . . . . . . . . . . . Takuhei Yamada

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Impact of the Ukraine Conflict on Inter-State Dispute Settlement Procedures: The Allegations of Genocide Case (Ukraine v. Russia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Chisa Ishizuka

Part II 7

Use of Force and Its Legal Implications

International Human Rights Law

Impacts on Refugee Law: Implications for Japanese Law, European Union Law and International Human Rights Law . . . . . . 137 Yukari Ando

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Impacts on the Monitoring System of the United Nations Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Naoko Maeda

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Impacts of the Ukraine Conflict on European Human Rights Law: Challenges and Resilience of Multi-layered Regional Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Yota Negishi

10 Impacts Relating to Gender Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Stephanie Coop 11 A Criminalised Commission of Inquiry into Ukraine: The Impact on Fact-Finding by the Human Rights Council . . . . . . . . . . . . 229 Shuichi Furuya Part III International Humanitarian Law 12 Equal Application of International Humanitarian Law in Wars of Aggression: Impacts of the Russo–Ukrainian War . . . . . . 253 Kyo Arai 13 The Qualification of the Ukraine Conflict in International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Shin Kawagishi 14 The Impact of the United Nations General Assembly’s Qualification of Aggression on the Law of Neutrality . . . . . . . . . . . . . 295 Saori Matsuyama 15 International Law of the Military Uses of Outer Space in Light of the War in Ukraine as the First Commercial Space War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Setsuko Aoki 16 Unprivileged Belligerency in a Deterritorialized Cyber Battlefield? Some Lessons Learned from the Russia-Ukraine Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339 Masahiro Kurosaki Part IV International Criminal Law 17 The Ukrainian Conflict and the Crime of Aggression . . . . . . . . . . . . . 361 Keiko Ko 18 Ukraine Situation and Its Relationship to the Principle of Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 Hitomi Takemura

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19 Impact on the International Cooperation with the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . 409 Megumi Ochi 20 The Role of the UN Security Council in International Criminal Law Revisited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431 Kuniko Ozaki 21 Negotiating Peace and Justice: Norms on Amnesty and the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Yuuka Nakazawa 22 International Law Responses in Ukraine: Robust But Not Universal—The Asian Deficit in International Criminal Justice . . . . 479 Raul C. Pangalangan 23 Impact on Domestic Criminal Law—German Experiences with Universal Jurisdiction and Immunity . . . . . . . . . . . . . . . . . . . . . . . 493 Philipp Osten and Takashi Kubota

Editors and Contributors

About the Editors Shuichi Furuya is a professor of international law at Waseda Law School, Tokyo. He was a member of the UN Human Rights Committee (2019–2022, Vice-Chair 2021–2022), a member of the International Humanitarian Fact-Finding Commission (2012–2021, Vice-President 2015–2016), co-rapporteur of the ILA Committee on Reparation for Victims of Armed Conflict (2004–2014), and the editor-in-chief of Journal of International Law and Diplomacy (2014–2016). Hitomi Takemura has been a professor of international law at the Graduate School of Law and the Graduate School of International and Public Policy (IPP) of Hitotsubashi University, Tokyo, Japan. She lectures international law in Japan since 2008 and specializes international criminal law. She earned an LL.M. in international law from Hitotsubashi University, an LL.M. in public international law and international criminal law from Leiden University, and a Ph.D. in law from the Irish Centre for Human Rights at the National University of Ireland, Galway, in 2008. Her publications in English include The Rohingya Crisis and the International Criminal Court (Springer, 2023) and International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Springer, 2008). Kuniko Ozaki is a professor of international law at Chuo University, Faculty of Law. She served as a judge of International Criminal Court between 2010 and 2019. She was Second Vice-President of the Court between 2015 and 2018. During her tenure, she sat on various cases including Bemba, Kenyatta (Presiding), and Ntaganda cases. Professor Ozaki graduated from Tokyo University in 1978 and obtained an M.Phil. in International Relations at Oxford University in 1982. Afterward, she worked in several positions for the Japanese Foreign Ministry and Justice Ministry. From 2006 to 2009, she worked for the United Nations Office on Drugs and Crime where she

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was Director for Treaty Affairs. She has also worked as a professor of international law at Tohoku University Graduate School of Law and at other universities and has written extensively on international criminal law, refugee law, and law of human rights.

Contributors Yukari Ando Institute of Liberal Arts and Sciences, University of Toyama, Toyama, Japan Setsuko Aoki Keio University Law School, Tokyo, Japan Kyo Arai Faculty of Law, Doshisha University, Kyoto, Japan Hiroyuki Banzai Faculty of Law, Waseda University, Tokyo, Japan Stephanie Coop Faculty of Law (Department of Human Rights), Aoyama Gakuin University, Tokyo, Japan Shuichi Furuya Waseda Law School, Waseda University, Tokyo, Japan Chisa Ishizuka Faculty of Law, Toyo University, Tokyo, Japan Naoki Iwatsuki College of Law and Politics, Rikkyo University, Tokyo, Japan Shin Kawagishi Faculty of Humanities and Social Sciences, Shizuoka University, Shizuoka, Japan Keiko Ko Faculty of Law, Nanzan University, Nagoya, Japan Takashi Kubota Faculty of Law, Teikyo University, Tokyo, Japan Naozumi Kurokami Faculty of Law, Okayama University, Okayama, Japan Masahiro Kurosaki Department of International Relations, National Defense Academy of Japan, Yokosuka, Japan Naoko Maeda Faculty of Law, Kyoto Women’s University, Kyoto, Japan Saori Matsuyama Faculty of Law, Osaka University of Economics and Law, Osaka, Japan Yuuka Nakazawa Kanagawa University, Yokohama, Kanagawa, Japan Yota Negishi Faculty of Law, Seinan Gakuin University, Fukuoka, Japan Megumi Ochi Graduate School of International Relations, Ritsumeikan University, Kyoto, Japan Yohei Okada Graduate School of International Cooperation Studies, Kobe University, Kobe, Japan

Editors and Contributors

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Philipp Osten Faculty of Law, Keio University, Tokyo, Japan Kuniko Ozaki Faculty of Law, Chuo University, Tokyo, Japan Raul C. Pangalangan College of Law, University of the Philippines, Quezon City, Philippines Hitomi Takemura Faculty of Law, Hitotsubashi University, Tokyo, Japan Takuhei Yamada Faculty of Law, Ryukoku University, Kyoto, Japan

Part I

Use of Force and Its Legal Implications

Chapter 1

Challenge from Russia Against Jus Contra Bellum Under Contemporary International Law and Legal Responses to Be Taken by the International Community Naoki Iwatsuki

1.1 Russian Invasion of Ukraine as an Objection to International Order Based on Contemporary International Law In the early morning hours of February 24, 2022, Russian President Vladimir Putin delivered a televised speech declaring his intention to conduct a “special military operation” in Ukraine. Immediately following this, Russia launched a large-scale military invasion of Ukraine. Russian troops were deployed in the northern and southern border areas of Ukraine, primarily in the eastern part of the country, while the capital city of Kyiv and other major cities were temporarily surrounded. The fighting continues more than one year after the invasion and the number of civilian casualties has reached 22,209 (including 8317 deaths),1 with approximately 5.35 million people having been internally displaced, and more than 8.15 million people have been forced to seek protection outside of Ukraine.2 In April 2021, when the massive buildup of Russian military units near the border was initially reported, Russia has maintained that it was simply conducting a military exercise. While it was evident that this was not the true reason for the massing of troops, it was thought unlikely that a large-scale military invasion would be launched throughout the whole of Ukraine, beyond the eastern Donbas region where proRussian armed groups calling themselves the Donetsk People’s Republic and the 1 2

OHCHR (2023). Data as of March 20, 2023. UNHCR (2023). Data as of March 24, 2023.

N. Iwatsuki (B) College of Law and Politics, Rikkyo University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_1

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Lugansk People’s Republic have been fighting with the Ukrainian government since 2014, with support from Russia.3 These expectations were belied, and the magnitude of the shock was reflected in the decisiveness of the West in adopting unprecedented and solid economic measures, such as the exclusion of major Russian banks from the Society for Worldwide Interbank Financial Telecommunication (SWIFT) and the suspension of most-favored-nation treatment in trade relations with Russia.4 At the United Nations Security Council, the United States and Albania immediately submitted a draft resolution condemning Russia’s invasion as an “act of aggression” in grave violation of international law and called for its immediate withdrawal from Ukrainian territory. The draft was co-signed by a group of 80 non-Council member States—an unusual occurrence.5 As expected, a Russian veto prevented the Security Council from adopting the resolution. Subsequently, the Security Council declared that it had been prevented from fulfilling its responsibility for international peace and security and requested that the UN General Assembly convene an emergency special session in accordance with UN General Assembly resolution 377A(V) of 1950, the “Uniting for Peace” Resolution.6 The UN General Assembly adopted the resolution by an overwhelming majority (141 in favor, 5 against, with 35 abstentions); the adopted resolution also deplored Belarus’s involvement in the illegal use of force against Ukraine.7 Since then, the UN General Assembly has adopted a series of resolutions and continues to strongly condemn the aggression by Russia in legal terms: Humanitarian consequences of the aggression against Ukraine (140 in favor, 5 against, with 38 abstentions),8 Suspension of the rights of membership of the Russian Federation in the Human Rights Council (93 in favor, 24 against, with 58 abstentions),9 Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations (143 in favor, 5 against, with 35 abstentions)10 ; and Furtherance of remedy and reparation for aggression against Ukraine (94 in favor, 13 against, with 73 abstentions).11 These reactions from inside and outside the UN indicated that many State perceived the Russian invasion of Ukraine as shaking the nature of the post-World War II international order based on the UN Charter.

3

See Bielieskov (2021). For an overview of international reactions to Russia’s invasion, see Butchard and Nessa (General Editors) (2022), pp. 442–449; Chacko and Heath (2022), pp. 135–139. 5 UN Security Council (25 February 2022) UN Doc. S/2022/155. 6 UN Security Council (27 February 2022) UN Doc. S/Res/2623. 7 Aggression against Ukraine, UN General Assembly (2 March 2022) UN Doc. A/Res/ES-11/1. 8 UN General Assembly (28 March 2022) UN Doc. A/Res/ES-11/2. 9 UN General Assembly (8 April 2022) UN Doc. A/Res/ES-11/3. 10 UN General Assembly (13 October 2022) UN Doc. A/Res/ES-11/4. 11 UN General Assembly (15 November 2022) UN Doc. A/Res/ES-11/5. 4

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Undoubtedly, the ongoing Russian invasion of Ukraine is illegal under international law.12 Nevertheless, the problematic nature of this aggression lies in the fact that it is an attempt to return the international order to its pre-World War I state. Russia’s invasion of Ukraine reminds us of the prevalence of force in international society of States about 100 years ago and that prohibiting the use of force as a fundamental principle of contemporary international law is relatively new in the history of international law. In other words, the prohibition of the use of force and the conquering of territory by force, which has become the norm now, is a valuable and important principle established by rewriting traditional international law over the last 100 years and has come at a significant cost. Russia’s invasion of Ukraine must be strongly condemned as an attempt to reverse this development in international law. In the current chapter, we will clarify the problematic nature of Russia’s invasion of Ukraine in this regard to gauge the impact of the invasion on jus contra bellum as a fundamental idea that underpins contemporary international law. To summarize at the outset, the assertion by President Putin does not, in any way, serve as a justification in contemporary international law. However, this does not mean President Putin is presenting a claim that completely ignores international law. Rather, in light of the theory of fundamental rights of States in nineteenth-century international jurisprudence, President Putin can be seen as presenting a claim based on international law with regard to Russia’s invasion of Ukraine. However, Russia’s invasion of Ukraine is not an event that occurred in the nineteenth century but is an ongoing event in the twenty-first century, and to justify it on the basis of nineteenthcentury international law is nothing more than an anachronistic argument. Furthermore, it must be well recognized that the most important feature in the development of contemporary international law has been based on the rejection of the logic that States naturally have fundamental rights prior to international law, of which jus ad bellum was deemed as a prominent one. Therefore, Russia’s invasion of Ukraine must be seen as a denial of the paradigmatic principle on which the historical development of international law has been based for over a century or more.

12

Russia’s invasion of Ukraine and forced annexation of eastern Ukraine clearly falls under Article 3, item a, of the UN General Assembly Resolution on the Definition of Aggression (UN Doc. A/ Res/3314(XXIX), adopted on 29 November 1974), which states that “The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof” shall qualify as an act of aggression.

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1.2 Superficial Nature of the Legal Justification for the Russia’s Invasion of Ukraine in Light of Contemporary International Law Although Russia has not adopted a clear position on the international legal justification for the “special military operation,” two speeches made by President Putin shortly before the military invasion referred to the protection of victims from genocide and the right of self-defense. In a speech on February 21, 2022, President Putin argued that the current Ukrainian government, which came to power in a coup d’état in 2014, had been carrying out incessant attacks against the people in the Donbas region based on Nazism, endangering the lives of nearly 4 million people. He also contended that the United States and other Western countries had refused to acknowledge that the genocide exists and were intent on denying it. Further, President Putin declared that the Donetsk People’s Republic and Lugansk People’s Republic must be recognized as independent States.13 Moreover, in his speech on February 24, 2022, he claimed that the purpose of the “special military operation” against Ukraine was to protect those threatened by the genocide being committed by the current Ukrainian government.14 He appeared to characterize the “special military operation” as a humanitarian intervention and to argue that it is justified as such. However, President Putin, in the same February 24 speech, also invoked the right of self-defense in Article 51 of the UN Charter: Let me remind you that in 2000–2005 we used our military to push back against terrorists in the Caucasus and stood up for the integrity of our state. We preserved Russia. In 2014, we supported the people of Crimea and Sevastopol. In 2015, we used our Armed Forces to create a reliable shield that prevented terrorists from Syria from penetrating Russia. This was a matter of defending ourselves. We had no other choice. The same is happening today. They [the leading NATO countries] did not leave us any other option for defending Russia and our people, other than the one we are forced to use today. 13

Russian Government, Address by the President of the Russian Federation (21 February 2022): Meanwhile, the so-called civilised world, which our Western colleagues proclaimed themselves the only representatives of, prefers not to see this, as if this horror and genocide, which almost 4 million people are facing, do not exist. But they do exist and only because these people did not agree with the West supported coup in Ukraine in 2014 and opposed the transition towards the Neanderthal and aggressive nationalism and neo-Nazism which have been elevated in Ukraine to the rank of national policy.

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Russian Government, Address by the President of the Russian Federation (24 February 2022): The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarise and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation.

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In these circumstances, we have to take bold and immediate action. The people’s republics of Donbass have asked Russia for help. In this context, in accordance with Article 51 (Chapter VII) of the UN Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.15

Based on the facts or from a legal standpoint, the “special military operations” cannot be easily justified on the grounds of either humanitarian intervention or the exercise of the right of self-defense. Russia has often made claims regarding genocide against the population in the eastern Donbass region, but no incidents were reported by the UN High Commissioner for Human Rights, or other authorities, to support such claims.16 Nonetheless, if “protection from genocide” was indeed the purpose of the “special military operation,” which can be justified as a humanitarian intervention,17 then it should be limited to the eastern Donbas region, and activities should only be conducted to protect that population. In reality, however, the Russian troops are carrying out military operations without such geographical restrictions, widely targeting areas, facilities, homes, and people that Russia considers neo-Nazi and nationalist forces. Hence, assertions such as “protection from genocide” and “special military operation” must be seen as mere tokenism that aims to legitimize the Russian military invasion. Curiously, the Russian Foreign Ministry explained in a letter submitted to the International Court of Justice that the reference by President Putin to “genocide” in his speech on February 24, 2022, does not mean that he claimed the existence of genocide under the Genocide Convention, upon which Ukraine filed its submission and requested provisional measures to halt the Russian military invasion. It seems as if the Russian government itself is revealing the superficial nature of the justification in President Putin’s speech.18 As for the right of self-defense, President Putin appeared to assert the right of collective self-defense. In reality, Russia recognized the Donetsk People’s Republic and the Lugansk People’s Republic as States immediately before the military invasion and, at the same time, concluded a mutual assistance treaty with both countries. However, it is well known that both “Republics” are armed groups supported by Russia. Although they both declared independence in 2014, they have not received official State recognition, except for recognition by Russia just before the invasion. In the context of a civil war, a formal acknowledgment of an entity as a State by other existing States constitutes “premature recognition,” which is an illegal act of 15

Ibid. See OHCHR (2021), pp. 6–7. 17 It is well known that the legality of the humanitarian intervention itself is debatable and it has been a controversial issue. See, Kolb (2018), pp. 417–434; Corten (2020), pp. 797–856. If President Putin were to recognize humanitarian intervention as an exception to the prohibition of the use of force, it would be a major change in Russia’s previous position regarding humanitarian intervention. See Averre and Davies (2015), pp. 813–814; Mälksoo (2015), pp. 172–175. 18 Russian Document (2022), para 20. 16

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interference if that entity has not yet established statehood.19 Russia may argue that it is justified in opposing the armed aggression, including genocide, committed by Ukraine against a State recognized as independent and is therefore justified in using collective self-defense. However, the UN General Assembly resolutions previously mentioned also condemn Russia’s recognition of the Donetsk People’s Republic and Lugansk People’s Republic as an infringement of Ukraine’s territorial integrity.20 The recognition, by Russia, of the two “Republics” in the first place was an abuse of the discretionary nature of the act of recognition, and it is hardly possible to recognize the existence of an independent State that could request collective selfdefense. Therefore, it is difficult to give credence to the claim of collective selfdefense for the two “Republics.”

1.3 Peculiarity of Russian Claims: A Return to the Theory of Fundamental Rights of States in the Nineteenth-Century Style President Putin’s speeches as a whole make one wonder about how much he intends to legally justify “protection from genocide” and “special military operations” as humanitarian intervention or an exercise of the right of self-defense. References to genocide only occur in a small portion of the speeches, with the majority instead devoted to the plea that Ukraine today is not what it should be and that Russia must take it back. For example, in his February 21, 2022, speech, President Putin

19

Terry (2014), pp. 94–97, 103–113. Eventually, Russia, on September 30, 2022, annexed the south and eastern territory of Ukraine, including these two “Republics,” as its own territory. See Russian Government News Report (September 30, 2022).

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emphasized the historical unity of Russia and Ukraine, arguing that it has been unjustly thwarted by the United States and other Western powers.21 Moreover, in his February 24 speech, President Putin claimed that Russia had been deceived by the United States and its Western allies, who have ignored Russia’s interests, even in matters that concern its very security and are only concerned with achieving their own ends. In the face of such threats, Russia must not repeat the mistakes of the past, when it allowed a Nazi Germany invasion because it was late in preparing for it. As long as Russia perceives such threats from Ukraine, it cannot feel safe, develop, and exist. President Putin then continued: The current events have nothing to do with a desire to infringe on the interests of Ukraine and the Ukrainian people. They are connected with the defending Russia from those who have taken Ukraine hostage and are trying to use it against our country and our people. I reiterate: we are acting to defend ourselves from the threats created for us and from a worse peril than what is happening now. I am asking you, however hard this may be, to understand 21

See Russian Government, Address by the President of the Russian Federation (21 February 2022): Ukraine is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space. These are our comrade, those dearest to us—not only colleagues, friends and people who once served together, but also relatives, people bound by blood, by family ties. [M]odern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia—by separating, severing what is historically Russian land. [T]he Ukrainian authorities […] began by building their statehood on the negation of everything that united us, trying to distort the mentality and historical memory of millions of people, of entire generations living in Ukraine. It is not surprising that Ukrainian society was faced with the rise of far-right nationalism, which rapidly developed into aggressive Russophobia and neo-Nazism. This resulted in the participation of Ukrainian nationalists and neo-Nazis in the terrorist groups in the North Caucasus and the increasingly loud territorial claims to Russia. A role in this was played by external forces, which used a ramified network of NGOs and special services to nurture their clients in Ukraine and to bring their representatives to the seats of authority. To reiterate, our Western partners have once again vocalised the all-too-familiar formulas that each state is entitled to freely choose ways to ensure its security or to join any military union or alliance. That is, nothing has changed in their stance, and we keep hearing the same old references to NATO’s notorious “open door” policy. Moreover, they are again trying to blackmail us and are threatening us with sanctions, which, by the way, they will introduce no matter what as Russia continues to strengthen its sovereignty and its Armed Forces. To be sure, they will never think twice before coming up with or just fabricating a pretext for yet another sanction attack regardless of the developments in Ukraine. Their one and only goal is to hold back the development of Russia. And they will keep doing so, just as they did before, even without any formal pretext just because we exist and will never compromise our sovereignty, national interests or values.

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N. Iwatsuki this and to work together with us so as to turn this tragic page as soon as possible and to move forward together, without allowing anyone to interfere in our affairs and our relations but developing them independently, so as to create favourable conditions for overcoming all these problems and to strengthen us from within as a single whole, despite the existence of state borders. I believe in this, in our common future.22

Such an argument is the very appeal to the right of self-preservation of the State as in the nineteenth-century international legal doctrine: the theory of fundamental rights of States.23 In this legal doctrine, States were considered to have naturally recognized fundamental rights based on existence, and international law was considered premised on such rights.24 The right of self-preservation was recognized as the most important of these fundamental rights.25 It is clear from the literature of prominent nineteenth-century international jurists that President Putin’s speech, as quoted above, is an assertion of the legitimacy of military activities based on self-preservation in accordance with the theory of fundamental rights of States. For example, Robert Phillimore’s work, first published in 1854, described the right of self-preservation as follows: CCX. The Right of Self-Preservation is the first law of nations, as it is of individuals. A society which is not in a condition to repel aggression from without, is wanting in its principal duty to the members of which it is composed, and to the chief end of its institution. [...] CCXIII. We have hitherto considered what measures a nation is entitled to take, for the preservation of her safety, within her own dominions. It may [...] happen that the same Right may warrant her in extending precautionary measures without these limits, and even in transgressing the borders of their neighbour’s territory. For International Law considers the Right of Self-Preservation as prior and paramount to that of Territorial Inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right.26

Fundamental rights must be recognized as a matter of course in order for a State to continue its existence. If another State endangers a State’s existence, it is permitted 22

Russian Government, Address by the President of the Russian Federation (24 February 2022). For detailed examination on the development and characteristic features of the theory of the fundamental rights of States in the nineteenth century, see Motsch (2022), pp. 105–204. 24 This point is well summarized by Motsch, stating: 23

Les droits fondamentaux seraient ainsi au fondement de l’ordre juridique international, tout comme les droits de l’homme seraient au fondement de l’ordre juridique national des États modernes. Sans l’existence de ces droits fondamentaux qui constituent « l’extrême réduit de normes rationnellement nécessaires», le droit international serait impossible. […] Il est vrai que faire exclusivement des droit fondamentaux étatiques le fondement du droit international, sans enrichir ce fondement de principes objectifs, a sonné le glas de la théorie des droit fondamentaux étatiques. Ibid., pp. 199–200 (footnote omitted). See also d’Aspremont (2015), pp. 506–511; Neff (2015), pp. 490–491. 25 Motsch (2022), p. 205. 26 Phillimore (1854), pp. 188–189.

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to secure its existence by eliminating the threat.27 Therefore, what is justified by the right of self-preservation as a fundamental right is broader than the right of selfdefense under contemporary international law, which holds that armed attack is the sole trigger for exercising of the right of self-defense.28 It must also be emphasized that the right of self-preservation, as a fundamental right, is substantively different from the contemporary right of self-defense in that the former also justifies harming the territorial integrity of other States depending on the nature of the threat. In his speech, President Putin emphasized the threat to Russia’s security posed by the current Ukrainian government’s military collaboration with the United States and other Western countries, as well as the need to counter this threat. As seen above, such an argument cannot be quantified as a legal justification for military operations in contemporary international law. However, in the nineteenth-century international jurisprudence, when a State attempted to strengthen its military by posing a threat to another State’s security, the latter State was considered to be entitled to eliminate, as an exercise of the right of self-preservation, the threat posed to it by resorting to military operations as a measure to ensure its own survival. This point is clearly illustrated by the following remarks in William E. Hall’s work.

27

Even today, it is sometimes seen that the right of self-defense is referred to as a fundamental right. See Legality of Nuclear Weapons, Opinion (1996), p. 263, para 96 (“the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defense, in accordance with Article 51 of the Charter, when its survival is at stake”). However, it only indicates that the right is considered to be of high importance among the rights currently recognized under international law. It does not mean that they are distinctive in character, as distinguished from other “ordinary” rights in the sense that the latter rights are derived from, and auxiliary to, the fundamental rights. The theory of fundamental rights of States in the nineteenth-century international jurisprudence recognized exactly such a characterization of certain rights, of which source is the statehood itself. The fact that Article 51 of the UN Charter refers to the right of self-defense as “inherent” does not imply that the theory of fundamental rights of States in the nineteenth century has survived even today. See d’Aspremont (2015), p. 518; Roscini (2015), pp. 648–660. Recent renewed academic interest in the fundamental rights of States is not a revival of the nineteenth-century theory based on an atomistic view of international society of States. Rather, it is an attempt to address the question of how a State or Nation, as a political entity of people, should be viewed in contemporary international legal order, in which regulations on State authority and competence have become extensive and dense. This point is quite clear in the following remarks in the introductory article by Joyner and Roscini for the special issue of Cambridge Journal of International and Comparative Law on the theme of the fundamental rights of States: As the international legal system matures, grows increasingly complex, dense and fragmented, and moves towards a more complete legal system, it would appear to be manifestly sensible and necessary for states, and particularly developing and less powerful states, to have clearly developed understandings not only of their obligations within that legal system, but also of their rights, which can potentially be used as a shield against excessive encroachment upon their sovereign independence by other more powerful actors. Joyner and Roscini (2015), p. 478. See also Motsch (2022), pp. 317–560; Aust (2015), pp. 538– 546; Aloupi (2015), pp. 566–570; Tyagi (2015), pp. 610–613; Tzanakopoulos (2015), pp. 632–633; Joyner (2015), pp. 662–669. 28 Ruys (2010), pp. 7–19; Gray (2018), pp. 134–175.

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N. Iwatsuki [A] state is free to adopt any commercial policy which it thinks most to its advantage; it may erect fortifications anywhere within its dominions; and it may maintain military or naval forces upon any scale, and organised in any way, that it likes. That the latter measures may invest it with a strategical position or a material strength which under certain contingencies may be a danger to other powers gives them in general no right to take umbrage or to endeavour to restrain its growth. In the absence of distinct menace the only precaution which can be taken is to arm with equal care. It is not an exception to this rule that it is legitimate to anticipate an attack which measures adopted by a state under colour, or in the exercise, of its right of self-development afford reasonable ground to expect. The same right to continued existence which confers the right of self-development confers also the right of self-preservation, and a point exists at which the latter of the two derivative rights takes precedence of the duty to respect the exercise of the former by another state. If a country offers an indirect menace through a threatening disposition of its military force, and still more through clear indications of dangerous ambition or of aggressive intentions, and if at the same time its armaments are brought up to a pitch evidently in excess of the requirements of self-defence, so that it would be in a position to give effect to its intentions, if it were allowed to choose its opportunity, the state or states which find themselves threatened may demand securities, or the abandonment of the measures which excite their fear, and if reasonable satisfaction be not given[,] they may protect themselves by force of arms.29

In the eyes of these nineteenth-century international jurists, the arguments made by President Putin in his speeches would not have seemed particularly strange but rather a form of support for the very right of self-preservation as a fundamental right of the State. However, the speeches by President Putin were given in the twenty-first century, and the reality is that “special military operations” are still underway. Such an anachronistic assertion was made publicly by the Head of State of a country that, as a permanent member of the UN Security Council with special responsibility for maintaining international peace and security under the UN Charter. Furthermore, the Russian government has submitted such anachronistic views to the Security Council and the International Court of Justice in official documents stating its position.30 This is indeed a challenge to the post-war international order by one of the States that should be shouldering the burden of maintaining and developing it. In this respect, Russia’s military invasion of Ukraine is unique and differs from the various military interventions questioned in the past, even though they were not without their own problems.31 From the end of the nineteenth century to the present, international law has evolved based on the common interests of the international community, such as the outlawing of war, sovereign equality,32 prohibition of the use of force, peaceful settlement of 29

Hall (1880), pp. 37–38. As for the views of other publicists in the nineteenth century on the restriction to the right of self-preservation, see Motsch (2022), pp. 129–133. For a contemporary view on that right, especially on the relationship between it and the principle of territorial integrity, see Vidmar (2015), pp. 552–565. 30 Russian Document (2022). 31 See generally, Hofer et al. (2018). 32 It is often overlooked, but the principle of sovereign equality is not a rephrasing of the right of equality of States. Legal notion of sovereign equality of States was a re-defined basis of the international legal order to be established by the adoption of the United Nations Charter at the San Francisco Conference. See Fassbender (2012), pp. 140–147, paras 15–18.

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international disputes, collective security, human rights, environment, and other interests concretized in obligations erga omnes and jus cogens norms.33 The insistence on “self-preservation” in President Putin’s speeches was an attempt to overturn the development achieved over more than 100 years and return to the era of traditional nineteenth-century international law where States were permitted to resort to war if they felt they had just cause.

1.4 Legal Responses to the Challenge Posed by the Russia’s Invasion of the Contemporary International Legal Order Given the strong resolve exhibited by President Putin in his speeches, Russia’s assertion of its self-preservation cannot be dismissed as a mere incorrect interpretation and application of international law. On the contrary, Russia is now presenting nineteenthcentury-style self-preservation as the basic premise of its own idea of the international order and seeking to embody it through large-scale military activities. Therefore, it should be perceived as a challenge to the contemporary international order, based on the UN Charter.34 That being the case, to repel this challenge and to maintain and restore the contemporary international legal order, it is not sufficient to simply halt the ongoing military invasion or to withdraw Russian troops from Ukrainian territory. Instead, the world must show that the military invasion of another country based on the nineteenthcentury-style “self-preservation” logic that underlies Russia’s invasion of Ukraine is absolutely unacceptable; the world must also seek reaffirmation of the cardinal principles of contemporary international law. From the beginning of the twentieth century, international law has developed procedures and institutions to maintain its character as an objective legal order based on the common interest of the international community rather than on the fundamental rights of States. Those apparatuses may still not be sufficient, but if States do not wish to return to international legal order in the nineteenth century, they must use such procedures and institutions to legally resist President Putin’s challenge to restructure international order. The first such measure is the rejection, or disapproval, by the whole international community of Russia’s annexation of Ukrainian territory. Prohibition of the acquisition of territory by force is a well-established customary international law, as 33

For a general picture of the development of international regulation on these matters during the twentieth century, see Focarelli (2020). As for the theoretical and philosophical underpinnings underlying this development, see Simma (1994), pp. 229–255; Dupuy (1986); Friedmann (1964), pp. 3–114. 34 By setting forth, in Article 2 of the UN Charter, the basic principles in the post-World War II international order, the international community declared a decisive departure from the traditional international legal order. See Paulus (2012), pp. 125–127, paras 8–11.

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confirmed by various international instruments, including the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by the UN General Assembly on October 24, 1970.35 This principle does not merely prohibit annexation by force but also prohibits all States from recognizing such an annexation and the state of affairs resulting from it as legal. Article 41(2) of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the UN International Law Commission (hereinafter ARSIWA), confirms and codifies this obligation of non-recognition.36 Indeed, UN General Assembly resolution have already explicitly and legally condemned Russia’s aggression against Ukraine as illegal and deemed Russia’s annexation of southeastern Ukrainian territory invalid under international law. States must act in accordance with these UN General Assembly resolutions in their individual relations with Russia. The fact that the UN General Assembly resolutions are not formally binding is in no way inconsistent with this.37 The said UN General Assembly resolutions confirm that Russia has violated customary international law prohibiting the acquisition of territory by force. States are required to act in accordance with their obligations under customary international law to recognize that the territory annexed by Russia remains the territory of Ukraine.38

35

UN General Assembly (24 October 1970) UN Doc. A/Res/2625(XXV). ILC Yearbook (2001), pp. 114–115, paras 4–10. It should, however, be noted that there are problems to be addressed with the actual application of the obligation of non-recognition. See Gattini (2002), pp. 1188–1192. 37 Even if a State is not formally obligated to abide by the decisions taken by the United Nations organs, they may be opposable to that State, as was pointed out by the International Court of Justice in the Namibia case: 36

As to non-member States, although not bound by Article 24 and 25 of the Charter, they have been called upon in paragraphs 2 and 5 of resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation. 38

Namibia Opinion (1971), p. 56, para 126. Dawidowicz (2010), pp. 683.

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Second, beyond mere disapproval, active non-military measures against Russia could make it difficult to continue its aggression and lead to its cessation.39 Admittedly, in the past, war was considered to be a private duel between the States concerned; however, such an idea was rejected by the Covenant of the League of Nations, which declares, in Article 11, paragraph 1, that “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League.”40 As a result of developments based on such a paradigm shift, contemporary international law allows all States, even those not directly involved in the use of force, to legally condemn and resort to measures to cease the illegal use of force. As the principle of prohibition of the use of force is a fundamental principle of the contemporary international law and a prime example of the obligation erga omnes,41 every State has a legal interest in maintaining it. Article 54 of ARSIWA envisages that, on the basis of such legal interests, a noninjured State will take concrete actions through “lawful measures” even when that State has not suffered a specific injury due to the internationally wrongful act by the target State.42 The “lawful measures” referred to here principally mean retorsion that a State can take at its discretion as a measure that is legal per se, such as notification of persona non grata.43 However, the International Law Commission does not rule out the possibility that the “lawful measures” also include countermeasures that would be considered illegal per se but justified as necessary and proportional responses against prior wrongful acts by the target State. Traditionally, countermeasures are recognized as legitimate measures only when resorted to by a State whose rights have been violated or specially affected. A State that has not suffered such injuries cannot resort to countermeasures, even in the case of violations of an obligation erga omnes.44 Some scholars argue that there are enough State practices that recognize the 39

It may seem strange not to mention here that States should respond with military measures. Article 51 of the UN Charter recognizes the right of collective self-defense as an “inherent right” that States can use regardless of whether or not they have concluded a treaty for collective defense with a State suffering aggression. Therefore, in response to the current Russian invasion of Ukraine, even if there is no such treaty of collective security as NATO, States have the option, based on their right of collective self-defense, to withdraw Russia from Ukraine via military measures. Nevertheless, that choice is impossible without risking an eventual World War III. Moreover, the UN Charter does not envision a direct military confrontation among the permanent members of the UN Security Council; on the contrary, the UN regime is supposed to be based on cooperation and coordination among these members, as evidenced by the fact that the veto power is incorporated into the decision-making procedures of the Security Council. Given those circumstances, it is difficult to judge whether it is appropriate for States to respond to Russia’s aggression by resorting to military measures to maintain the contemporary international legal order. Admittedly, the current situation, whereby Russia is militarily overrunning Ukraine, is not compatible with the UN regime and the contemporary international legal order; however, whether military intervention should be undertaken based on the right of collective self-defense by States is a matter of highly-political decision. 40 Brownlie (1963), pp. 57. 41 Barcelona Traction (1970), p. 32, paras 33–34. 42 ILC Yearbook (2001), pp. 137–139, para 1. 43 See Alland (2002), pp. 1223–1233. 44 Compare Articles 42 and 48 of ARISWA, ILC Yearbook (2001), pp. 117, 137–139. See also Crawford (2010), pp. 932–939; Gaja (2010), pp. 957–963.

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entitlement to resort to countermeasures by non-injured States when an obligation erga omnes is violated.45 The International Law Commission itself does not deny the possibility that countermeasures by third States could be recognized as customary international law and, in that sense, as “legal measures.”46 However, under the current circumstances, it is rather difficult to confirm that each and every violation of obligation erga omnes may cause countermeasures to be taken by third States.47 That said, State practice indicates that, when serious human rights violations are being committed systematically, every State, as a member of the international community, is entitled to resort to countermeasures.48 It is undeniable that serious human rights violations and inhumane acts have been committed as part of the ongoing Russian aggression against Ukraine, including attacks against a large number of civilians. In such a situation, it would be permissible for all States, as members of the international community, to resort to retaliatory measures and countermeasures to halt Russia’s gross human rights violations and inhumane acts. Third—although hypothetical at this point—even if Russia were to take advantage of its superior military position against Ukraine and use it to force Ukraine into signing a treaty favorable to itself, such a treaty would be legally invalid, and not only Ukraine but all States may claim that such a treaty is legally null and void. The Vienna Convention on the Law of Treaties confirms this, stipulating in Article 52 that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations;” unlike Article 50 (Corruption of a representative of a State), which reads “the State may invoke […],” Article 52 provides that “A treaty is void […]”. Such a difference in wording clearly shows that a treaty concluded in violation of the principle of prohibition of the use of force is devoid of any legal effect ab initio. It is debatable whether a State that is not a party to a treaty is entitled to claim the invalidity of a treaty concluded between other States.49 However, in the case of a serious violation of the principle of prohibition of the use of force, as we saw earlier, an obligation of non-recognition arises for all States, obliging every States not to recognize a situation resulting from such violation as legal. Treaties concluded in violation of the principle of the prohibition of the use of force should be considered

45

See, e.g., Dawidowicz (2017), pp. 111–238; Katselli Proukaki (2010), pp. 102–209; Tams (2005), pp. 207–251. 46 ILC Yearbook (2001), p. 139, para 7. 47 Focarelli (2016), pp. 17–23; Ruys, (2017), pp. 46–47. 48 Iwatsuki (2018), pp. 151–163 (arguing that non-military unilateral coercive measures taken by third States in response to widespread and systematic human rights violations against people by their government or by a foreign State have been accepted through State practice as a special legal institution whose purpose and function is to secure the right to self-determination (internal and external) of those who are suffering such flagrant violations, even though there is not sufficient State practice establishing the third-party countermeasures as a general institution of the breach of obligations erga omnes). 49 See Costelloe (2017), p. 77.

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a part of such a situation.50 In this sense, all States are obliged not to recognize such treaties as valid, and they are entitled to claim that these treaties are invalid.51 Finally, States may seek, the declaration of the illegality of the acts committed in connection with Russia’s military aggression and the remedy therefor or the punishment of the perpetrators thereof from the International Court of Justice. Since Russia has not declared its acceptance of the Optional Clause under Article 36 (2) of the Statute of the International Court of Justice, it would have to overcome the issue of consensual jurisdiction to engage in a judicial procedure at the Court. This can be accomplished by filing a claim based on a treaty violation, to which Russia is also a party and has a jurisdictional clause for the settling disputes concerning its interpretation and application. Ukraine did exactly this on February 26, 2022, shortly after the Russian invasion began. Ukraine filed the application based on Article 9, which establishes the jurisdiction of the International Court of Justice, seeking the illegality of the military invasion by Russia. Ukraine’s arguments were as follows: Russia’s claims that it is conducting a “special military operation” to protect people from genocide committed by Ukraine is utterly untrue, as there was no genocide in reality; any action based on such false genocide claims is totally unacceptable and a dishonest and abusive attempt to implement the obligations set forth in Articles 1, 2, and 3 of the Genocide Convention.52 Although it is unclear whether Ukraine’s jurisdictional claim will be accepted, the Court admitted Ukraine’s request for provisional measures of protection. The Court found that it has prima facie jurisdiction over the dispute and declared that Russia shall immediately suspend the military operations that it commenced on February 24 in the territory of Ukraine.53 In addition, a number of other State parties to the Genocide Convention have requested to intervene in this case by invoking the right under Article 63 of the Statute of the International Court of

50

In Dawidowicz’s words, “Both in conceptual and practical terms, it seems that what is decisive is not the individual character of the peremptory norm but that the unlawful situation flowing from the breach of such a norm results in a legal claim to status or rights by the wrongdoing State which is capable of being denied by other States” (emphasis by the original author). Dawidowicz (2010), p. 683. 51 However, it is difficult for non-party States to appear before the International Court of Justice to seek a declaration of the invalidity of treaties concluded under Russia’s threat or use of force against Ukraine. Indeed, the Vienna Convention on the Law of Treaties, to which Russia is a contracting party, provides, in Article 66, for the compulsory jurisdiction of the International Court of Justice for disputes over the invalidity of treaties on the grounds of violation of jus cogens norms. However, Article 65 limits the States that are entitled to engage in this procedure only to States which are party to the treaties in question. Therefore, to claim invalidity on the grounds of violating jus cogens norms for treaties to which a State is not a party, it is necessary to use other forums that do not have such limitations. Krieger (2018), pp. 1222–1224; Villiger (2009), p. 807. 52 Ukraine v. Russia, Application (2022), paras 1–12, 26–29. 53 Ukraine v. Russia, Order (2022), paras 43–49, 86.

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Justice.54 They are requesting the Court provide an interpretation that could support Ukraine’s submissions.55 The prosecution by the International Criminal Court is crucial in holding Russia accountable and delivering a legal condemnation of its aggression against Ukraine and the illegal acts committed alongside that aggression. Indeed, 43 States have now referred the situation in Ukraine to the Prosecutor under Article 14 of the Rome Statute of the International Criminal Court.56 Although neither Ukraine nor Russia is a party to the Rome Statute, Ukraine declared in 2014 that it would accept jurisdiction over criminal acts under the Rome Statute that were committed on its territory, and in 2015 it decided to accept jurisdiction indefinitely. This allows the International Criminal Court to prosecute criminal acts committed during the conflict between Russia and Ukraine under the Rome Statute (regardless of whether the person to be

54

As of March 29, 2022, declarations of intervention have been filed by the following 33 States: Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, and the United States of America. For the latest information on the declaration of intervention in this case, see https://www.icj-cij. org/case/182/intervention. 55 Most of the States submit their declarations of intervention in this case as a non-party to the case. Though, if they plead, they would be recognized as having jus standi of their own, given the recent decisions of the International Court of Justice in the cases brought to the Court alleging the violation of obligations erga omnes partes, especially those provided in the Genocide Convention. Recently, the Court stated without any ambiguity that: The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Responsibility for an alleged breach of obligations erga omnes partes under the Genocide Convention may be invoked through the institution of proceedings before the Court, regardless of whether a special interest can be demonstrated. If a special interest were required for that purpose, in many situations no State would be in a position to make a claim. For these reasons, Myanmar’s purported distinction between the entitlement to invoke responsibility under the Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis in law. […] For the purpose of the institution of proceedings before the Court, a State does not need to demonstrate that any victims of an alleged breach of obligations erga omnes partes under the Genocide Convention are its nationals. Gambia v. Myanmar, Judgment on Preliminary Objections (2022), paras 108–109. See also, Belgium v. Senegal, Judgment (2012), pp. 449–450, paras 68–70. 56 As of March 29, 2022, the situation in Ukraine has been referred to the International Criminal Court by the following States: Albania, Australia, Austria, Belgium, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, the Netherlands, North Macedonia, Montenegro, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom. For the latest information on the referral of the situation in Ukraine to the International Criminal Court, see https://www.icc-cpi.int/situations/ukraine.

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prosecuted belongs to Russia or Ukraine).57 The Prosecutor opened a general investigation in Ukraine on March 2, 2022, pursuant to the referrals by the above-mentioned States. On March 17, 2023, the International Criminal Court issued arrest warrants for President Putin and Official Alekseyevna, Commissioner for Children’s Rights in the Office of the President, alleging war crimes of unlawful deportation and transfer of children from occupied areas of Ukraine to Russia. Without a doubt, these developments are significant in their own right. However, the International Criminal Court cannot exercise jurisdiction over the crime of aggression unless it is committed by nationals of State parties to the Rome Statute, along with the Kampala Amendments, and in the territory of those States. Russia is not a State party to the Rome Statute and, therefore, the International Criminal Court cannot prosecute President Putin and other Russian high officials for the crime of aggression.58 There are growing calls for a special international criminal tribunal to address these deficiencies.59 As part of this effort, in March 2023, the establishment of the International Center for the Prosecution of Crimes of Aggression was officially announced by the EU and States participating in the United for Justice Conference. Although the Center is not an international criminal tribunal, it is expected to collect and preserve evidence for the prosecution of the crime of Russian aggression and prepare for future prosecutions by an international criminal tribunal.60 As seen above, contemporary international law is equipped with procedures and institutions, even if insufficient, to maintain and ensure the objective legal order based on the common interests of the international community, which varies from an order based on the fundamental rights of States. It is up to the will of the States and people themselves to make use of these procedures and institutions and to maintain the development of international law that has been achieved throughout the twentieth century and carried over to the present.

References Alland, Denis. 2002. Countermeasures of general interest. European Journal of International Law 13: 1221–1239. Aloupi, Niki. 2015. The right to non-intervention and non-interference. Cambridge Journal of International and Comparative Law 4 (3): 566–587. Averre, Derek, and Lance Davies. 2015. Russia, humanitarian intervention and the responsibility to protect: The case of Syria. International Affairs 91 (4): 813–834. Aust, Helmut Philipp. 2015. Fundamental rights of states: Constitutional law in disguise? Cambridge Journal of International and Comparative Law 4 (3): 521–546. Bielieskov, Mykola. 2021. The Russian and Ukrainian Spring 2021 War Scare. Center for Strategic and International Studies. https://www.csis.org/programs/europe-russia-and-eurasia-program/ projects/russia-and-eurasia/understanding-russian 57

Article 12 (3) of the Rome Statute of the International Criminal Court. Article 15 bis of the Rome Statute of the International Criminal Court. 59 E.g., European Parliament (2023). 60 European Union Agency for Criminal Justice Cooperation (2023). 58

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Butchard, Patrick M., and Jasmin Johurun Nessa (eds.). 2022. Digest of state practice. Journal on the Use of Force and International Law 9 (2): 423–479. Brownlie, Ian. 1963. International Law and the Use of Force by States. Oxford: Clarendon Press. Chacko, Elena, and J. Benton. Heath. 2022. Watershed moment for sanctions? Russia, Ukraine, and the economic battlefield. AJIL Unboud 116: 135–139. Corten, Olivier. 2020. Le droit contre la guerre. 3e ed. Paris: Pédon. Costelloe, Daniel. 2017. Legal Consequences of Peremptory Norms in International Law. Cambridge: Cambridge University Press. Crawford, James. 2010. Overview of part three of the articles on state responsibility. In The Law of International Responsibility, ed. James Crawford, Alain Pellet, Simon Olleson, and Kate Parlet, 931–940. Oxford: Oxford University Press. d’Aspremont, Jean. 2015. The doctrine of fundamental rights of states and anthropomorphic thinking in international law. Cambridge Journal of International and Comparative Law 4 (3): 501–520. Dawidowicz, Martin. 2010. The obligation of non-recognition of an unlawful situation. In The Law of International Responsibility, ed. James Crawford, Alain Pellet, Simon Olleson, and Kate Parlet, 677–686. Oxford: Oxford University Press. Dawidowicz, Martin. 2017. Third-Party Countermeasures in International Law. Cambridge: Cambridge University Press. Dupuy, René-Jean. 1986. La Communauté internationale entre le muthe et l’histoire. Paris: Economica. Friedmann, Wolfgang. 1964. The Changing Structure of International Law. New York: Columbia University Press. Fassbender, Bardo. 2012. Article 2 (1). In The Charter of the United Nations: A Commentary, vol. 1, 3rd ed, ed. Bruno Simma, Hermann Mosler, Albrecht Randelzhofer, Christian Tomuschat, and Rüdiger Wolfrum, 133–165. Focarelli, Carlo. 2016. International law and third-party countermeasures in the age of global instant communication. Question of International Law 29: 17–42. Focarelli, Carlo. 2020. International law in the twentieth century. In Research Handbook on the Theory and History of International Law, ed. Alexander Orakhelashvili, 394–443. Cheltenham: Edward Elgar Publishing. Gattini, Andrea. 2002. A return ticket to “communitarisme”, please. European Journal of International Law 13: 1188–1199. Gaja, Giorgio. 2010. State having an interest in compliance with the obligation breached. In The Law of International Responsibility, ed. James Crawford, Alain Pellet, Simon Olleson, and Kate Parlet, 957–964. Oxford: Oxford University Press. Gray, Christine. 2018. International Law and the Use of Force. 4th ed. Oxford: Oxford University Press. Hall, William E. 1880. International Law. Oxford: Clarendon Press. Hofer, Alexandra, Tom Ruys, and Olivier Corten. 2018. The Use of Force in International Law: A Case-based Approach. Oxford: Oxford University Press. Iwatsuki, Naoki. 2018. Judai na Jinkenshingai ga Mondaitosareru Baai ni okeru Daisangoku ni yoru Hi-gunjitekina Ippoutekisochi no Hotekiseisitsu: “Daisangoku ni yoru Taikosochi” ni tsuiteno Hihanteki-kosatsu (Legal nature of non-forcible unilateral measures by third states in case of grave violation of human rights: Critical analysis on the doctrine of “third-party countermeasures”). In Kokusaiho no Dainamikusu: Kotera Akira Sensei Tsuito-kinen Ronbunshu (Dynamics of International Law: In Memory of Professor Akira Kotera), ed. Yuji Iwasawa, Koichi Morikawa, Tadashi Mori, and Yumi Nishimura, 131–164. Tokyo: Yuhikaku (in Japanese). Joyner, Daniel H. 2015. Fundamental rights of states in international law and the right to peaceful nuclear energy. Cambridge Journal of International and Comparative Law 4 (3): 661–681. Joyner, Daniel H., and Marco Roscini. 2015. Is there any room for the doctrine of fundamental rights of states in today’s international law? Cambridge Journal of International and Comparative Law 4 (3): 467–481.

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Proukaki, Katselli. 2010. Elena, The Problem of Enforcement in International Law: Countermeasures, the Non-injured State and the Idea of International Community. Oxon: Routledge. Kolb, Robert. 2018. International Law on the Maintenance of Peace: Jus Contra Bellum. Cheltenham: Edward Elgar Publishing. Krieger, Heike. 2018. Article 65. In Vienna Convention on the Law of Treaties: A Commentary, 2nd ed., ed. Oliver Dörr, and Kirsten Schmalenbach, 1211–1231. Berlin: Springer. Mälksoo, Lauri. 2015. Russian Approaches to International Law. Oxford: Oxford University Press. Motsch, Pascaline. 2022. La doctrine des droit fondamentaux des Etats: Vers un redéploiement fédéraliste ou étatiste? Paris: Edition Pédon. Neff, Stephan. 2015. The dormancy, rise and decline of fundamental liberties of states. Cambridge Journal of International and Comparative Law 4 (3): 482–500. Paulus, Andreas. 2012. Article 2. In The Charter of the United Nations: A Commentary, vol. 1, 3rd ed, ed. Bruno Simma, Hermann Mosler, Albrecht Randelzhofer, Christian Tomuschat, and Rüdiger Wolfrum, 121–132. Phillimore, Robert. 1854. Commentaries Upon International Law, vol. 1. Philadelphia: T. & J. W. Johnson Roscini, Marco. 2015. On the “inherent” character of the right of states to self-defence. Cambridge Journal of International and Comparative Law 4 (3): 634–660. Ruys, Tom. 2010. “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge: Cambridge University Press. Ruys, Tom. 2017. Sanctions, retortions and countermeasures: Concepts and international legal framework. In Research Handbook on UN Sanctions and International Law, ed. Larissa van den Herik, 19–51. Cheltenham: Edward Elgar Publishing. Tams, Christian J. 2005. Enforcing Obligations Erga Omnes in International Law. Cambridge: Cambridge University Press. Terry, Patrick C.R. 2014. The recognition of new states in times of secession: Is state recognition turning into another means of intervention. Asian Yearbook of International Law 20: 53–114. Tzanakopoulos, Antonios. 2015. The right to be free from economic coercion. Cambridge Journal of International and Comparative Law 4 (3): 616–633. Simma, Bruno. 1994. From bilateralism to community interest in international law. Recueil des cours de l’Académie de droit international de La Haye 250: 219–384. Vidmar, Jure. 2015. The concept of the state and its right of existence. Cambridge Journal of International and Comparative Law 4 (3): 547–565. Villiger, Mark E. 2009. Commentary on the 1969 Vienna Convention on the Law of Treaties. Leiden: Martinus Nijhoff Publishers.

Documents European Parliament. 2023. Ukraine War: MEPs Push for Special Tribunal to Punish Russian Crimes. January 19, 2023. Press Release. https://www.europarl.europa.eu/news/en/press-room/ 20230113IPR66653/ukraine-war-meps-push-for-special-tribunal-to-punish-russian-crimes. European Union Agency for Criminal Justice Cooperation. 2023. International Centre for the Prosecution of the Crime of Aggression made official at United for Justice Conference in Ukraine. March 5, 2023. Press Release. https://www.eurojust.europa.eu/news/international-centre-prosec ution-crime-aggression-made-official-united-justice-conference. ILC Yearbook. 2001. Yearbook of the International Law Commission 2001, vol. II, Part Two, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2). OHCHR. 2021. Report on the Human Rights Situation in Ukraine. August 1, 2020–January 31, 2021. https://reliefweb.int/report/ukraine/report-human-rights-situation-ukraine-1-august2020-31-january-2021-enruuk.

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OHCHR. 2023. Ukraine: Civilian Casualty Update. March 20, 2023. https://www.ohchr.org/en/ news/2023/03/ukraine-civilian-casualty-update-20-march-2023. Russian Government, Address by the President of the Russian Federation. February 21, 2022. http://en.kremlin.ru/events/president/news/67828 (English translation provided by the Russian Government). Russian Government, Address by the President of the Russian Federation. February 24, 2022. http://en.kremlin.ru/events/president/news/67843 (English translation provided by the Russian Government). Russian Government News Report. September 30, 2022. Signing of Treaties on Accession of Donetsk and Lugansk People’s Republics and Zaporozhye and Keerson Regions to Russia. http://en.kre mlin.ru/events/president/news/69465. UN General Assembly. October 24, 1970. UN Doc. A/Res/2625(XXV). UN General Assembly. December 14, 1974. UN Doc. A/Res/3314(XXIX). UN General Assembly. March 2, 2022. UN Doc. A/Res/ES-11/1. UN General Assembly. March 28, 2022. UN Doc. A/Res/ES-11/2. UN General Assembly. April 8, 2022. UN Doc. A/Res/ES-11/3. UN General Assembly. October 13, 2022. UN Doc. A/Res/ES-11/4. UN General Assembly. November 15, 2022. UN Doc. A/Res/ES-11/5. UN Security Council. February 25, 2022. UN Doc. S/2022/155. UN Security Council. February 27, 2022. UN Doc. S/Res/2623. UNHCR. 2023. Ukraine Situation Flash Update #43. March 24, 2023. https://data.unhcr.org/en/ documents/details/99736.

Cases Barcelona Traction. 1970. Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970, I.C.J. Reports 1970. Belgium v. Senegal, Judgment. 2012. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, I.C.J. Reports 2012 (II). https://www.icj-cij. org/case/178/judgments. Gambia v. Myanmar, Judgment on Preliminary Objections. 2022. Russia, Application. 2022. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Judgment of 22 July 2022 on Preliminary Objections. https://www.icjcij.org/case/178/judgments. Legality of Nuclear Weapons, Opinion. 1996. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996. https://www.icj-cij.org/case/95/advisoryopinions. Namibia Opinion. 1971. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, I.C.J. Report 1971. https://www.icj-cij.org/case/53/advisory-opinions. Russian Document. 2022. Document (with Annexes) from the Russian Federation Setting Out Its Position Regarding the Alleged “Lack of Jurisdiction” of the Court in the Case. March 7, 2022. https://www.icj-cij.org/node/106132. Ukraine v. Russia, Application. 2022. Application instituting proceedings filed in the Registry of the Court on 26 February 2022, Dispute relating to Allegations of Genocide (Ukraine v. Russian Federation). https://www.icj-cij.org/case/182/institution-proceedings. Ukraine v. Russia, Order. 2022. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 16 March 2022. https://www.icj-cij.org/case/182/orders.

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Ukraine v. Russia, Russian Document. 2022. Document (with Annexes) from the Russian Federation Setting Out Its Position Regarding the Alleged “Lack of Jurisdiction” of the Court in the Case. March 7, 2022. https://www.icj-cij.org/node/106132. Yogesh, Tyagi. 2015. Permanent Sovereignty over Natural Resources. Cambridge Journal of International and Comparative Law 4 (3): 588–615.

Naoki IWATSUKI is professor of international law at Rikkyo University (Japan) since 2012. He earned LLM from the University of Tokyo in 1998 and DEA from the University of Paris 1, Pantheon-Sorbonne, in 2000. He was visiting fellow at the European University Institute (2010– 2011), at the Lauterpacht Centre for International Law, the University of Cambridge (2011), and at the University of Rome La Sapienza (2011–2012). His principal field of research is the peaceful settlement of international disputes, especially focusing on the legal regulation of non-military coercive measures during the process of amicable settlement of disputes, or countermeasures. On this subject, he has published many journal articles and chapters, including “Legal Nature of Non-forcible Unilateral Measures by Third States in Case of Grave Violation of Human Rights: Critical Analysis on the Doctrine of ‘Third-party Countermeasures,’” in Yuji IWASAWA, Koichi MORIKAWA, Tadashi MORI, and Yumi NISHIMURA eds., Dynamics of International Law: In Memory of Professor Akira KOTERA, vol. 765 (2018), pp. 49–55 [in Japanese] and “Chapter 81 Procedural Conditions of Countermeasures,” in James Crawford, Alain Pellet, Simon Olleson and Kate Parlet eds., The Law of International Responsibility (2010), pp. 1149–1156 (in collaboration with Yuji IWASAWA).

Chapter 2

Impacts on Jus Cogens: Impact on the Law of State Responsibility and Law of Treaties Hiroyuki Banzai

2.1 Introduction On 24 February 2022, the Russian Federation launched a military attack against Ukraine to carry out a special military operation. Self-defence was one of the legal foundations of this operation, based on the Charter of the United Nations (1945) and the Treaties on Friendship, Cooperation, and Mutual Assistance (2022) between Russia, the ‘Donetsk People’s Republic’, and the ‘Luhansk People’s Republic’.1 In October 2022, the Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine were incorporated into Russian territory through treaties between Russia and the regions.2 The conclusion of the treaties is used as a significant means for the special military operation and acquisition of the territories. While the parties in the dispute are Russia, Ukraine, and the four regions, other states are called on to refrain from recognising and supporting the situation resulting from Russia’s military activities against Ukraine, because they may constitute serious violations of international law.3 According to a series of resolutions of the General Assembly of the United Nations (UN) and statements of the governments of major powers, Russian use of force against Ukraine is deplored as aggression in violation of article 2 (4) of the UN Charter. Aggression is a typical example of the violation

1

Gill (2022), pp. 122–126. Mills and Butchard (2022), pp. 5–6. 3 For example, Japan (2022, September 30). 2

H. Banzai (B) Faculty of Law, Waseda University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_2

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of the peremptory norms ( jus cogens) of general international law.4 How should the legality and validity of the special military operation and annexation of the territories be assessed in relation to peremptory norms? This chapter examines this from the perspective of the Law of Treaties and the Law of State Responsibility.

2.2 Legitimisation of Special Military Operation 2.2.1 Brief History of Events The validity of Treaties on Friendship, Cooperation and Mutual Assistance and treaties on annexation depends on the status of the Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine as independent states. The following is a brief history of the events of state recognition of the four regions by Russia, the conclusion of treaties, and the international community’s responses to them. [2014] . 27 April5 Declaration of Independence of the Donetsk and Luhansk regions (state recognition by North Korea, Syria, and Russia) [2022] . 21 February6 State recognition of the ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’ by Russia; Conclusion of the Treaties on Friendship, Cooperation, and Mutual Assistance . 24 February7 Russia’s military invasion of Ukraine under the banner of a special military operation . 2 March8

4

Lowe (2007), p. 59. On the recognitions by three nations, Russia (2022, February 21); Syrian Arab News Agency (2022, June 29); Korean Central News Agency (2022, July 14). 6 Russia (2022, February 21); Russia (2022, February 22-I); Russia (2022, February 22-II); Japan (2022, February 24). 7 Russia (2022, February 24). 8 General Assembly, Resolution (A/RES/ES-11/1) (2022, March 2). Aggression against Ukraine. https://digitallibrary.un.org/record/3965290. 5

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The UN General Assembly adopts the ‘Aggression against Ukraine’ resolution . 23–27 September9 Referendums are held in parts of the Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine; Donetsk and Luhansk’s incorporation into Russia; Kherson and Zaporizhzhia’s secession from Ukraine and incorporation into Russia . 29 September10 State recognition of the Kherson and Zaporizhzhia regions by Russia . 30 September11 Signing of treaties on accession of Donetsk and Luhansk ‘People’s Republics’ and the Kherson and Zaporizhzhia regions to the Russian Federation . 1 October12 References to the constitutionality of the treaties on ‘admission’ to the Constitutional Court by President Putin . 2 October13 Judgement of the Constitutional Court on the constitutionality of the treaties on ‘admission’ . 5 October14 Approval of the relevant laws, including the revision of the Russian constitution, to the ‘admission’ of four regions to the Russian Federation . 12 October15 The General Assembly adopts the resolution ‘Territorial Integrity of Ukraine: Defending the Principles of the Charter of the United Nations’

9

Russia (2022, September 28). Tass (2022, September 30). 11 Russia (2022, September 30-I); Russia (2022, September 30-II). 12 Tass (2022, October 1). 13 Tass (2022, October 3). 14 Russia (2022, October 6); Russian Legal Information Agency (2022, October 5). 15 General Assembly, Resolution (A/RES/ES-11/4) (2022, October 12). Territorial Integrity of Ukraine: Defending the Principles of the Charter of the United Nations. https://digitallibrary.un. org/record/3990673. 10

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2.2.2 Russia’s Logic In addresses on 24 February and 30 September 2022, the President of the Russian Federation, Vladimir Putin, did not discuss the legal foundations of Russia’s special military operation in great detail, while its legitimacy was primarily concerned with historical aspects of colonialism of the West and the fraudulent diplomacy of an ‘empire of lies’ created inside the United States of America (USA) and various violations of international law, such as the destruction of the cities of Hiroshima and Nagasaki by using nuclear weapons twice, etc., as well as the political aspects of the immediate threat to Russia through the eastward expansion of North Atlantic Treaty Organization (NATO).16 The legal foundations of the operation were stated as follows17 : The people’s republics of Donbass have asked Russia for help. In this context, in accordance with Article 51 (Chapter VII) of the UN Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.

In the paragraphs above, the main grounds for the use of force in the special military operation can be interpreted as collective self-defence in the execution of the Treaties on Friendship Cooperation, and Mutual Assistance with the ‘Donetsk People’s Republic’ and the ‘Lugansk People’s Republic’.18 In the case of state recognition of the four regions and the subsequent treaties on annexation, legal issues on the statehood of the regions and the validity of treaties were not mentioned. Instead, President Putin stressed the importance of the principle of self-determination and referendums to demonstrate the will and desire of the people in the four regions.19 As you know, referendums have been held in the Donetsk and Lugansk people’s republics and the Zaporizhzhia and Kherson regions. The ballots have been counted and the results have been announced. The people have made their unequivocal choice. Today we will sign treaties on the accession of the Donetsk People’s Republic, Lugansk People’s Republic, Zaporizhzhia Region and Kherson Region to the Russian Federation. I have no doubt that the Federal Assembly will support the constitutional laws on the accession to Russia and the establishment of four new regions, our new constituent entities of the Russian Federation, because this is the will of millions of people. It is undoubtedly their right, an inherent right sealed in Article 1 of the UN Charter, which directly states the principle of equal rights and self-determination of peoples. 16

Tass (2022, March 17). Russia (2022, February 24). 18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 105, para 199. The International Court of Justice also held that it ‘concludes that the requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked’. 19 Russia (2022, September 30-I). 17

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… For eight long years, people in Donbass were subjected to genocide, shelling and blockades; in Kherson and Zaporizhzhia, a criminal policy was pursued to cultivate hatred for Russia, for everything Russian. Now too, during the referendums, the Kiev regime threatened schoolteachers, women who worked in election commissions with reprisals and death. Kiev threatened millions of people who came to express their will with repression. But the people of Donbass, Zaporizhzhia and Kherson weren’t broken, and they had their say.

Russia elaborated on a unique theory that they accepted a call for help from the people of the regions whose life and safety were threatened by the Kiev regime; thus, they were forced to carry out a special military operation and incorporate the regions into Russian territory to protect the victims. In this theory, the principle of self-determination and referendums have a core status to ensure the legality and legitimacy of the special military operation and the subsequent incorporation of the regions, because Russia gives special weight to the free expression of the will and desire of the people. In the judgement of the Constitutional Court of the Russian Federation, too, it is placed at the heart of the constitutionality of the treaties on the annexation of the four regions to Russian territory. The Constitutional Court received the request from President Putin to review the constitutionality of international treaties on the admission of Donetsk and Luhansk ‘People’s Republics’ and the Kherson and Zaporizhzhia regions to the Russian Federation.20 The judgements21 on the constitutionality of the treaties can be summarised as follows.22 The decision of the Russian Federation was to arbitrarily transfer lands with a predominantly ethnic Russian population to Ukraine without giving them the opportunity to express their will (paragraph 2, subparagraph 2). Ukrainian authorities prevented ethnic Russians from maintaining their national, linguistic, religious, and cultural identities. This attitude is based on a Ukrainian policy of aggressive nationalism and anti-ethnic Russian neo-Nazism as well as its discriminate laws and regulations (subparagraph 3). People in the four regions should enjoy the right to selfdetermination according to article 2 (1) of the UN Charter and article 1 (1) of the International Covenant on Civil and Political Rights. They are also entitled to establish their own independent sovereign states and freely decide their access to another state in the execution of the right to self-determination, as stipulated in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation

20

Tass (2022, October 1). Constitutional Court of the Russian Federation (2022, October 2). (Donetsk). http://publication.pravo.gov.ru/Document/View/0001202210020002; (Luhansk). http://publication.pravo.gov.ru/Document/View/0001202210020003; (Kherson). http://publication.pravo.gov.ru/Document/View/0001202210020001; (Zaporizhzhia). http://publication.pravo.gov.ru/Document/View/0001202210020004. The author is grateful to Professor Kenjiro SHIBUYA of Waseda University, expert of Russian Law, for valuable comments and information of the official site on the judgements of the Constitutional Court of the Russian Federation to fill the author’s language problem of Russian. 22 Masol (2022). 21

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(24 October 1970) (A/RES/2625 (XXV)) (subparagraph 4).23 In 2014, the population of Donbass decided on the independence of the ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’ in referendums held in their respective regions. The armed conflict arose between Ukraine and two ‘Republics’. Ukraine refused to implement the Minsk Agreement to peacefully resolve the conflict and this attitude of Ukraine caused a threat to the life and safety of the citizens and the territorial integrity of the Russian Federation. In addition, the direct threat to Russia emerged through Ukraine’s desire to accede to NATO and the support of the collective West for the anti-Russia policy of the Ukrainian authorities (subparagraphs 5–6).24 Under these circumstances, the two ‘Republics’ made an official request to Russia based on the Treaties on Friendship, Cooperation and Mutual Assistance. Consequently, Russia had no choice but to launch a special, pre-emptive military operation. Considering the inevitable nature of the threat, it could be interpreted to amount to the inalienable right to self-defence based on article 51 of the UN Charter. The purpose of the special military operation was to liberate the two ‘Republics’ by exercising their right to self-determination outside the territory of Ukraine. As in the case of the ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’, Ukrainian authorities’ attack against the territories liberated by Russia targeted the civilians (subparagraphs 7–8). Due to the unstable situation, the People’s Council of the two ‘Republics’ and military-civilian administrations of the Zaporizhzhia and Kherson regions decided to hold referendums in which overwhelming majorities voted in favour of accession to the Russian Federation. In the case of the Zaporizhzhia and Kherson regions, which have not yet gained independence, secession from Ukraine and its independence are additional issues to their accession to Russia. This resulted in the conclusion of the Treaties on the admission (ppin ti ) of the four regions (subparagraph 9). The special military operation does not aim to resolve the territorial disputes between Russia and Ukraine but it is carried out for the prevention and removal of threats to peace (article 1 (1)), the principle of equal rights and selfdetermination of peoples (article 1 (2)), and self-defence (article 51) (subparagraph 14). Based on the reasoning above, the Constitutional Court affirms the constitutionality of the treaties on accession because it is compatible with the values of the Russian constitution.25

23

See also the remark of the Foreign Minister. Russia (2022, October 4). Meduza (2022, October 3). 25 Russia (2022, October 3). Foreign Minister Sergey Lavrov stated that ‘[a]ccording to the established procedure, the Constitutional Court of Russia verified the correspondence of the agreements to the Constitution of the Russian Federation and delivered a positive conclusion’. 24

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2.3 Capacity to Conclude a Treaty 2.3.1 Statehood A treaty is an international transaction between two or more subjects of international law, such as states or international organisations.26 According to article 2 (1) (a) of the Vienna Convention on the Law of Treaties (1969), the scope of which is limited to agreements between states, ‘“treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’, and in article 6 ‘[e]very State possesses capacity to conclude treaties’.27 The capacity of the constituent units of a federation is defined in accordance with its constitution. Under its constitution, Ukraine is a state based on the republican system, and the capacity to conclude international treaties belongs to the president (article 106). In addition to Crimea (article 134), the four regions under consideration are among the autonomous republics on which the territorial structure of Ukraine is based (article 133).28 Professor Aust indicates that ‘[fe]deral constitutions vary on whether the constituent units have the power to enter into treaties’.29 It is doubtful whether the four regions have the capacity to conclude a treaty as a state in international law, irrespective of their status under Ukraine’s contemporary constitution. This is relevant to the status of each region. Did the four regions become states under international law? Statehood is a legal qualification that an entity must possess to be recognised as a state. Regarding the elements of statehood, the following provisions of the Montevideo Convention on the Rights and Duties of States (1933) are often referred to30 Article 1 The state as a person of international law should possess the following qualifications: (a) (b) (c) (d)

a permanent population; a defined territory; government; and capacity to enter into relations with the other states. … Article 3

26

Aust (2000), p. 47. See the text of the Vienna Convention on the Law of Treaties (1969). https://legal.un.org/ilc/texts/ instruments/english/conventions/1_1_1969.pdf. 28 See the text of the Constitution of Ukraine (1996). https://rm.coe.int/constitution-of-ukraine/168 071f58b. 29 Aust (2000), pp. 48–49. 30 See the text of the Convention on Rights and Duties of States adopted by the Seventh International Conference of American States. Signed at Montevideo, December 26th, 1933. https://treaties.un. org/doc/Publication/UNTS/LON/Volume%20165/v165.pdf. 27

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H. Banzai The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

According to the Montevideo Convention, it is important for statehood to possess the four elements of permanent population, defined territory, government and diplomatic capacity rather than the recognition of other states for an entity to assume the political existence of a state. It is true that the non-recognition of a small number of states for political reasons does not have a great impact on the certification of statehood on an entity. However, if it is not accepted by a large majority of states as a member of the international community, it may be negatively presumed that it could not establish a political identity as a state in terms of international law.31 In the case of a new state separated from its former home country, unlike independence from a colonising nation, the formalistic certification of the four elements in article 1 of the Montevideo Convention is not decisive. The secession of a region from its former homeland means the transfer of territorial sovereignty over the region to a new state. The transfer of sovereignty is permitted under strict conditions. There is not a problem if the entity aiming to be a state is recognized as a new state and if the former home country gives its consent to its independence, in which case, the criticism of the intervention into the internal affairs of a state and premature recognition will not be posed when the other states recognize the entity as a new state. However, consent from the home country is not essential, even though it is a safety valve. States evaluate whether the entity can survive persistently without foreign control, taking into consideration that it has already acquired the capacity with the necessary financial resources to maintain territorial integrity, political independence, and public safety and order in addition to an autonomous and continuous system to maintain effective control over the whole territory.32 When particular groups in the Donetsk and Luhansk regions claimed for secession from Ukraine and declared that they would establish new states—the ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’—Ukraine denied the effect of the declaration, and then the civil war broke out in Donbass area.33 Only North Korea (July 14), Syria (June 29), and Russia (February 21) recognised the two ‘Republics’ in 2022.34 Russia recognised them just a few days before the special military operation, approximately eight years after their declaration of independence. During the intervening eight years, it had no official diplomatic relations to the regions. Therefore, it cannot be assumed that in the process of concluding the Treaties on Friendship, Cooperation, and Mutual Assistance, deliberate negotiations for the ratification of treaties were made to arrange the mutual vital interests of parties, 31

On the controversial character of the Montevideo criteria of statehood, Grant (1999), pp. 453–457. Yamamoto (1994), pp. 123–124. 33 Ukraine (2019, December 19). 34 See footnote 5. 32

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as usually seen in the conclusion of important treaties on the context of an alliance. Furthermore, the effective and stable control of two ‘Republics’ does not extend over the whole territory of the autonomous republics of Donetsk and Luhansk under the constitution of Ukraine. There may be no autonomous governmental authority independent of foreign support, such as Russia. Hence, it is difficult to say that the territorial sovereignty of the regions was legally transferred from Ukraine to the two ‘Republics’ in international law. Under these circumstances, recognition of their secession would amount to an intervention in Ukraine’s affairs in violation of its territorial integrity. As a conclusion, these two ‘Republics’ have no capacity to enter into treaties for the lack of statehood even eight years after the declaration, and so the Treaties on Friendship, Cooperation, and Mutual Assistance are considered invalid. What about the validity of treaties on annexation? It is said that the annexation of the four regions to Russia is modelled on the declaration of independence of the ‘Crimea Republic’ on 11 March 2014. On 18 March 2014 President Putin said the following in his address35 : Moreover, the Crimean authorities referred to the well-known Kosovo precedent—a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: ‘No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence’, and ‘General international law contains no prohibition on declarations of independence’. Crystal clear, as they say.

In the case of Crimea, President Putin intends to legitimise the annexation without the permission of the Ukrainian central authority by citing an advisory opinion of the International Court of Justice on the declaration of independence with respect to Kosovo (2010). The ICJ upheld the legality of the declaration of independence36 : 79. … On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence … A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.

Although there are many critics of this advisory opinion, the ICJ does not recognise the unilateral secession of a part of the territory of a nation without any qualification. It touches on the legality of the declaration of independence, not the independence itself.37 Even if the declarations of Crimea and the four regions are not illegal in international law, they cannot be considered authoritative enough to establish sovereign 35

Russia (2014, March 18). See also, Barausova (2021), pp. 375–386. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 436, para 79. 37 Yamada (2022), pp. 10–11. 36

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states and give them the capacity to conclude treaties as a political entity in the international community. The annexation of the four regions by Russia is dependent on whether it can be legitimised on the basis of the right to self-determination, particularly the will and desire of the people demonstrated in the referendums held in the respective regions.

2.3.2 Self-Determination In Russia’s logic, the legality of the annexation of the four regions depends on the will and desire of the peoples based on the results of referendums, and the alteration of the status of the regions is legitimized under the right to self-determination. Originally it was a concept to support the right of peoples to freely decide the political status of their future in a colony, and promote their secession and independence from a colonising nation. It can be called the right to external self-determination. According to Professor Brownlie, ‘[t]here can be no question that the right of self-determination is not confined to the so-called colonial agenda. The right inheres in “all peoples”’.38 Currently, most colonised areas can gain independent status. Recent problems have shifted the right to internal self-determination when a severe conflict between national authorities and particular people occurs within an independent sovereign state. In the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (2625XXV), the two directions of the right to self-determination and territorial integrity are balanced in the following manner39 : Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter. … Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

In the declaration on friendly relations, peoples enjoy the principle of selfdetermination as a legal right, while the right to self-determination may be restricted by legal interest in the territorial integrity of a state. Once a sovereign state comes into existence, the right to self-determination of peoples of the state shifts to the right 38

Brownlie (1998), p. 46. General Assembly, Resolution (A/RES/25/2625) (1970, October 24). https://digitallibrary.un. org/record/202170. 39

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to freely decide their political status and seek economic, social, and cultural development under its constitution. It is called as the right to internal self-determination. If a particular people cannot enjoy these rights under the constitution due to the oppression of their internal right to self-determination by the government of the state, secession would become a way to protect their rights under the external right to self-determination again—in other words, remedial secession.40 In the Kosovo case, the ICJ did not judge whether remedial secession was established under international law.41 According to the judgement of the Supreme Court of Canada on the case Reference re Secession of Quebec (1998), it is held as to the right to secession42 : [A] right to secession only arises under the principle of self-determination of peoples at international law where ‘a people’ is governed as part of a colonial empire; where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.

There are strong doubts whether the four regions would be permitted to separate from Ukraine, because remedial secession is permitted under the most limited circumstances. The peoples of the four regions are not colonial residents. It is also debatable whether the Ukrainian government has oppressed them by committing genocide so that conditions of independence are met under remedial secession. Even if their right to self-determination is recognised, it is uncertain whether its scope will include the transfer of territorial title in the form of an annexation to Russia.43 There is a characteristic in the exercise of the right to self-determination of the four regions in that they aim to ‘destroy’ their own state through the annexation to Russia, and not ensure its continuous existence as an independent state after the separation from Ukraine. In the case of the ‘Donetsk People’s Republic’ and the ‘Luhansk People’s Republic’, eight years have passed since their declaration of independence, whereas Kherson and Zaporizhzhia regions existed as states for only a few days. This means that the secession of the regions from Ukraine was just a step toward annexation to Russia. Can people dispose of their homeland by easily transferring territorial title under the name of self-determination? In this respect, the Declaration on the Granting of Independence to Colonial Countries and Peoples (1514XV) reads as follows44 : 40

Crawford (2006), pp. 390, 417; Yamada (2022), pp. 8–9. I.C.J. Reports 2010, supra note 36, p. 438, paras 82–83. 42 Supreme Court of Canada (1998). Reference re Secession of Quebec, 2 SCR 217, para 154. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do. 43 Lowe (2007), p. 114. Professor Lowe indicates in general terms that ‘[t]here are no clear answers to these questions, and the lack of certainty on such fundamental aspects of the principle underlines the fact that it was essentially a child for its time, rooted in the movement for decolonization and unsure of its role beyond that context’. 44 General Assembly, Resolution (A/RES/1514(XV)) (1960, December 14). https://digitallibrary. un.org/record/206145. 41

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H. Banzai 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. … 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

According to the declarations on independence, the right to self-determination can be said to be established to the extent that all peoples have the right to freely determine their political status and pursue their economic, social, and cultural development in accordance with their freely expressed will and desire, for example, through a referendum. A referendum is a means to acquire the capacity and qualification to become a state. It is difficult to recognize that, beyond this, peoples have the right to freely transfer a portion of the territory of the former home country. The will and desire of peoples is not supreme, though it is important. The right of territorial disposition belongs to a state.45 It is necessary to emphasise the difference between the legal personality of states and people as units of self-determination.46 In the present case, Ukraine can cede four regions to Russia, however, the annexation to Russia cannot be legitimised solely by the desires of the peoples of the regions. It is a contradiction, for the birth of a state is almost simultaneously accompanied by its extinction by exercising the right to self-determination. In the resolution of the General Assembly (A/RES/ES-11/4) (2022, October 12), it declared that the referendums held under the temporary military control of the Russian Federation, have no validity as ‘the subsequent attempted illegal annexation of these regions’.47 As discussed above, the peoples of the four regions, whatever their status, have no right to transfer territorial sovereignty over the regions to Russia, and they cannot legitimise it in the context of self-determination.

2.4 Consequences of Violations of Peremptory Norms (Jus Cogens) 2.4.1 Acquisition of Territory Through a Treaty The annexation of the four regions through treaties on annexation to Russia will also be discussed in the context of the acquisition of territory through treaties. The acquisition of the title to a territory through a treaty is called a cession. According to Oppenheim’s international law, ‘the only form in which a cession can be effected is 45

Thierry et al. (1986), pp. 257–258. Brownlie (1998), pp. 39–40. 47 General Assembly, supra note 15. 46

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an agreement normally in the form of a treaty between the ceding and the acquiring state’.48 This means that cession is usually completed by the ratification of the treaty of cession. Cession is to transfer the right and title of a part of the territory of one state to another state under the treaty between the two states. The cession of the territory of a state as a whole is an annexation. Once one state annexes another state under the treaty, the latter will disappear. A cession may be the outcome of peaceable negotiations or war.49 An annexation under a treaty is generally opposable to all states as a transfer of territorial title on the basis of an agreement between two states. Even if the annexation is completed by the treaty, its validity will be lost when some factors of null and void of the treaty are found at the time of its conclusion. The annexation of the four regions recognised as states by Russia was conducted under circumstances resulting from the special military operation in violation of article 2 (4) of the UN Charter. Thus, the validity of such an annexation may be questioned. The Russian Constitutional Court held its judgement in view of the object and purpose of the treaty, namely that the incorporation of the four regions is not to resolve territorial disputes between Russia and Ukraine but to ensure the peace and safety of people in their respective regions. The international legality and domestic constitutionality of the treaties on annexation were assessed by their object and purpose with regard to the background of their conclusions rather than their content.50 There is no objection that the prohibition of the use of force under article 2 (4) of the UN Charter is a peremptory norm of general international law. It is debatable whether the treaties on annexation will be null and void if the special military operation can be regarded as an illegal use of force. Russia did not conclude the treaty of cession with Ukraine under the coercion of a military invasion of four regions. Russia concluded the treaties on annexation to incorporate them after it recognized the four regions as sovereign states in accordance with the will and desire of people to be integrated into Russian territory expressed in referendums in their respective regions under conditions that arose from the special military operation exercised against Ukraine. This corresponds to the infringement of the territorial integration of Ukraine, but the violation of peremptory non-use of force norm is only indirectly relevant to the conclusion of the treaties on annexation. Even if the violations of peremptory norms only have an indirect connection to the conclusion of the treaty, it is arguable if it will be null and void through the special effects of peremptory norms. The preamble of the General Assembly’s resolution (A/RES/ES-11/1) (2022, March 2) reaffirms that ‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’, and the aggression by the Russian Federation against Ukraine in violation of article 2 (4) of the Charter is deplored in the strongest terms in paragraph 2.51 In addition to the opinion of Ukrainian government,52 there 48

Jennings and Watts (eds.) (1992), p. 680. Ibid., pp. 681–683. 50 See above, 2.2. 51 General Assembly, supra note 8. 52 Ukraine (2022, July 22). 49

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are official documents and HP of governments that the special military operation of Russia corresponds to aggression.53 Aggression is the first item on the list of peremptory norms in Conclusion 23 of the Draft Conclusions on the Identification and Legal Consequences of Peremptory Norms of General International Law ( jus cogens) (2022) made by the International Law Commission.54 Draft Conclusion 23 Non-exhaustive list Without prejudice to the existence or subsequent emergence of other peremptory norms of general international law ( jus cogens), a non-exhaustive list of norms that the International Law Commission has previously referred to as having that status is to be found in the annex to the present draft conclusions.

Annex (a) (b) (c) (d) (e) (f) (g) (h)

The prohibition of aggression; the prohibition of genocide; the prohibition of crimes against humanity; the basic rules of international humanitarian law; the prohibition of racial discrimination and apartheid; the prohibition of slavery; the prohibition of torture; the right of self-determination.

It is true that ‘in practice, peremptory norms are violated by individual conduct rather than international agreements between states’55 ; however, the Vienna Convention stipulates provisions that are relevant to conflict with peremptory norms in articles 52 and 53.56 Article 52 Coercion of a State by the threat or use of force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”). A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of 53

For example, G7 (2023, February 24); Japan (2023, February 24); USA, France and UK (2022, October 23). 54 Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens), with Commentaries. https://legal.un.org/ilc/texts/instruments/eng lish/commentaries/1_14_2022.pdf. 55 Weatherall (2015), p. 7. 56 See the text of the Vienna Convention, supra note 27.

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general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

While article 52 deals with how a treaty is concluded, article 53 is applied when the content of a treaty is in conflict with a peremptory norm.57 Under article 52, the validity of a treaty is judged not from its content, but from the fact that it is concluded as a result of the threat or use of force. It is a matter of the law of treaties whether a treaty on annexation has been procured through the use of force under a special military operation. The expression of article 52 that ‘[a] treaty is void if its conclusion has been procured by the threat or use of force’ implies the need for the existence of causal link between illegal coercion by the threat or use of force and the conclusion of the treaty.58 This condition requires a direct relationship between these two factors.59 Some support a narrow interpretation that the causal link would be established only when one state party had no choice but to conclude the treaty through coercion from the other party. In the broad sense of the causal link, others are of the opinion that in order for the treaty to be considered void, it needs to be shown that, without coercion, the treaty would not have been entered into.60 Irrespective of these differences in opinion, the conclusion of the treaty between one state using force and a victim state is anticipated in article 52. Treaties on annexation under consideration may not be concluded by coercion through the threat or use of force by Russia against the peoples of the four regions. As mentioned above, in general, the right to self-determination does not give people the right to transfer a territorial title. It is certain that annexation treaties would not have been concluded in the absence of Russia’s special military operation. However, in the present case, the parties in article 52 are presumed to be Russia and Ukraine, and not the four regions. So, it could be difficult to apply it to the case even on the basis of a causal link or the probability of a conclusion of the treaties. Professor Kolb deals with this problem from the perspective of the scope of the principle of non-use of force rather than the law of treaties.61 In order to construe this question as a matter of conflicting jus cogens, the following interpretation is necessary. On the one hand, the peremptory non-use of force rule has to be regarded as reaching to a prohibition on any territorial disposition if that would indirectly condone the acquisition of that territory by force. Some degree of indirect reach is indeed necessary here, since legally the acquisition of the territory by the former occupier would be based directly on the later agreement and only indirectly on the former use of force. But if the agreement is considered void because of some ‘fruit of the poisonous tree’ doctrine, the peremptory status of the norm extends to all consequential dispositions of the territory. The situation can be cured only by full and integral restitution of the territory to the lawful owner. 57

Ciampi (2011), p. 372. Corten (2011), p. 1211. 59 Villiger (2009), p. 645. 60 Corten (2011), pp. 1212–1213. 61 Kolb (2015), pp. 124–125. 58

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In addition, Professor Kolb mentions that ‘[i]n this case, there is no international practice which can give a positive law answer by the ‘legislator’ …’,62 though he conducts a theoretical analysis on the relationship of a territorial disposition resulting from the use of force and the validity of a treaty of territorial disposition as cited above. The preamble of the resolution of the General Assembly (A/RES/ES-11/1) reaffirms that ‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’.63 According to the resolution, the General Assembly adopts the opinion that the scope of the peremptory non-use of force norm extends to the prohibition of territorial disposition. Then, in the resolution of the General Assembly (A/ RES/ES-11/4), the validity of the referendums held in the respective regions is denied and the territorial integrity of Ukraine is emphasized in the following paragraphs64 : 1. Reaffirms its commitment to the sovereignty, independence, unity and territorial integrity of Ukraine within its internationally recognized borders, extending to its territorial waters; 2. Condemns the organization by the Russian Federation of illegal so-called referendums in regions within the internationally recognized borders of Ukraine and the attempted illegal annexation of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions of Ukraine, following the organization of the above-mentioned referendums; 3. Declares that the unlawful actions of the Russian Federation with regard to the illegal so-called referendums held from 23 to 27 September 2022 in parts of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions of Ukraine that, in part, are or have been under the temporary military control of the Russian Federation, and the subsequent attempted illegal annexation of these regions, have no validity under international law and do not form the basis for any alteration of the status of these regions of Ukraine; In these resolutions, the legality of the incorporation of the four regions into Russia is denied, because it resulted from the illegal use of force by Russia. Therefore, it is reasonable that the treaties on annexation as a part of the situations that arose from the special military operation, should be considered invalid by the accompanying effect with all the consequences of the peremptory non-use of force norm.

2.4.2 Obligations of the Third Parties How should states tackle the incorporation of the four regions of Ukraine into Russia, other than the validity of the treaties? In particular, a series of processes related to the conclusion of the treaties and accession to Russia can be realised as ‘situations’ 62

Ibid., p. 125. General Assembly, supra note 8. 64 General Assembly, supra note 15. 63

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stemming from the special military operation. Such situations arise from violations of peremptory norms that prohibit the use of force to resolve international disputes. The law of state responsibility regulates the special consequences of violations of peremptory norms in all states. The Articles on Responsibility of States for Internationally Wrongful Acts (2001) is drafted by the International Law Commission, and Special Consequences of Serious Breaches of Obligations under Peremptory Norms of General International Law, are provided in its articles 40 and 41 as follows65 : Article 40 Application of this chapter. 1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation. Article 41 Particular consequences of a serious breach of an obligation under this chapter. 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law. Regarding the general consequences resulting from the illegal presence of South Africa in Namibia, notwithstanding Resolution 276 of the Security Council that declared the continued presence of South Africa in Namibia illegal, the ICJ held in the Namibia case (1971).66 (2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration; (3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia.

In article 41, all states are called to make ‘a joint and coordinated effort … to counteract the effects’ of serious breaches of obligations under peremptory norms 65

Yearbook of the International Law Commission, 2001, Vol. 2, Part 2, p. 29. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 58, para 133 (2), (3).

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that provide for a certain number of fundamental obligations in the international community as a whole. As the ILC also follows the position of the ICJ in the Namibia case, the main consequences are stipulated in article 41.67 (1) Obligation to cooperate to bring to an end through lawful means any serious breach; (2) Obligation of non-recognition of a situation created by a serious breach as lawful; and (3) Obligation of non-aid or assistance in maintaining that situation. All states have legal interests for fundamental obligations under the peremptory norms to be observed. This is the reason why a serious breach of such obligations can have ‘additional consequences, not only for the responsible state but for all other states’.68 According to article 40, a serious breach is formulated as a gross or systematic failure by the responsible State to fulfil the obligation, and it includes aggression and genocide, etc., as examples generally recognised.69 In the drafting process in the ILC, there was much discussion on whether the provisions on serious breaches of obligations under peremptory norms substantially stipulate the criminal responsibility of states and international crime.70 Since the concept of international crime in article 19 of the first reading of the text, various opinions have been expressed on whether there can be a perception of criminal responsibility in a decentralized international community.71 Judge Crawford, who was Special Rapporteur of the Articles on State Responsibility, stated that ‘the absence of any appropriate system of State criminal responsibility was a matter not of concept but of organization, of structure and of the lack of appropriate institutions’ such as nullum crimen sine lege. While he did not deny the idea of crimes of state because only the state can commit aggression.72 Many governments of UN member states, such as Japan and the USA, criticised articles 40 and 41 as reminiscent of international crime.73 These comments reflect a certain concern and antipathy towards the idea of the international crime of states. In para 4 of the resolution of the General Assembly (A/RES/ES-11/4), all states are requested not to recognise any alteration by Russia in the status of any or all of the four regions of Ukraine.74 4. Calls upon all States, international organizations and United Nations specialized agencies not to recognize any alteration by the Russian Federation of the status of any or all of the 67

Yearbook, supra note 65, p. 114, paras 3, 8, 11 (Article 41). Ibid., p. 112, para 7 (Part 2, Chapter 3: Introduction). 69 Ibid., p. 113, para 8 (Article 40). 70 Ibid., pp. 111–112, para 7 (Part 2, Chapter 3: Introduction). 71 Pellet (1999), pp. 433–434. He indicates that this issue may be properly called a ‘terminological problem’. 72 Crawford (2002), pp. 18–20. 73 Comments and Observations Received from Governments. Document A/CN.4/515 and Add.1–3, pp. 67–72, 86, 94. https://legal.un.org/ilc/documentation/english/a_cn4_515.pdf. 74 General Assembly, supra note 15. 68

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Donetsk, Kherson, Luhansk or Zaporizhzhia regions of Ukraine, and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.

States that severely censured articles 40 and 41, including Japan and the USA, agreed with the resolution of the General Assembly (A/RES/ES-11/4). Notwithstanding the abstract antipathy to the idea of international crime, these states align their opinions with articles 40 and 41 when they experience the concrete situations of aggression against the regions of Ukraine and thereafter their incorporation into Russian territory. In para 2 of the resolution of the General Assembly (A/RES/ES11/1), the use of force under the special military operation is found to be an act of aggression.75 States are called on not to recognize the effect of incorporation of the regions into Russian territory after the referendums in the situations resulting from the special military operation in para 4 of the resolution of the General Assembly (A/RES/ES-11/4). These resolutions may be interpreted as an important practice for consolidating rules on special consequences to violations of peremptory norms as a development of law after the adoption of Articles on State Responsibility in 2001.

2.5 Concluding Remarks Russia maintains that the conclusion of treaties forms the legal foundation of the special military operation and the territorial incorporation of the four regions into Russia. That said, the validity of the treaties depends on the statehood of the four regions, because the capacity to make treaties is limited to a state as a subject of international law. The scope of the right to self-determination is a key to the statehood of the four regions. The right to self-determination of the people of the regions focuses on the referendums, which show their will and desire for separation from Ukraine and integration into Russian territory. However, people, as units of self-determination, may not be clearly entitled to transfer territorial title to another state, although they may enjoy the right of separation and independence. Furthermore, it cannot be said that the peoples of the four regions are so oppressed by the Ukrainian authorities that they can claim the right of remedial secession. Therefore, the four regions cannot become states with the capacity to conclude treaties as subjects of international law. For the four regions lack such a capacity, the Treaties on Friendship, Cooperation, and Mutual Assistance are invalid, and as a result, the special military operation loses its legal foundation. Furthermore, the treaties on annexation cannot be regarded as agreements between subjects of international law, and the acquisition of the regions through invalid treaties cannot give any title to territories to Russia. The validity of the Treaties on Friendship, Cooperation, and Mutual Assistance and treaties on annexation should be denied from the perspective of the law of treaties. In addition, the validity of the treaties on annexation should also be denied based on the indirect effect of the violations of peremptory non-use of force norm, considering the fact that these treaties were concluded under circumstances resulting from 75

General Assembly, supra note 8.

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Russia’s illegal invasion (act of aggression) of Ukraine, though the authorities of the four regions may not have been coerced to conclude them. Moreover, under the law of state responsibility, all states have an obligation to refrain from recognising any alteration in the status of the four regions illegally created by invalid treaties or rendering aid or assistance in maintaining unlawful situations. The conclusion derived from the law of treaties and law of state responsibility can be interpreted based on a series of resolutions adopted by the UN General Assembly. However, when we examine the voting behaviour of states in the resolutions, there was a considerable number of dissents, abstentions, and absentees in each resolution, even if the resolutions were adopted by a majority.76 The vote is divided due to various political reasons. It is also true that the concept of common interest in the international community is gradually recognized,77 but there remains a firm idea that only direct parties can establish their international legal relations based on the decentralised and bilateral nature of international society.78 Even if states think that the aggression of Russia against Ukraine can never be acceptable and excusable for whatever reasons, it is more difficult to vote ‘Yes’ or ‘No’ on whether third parties, such as Western countries, are entitled to interfere in situations such as the Russia–Ukraine dispute. Therefore, it can be said that the problems posed by Russia’s special military operation are profoundly associated with the intrinsic nature of the international community/society and international law.

References Aust, A. 2000. Modern Treaty Law and Practice. Cambridge University Press. Barausova, V. 2021. Re review of constitutionality of the treaty between Russian Federation and the Republic of Crimea on the accession of the Republic of Crimea to the Russian Federation and on forming new constituent entities within the Russian Federation that has not entered into legal force (Judgement No 6-P/2014), Russian Federation, Constitutional Court, 19 March 2014. International Law Reports 195: 375–386. Brownlie, I. 1998. The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations. Martinus Nijhoff Publishers. Ciampi, A. 2011. Invalidity and termination of treaties and rules of procedure. In The Law of Treaties beyond the Vienna Convention, ed. E. Cannizzaro, 360–377. Oxford University Press. Corten, O. 2011. 1969 Vienna convention, Article 52, coercion of a state by the threat or use of force. In The Vienna Conventions on the Law of Treaties: A Commentary, vol. 2, ed. O. Corten, and P. Klein, 1201–1223. Oxford University Press. Crawford, J. 2002. The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries. Cambridge University Press. Crawford, J. 2006. The Creation of States in International Law. 2nd ed. Oxford University Press.

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Resolution of General Assembly (A/RES/ES-11/1): Approval 141, Dissents 5, Abstention 35, Absence 12, Total 193. Resolution of General Assembly (A/RES/ES-11/4): Approval 143, Dissents 5, Abstention 35, Absence 10, Total 193. 77 Simma (1994), pp. 221–384. 78 Weil (1983), pp. 413–442.

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Gill, T.D. 2022. The Jus ad Bellum and Russia’s “special military operation” in Ukraine. Journal of International Peacekeeping 25: 121–127. https://brill.com/view/journals/joup/25/2/articlep121_002.xml. Grant, T.D. 1999. Defining statehood: The Montevideo convention and its discontents. Columbia Journal of Transnational Law 37 (2): 403–457. G7. 2023, February 24. G7 Leader’s Statement. https://japan.kantei.go.jp/content/000123440.pdf. Japan. 2022, February 24. Sanction Measures following Russia’s Recognition of the “Independence” of the “Donetsk People’s Republic” and the “Luhansk People’s Republic” and the Ratification of Treaties with the two “Republics” (Statement by Foreign Minister HAYASHI Yoshimasa). https://www.mofa.go.jp/press/release/press4e_003085.html. Japan. 2022, September 30. Russia’s “Incorporation” of Donetsk, Luhansk, Zaporizhzhya and Kherson (Statement by Foreign Minister HAYASHI Yoshimasa). https://www.mofa.go.jp/press/ release/press6e_000407.html. Japan. 2023, February 24. Japan Stands with Ukraine. https://japan.kantei.go.jp/ongoingtopics/pdf/ jp_stands_with_ukraine_eng.pdf. Jennings, R., and A. Watts (eds.). 1992. Oppenheim’s International Law, 9th ed. vol. 1, Peace, Parts 2 to 4. Oxford University Press. Kolb, R. 2015. Peremptory International Law: Jus Cogens: A General Inventory. Hart Publishing. Korean Central News Agency. 2022, July 14. DPRK Officially Recognizes Donetsk and Lugansk. http://www.kcna.co.jp/index-e.htm. Lowe, V. 2007. International Law. Oxford University Press. Masol, S. 2022. Orwellian Rulings of the Russian Constitutional Court on the Donetsk, Kherson, Luhansk and Zaporizhzhia Provinces of Ukraine. EJIL: Talk!. https://www.ejiltalk.org/orwell ian-rulings-of-the-russian-constitutional-court-on-the-donetsk-kherson-luhansk-and-zaporizhz hia-provinces-of-ukraine/. Meduza. 2022, October 3. A Putin-style History Lecture: The Constitutional Court of Russia rules on the Annexation of Ukrainian Territory. https://meduza.io/en/feature/2022/10/02/a-putin-stylehistory-lecture. Mills, C., and P. Butchard. 2022. Implications of the Russian-backed Referendums in Ukraine. Research Briefing 13 October 2022, Number 9631, House of Commons Library. https://resear chbriefings.files.parliament.uk/documents/CBP-9631/CBP-9631.pdf. Pellet, A. 1999. Can a state commit a crime? Definitely, yes!. European Journal of International Law 10 (2): 425–434. http://www.ejil.org/pdfs/10/2/592.pdf. Russia. 2014, March 18. Address by President of the Russian Federation; Vladimir Putin Addressed State Duma Deputies, Federation Council Members, Heads of Russian Regions and Civil Society Representatives in the Kremlin. http://www.en.kremlin.ru/events/president/news/20603. Russia. 2022, February 21. Signing of Documents Recognising Donetsk and Lugansk People’s Republics. http://en.kremlin.ru/events/president/news/67829. Russia. 2022, February 22-I. President Signed Federal Law on Ratifying the Treaty of Friendship, Cooperation and Mutual Assistance Between the Russian Federation and the Lugansk People’s Republic. http://en.kremlin.ru/events/president/news/67834. Russia. 2022, February 22-II. President Signed Federal Law on Ratifying the Treaty of Friendship, Cooperation and Mutual Assistance Between the Russian Federation and the Donetsk People’s Republic. http://en.kremlin.ru/events/president/news/67835. Russia. 2022, February 24. Address by the President of the Russian Federation. http://en.kremlin. ru/events/president/news/67843. Russia. 2022, September 28. Foreign Ministry’s Statement on the Referendums in the DPR, LPR, Kherson and Zaporozhye Regions. https://mid.ru/en/foreign_policy/news/1831658/. Russia. 2022, September 30-I. Signing of Treaties on Accession of Donetsk and Lugansk People’s Republics and Zaporozhye and Kherson Regions to Russia. http://en.kremlin.ru/events/presid ent/news/69465. Russia. 2022, September 30-II. People’s Choice: Together Forever Concert Rally. http://en.kremlin. ru/catalog/regions/X4/events/69470.

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Russia. 2022, October 3. Remarks by Official Representative of the President of the Russian Federation, Foreign Minister Sergey Lavrov at a Plenary Session of the State Duma of the Federal Assembly of the Russian Federation on the Ratification of Treaties between the Russian Federation and the DPR, the LPR and the Zaporozhye and Kherson Regions, and on the Creation of New Regions in the Russian Federation. https://mid.ru/en/foreign_policy/news/1832337/. Russia. 2022, October 4. Official Representative of the President and Foreign Minister Sergey Lavrov’s Remarks at a Plenary Meeting of the Federation Council of the Federal Assembly of the Russian Federation on the Approval of the Laws Ratifying Treaties between the Russian Federation and the Donetsk and Lugansk People’s Republics and the Zaporozhye and Kherson Regions and Establishing New Constituent Entities of the Russian Federation. https://mid.ru/ en/foreign_policy/news/1832391/. Russia. 2022, October 6. Briefing by Foreign Ministry Spokeswoman Maria Zakharova; Update on the Ukrainian Crisis. https://mid.ru/en/foreign_policy/news/1832779/#4. Russian Legal Information Agency. 2022, October 5. Putin Signs Law on Incorporation of Four New Subjects into Russia. https://rapsinews.com/legislation_news/20221005/308353590.html. Simma, B. 1994. From bilateralism to community interest in international law. Recueil des cours 250 (VI): 221–384. Syrian Arab News Agency. 2022, June 29. Syria Recognizes Independence and Sovereignty of Lugansk and Donetsk People’s Republics. https://sana.sy/en/?p=276507. Tass. 2022, March 17. Western “Empire of Lies” Has Resources, But It Cannot Defeat Truth and Justice—Putin. https://tass.com/world/1423145. Tass. 2022, September 30. Putin Signs Decrees to Recognize Independence of Zaporozhye, Kherson Regions. https://tass.com/politics/1515559. Tass. 2022, October 1. Russia’s Constitutional Court Accepts Putin’s Request over Accession of Four New Regions. https://tass.com/russia/1516447. Tass. 2022, October 3. Press Review: Russian Top Court Okays Accession and Chances to Revive Nord Stream Revealed. https://tass.com/pressreview/1516823. Thierry, H., J. Combacau, S. Sur, and C. Vallée. 1986. Droit international public, 5e éd. Éditions montchrestien. Ukraine. 2019, December 19. 10 Facts You Should Know about Russian Military Aggression against Ukraine. https://mfa.gov.ua/en/10-facts-you-should-know-about-russian-militaryaggression-against-ukraine. Ukraine. 2022, July 22. Key Q&A on Russia’s Aggression. https://mfa.gov.ua/en/key-questions-ans wers-on-russias-agression. USA, France and UK. 2022, October 23. Joint Statement on Ukraine. https://www.state.gov/jointstatement-on-ukraine-2/. Villiger, M.E. 2009. Commentary on the 1969 Vienna Convention on the Law of Treaties. Martinus Nijhoff Publishers. Weatherall, T. 2015. Jus Cogens: International Law and Social Contract. Cambridge University Press. Weil, P. 1983. Towards relative normativity in international law. American Journal of International Law 77 (3): 413–442. Yamada, T. 2022. Kokusaiho kara mita ippoteki bunri dokuritsu to ‘heigo’: Ukuraina tobu nanbu yonshu no houtekichii (Unilateral secession and ‘annexation’ in international law: legal status of the four regions of eastern and southern parts of Ukraine). Kokusai Mondai (International Affairs) 710: 5–14. Yamamoto, S. 1994. Kokusaiho (Shinpan) (International Law (New edition)). Tokyo: Yuhikaku Publishing. *All webpages listed above and of footnotes are accessed: 8 May 2023.

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Hiroyuki Banzai is a Professor of Law at Waseda University since April 2009, teaching public international law. His previous teaching experience includes Associate Professor at Surugadai University in Saitama. As for his academic background, he received a Master of Laws and a Doctor of Laws Thesis from Waseda University. His book “Study on State Responsibility for Internationally Wrongful Acts” won the Adachi Mineichiro Memorial Award in 2016. He was a member of the Wise Persons Group of the Japan–EU relationship and a chairperson of the international law group of joint research projects of young scholars between Japan and Taiwan. As a product of the latter project, the book “Japan–Taiwan Economic Intercourse and International Law” (in Japanese and Taiwanese) was published under his edition in 2022. He is currently a member of the board of directors of the Japanese Association of International Law.

Chapter 3

The Uniting for Peace Resolution Used in the Ukraine Case: Could It Open a New Window of the General Assembly? Naozumi Kurokami

3.1 Introduction On 24 February 2022, the news of the Russian military attack on Ukraine shook the world.1 The General Assembly was convened and denounced Russia’s action. Following the meeting, the UN Secretary-General, Antonio Guterres, described this serious event as the “saddest moment” in his tenure.2 Indeed, the following day at the Security Council, a draft resolution, in which the Council “deplored in the strongest terms the Russian Federation’s aggression against Ukraine,” and classed it as being in violation of Article 2 (4) of the UN Charter, was submitted by Albania and the United States. This resolution, which was supported by 11 members, was vetoed by the Russian Federation (China, India, and the United Arab Emirates all abstained).3 The Security Council adopted the resolution and decided to call an emergency special session of the General Assembly to consider the Ukraine crisis on 27 February.4 On the same day, Ukraine filed an application initiating proceedings against Russia before the International Court of Justice (hereinafter ICJ) and

1 Before attacking Ukraine, on 21 February, Vladimir Putin, the President of the Russian Federation, declared that he recognized the two regions in eastern Ukraine, the Donetsk People’s Republic and the Luhansk People’s Republic, as independent States, and was thus moving troops into Ukraine. BBC News, on 21 February 2022, https://www.bbc.com/news/av/world-europe-60470900. Accessed 31 March 2023. The next day, the President stated that the Minsk agreements, which aimed to end hostilities in the so-called Donbas region of Ukraine, no longer existed. Tass, on 23 February, https://tass.com/world/1408591. Accessed 31 March 2023. 2 UN News on February 24, https://news.un.org/en/story/2022/02/1112592. Accessed 31 March 2023. 3 UN Doc. S/2022/155 and UN Doc. S/PV/8979, p. 6/17. 4 UN Doc. S/RES/2623 (2022).

N. Kurokami (B) Faculty of Law, Okayama University, Okayama, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_3

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requested the Court to indicate provisional measures.5 The next day, for the first time since the tenth emergency special session (ES-10) was first held in 1997, the General Assembly hosted an emergency special session pursuant to Resolution 377 A (V), known as the Uniting for Peace Resolution, and the said resolution was adopted by the Assembly on 3 November 1950. In the opening remarks of the first meeting of the eleventh emergency special session (ES-11), the president of the General Assembly condemned the Russian military action and regarded it as a violation of the territorial integrity and sovereignty of Ukraine under the UN Charter.6 The meeting of the session resulted in the adoption of the first resolution, ES-11/ 1, on 2 March 2022. The resolution, entitled “Aggression against Ukraine,” reads: The General Assembly, …Recalling further its resolution 3314 (XXIX) of 14 December 1974, which defines aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter, …2. Deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter.7

It seems that the General Assembly described the situation of Ukraine being attacked by Russia as aggression in light of Resolution 3314 (XXIX), which defines aggression. However, a question arises here, namely, can the General Assembly determine the existence of an act of aggression despite the fact that the Security Council is capable of doing so under Article 39 of the UN Charter? Here it is fitting to look back at the Uniting for Peace Resolution, Section A, paragraph 1 which stipulates that: if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations8 [emphasis added.]

According to the provision of the above-mentioned Resolution, it is stated that, in the case of a breach of the peace or act of aggression, the General Assembly would be able to recommend the taking of collective measures, even including the use of armed force. In other words, for the Assembly to recommend the use of force, the two aforementioned preconditions must be met, namely a breach of the peace or an aggression. However, this is not free from ambiguity, specifically when it comes to 5

ICJ, Press Release No.2022/4, on 27 February 2022. https://www.icj-cij.org/press-releases. Accessed 31 March 2023. 6 UN Doc. A/ES-11/PV.1, p. 2/29. 7 UN Doc. A/RES/ES-11/1. 8 UN Doc. A/RES/377 (V) A, para 1.

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who can determine the existence of the preconditions. Moreover, if the Assembly did have the right to determine the existence of the said preconditions, there would still be a lack of clarity regarding exactly how we would be able to recognize that it was the Assembly which determined the existence of the situation. Returning to the Ukraine case, how should we assess the situation where the General Assembly “deplored” the Russian aggression in Resolution ES-11/1? Could we be convinced that the Assembly determined the existence of an act of aggression? If the Assembly determined such an existence, then what is coming next? To clarify the implications of the present emergency special session on the Ukraine case, it is necessary to consider what the Uniting for Peace Resolution has gifted to the General Assembly, and how far the Assembly has come in being able to exercise its right under the Charter since the Resolution was adopted. To answer these questions, it is essential to examine not only the drafting history of the Resolution, but also the practice of the previous emergency special sessions of the General Assembly.

3.2 Background 3.2.1 Drafting History To consider the Uniting for Peace Resolution, it is first necessary to turn to the Korean situation in 1950. On 25 June, in the face of the invasion of South Korea by forces from North Korea, which crossed the 38th parallel, the Security Council called for the immediate cessation of hostilities and the withdrawal of the North Korean forces to the border line, thus confirming the determination that the situation constituted a breach of the peace.9 Two days later, the Security Council adopted another resolution10 which recommended that Member States provide their assistance to the Republic of Korea to expel the North Korean armed forces and recover international peace and security in the area. The next resolution,11 adopted on 7 July 1950, recommended that all Member States supply their military forces, and other assistance, to a unified command under the United States. As is well known, the Security Council was able to adopt the above-mentioned resolutions so swiftly and decisively, without any vetoes, due to the fact that the Union of Soviet Socialist Republic (hereinafter USSR) representative was absent from meetings of the Council on 13 January 1950, protesting against the attitudes of the UN in not recognizing the Chinese communist regime in Beijing. It was by pure chance that the veto was avoided at that time. However, after the USSR returned to its seat on 1 August in the same year, the Security Council encountered the vetoes

9

UN Doc. S/RES/82 (1950). UN Doc. S/RES/83 (1950). 11 UN Doc. S/RES/84 (1950), para 3. 10

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brandished by the former.12 The United States and its allies tried to overcome this difficulty and drafted a resolution known as the Uniting for Peace Resolution. The spirit enshrined in the resolution can be seen in the statement by Mr. Acheson, the Secretary of State of the United States, at the Plenary meeting of the General Assembly on 20 September 1950. After severely criticizing the policy of the USSR, he declared that: Article 24 of the Charter gives the Security Council primary responsibility for the maintenance of peace, and this is the way it should be. But if the Security Council is not able to act because of the obstructive tactics of a permanent member, the Charter does not leave the United Nations impotent. The obligation of all Members to take action to maintain or restore the peace does not disappear because of a veto. The Charter, in Articles 10, 11 and 14, also vests in the General Assembly authority and responsibility for matters affecting international peace. The General Assembly can and should organize itself to discharge its responsibility promptly and decisively if the Security Council is prevented from acting. To this end, the United States delegation is placing before the General Assembly a number of recommendations designed to increase the effectiveness of United Nations action against aggression.13

Acheson emphasized that the General Assembly should discharge its responsibility for restoring international peace and security in cases where the Security Council cannot take any action due to a veto exercised by a permanent member. Furthermore, he also underlined the Assembly’s right to recommend the cessation of acts of aggression. Corresponding to this idea of activating the Assembly, the item “Uniting Action for Peace” of the United States proposal was included in the agenda of the fifth session of the Assembly, and was referred to at the first committee of the Assembly, which spanned from 9 to 21 October 1950. The proposal was submitted thereto as the “joint seven-Power draft resolution,” supported by the other six sponsors (Canada, France, the Philippines, Turkey, the United Kingdom and Uruguay). As previously alluded to, the proposal provided, in paragraph 1, the following: if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including when necessary the use of armed force, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by seven members of the Security Council.14

As already noted above, the drafting of the Uniting for Peace Resolution was certainly inspired by the experience of the Korean crisis, specifically the aggression of

12

UN Yearbook (1950), pp.220–238. Goodrich (1974), pp. 115–116. UN Doc. A/PV.279, p.24, paras 43–44. 14 UN Doc. A/C.1/576 (1950). 13

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the North Korean forces. Mr. Dulles, the representative of the United States, emphasized the necessity of remedying certain organizational weaknesses after remembering the UN action in Korea at the outset of the meeting for drafting the Resolution.15 Obviously, the aggression which the world had just witnessed brought about the need to find a solution which could be used to escape the impasse caused by the abuse of the veto.16 Thus, there was a growing sense of crisis, coupled with the fear of an act of aggression, among UN Members at that time, fairly akin to feelings felt in the face of the Ukraine crisis today. Therefore, it is necessary to listen to the voices of the Member States during the discussion in the drafting history of the Uniting for Peace Resolution. Through the examination of the drafting history, it would be possible to understand the degree to which the General Assembly can exercise its powers when it comes to the maintenance of international peace and security.

3.2.1.1

Legal Questions

It goes without saying that the main concept of the Resolution was to use the General Assembly’s right to make recommendations in cases where the Security Council fails to act due to lack of unanimity. However, activating the Assembly’s right appeared to give an impression that the authority of the Security Council, for its part, was weakened. In this respect, the USSR and its allies strongly opposed the joint sevenPower draft resolution. One of the main issues raised in the discussion was the principle of unanimity based upon the veto in the Security Council. The USSR insisted that the proposal of the joint draft resolution, to liquidate the principle of unanimity and to circumvent the Security Council, was in fact a revision and amendment of the Charter. Moreover, the USSR stated that, if it were necessary to abolish the provisions on the veto, the constitutional method should have been applied in accordance with Article 109 of the Charter.17 The Ukrainian Soviet Socialist Republic, one of its allies, also contended that questions raised by the joint proposal constituted the amendment of procedure and the revision of the basic provision of the Charter, because the draft resolution was designed to replace the Security Council with the General Assembly in disregard of the unanimity rule regarding the permanent members, which is the fundamental principle of the Charter.18 Additionally, Poland stated that the joint proposal would circumvent the Charter, and continued by declaring that, if the principle of collective security was reliable, the unanimity rule should also be maintained.19 Czechoslovakia also opposed the revision forwarded by the joint draft resolution, stating that it would only weaken the United Nations.20 15

UN Doc. A/C.1/SR.354 (1950), para 1. See the statement of Brazil. UN Doc. A/C.1/SR.356 (1950), para 50. 17 UN Doc. A/C.1/SR.357 (1950), paras 23–24. 18 UN Doc. A/C.1/SR.360 (1950), paras 17–19. 19 UN Doc. A/C.1/SR.361 (1950), paras 31–33. 20 UN Doc. A/C.1/SR.359 (1950), para 38. 16

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However, according to Canada, one of the joint Powers involved in drafting the resolution, contrary to the USSR’s assertion, the draft resolution did not include a revolutionary interpretation of the Charter, but instead aimed to utilize certain powers which the General Assembly already had under the Charter.21 The Philippines, one of the seven drafting Powers, also explained that no Security Council powers were eliminated by the draft resolution’s provision of a supplementary procedure designed to maintain international peace and security if the Security Council failed to act.22 Subsequently, the discussion further entered into the legal interpretation of each provision of the Charter. According to the USSR, under Article 10, including general provisions, the General Assembly could make recommendations within the framework of the Charter regarding the work of other UN organs. However, the General Assembly was subject to two reservations. The USSR declared that, under Article 12, the General Assembly could not make any recommendations on a matter which was on the Council’s agenda. Thus, in that case, the Assembly could not recommend anything, and instead could only discuss such a matter. The second exception, under Article 11 (2), also concerned recommendations by the Assembly to the Security Council or other organs. These recommendations were only tantamount to an appeal, order, or instruction to those organs to take any actions. The USSR further continued, referring to Kelsen, that Article 11 (2), provided a limitation of the power of the General Assembly which was not in Article 10, and the General Assembly could discuss questions but not make recommendations, even if the matter had been brought before the Assembly by the Council itself, if it were not only the question of a dispute or situation under Article 12 (1) but also the question on which action was necessary.23 In response to this, according to the United Kingdom, one of the sponsors of the draft resolution, regarding the general principle under Article 10, Article 11 (2), and Article 12 (1), could contain certain restrictions. The word “action” referred to a coercive action24 which only the Security Council was authorized to take. If this interpretation was correct, the last sentence of Article 11 (2) could be applied only in critical situations. In cases where there existed an international dispute or breach of peace which might necessitate “action,” such a question would be submitted, before or after discussion by the General Assembly, to the Security Council, because the latter held its primary but not exclusive responsibility under Article 24. However, if the Security Council could not take any action, Article 11 would not prevent the General Assembly from using its powers under Article 10.25 Moreover, if the Security Council could not act and merely shelved the matter, then the General Assembly 21

UN Doc. A/C.1/SR.358 (1950), para 45. Id., para 67. 23 UN Doc. A/C.1/SR.362 (1950), paras 62–63. 24 The USSR explained that “action” denoted a coercive action in the same way as the United Kingdom did. UN Doc. A/C.1/SR.362 (1950), para 69. See also Kelsen (1951), p. 204. 25 On the restriction provided by Article 11 (2), in response to the USSR’s assertion, France pointed out, referring to Kelsen, that Article 11 (4) confirmed the interpretation of paragraph 2 of the same Article, as not limiting the General Assembly’s freedom of action under Article 10. UN Doc. A/ C.1/SR.364 (1950), para 23. 22

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could take over the responsibility. Regarding Article 12, once a question referred to the Security Council had been removed from its agenda, the General Assembly recommendation would not be impeded, because the Security Council was no longer fulfilling its responsibility.26 During the drafting process, focusing on the authority of the General Assembly, the draft resolution was fiercely refuted by the USSR and its allies. In principle, Article 10 acknowledges the general authority of the Assembly to make recommendations on measures including coercive or enforcement action that the Security Council shall determine to take under Article 39. However, Article 10 is subject to the restriction set under Article 12 and Article 11 (2). The USSR and its allies persisted in defending the authority of the Security Council underpinned by the principle of unanimity. Their interpretation of the scope of the authority of the General Assembly, pursuant to Article 10, was limited as narrowly as possible.

3.2.1.2

Amendment of the Draft Resolution

Apart from the discussion on the Charter provisions between the sponsors of the joint seven-Power draft resolution and the Soviet bloc, it should be noted that there were a few proposals on the condition of the recommendation by the General Assembly. The original draft resolution, as has been shown, did not provide any conditions where the General Assembly could make recommendations for collective measures including the use of force. During the discussion, among other suggestions, Yugoslavia proposed that “(a) coercive measures should be resorted to only in a case of clearly established aggression; (b) certain rather vague clauses should be clarified to show that the coercive machinery provided for in the draft could not be utilized as a means of interfering in the internal political disputes of a State.”27 With regard to the former proposal by Yugoslavia, Israel also proposed that the General Assembly could recommend sanctions “only in cases of breaches of the peace or acts of aggression rather than, as provided in the seven-Power draft resolution, in cases of a mere threat to the peace.”28 Yugoslavia, in addition to this, expressed later that “breach of the peace” should be distinguished from “an act of aggression,” because the former did not inevitably involve the latter. However, it decided not to stand by this point, since the difference between the two phrases was rather subtle.29 Considering the above-mentioned proposals, the revised draft resolution inserted the phrase “in the case of a breach of the peace or act of aggression” into the operative paragraph 1. As a result of this amendment, the General Assembly would not be able 26

Id., paras 4–14. UN Doc. A/C.1/SR.356, para 63. and UN Doc. A/C.1/582. 28 UN Doc. A/C.1/SR.362, para 8. and UN Doc. A/C.1/584. 29 UN Doc. A/C.1/SR.363, paras 20–21. In connection with the meaning of the phrases “breaches of the peace” and “acts of aggression,” it should be understood that the former includes the latter in light of Article 1 (1) of the Charter. However, at Dumbarton Oaks, there was some discussion. Russel (1958), pp. 464–467. 27

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to recommend the use of armed force unless an actual breach of the peace or act of aggression had taken place. It should be noted that the scope of recommendation by the General Assembly had been limited in the revised version of the resolution. Finally, the operative paragraph 1 of the amendment of the joint seven-Power draft resolution was adopted by 52 votes to five, with two abstentions at the first committee of the General Assembly on 18 October 1950.30 Here, the statement of Dulles should be recalled as follows: [A]t San Francisco the small Powers had only agreed to the power of veto on condition that the General Assembly were granted the power to intervene and to make recommendations within the framework of Chapters VI and VII of the Charter in cases where the Security Council was unable to discharge its primary responsibility. As the delegation of the USSR had objected to the General Assembly having the right to overrule a veto, even by way of a recommendation, the United States had advised the Soviet Union on 19 June 1945 that, in view of the short time which remained before the ceremony of signing the Charter, the United States could wait no longer and that, in order to break the deadlock, it was going to negotiate alone with the small Powers. The following day, the Chairman of the Soviet Union delegation had informed the Secretary of State that his Government agreed to the extension of the scope of Article 10. The time had now come to use the right obtained that day.31

Dulles emphasized that a compromise on the scope of the General Assembly had been reached with the small Powers in San Francisco, and the USSR had not been qualified to oppose the widening of the competence of the General Assembly. Member States appeared to be influenced to no small extent by his statement, remembering the discussion in San Francisco.32 As a result, the interpretation of Article 10 by the USSR and its allies could not be supported by a large majority. Finally, after an intense verbal dispute between the sponsors of the draft resolution and the Soviet bloc at the plenary meeting of the General Assembly, the draft resolutions as a whole were adopted by 52 votes to five, with two abstentions.33 Throughout the brief observation of the drafting history of the Uniting for Peace Resolution, it should not be forgotten that the Korean crisis, a case of aggression in which the function of the Security Council had been paralyzed by a veto, drove Member States to adopt the Resolution. Needless to say, there were high expectations for the General Assembly among members, although the Resolution did not circumvent the authority of the Security Council, as the USSR and its allies feared, and instead confirmed the potential powers of the General Assembly. However, at the same time, the Resolution added the condition that the General Assembly could recommend the use of force in the case of a breach of the peace or act of aggression. Consequently, the Resolution imposed, on the Assembly, certain preconditions which had to be fulfilled before the latter could recommend collective 30

UN Doc. A/C.1/SR.368, para 46. UN Doc. A/C.1/SR.354, para 9. 32 For instance, Greece asserted that it accepted the veto procedure on the condition of widening the competence of the General Assembly. UN Doc. A/C.1/SR.355, para 31. Mexico also stressed that it had been recognized, ever since San Francisco, that the Assembly should exercise its powers if the Security Council could not work. UN Doc. A/C.1/SR.360, para 32. 33 UN Doc. A/PV.302, para 73. 31

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measures including the use of force. Subsequently, in the ensuing discussion, we should examine more details of the provisions of the Resolution.

3.2.2 The Uniting for Peace Resolution Examined As described above, the Uniting for Peace Resolution was adopted by an overwhelming majority of the Members after a lengthy discussion. It was “a constitutional landmark in the history of the Charter—not in the sense of creating new powers, but in the sense of revealing a latent potential in the Charter itself, and setting it on a firm foundation.”34 The Resolution consists of a preamble, five substantive parts (A, B, C, D, and E) and an Annex. For our purposes, it suffices to pick up the first substantive part (A), especially operative paragraph 1. In fact, this part demonstrates the residual powers35 of the General Assembly, providing certain devices that the Charter does not necessarily indicate. Let us now further examine certain provisions of the Resolution. It is recognized that the Resolution sets two conditions at the first stage, namely (1) the case where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, and (2) the case where there appears to be a threat to the peace, breach of the peace, or act of aggression. In addition, if those conditions are met, the Resolution requires the General Assembly to consider the matter immediately with a view to making appropriate recommendations to Members for collective measures. In addition to this, at the second stage, the Resolution sets the following condition: (3) in the case where there exists a breach of the peace or act of aggression, the General Assembly may recommend even the use of armed force when necessary, to maintain or restore international peace and security. The three above-mentioned conditions are essential when it comes to the Assembly being able to exercise its right to make recommendations. Therefore, it is necessary to understand how the Member States interpreted those phrases during the drafting process. In respect of condition (1), it appears not to be difficult to judge when the Security Council fails to exercise its responsibility, since the Resolution clearly mentions the case of lack of unanimity of the permanent members. In addition to the aforementioned, assuming that this point relates to when the Security Council stops exercising its function, it could overlap with the situation which Article 12 (1) envisages. According to the article, while the Security Council is exercising, in respect of any dispute or situation, its functions, the General Assembly shall not make any recommendations. In light of the interpretation during the drafting meetings, it could be

34

Reicher (1981), p. 48. This term was first used by Pakistan (M. Z. Khan) during the drafting meetings. UN Doc. A/C.1/ SR.359, para 3.

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construed that the Security Council was not exercising its functions when it was no longer seized of a question.36 On the contrary, with regard to condition (2), it is unclear who could judge whether there appears to be a threat to the peace, breach of the peace, or act of aggression. Surprisingly, there was very little discussion of this throughout the meetings for drafting the Resolution. For instance, Poland, touching upon the revised joint draft resolution, asserted that not the General Assembly but the Security Council could adopt recommendations concerning breaches of the peace or acts of aggression.37 For the USSR and its allies, it seemed to be obvious that the right to determine the situation of the three gradations of seriousness belonged to the Security Council, because Article 39 provided that the Security Council determined the existence of the situation. Although there was no explanation of this issue on the side of the sponsors of the joint draft resolution, conversely, they might naturally have considered that the General Assembly would be able to make such a determination, because the Security Council could no longer work. Conceivably, the only thing which we can confirm is that the Security Council could determine the existence of a threat to the peace, breach of the peace, or act of aggression with a view to taking coercive actions under Chapter VII. By contrast, the Resolution assumes, rather, the condition for the General Assembly not to take the coercive actions under Chapter VII but to make recommendations pursuant to Article 10. Therefore, it cannot be acceptable that the right to determine the situation belongs exclusively to the Security Council.38 In connection with the condition above, regarding condition (3), it is necessary to consider who could determine whether there exists a breach of the peace or act of aggression when the General Assembly recommends the use of force. As we have observed, this condition was added after amendments were made by Yugoslavia and Israel during the drafting process. Again, what we should confirm here is that the Resolution was drafted on the premise that the General Assembly would make recommendations pursuant to Article 10. Therefore, it would be natural that the General Assembly seems to be required to determine the existence of the two abovementioned elements. In this respect, it should be noted that, in fact, the General Assembly could recommend the use of force without determining the existence of a breach of the peace or act of aggression outside the framework of the Resolution, because Article 10 does not limit the right of the General Assembly to make recommendations. Thus, it might admittedly be pointed out that the Resolution should not have referred to such a condition so as not to be opposed by contending that

36

UN Doc. A/C.1/SR.355, para 18 (France). Similar interpretations are as follows: “when the Security Council ceased to consider a question” (with “the Council’s decision to cease to deal with a question,”), UN Doc. A/C.1/SR.356, para 33 (Peru), when “the Security Council failed to take definite action,” UN Doc. A/C.1/SR.358, para 46 (Canada), when “the Security Council could divest itself of an agenda item by a procedural vote,” UN Doc. A/C.1/SR.361, para 19 (The Union of South Africa), and when “a question had been removed from the Council’s agenda,” UN Doc. A/C.1/SR.364, para 14 (the United Kingdom). 37 UN Doc. A/C.1/SR.363, para 31. 38 Andrassy (1956), p. 577.

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the Charter authorizes not the General Assembly but only the Security Council to determine a breach of the peace or act of aggression.39 However, it is correct to think that the right of the General Assembly must be restricted, because the General Assembly would perform only the responsibility that the Security Council fails to discharge by using its right to make recommendations.40 Given the aim of Yugoslavia’s proposal, the Resolution should not be interpreted as permitting any measures resulting in so-called preventive war. Indeed, this is why it was distinctly stated that the Assembly would be able to recommend the use of armed forces only in the case of armed aggression, and not in cases of threats to the peace where there had not yet existed a real act of aggression.41 It is for this reason that the United States, after amending the draft resolution, explained that the Assembly could discuss a threat to the peace, but could not recommend the use of armed force if there had not been an actual breach of the peace or act of aggression, because the former should be distinguished from the latter.42 Only in these circumstances may the General Assembly itself recommend the use of force. Hence, it should be noted that the significance of condition (3) is not underestimated. By examining the drafting history of the Uniting for Peace Resolution, we have been able to clarify the intention of the Member States contained in the Resolution. Since 1950, how has the General Assembly utilized the Resolution? Have the provisions that we examined been interpreted in accordance with the intention that Members expressed during the drafting meetings? To acquire answers to these questions, it is reasonable to examine the practices of the emergency special sessions held by the Assembly to date.

3.3 Study of the Emergency Special Sessions 3.3.1 Before the Ukraine Case Since the adoption of the Uniting for Peace Resolution, the General Assembly has held the Emergency Special Sessions 11 times till date. Those cases are as follows: (1) Suez, (2) Hungary, (3) Lebanon, (4) Democratic Republic of the Congo, (5) Middle East, (6) Afghanistan, (7) Palestine, (8) Namibia, (9) Occupied Arab Territories (Golan Heights), (10) Occupied East Jerusalem and the rest of the Occupied Palestinian Territory, and (11) Ukraine. There exist no resolutions which have recommended the use of force, although there were lengthy debates on the issues during the drafting process of the Resolution. In light of those practices of the General 39

Kelsen (1950), p. 525. It must also not be forgotten that there exists an idea that the Security Council’s primacy should be respected despite the Resolution. Carswell (2013), pp. 453–480. 41 UN Doc. A/PV.299, para 164. 42 UN Doc. A/C.1/SR.363, para 13. 40

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Assembly, it can be suggested that the Resolution was solely invoked to convene the sessions. Nevertheless, it is necessary to pay particular attention to the cases where the General Assembly has appeared to determine the existence of any threat to the peace, breach of the peace, or act of aggression, because the determination of the latter two situations would be able to trigger the use of force recommended by the Assembly. Therefore, it would be advisable to scrutinize terminology and implications in the resolutions adopted in the emergency special sessions over time. With regard to case (1), in 1956, the Security Council decided to call the emergency special session after it failed to carry out its function because of vetoes exercised by France and the United Kingdom.43 The General Assembly, noting that the Israeli forces had penetrated Egyptian territory in violation of the 1949 General Armistice Agreement between Egypt and Israel, and that armed forces from France and the United Kingdom had also carried out military operations against Egypt, urged all parties to agree to an immediate cease-fire. In addition, the Assembly recommended that all Member States refrain from introducing military goods in the area.44 It is well known that one of the resolutions established the United Nations Emergency Force (UNEF) to secure and supervise the cessation of hostilities.45 Needless to say, this was the new challenge of the Assembly, that is, to form the original concept of peacekeeping.46 In total, eight resolutions47 were adopted in the session, and which did not mention the existence of any threat to the peace, breach of the peace, or act of aggression at all. Regarding case (2), in 1956, the Security Council decided to call the emergency special session because it failed to carry out its function due to the veto exercised by the USSR.48 The first resolution adopted stated that the General Assembly, condemning the use of Soviet military forces to attack Hungarian people, called upon the USSR to halt military attacks on the Hungarian people and any form of intervention. Moreover, the Assembly called upon the USSR not to send additional armed forces to Hungary and to withdraw its forces from Hungarian territory.49 The second emergency special session entirely adopted six resolutions.50 No resolutions referred to the existence of any threat to the peace, breach of the peace, or act of aggression.

43

UN Doc. S/RES/119 (1956) and UN Doc. S/PV.750, para 23. UN Doc. A/RES/997 (ES-I), paras 1 and 3. 45 UN Doc. A/RES/1000 (ES-I), para 1. 46 Zaum (2008), p. 174. 47 UN Doc. A/RES/996 (ES-I and II), UN Doc. A/RES/997 (ES-I), UN Doc. A/RES/998 (ES-I), UN Doc. A/RES/999 (ES-I), UN Doc. A/RES/1000 (ES-I), UN Doc. A/RES/1001 (ES-I), UN Doc. A/RES/1002 (ES-I) and UN Doc. A/RES/1003 (ES-I). 48 UN Doc. S/RES/120 (1956) and UN Doc. S/PV.754, para 68. 49 UN Doc. A/RES/1004 (ES-II), paras 1–2. 50 UN Doc. A/RES/996 (ES-I and II), UN Doc. A/RES/1004 (ES-II), UN Doc. A/RES/1005 (ES-II), UN Doc. A/RES/1006 (ES-II), UN Doc. A/RES/1007 (ES-II) and UN Doc. A/RES/1008 (ES-II). 44

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Turning to case (3), in 1958, the Security Council decided to call the emergency special session because it failed to carry out its function due to the veto exercised by the USSR.51 In the face of the crisis in Lebanon, the General Assembly called upon all Member States of the United Nations to respect not only others’ territorial integrity, but also the principles of sovereignty, non-aggression, and non-interference in each other’s internal affairs.52 The third emergency special session adopted two resolutions.53 Again, no resolutions mentioned the existence of any threat to the peace, breach of the peace, or act of aggression. With regard to case (4), in 1960, the Security Council decided to call the fourth emergency special session because it failed to carry out its function due to the veto exercised by the USSR.54 Given the deteriorating internal affairs, the General Assembly, appealing to all Congolese people to seek a speedy settlement of the internal conflict, requested that all States abstain from intervening in the authority of the Government of the Republic of the Congo. Furthermore, the Assembly called upon all States to stop supplying arms or other materials of war and military personnel and other assistance for military purposes in the Congo.55 The forth emergency special session adopted two resolutions, neither of which mentioned the existence of any threat to the peace, breach of the peace, or act of aggression.56 Focusing now on case (5), in 1967, the USSR sent a letter to the UN SecretaryGeneral calling for an immediate emergency special session in conformity with Article 11 of the UN Charter. In the letter, concerning the cessation of hostilities between Israel and Arab states, the USSR emphasized that Israel was carrying on aggression in spite of the Security Council’s decisions on the cease-fire; further to this, the USSR required the General Assembly to consider the question of the consequences of aggression and the withdrawal of Israeli forces from armistice lines.57 In response to the Soviets’ request, the United States submitted a letter to the SecretaryGeneral. It is said that the requirement set forth in the Uniting for Peace Resolution was not fulfilled because the Security Council was seized of the question of the Middle East situation and discussing the matter, after having adopted five resolutions. Accordingly, the United States did not consent to the request for convening an emergency special session because it did not agree that there was a situation whereby the Security Council had failed to exercise its primary responsibility.58 Finally, an overwhelming majority of 98 Member States concurred with the proposal of convening the emergency special session, and only three were opposed (the United States, Israel, and Botswana), alongside three abstentions.59 51

UN Doc. S/RES/129 (1958) and UN Doc. S/PV.837, para 9. A/RES/1237 (ES-III), I, para 2. 53 UN Doc. A/RES/1237 (ES-III) and UN Doc. A/RES/1238 (ES-III). 54 UN Doc. S/RES/157 (1960) and UN Doc. S/PV.906, para 157. 55 UN Doc. A/RES/1474 (ES-IV), paras 3, 5, and 6. 56 UN Doc. A/RES/1474 (ES-IV) and UN Doc. A/RES/1475 (ES-IV). 57 UN Doc. A/6717. 58 UN Doc. A/6718. 59 Yearbook of the United Nations (1967), p. 191. 52

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Among other things, it is noteworthy that the USSR, which had consistently opposed the Uniting for Peace Resolution, requested, for the first time, that the emergency special session be convoked. In fact, the USSR appears to have accepted the Resolution as a whole since then. The fifth emergency special session adopted six resolutions.60 In Resolution 2253 (ES-V), the General Assembly expressed deep concern with the measures taken by Israel to change the status of Jerusalem, and regarded the measures as invalid, calling upon Israel to repeal all the measures which it had taken.61 None of the resolutions which were adopted in the session mentioned the existence of any threat to the peace, breach of the peace, or act of aggression. With regard to case (6), in 1980, the Security Council decided to call the emergency special session because it failed to discharge its function due to the veto exercised by the USSR.62 In Resolution ES-6/2, the General Assembly, noting the need to halt foreign armed intervention in Afghanistan, required foreign troops to immediately withdraw from Afghanistan.63 The sixth emergency special session adopted two resolutions,64 neither of which made mention of the existence of any threat to the peace, breach of the peace, or act of aggression; instead, Resolution ES-6/2 generally referred to “the obligation of all States to refrain in their international relations from the threat or use of force against the sovereignty, territorial integrity, and political independence of any State.”65 With regard to case (7), in 1980, Senegal requested the holding of the emergency special session to discuss questions of Palestine; indeed, the request was made in a letter which was sent to the UN Secretary General. In response, majority of the Members of the General Assembly agreed to convene the session.66 The seventh session completely adopted nine resolutions.67 In Resolution ES-7/4, the General Assembly, regretting that the veto of the United States prevented Security Council meetings twice in April 1982, strongly condemned Israel for illegally occupying Palestinian Arab territories. Additionally, it was recognized that “the worsening situation in the Middle East and the failure to find a solution to this question pose a grave threat to the international peace and security.” Moreover, the Assembly, condemning all policies likely enabling Israel to continue its “aggression,” urged all governments to discourage Israel from continuing with its “aggression.”68 In Resolution ES-7/5, 60

UN Doc. A/RES/2252 (ES-V), UN Doc. A/RES/2253 (ES-V), UN Doc. A/RES/2254 (ES-V), UN Doc. A/RES/2255 (ES-V), UN Doc. A/RES/2256 (ES-V) and UN Doc. A/RES/2257 (ES-V). 61 UN Doc. A/RES/2253 (ES-V), paras 1–2. In the final stage of the adoption of the resolution, all parts of the USSR’s draft resolution, which strongly condemned the aggression by Israel were rejected, although the USSR convoked the session. Yearbook of the United Nations (1967), p. 209. 62 UN Doc. S/RES/462 (1980) and UN Doc. S/PV.2190 and Corr.1 and Add.1, para 140. 63 UN Doc. A/RES/ES-6/2, preambular para 5 and para 4. 64 UN Doc. A/RES/ES-6/1 and UN Doc. A/RES/ES-6/2. 65 Id., preambular para 4. 66 UN Doc. A/ES-7/1. 67 UN Doc. A/RES/ES-7/1, UN Doc. A/RES/ES-7/2, UN Doc. A/RES/ES-7/3, UN Doc. A/RES/ ES-7/4, UN Doc. A/RES/ES-7/5, UN Doc. A/RES/ES-7/6, UN Doc. A/RES/ES-7/7, UN Doc. A/ RES/ES-7/8, and UN Doc. A/RES/ES-7/9. 68 UN Doc. A/RES/ES-7/4, preambular paras 2 and 4, paras 8 and 9 (b).

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the Assembly was alarmed by the worsening situation resulting from Israeli “aggression,”69 and in Resolution ES-7/6, the Assembly also expressed alarm at the fact that the situation in the Middle East was worsening as a result of the Israeli “aggression”; indeed, the latter resolution advised the implementation of collective measures for the prevention or removal of “the threat to the peace.”70 It is possible to find the above-mentioned key words, namely, “the threat to the peace” and “aggression” in the resolutions, but it would be extremely difficult to decide whether the General Assembly determined the existence of a threat to the peace or an act of aggression. Those resolutions lack consistency in terms of using phrases, although they appear to indicate Members’ intention that the situation would be regarded as an act of “aggression” strongly condemning Israeli conduct. Turning now to case (8), in 1981, Zimbabwe sent a letter to the UN SecretaryGeneral requesting the convening of the emergency special session with a view to dealing with the question of Namibia.71 In respect of the issue, three permanent members (France, the United Kingdom, and the United States) cast vetoes to hinder the adoption of resolutions at the Security Council.72 The eighth session adopted two resolutions in total, the majority of which condemned South Africa’s illegal occupation in Namibia.73 Among other points, Resolution ES-8/2 declared, in the preambular paragraph 2, that “the illegal occupation in Namibia by South Africa together with the repeated acts of aggression committed by South Africa against neighboring States constitute a breach of international peace and security.” Furthermore, in paragraph 12 of the operative part of the same resolution, the General Assembly “strongly urged the Security Council, in the light of the serious threat to international peace and security posed by South Africa,” to respond to the need to impose measures under Chapter VII of the Charter. Additionally, in paragraph 13, the Assembly called upon all States, “in view of the threat to international peace and security posed by South Africa,” to impose the equivalent mandatory measures.74 Here again, it is unclear whether the General Assembly determined the existence of a threat to the peace, a breach of the peace, or an act of aggression, because all three key words are found in the resolution. However, taking special notice of the term “constitute,” which has occasionally been employed to determine the existence of the situation in the Security Council,75 the Assembly seemed to determine the situation as a breach of the peace. Of course, it is true that the terminology of the General Assembly would be different from that of the Security Council. However, 69

UN Doc. A/RES/ES-7/5, preambular para 3. UN Doc. A/RES/ES-7/6, preambular paras 6–7. 71 UN Doc. A/ES-8/1. 72 UN Doc. S/PV.2277, paras 24–27. 73 UN Doc. A/RES/ES-8/1, UN Doc. A/RES/ES-8/2. 74 UN Doc. A/RES/ES-8/2, preambular para 2 and paras 12–13. Additionally, it is noted that the General Assembly called upon the international community to provide even military assistance to the front-line States in order to enable them to defend themselves against acts of aggression by South Africa, Id., para 7. 75 Asada (2003), p. 233. 70

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considering that the Assembly has referred to the Security Council resolutions when necessary, it would be permitted to take into account the textual practices of the Security Council.76 As regards case (9), in 1982, the Security Council decided to call the emergency special session to discuss the question of the occupied Arab territories, because there was a lack of unanimity of permanent members due to the veto exercised by the United States at the Security Council meeting.77 The session adopted two resolutions strongly condemning the Israeli military action.78 According to Resolution ES-9/1, the General Assembly, in paragraph 2, “declares that Israel’s decision of 14 December 1981 to impose its laws, jurisdiction and administration on the occupied Syrian Golan Heights constitutes an act of aggression under the provisions of Article 39 of the Charter of the United Nations and General Assembly resolution 3314 (XXIX).” However, in paragraph 6, the Assembly “determines that the continued occupation of the Syrian Golan Heights since 1967 and its effective annexation by Israel on 14 December 1981, following Israel’s decision to impose its laws, jurisdiction and administration on that territory, constitute a continuing threat to international peace and security.” Moreover, the Assembly condemned, in paragraph 8, any support designed to make it possible for Israel to carry out “acts of aggression.”79 It is nearly impossible to judge whether the General Assembly determined the existence of an “act of aggression” or “threat to international peace and security,” because both paragraphs 2 and 6 of the resolution used the word “constitute”—which has been the authentic word occasionally seen in the Security Council resolutions— when it determined the situation under Article 39, although the word “declares” was used in paragraph 2, whereas the word “determines” was used in paragraph 6. According to the resolution, to make matters worse, imposing “its laws, jurisdiction and administration on the occupied Syrian Golan Heights” was deemed an act of aggression, while “the continued occupation of the Syrian Golan Heights since 1967 and its effective annexation by Israel” was regarded as a continuing threat to international peace and security. It is unlikely that the latter, generally accompanied by the use of force, was categorized as a threat to the peace, whereas the former, as it were, certain juridical and administrative arrangements which possibly followed after the annexation, was regarded as an act of aggression.80 In addition, it is curious that the General Assembly determined the existence of an act of aggression under Article 39. Should the Assembly have determined it independently of the Security Council pursuant to Article 10?

76

For reference, the General Assembly previously adopted a resolution (A/RES/2202 (XXI)) declaring that the situation in South Africa “constitutes a threat to international peace and security” (para 7) on 16 December 1966. 77 UN Doc. S/RES/500 (1982) and UN Doc. S/PV.2329, para 162. 78 UN Doc. A/RES/ES-9/1, UN Doc. A/RES/ES-9/2. 79 UN Doc. A/RES/ES-9/1, paras 2, 6, and 8. 80 See also, Asada (2003), p. 233.

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With regard to case (10), in 1997, in view of the lack of unanimity of the Security Council owing to the United States,81 a letter from Qatar addressed to the SecretaryGeneral requested the emergency special session of the General Assembly to discuss a particular issue, namely “Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory.”82 The tenth session of the emergency special session totally adopted 20 resolutions.83 Among all of them, Resolution ES-10/2, in its preambular paragraph 13, indicated that the General Assembly was convinced that Israel’s repeated violation of law and breaches of UN resolutions and agreements “constitute a threat to international peace and security.”84 It is striking that the General Assembly requested the advisory opinion of the ICJ in accordance with Article 96 of the UN Charter and Article 65 of the Statute of the ICJ for the first time in the history of the emergency special sessions. In Resolution ES-10/14, the question before the Court was as follows: What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?85

The ICJ admitted the illegality of the construction of the wall by Israel, placed an obligation on Israel to cease illegal construction of the wall, and stipulated that Israel must give compensation for all damage caused by the construction, in addition to demanding that none of the States approve the illegal construction of the wall by Israel.86 It should be noted that the Court, in the consideration of its jurisdiction, confirmed the General Assembly’s competence to cope with questions on the maintenance of international peace and security, pursuant to Article 10 and Article 11 (2) of the UN Charter. Besides this, with regard to Article 12, the Court, relying on the interpretation of the legal counsel of the UN, was convinced that the General Assembly could deal 81

UN Doc. S/PV.3747, p.4 and S/PV.3756, p. 6. UN Doc. A/ES-10/1. 83 UN Doc. A/RES/ES-10/1, UN Doc. A/RES/ES-10/2, UN Doc. A/RES/ES-10/3, UN Doc. A/ RES/ES-10/4, UN Doc. A/RES/ES-10/5, UN Doc. A/RES/ES-10/6, UN Doc. A/ES-10/7, UN Doc. A/RES/ES-10/8, UN Doc. A/RES/ES-10/9, UN Doc. A/RES/ES-10/10, UN Doc. A/RES/ES-10/ 11, UN Doc. A/RES/ES-10/12, UN Doc. A/RES/ES-10/13, UN Doc. A/RES/ES-10/14, UN Doc. A/RES/ES-10/15, UN Doc. A/RES/ES-10/16, UN Doc. A/RES/ES-10/17, UN Doc. A/RES/ES-10/ 18, UN Doc. A/RES/ES-10/19, and UN Doc. A/RES/ES-10/20. Although the session had been closed for more than two years after the adoption of Resolution A/RES/ES-10/17, it was resumed by the president of the General Assembly in response to Security Council Resolution 1860 (UN Doc. S/RES/1860 (2009)), and so Resolution ES-10/18 was adopted in 2009. See also A/ES-10/ PV.36, p.1. In addition, Turkey and Yemen in 2017 (A/ES-10/769) and Algeria and Turkey in 2018 (A/ES-10/786) requested the resumption of the session—via letters which were addressed to the president of the General Assembly—to adopt Resolutions ES-10/19 and ES-10/20 respectively. 84 UN Doc. A/RES/ES-10/2, preambular para 13. 85 UN Doc. A/ES-10/14, the last paragraph. 86 ICJ reports 2004, pp. 201–203, para 163. 82

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with the question at the moment when the Security Council did not exercise its function, even if the same question was deliberated in both the Assembly and the Council at the same time.87 This means that the Security Council no longer needs to delete items from its agenda, since the General Assembly has now become capable of dealing with such items. As has been shown, driven by the Uniting for Peace Resolution, the General Assembly held the emergency special sessions ten times before the Ukraine crisis. It is confirmed that the Assembly utilized the procedure set out by the Resolution effectively with a view to maintaining international peace and security. As for determination of the existence of situations such as any threat to the peace, breach of the peace, or act of aggression, it seems to be sometimes difficult to ascertain intentions of the Member States. With this said, however, in case (10), the General Assembly explicitly stated that the situation constituted a threat to international peace and security. Moreover, in this case, the Assembly requested that the ICJ render its advisory opinion to break the stalemate on the question of Palestine. In light of the foregoing, it can be concluded that the Uniting for Peace Resolution has been used to condemn, and place certain pressures on, parties which have committed acts against the maintenance of international peace and security.

3.3.2 Ukraine Case Based on the study above, it is necessary to consider the recent resolutions on the Ukraine case adopted by the General Assembly in its eleventh emergency special session. As explained above, on 28 February 2022, the General Assembly held the session in response to a request from the Security Council.88 The draft resolution, sponsored by 94 States, was entitled “Aggression against Ukraine.”89 During the discussion of the session, most sponsors of the draft resolution condemned Russian “aggression.”90 After the discussion, the resolution was finally adopted on 2 March 87

Id., p. 145, paras 15–17 and pp. 148–150, paras 25–28. The Court also confirmed that the emergency special session could be held even during the regular session of the General Assembly. Id., p. 152, para 34. 88 UN Doc. A/ES-11/PV.1. 89 UN Doc. A/ES-11/L.1. 90 See UN Doc. A/ES-11/PV.1, UN Doc. A/ES-11/PV.2, UN Doc. A/ES-11/PV.3, UN Doc. A/ES11/PV.4, and UN Doc. A/ES-11/PV.5. For instance, Georgia asserted that Russia’s act in Ukraine, that is, the use of armed force by a UN Member State against another Member State, constitutes an act of aggression, as defined by Resolution 3314 (XXIX), UN Doc. A/ES-11/PV.1, p. 15/29. However, it seems that Member States employed words such as “threat to the peace,” “breach of the peace,” and “aggression” without paying much attention to the meaning of those words. For instance, Trinidad and Tobago condemned the Russian military aggression, stating that “the violation of Ukraine’s internationally agreed borders and its territorial integrity constitutes a real threat to international peace and security,” UN Doc. A/ES-11/PV.4, p. 6/22. Ghana also mentioned “the grave threat to international peace and security resulting from the Russian Federation’s aggression against Ukraine,” Doc. A/ES-11/PV.3, p. 6/23.

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2022, stating that the General Assembly, recalling its Resolution 3314 (XXIX) of 14 December 1974, deplored, in the strongest terms, the aggression by the Russian Federation against Ukraine.91 At first sight, judging by the phrases used in Resolution ES-11/1, paragraph 2, it might be plausible to conclude that the General Assembly expressed its strong opposition to the Russian aggression and determined the existence of an act of aggression in a series of military actions of Russia. However, the Assembly did not use the word “constitute” to determine clearly the existence of an act of aggression, instead utilizing the word “deplore” to express the condemnation of aggression in the resolution. The latter has been used, on occasion, in the practices of the General Assembly, including the resolutions adopted in the emergency special sessions. In general, the word has been utilized to condemn and express regret regarding various situations, such as ongoing military activities,92 threats of use of force,93 massacres,94 noncompliance with UN resolutions,95 commitment of illegal policies and practices,96 a veto cast by a permanent member of the Security Council,97 lack of cooperation98 and so on. That being said, it is uncertain whether the General Assembly surely determined the situation occurred in Ukraine to be an act of aggression in Resolution ES-11/1, paragraph 2. Nevertheless, it is impossible to overlook Members’ statements severely condemning the Russian aggression during the drafting of the resolution, while it is also impossible to overlook the title of the resolution, namely, “Aggression against Ukraine,” in which the sponsors implied their strong condemnation. Additionally, the resolution confirmed the definition of “aggression” by referring to Resolution 3314 (XXIX) for the purpose of regarding the Russian conduct as an act of aggression. The above elements should be taken into consideration as a whole in order to infer Members’ intention to determine the existence of an act of aggression. Consequently, it could be understood that the General Assembly determined the existence of an act of aggression in the resolution. Since the introduction of Resolution ES-11/1, the General Assembly has adopted five resolutions to date (as of 31 March 2023).99 Among other measures, as part of Resolution ES-11/3, the General Assembly decided to suspend Russia’s right to membership of the Human Rights Council.100 This measure will presumably have 91

UN Doc. A/RES/ES-11/1, para 2. UN Doc. A/RES/ES-6/2 (ES-VI), para 2, UN Doc. A/RES/ES-10/10, preambular para 7, UN Doc. A/RES/ES-10/16, preambular paras 5 and 7, and UN Doc. A/RES/ES-10/20, paras 2 and 5. 93 UN Doc. A/RES/ES-10/20, para 4. 94 UN Doc. A/RES/ES-10/12, preambular para.5, UN Doc. A/RES/ES-10/13, preambular para 8, and UN Doc. A/RES/ES-10/16, preambular para 6. 95 UN Doc. A/RES/2254 (ES-V), para 1 and UN Doc. A/RES/ES-10/10, preambular para 13. 96 UN Doc. A/RES/ES-7/4, preambular para 5, UN Doc. A/RES/ES-7/6, para 4 (b), UN Doc. A/ RES/ES-9/1, para 8, and UN Doc. A/RES/ES-10/17, preambular para 10. 97 UN Doc. A/RES/ES-9/1, para 7. 98 UN Doc. A/RES/ES-10/3, para 2 and UN Doc. A/RES/ES-10/11, preambular para 3. 99 UN Doc. A/RES/ES-11/2, UN Doc. A/RES/ES-11/3, UN Doc. A/RES/ES-11/4, UN Doc. A/ RES/ES-11/5, and UN Doc. A/RES/ES-11/6. 100 UN Doc. A/RES/ES-11/3, para 1. 92

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some impact, because the decision of the General Assembly on internal and functional matters is binding101 and, in fact, Russian membership has been suspended since the very day of the adoption of the resolution.102

3.4 Conclusion Since the adoption of the Uniting for Peace Resolution in 1950, the emergency special sessions have been held 11 times. The General Assembly has never recommended the use of force to the Member States pursuant to the Resolution, although the potential power of the Assembly to do so has been confirmed from the outset of the adoption of the Resolution. Looking at the history of the emergency special sessions, it is generally understood that the role of the emergency special sessions has been to consolidate Members’ voices by adopting resolutions and, if necessary, to exert some pressures on the parties which have committed illegal acts, even if the Assembly has not been in session. Through the study in the preceding section, it can be said that, when the situation was related to conflicts including the great Powers of the Security Council, the General Assembly appears to have more deliberately conducted and chosen phrases when drafting the resolutions. Nevertheless, it should be noted that the General Assembly has not forgotten to devise ways to use its power. In Resolution ES-9/1, concerning the situation in the occupied Arab territories in 1982, the Assembly called upon all Member States to not only abstain from transferring any weapons and related equipment from/to Israel, but also to “suspend economic, financial and technological assistance to and cooperation with Israel” and “to sever diplomatic, trade and cultural relations with Israel.”103 Here, it can be pointed out that the Assembly called upon certain collective measures which are provided in Article 41 of the Charter. Furthermore, as has already been examined, in Resolution ES-10/14 of 2003, the Assembly decided to request that the ICJ render an Advisory Opinion. This was the first occasion on which the Assembly, with the assistance of the ICJ, had attempted to put pressure on Israel.104 Thus, the General Assembly has attempted to utilize the emergency special sessions as effectively as possible within the scope of its authority. Turning our eyes to the Ukraine case, Members of the General Assembly have consistently expressed their condemnation of the Russian aggression in Ukraine. Even one year on from the full-scale invasion of Ukraine, the Assembly adopted Resolution ES-11/6—which emphasized principles of the Charter of the United 101

Schermers and Blokker (2018), pp. 785–796. See HP of the Human Rights Council, https://www.ohchr.org/en/hrbodies/hrc/home. Accessed 31 March 2023. 103 UN Doc. A/RES/ES-9/1, para 12 (c) and (d). 104 In fact, at the same time as the ICJ’s procedure, the Israeli Supreme Court declared parts of the wall illegal, and consequently some parts of it were moved. Therefore, it was concluded that the Advisory Opinion of the ICJ, as well as the General Assembly’s action, had some impact on the issue. Krasno and Das (2008), p. 189. 102

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Nations underlying a comprehensive, just, and lasting peace in Ukraine—by 141 votes to seven, with 32 abstentions.105 Via Resolution ES-11/1, as considered above, the General Assembly seemed to determine the existence of an act of aggression. If that is the case, the Assembly would be ready to recommend even the use of force pursuant to the Uniting for Peace Resolution. However, given that one of the parties is a great Power, the Assembly would be required to make its decision on the next step deliberately. On its way to the next step, of course, the General Assembly might flexibly be able to call upon all Members to apply collective measures, such as interruption of economic relations and the severance of diplomatic relations, as it did in Resolution ES-9/1.106 Additionally, the Assembly might also be capable of requesting the Advisory Opinion of the ICJ, as was the case in Resolution ES-10/14, although the case filed by Ukraine has been pending before the Court.107 During the drafting history of the Uniting for Peace Resolution, it was emphasized that the General Assembly had “considerable moral force; they constituted, in fact, much more than mere legal obligations”108 or “moral influence on world opinion, which was not less effective than a definite command,”109 despite the fact that it only had the power to make recommendations at most. Moreover, it was asserted that the Assembly’s “recommendations could have great force when they were based on right and justice.”110 The power of the General Assembly expected by the Member States has not changed since the Uniting for Peace Resolution was adopted in 1950.111 The General Assembly is supposed to act deliberately and flexibly, having influence over the world in a different way when compared to the Security Council, the latter of which has “primary, not exclusive” responsibility.112

References Andrassy, J. 1956. Uniting for Peace. American Journal of International Law 50 (3): 563–582.

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UN Doc. A/ES-11/PV.19, pp. 7–8/12. Moreover, outside the framework of the UN, the legal determination by the General Assembly, such as described in Resolution ES-11/1, would be able to support the unilateral sanctions as the countermeasures. Ramsden M, “Uniting for Peace: The Emergency Special Session on Ukraine,” Harvard International Law Journal, perspectives, pp. 5–6/10. https://harvardilj.org/2022/04/unitingfor-peace-the-emergency-special-session-on-ukraine/. Accessed 31 March 2023. 107 “Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),” https://www.icj-cij.org/case/166. Accessed 31 March 2023. 108 See the statement of Peru, A/C.1/SR/356, para 35. 109 See the statement of Iraq, A/C.1/SR/358, para 22. 110 See the statement of Canada, A/C.1/SR/358, para 43. 111 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (ICISS) (2001), p. 48, para 6.7. 112 ICJ reports 1962, p. 163. 106

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Asada, M. 2003. Democratic Control of Humanitarian Intervention? The “Uniting for Peace” Resolution Revisited. In Trilateral Perspectives on International Legal Issues: Conflict and Coherence, ed. C. Carmody et al., 217–241. Cadmus-Port City Press Division. Carswell, A.J. 2013. Unblocking the UN Security Council: The Uniting for Peace Resolution. Journal of Conflict & Security Law 18 (3): 453–480. Goodrich, L.M. 1974. The United Nations in a Changing World. Columbia University Press. Kelsen, H. 1951. The Law of United Nations: A Critical Analysis of Its Fundamental Problems. Stevens & Sons. Kelsen, H. 1950. Is the Acheson Plan Constitutional? The Western Political Quarterly 3 (4): 512– 527. Krasno, J., and Das, M. 2008. The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council. In The UN Security Council and the Politics of International Authority, ed. B. Cronin and I. Hurd. 173–195, Routledge. Reicher, H. 1981. The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage. Columbia Journal of Transnational Law 20 (1): 1–49. Russel, R.B. 1958 A History of the United Nations Charter: The Role of the United States 1940– 1945. The Brookings Institution. Schermers, H.G., and Blokker, N.M. 2018. International Institutional Law: Unity within Diversity. 6th ed. Brill. Zaum, D. 2008. The Security Council, the General Assembly, and War: The Uniting for Peace Resolution. In The United Nations Security Council and War: The Evolution of Thought and Practice since 1945, ed. V. Lowe, et al., 154–174. Oxford University Press.

Naozumi Kurokami is a Professor in Faculty of Law at Okayama University in Japan. He studied at Kobe University (B.A., LL.M and LL.D.) and Sheffield University (M.A.)

Chapter 4

Locating the Veto Power in the International Legal Order: When a Permanent Member of the UN Security Council Becomes an Aggressor Yohei Okada

4.1 Introduction In the face of Russia’s invasion of Ukraine, the Prime Minister of Japan, Fumio Kishida stated that ‘[t]he time has come to start text-based negotiations to reform the Security Council’ in his address at the 77th session of the United Nations (UN) General Assembly.1 It is well known that Japan is a UN member that has long aspired to be a Security Council permanent member. In 2005, Brazil, Germany, India, and Japan, known as the Group of Four (G4), prepared a draft resolution proposing the addition of six permanent members (two from African States, two from Asian States, one from Latin American and Caribbean States, and one from Western Europe and other States).2 For Japan, to engrave her name as a permanent member in the Charter of the United Nations (UN Charter) would have a special meaning, considering that the country is referred to, if not explicitly, as an ‘enemy’ in the Charter.3 However, these aspirations have never been realized, partly because of the lack of consensus on the criteria for selecting new permanent members.4 Arguably, there is little chance of

1 ‘Address by Prime Minister Kishida at the Seventy-Seventh Session of the United Nations General Assembly’, Ministry of Foreign Affairs of Japan, 20 September 2022, available at https://www.mofa. go.jp/fp/unp_a/page3e_001242.html. 2 UN Doc. A/59/L. 64, 6 July 2005. 3 Arts 53, 77(1) (b), and 107 of the Charter of the United Nations (UN Charter). 4 See, e.g., Hurd (2008), at 212. Art. 23 of the UN Charter only names ‘[t]he Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America’ as permanent members without specifying why they are so qualified.

Y. Okada (B) Graduate School of International Cooperation Studies, Kobe University, Kobe, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_4

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reaching an agreement on which countries will have permanent seats on the Security Council in the near future. However, this does not mean that it is useless to discuss reforming the Security Council. This invasion is a reminder of the inadequacy of the current collective security system under the UN Charter. More specifically, it is said that the UN is paralyzed ‘in the face of one of the clearest cases of aggression since 1939 … because of the veto power of a permanent member of the UN Security Council’.5 It comes as no surprise that on 25 February 2022, the day after the commencement of the ‘special military operation’, Russia exercised its veto power to block the Security Council from adopting a resolution and thereby deciding that ‘the Russian Federation shall immediately cease its use of force against Ukraine’.6 Thus, the President of Ukraine, Volodymyr Zelenskyy condemned Russia for ‘turning the veto in the Security Council into a licence to kill’ and called for immediate reforms of the UN system.7 Against this backdrop, the present study examines why the veto power is needed and assesses the impact of Russia’s invasion of Ukraine on its significance. After revisiting the drafting history of the UN Charter, the rationale for the veto power is identified in light of the functions of Security Council decisions in the international legal order (Section 2). The discussion then moves on to initiatives to reinterpret or reform the veto power. These initiatives, while gaining unprecedented momentum in the face of the war in Ukraine, are unlikely to bring about a drastic change (Section 3). However, this study argues that Russia’s aggression and its subsequent exercise of the veto power would undermine the importance of Security Council decisions and thus degrade the veto power (Section 4). The final section is devoted to concluding remarks (Section 5).

4.2 Rationale for the Veto Power The UN Charter does not use the term ‘veto’ and instead provides that ‘[d]ecisions of the Security Council on all [non-procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’.8 It is now well established that the abstention of a permanent member does not constitute the exercise of the veto, although the text appears to indicate otherwise.9 Consequently, a permanent member is individually able to prevent any resolutions that involve substantial matters from being adopted by casting a negative vote, which is called a ‘veto’. It is also generally accepted that the permanent members are entitled to the ‘double veto’; that is, the question of whether a matter is of a procedural

5

Trahan (2022). UN Doc. S/2022/155, 25 February 2022, para 3. 7 UN Doc. S/PV.9011, 5 April 2022, at 9. 8 Art. 27(3) of the UN Charter (emphasis added). 9 Zimmermann (2012), at 912–916. 6

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or substantial nature should be considered substantial and thus the decision on the nature is subject to the veto.10 Article 27(3) of the Charter also provides that in decisions under Chapter VI on the pacific settlement of disputes, ‘a party to a dispute shall abstain from voting’. This is known as obligatory abstention.11 However, in practice, this provision has been largely ignored and is regarded as no longer applicable.12 Nevertheless, it should be noted that the scope of obligatory abstention was hotly debated in the travaux préparatoires of the UN Charter.13 In 1943, US President Franklin Delano Roosevelt, British Prime Minister Winston Churchill, and Soviet Premier Joseph Stalin held meetings at the Tehran Conference in which they coordinated their military strategy against Germany and Japan and made several important decisions concerning the post-World War II era.14 At the Conference, Roosevelt launched his vision of the ‘Four Policemen’, that is, the Soviet Union, US, UK, and China, as an organization with ‘the power to deal immediately with any threat to the peace and any sudden emergency which requires this action’.15 Interestingly, it is said that ‘[t]he discussion, apparently, never raised the problem of what would happen should one of the policemen turn aggressor’.16 At the Dumbarton Oaks Conference of 1944, there was disagreement between the US and UK, on the one hand, emphasizing the traditional concept that ‘parties to a dispute never vote on their own case’,17 and the Soviet Union, on the other hand, sticking to ‘the principle of coordination and unanimity of the four leading powers on all questions, including those which directly relate to one of these nations’.18 At the Yalta Conference held in the Crimean Peninsula, they achieved a compromise. The US proposed the so-called ‘Yalta formula’,19 which essentially corresponds to

10

Sievers and Daws (2014), at 318–327. Ibid., at 339. 12 Wood and Sthoeger (2022), at 29–30. 13 For the drafting history, see, e.g., Seoka (2012), Chapter 1; Trahan (2020), at 9–21. 14 ‘The Tehran Conference, 1943’, Office of the Historian, available at https://history.state.gov/mil estones/1937-1945/tehran-conf. 15 ‘Roosevelt-Stalin meeting, 2:45 p.m., November 29, 1943’, Foreign Relations of the United States: Diplomatic Papers (FRUS), The Conferences at Cairo and Tehran, 1943, at 530, available at https://history.state.gov/historicaldocuments/frus1943CairoTehran/d365. 16 Russell assisted by Muther (1958), at 156. 17 ‘Extracts from the Personal Diary of the Under Secretary of State (Stettinius), 8 September 1944’, FRUS, 1944, General, Vol. I, at 786, available at https://history.state.gov/historicaldocuments/fru s1944v01/d452. 18 ‘The Chairman of the Council of People’s Commissars of the Soviet Union (Stalin) to President Roosevelt’, FRUS, 1944, General, Vol. I, at 806, available at https://history.state.gov/historicaldo cuments/frus1944v01/pg_806. 19 ‘Third Plenary Meeting, February 6, 1945, 4 p.m., Livadia Palace’, FRUS, Conferences at Malta and Yalta, 1945, at 661, available at https://history.state.gov/historicaldocuments/frus1945Malta/ d352. 11

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the current version of Article 27, and the Soviet Union eventually accepted it.20 As of 1950, Alf Ross stated his impression that the negotiators ‘were sidetracked by the morally important, but politically comparatively insignificant question of the right to vote in one’s own case’.21 Unfortunately, we are witnessing one of the policemen turning into an aggressor, which has, in fact, given rise to serious problems. At the San Francisco Conference, the privilege of veto power naturally faced vociferous objections from other countries. The UK developed justifications on behalf of the five great powers. In response to ‘criticisms on the ground of democracy and equality’, it was argued that the permanent members ‘will, in fact, represent probably more than half the population of the world’.22 This is no longer the case; however, the UK delegate also pointed out that democracy works only if there are possibilities to introduce and pass ‘redistribution bills adjusting the constituencies to a shift of population’, but ‘[y]ou can’t do that in the international field’,23 which remains true. More significantly for our purposes, it was stated that if a permanent member launches an invasion and the other permanent members ‘take up the challenge’, the World Organization would break down and the ‘very war which it is designated to prevent’ would take place.24 In the face of Russia’s aggression against Ukraine, some scholars emphasize this rationale, that is, the veto power as a safety valve to avoid a third world war.25 Indeed, in the Security Council, Russia explained the use of the veto power as follows: The United Nations and the Security Council were created in a post-war period to save succeeding generations from the scourge of a new war. To that end, global Powers decided to negotiate among themselves, ideally to achieve consensus. In any event, the objective was never to attempt to impose decisions on each other or to disregard the interests of any of the five permanent members. That is precisely why the Security Council grants its permanent members the right to veto decisions. It is not a privilege but a tool for ensuring the balance of interests, which is of paramount importance to the entire world. The balance of interests ensures global stability. Any attempt to circumvent or disregard the position of the Russian Federation undermines the bedrock of the Charter of the United Nations.26

However, as far as the current situation is concerned, ‘the single reason that explains why permanent members have not resorted to force is the fact that the Russian Federation possesses nuclear weapons—not its veto power’.27 Legally 20

‘Fourth Plenary Meeting, February 7, 1945, 4 p.m., Livadia Palace’, FRUS, Conferences at Malta and Yalta, 1945, at 711–712, available at https://history.state.gov/historicaldocuments/frus1945M alta/d373. 21 Ross (1950), at 75. 22 ‘Statement of questions by the delegate of New Zealand and of replies by the delegate of the United Kingdom at ninth meeting, May 17, 1945’, Documents of the United Nations Conference on International Organization, San Francisco, 1945 (UNCIO), Vol. XI, at 320. 23 Ibid. 24 Ibid., at 322. 25 See, e.g., Weiss (2022). 26 UN Doc. S/PV.8980, 27 February 2022, at 7. 27 Nollkaemper (2022); see also Hovell (2022) (stating that ‘the real shield on which the Russian Federation is relying is not its veto power, but its nuclear power’).

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speaking, it seems that a State willing to support Ukraine militarily can use force against Russia as an exercise of the right to collective self-defense under Article 51 of the UN Charter.28 More specifically, no Security Council decision is necessary for collective military action to repel Russia’s aggression; thus, it is not the veto power that has prevented a third world war from breaking out. Nevertheless, considering that ‘the prohibition of the threat or use of force constitutes one of the cornerstones of the modern international legal order’,29 it is sensible that exceptions should be designed in a restrictive manner. In this light, the veto power has, in fact, played the role of a safety valve, although whether this has contributed to the maintenance of international peace and security is another issue. The same applies to non-military measures under Article 41 of the Charter. Some sanction measures would constitute a violation of international law if not taken under the terms of a Security Council resolution adopted under Chapter VII. It is well established that ‘on the basis of Articles 24, 25 and Chapter VII … the Security Council may adopt resolutions imposing obligations under international law’.30 Furthermore, Article 103 of the Charter provides for the following: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.31

In the Rockerbie case, the International Court of Justice (ICJ) found that the scope of Article 103 extends not only to the obligations provided by the Charter itself, but also to binding decisions of the Security Council.32 Although Article 103 explicitly refers to the obligations under any other international agreement, many argue that the provision should be read extensively ‘so as to affirm that charter obligations prevail also over United Nations Member States’ customary law obligations’.33 Consequently, the Security Council is given ‘the ability to alter the international legal landscape instantaneously’.34 28

De Hoogh (2022); Doubek (2022). Needless to say, Ukraine’s military reaction is justifiable as an exercise of its right of individual self-defense. However, while Russia informed the Security Council that its military measures were taken in accordance with Art. 51 of the UN Charter in exercise of the right of self-defense (UN Doc. S/2022/154, 24 February 2022), Ukraine refrained from reporting its own measures. Arguably, in the eyes of Ukraine, the reporting, which is one of the requirements specified in Art. 51 for the exercise of the right of self-defense, is ‘pointless because of the paralysis of the Security Council’. Acari (2022), at 20. 29 Dörr (2019). 30 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, at 439, para 85. 31 See also Art. 30(1) of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331. 32 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3, at 15, para 39. 33 International Law Commission (ILC), ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’, Report pf the Study Group of the International Law Commission, finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682, 13 April 2006, at 176, para 345. 34 Ratner (2004), at 592.

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Another significant function of Security Council decisions can be found in Article 13(b) of the Rome Statute on the International Criminal Court (ICC).35 If the Security Council decides, under Chapter VII of the UN Charter, to refer to the Prosecutor a situation in which one or more of the crimes specified in Article 5 of the Rome Statute appear to have been committed, the ICC may exercise its jurisdiction irrespective of the nationality of the person accused and the place where the conduct in question occurred. Thus, a referral by the Security Council is an independent trigger for the ICC’s jurisdiction. However, this trigger rarely goes off because of the veto power. While the Security Council referred the situation in Libya to the ICC in 2011,36 a draft resolution referring Syria to the Court, co-sponsored by 65 UN members, was vetoed by China and Russia.37 Finally, it should be noted that the Security Council, which is often referred to as a ‘political’ or ‘executive’ organ,38 has made ‘judicial’ determinations from the very beginning.39 Article 39 of the UN Charter provides that the Security Council ‘shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’; the determination is regarded as ‘a condition for the use of the powers under Chapter VII’.40 It is true that ‘measures taken under Chapter VII of the UN Charter, in principle, do not possess the character of sanctions against a lawbreaker’.41 More precisely, determining the existence of a threat to the peace under Article 39 does not depend on the existence of violations of international law. A threat to the peace may exist even if no rules or principles of international law are breached. However, ‘peace enforcement and law enforcement may coincide in particular cases’, and the Security Council has frequently assumed ‘law enforcement’ functions.42 The legitimacy of such functions, if any, is predicated on permanent members declaring factual and legal determinations with one voice. In other words, due to the veto power, which makes such a determination rarely attainable, it is difficult to oppose the Security Council’s determination once made.

35

Rome Statute on the International Criminal Court 1998, 2187 UNTS 90. UN Doc. S/RES/1970, 26 February 2011, para 4. 37 UN Doc. S/2014/348, 22 May 2014. Therefore, this trigger will never be pulled to refer a permanent member to the International Criminal Court (ICC). However, it should be noted that the Prosecutor has been reluctant to investigate crimes allegedly committed by nationals of permanent members, even when the ICC may exercise its jurisdiction without the Security Council’s referral. The reluctance was purportedly due to ‘the limited resources available to [his] Office’. ICC, ‘Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, Following the Application for an Expedited Order under Article 18(2) Seeking Authorisation to Resume Investigations in the Situation in Afghanistan’, 27 September 2021, available at https://www.icc-cpi.int/ news/statement-prosecutor-international-criminal-court-karim-khan-qc-following-application. 38 Wood and Sthoeger (2022), at 10–11. 39 Ibid., at 15. 40 Krisch (2012b), at 1294. In practice, a threat to the peace is ‘almost the only one used’ by the Security Council. Ibid., at 1278. 41 Krisch (2012a), at 1245. 42 Krisch (2012b), at 1278; see also Gaja (1993), at 306–307. 36

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4.3 Initiatives to Reinterpret or Reform the Veto Power It can be concluded that the veto power has played certain roles that correspond to the importance of Security Council decisions in the international legal order. Before exploring the impact of Russia’s invasion of Ukraine, let us examine some initiatives to reinterpret or reform the veto power. Apart from obligatory abstention,43 nothing in the text of the UN Charter explicitly indicates constraints on the use of the veto. However, some argue that the exercise of the veto power is not always lawful under the current international law. Jennifer Trahan is among them, and, in her 2020 monograph, advanced the thesis that there are legal limits to the use of the veto in the face of atrocity crimes, namely, genocide, crimes against humanity, and war crimes.44 In light of the current situation, she emphasizes ‘the importance of considering the use of the veto in the face of aggression’, and argues that vetoes need to be legally assessed in terms of obligations to respect jus cogens and the UN Charter.45 Regarding the jus cogens reasoning, it should be noted that Trahan does not argue that an exercise of the veto that prevents the Security Council from stopping an ongoing aggression constitutes a breach of the jus cogens norm prohibiting the act of aggression. Instead, the veto cannot be properly used if it amounts to ‘recogniz[ing] as lawful a situation created by a serious breach’ of an obligation arising under a peremptory norm or ‘render[ing] aid or assistance in maintaining that situation’ within the meaning of Article 41(2) of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) adopted by the International Law Commission (ILC) in 2001.46 Trahan relies on the ICJ’s advisory opinions in the Wall and Chagos Archipelago cases. It is true that the ICJ found that all States are obliged not to recognize the illegal situation and not to render aid or assistance in maintaining the situation,47 and that they must cooperate to bring the situation to an end.48 However, it is unclear whether these obligations themselves are also peremptory, and thus whether they have restrictive impacts on the veto power.49 Therefore, André Nollkaemper observes that assuming that ‘a veto in relation to acts … that 43

See Chappell and Svoboda (2022). Trahan (2020), Chapter 4. 45 Trahan (2022). 46 Responsibility of States for Internationally Wrongful Acts (ARSIWA), UN Doc. A/RES/56/83, 12 December 2001, annex. 47 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at 200, para 159. 48 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, at 140, para 182. See also ARSIWA Art. 41(1), providing that ‘[s]tates shall cooperate to bring to an end through lawful means any serious breach’ of an obligation arising under a peremptory norm. 49 In identifying these obligations, the ICJ does not highlight the peremptory nature of the relevant norms but their erga omnes aspect. Legal Consequences of the Construction of a Wall, supra note 47, at 199–200, paras 155–158; Legal Consequences of the Separation of the Chagos Archipelago, supra note 48, at 139, para 180. But see Essawy (2020). 44

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violate ius cogens norms can be illegal … it seems difficult to argue that an illegal veto itself would be a nullity, and as such would not stand in the way of a valid adoption of a resolution by the Council’.50 Furthermore, when an aggressor exercises its veto power to maintain the situation created by itself, can this be regarded as ‘recogniz[ing] as lawful’ or ‘render[ing] aid or assistance in maintaining’ the situation?51 The second reasoning, predicated on the integrity of the UN Charter, sounds more straightforward and intuitively appealing. The veto power is provided by the Charter as a procedural rule. How can the power be so ‘sacrosanct’ that its exercise remains valid ‘despite the permanent member casting the veto violating’ the Charter’s primary purpose and its pivotal substantive obligations?52 However, procedure sometimes triumphs over substance in the realm of law, partly because the former logically precedes the latter. The Charter is no exception. It is true that the Charter aims to maintain the international peace and security and suppress acts of aggression (Article 1); however, it is designed to centralize the power to make the relevant (factual and legal) determination in the Security Council (Article 39), which is subject to the veto with full discretion of each permanent member (Article 27(3)). To reform the design, it is necessary to amend the UN Charter pursuant to Articles 108 and 109, which requires concurring votes of two thirds of the members of the General Assembly and ratifications by two thirds of the Member States ‘including all the permanent members’ of the Security Council. However, the US, Russia, and China ‘have always opposed any proposals to rein in and to eliminate their right to veto’ while France and the UK have taken more nuanced approaches.53 Considering the difficulty of reinterpreting or reforming the veto power, various attempts have been made to voluntarily restrain veto use.54 During the Cold War, the General Assembly repeatedly called for permanent members of the Security Council to avoid the excessive use of the veto, otherwise ‘the usefulness and prestige of the Council’ would be impaired.55 More recently, five States (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland), known as the ‘Small Five’, launched the ‘S5 initiatives’, which led to a draft resolution titled, ‘Enhancing the Accountability, Transparency and Effectiveness of the Security Council’.56 Regarding the use of the veto, the draft recommended that permanent members take the following measures: 19. Explaining the reasons for resorting to a veto or declaring its intention to do so, in particular with regard to its consistency with the purposes and principles of the Charter of the United Nations and applicable international law ...

50

Nollkaemper (2022). Beurret (2022). 52 Trahan (2022); see also Beurret (2022). 53 Nollkaemper (2022). Russia (and arguably China) will become increasingly obstinate in the current situation. 54 For these initiatives, see Trahan (2020), Chapter 3. 55 See, e.g., UN Doc. A/RES/267(III), 14 April 1949, para 3. 56 UN Doc. A/66/L.42/Rev.2, 15 May 2012. 51

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20. Refraining from using a veto to block Council action aimed at preventing or ending genocide, war crimes and crimes against humanity.

However, the initiative, while initially attracting broad support, was defeated due to considerable pressure from permanent members.57 For instance, Vitaly Churkin, the Russian Permanent Representative, stated the following at the Security Council: [T]he working methods themselves and any potential possible modifications to them are the responsibility of the Council itself. That is a very sensitive issue in the context of the reform of the Council, and discussion on that topic should not be subjected to populism.58

Nevertheless, the movement to rein in the veto power has not lost momentum and has been revitalized by a permanent member, France. In 2013, President François Hollande, in his address at the General Assembly, proposed that ‘a code of good conduct be defined by the permanent members of the Security Council, and that in the event of a mass crime they can decide to collectively renounce their veto powers’.59 In August 2015, France, with the support of Mexico, launched the ‘Political Declaration on Suspension of Veto Powers in Cases of Mass Atrocity’, which is supported by 104 UN members as of July 2022.60 In parallel with the French/Mexican initiative, the Accountability, Coherence and Transparency (ACT) Group, a cross-regional group of small and mid-sized States aimed at enhancing the effectiveness of the Security Council by improving its working methods,61 developed its own project. The Code of Conduct elaborated within the framework of the ACT Group with the support of 107 States (as of 14 December 2015) including the UK as well as France,62 contains a pledge ‘to not vote against a credible draft resolution before the Security Council on timely and decisive action to end the commission of genocide, crimes against humanity or war crimes, or to prevent such crimes’.63 The war in Ukraine prompted UN members to take a historic step toward accountability. On 26 April 2022, the General Assembly, without a vote, adopted Resolution 76/262, ‘Standing Mandate for a General Assembly debate when a Veto is cast in the Security Council’,64 according to which ‘the President of the General Assembly shall 57

Trahan (2020), at 108–109. UN Doc. S/PV.6870, 26 November 2012, at 5. 59 ‘Opening of the 68th Session of the United Nations General Assembly: Statement by Mr. François Hollande, President of the Republic’, Permanent Mission of France to the United Nations in New York, 24 September 2013, available at https://onu.delegfrance.org/24-September-2013-Openingof-the. 60 ‘Political Declaration on Suspension of Veto Powers in Cases of Mass Atrocities’, Global Centre for the Responsibility to Protect, 1 August 2015, available at https://www.globalr2p.org/resources/ political-declaration-on-suspension-of-veto-powers-in-cases-of-mass-atrocities/. 61 UN Doc. S/2013/568, 19 September 2013; Fact Sheet, The Accountability, Coherence and Transparency Group—Better Working Methods for today’s UN Security Council, June 2015, available at https://centerforunreform.org/wp-content/uploads/2015/06/FACT-SHEET-ACT-June-2015.pdf. 62 UN Doc. A/70/621–S/2015/978, 14 December 2015, annex II. 63 Ibid., annex I, para 2. For differences in focus between the French/Mexican initiative and the ACT Code of Conduct, see Trahan (2020), at 116. 64 UN Doc. A/RES/76/262, 26 April 2022. 58

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convene a formal meeting of the General Assembly within 10 working days of the casting of a veto by one or more permanent members of the Security Council, to hold a debate on the situation as to which the veto was cast, provided that the Assembly does not meet in an emergency special session on the same situation’ (para 1).65 Furthermore, ‘on an exceptional basis, to accord precedence in the list of speakers to the permanent member or permanent members of the Security Council having cast a veto’ (para 2); the Security Council is invited ‘in accordance with Article 24 (3) of the Charter of the United Nations, to submit a special report on the use of the veto in question to the General Assembly at least 72 hours before the relevant discussion in the Assembly’ (para 3). Remarkably, France, the UK, and the US were among the co-sponsors of this resolution.66 To understand the General Assembly resolution, it is necessary to revisit Article 24(1) of the Charter, which provides that the ‘Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’.67 Considering the relationship of the delegation, the Security Council (and its members) should be accountable for the (non-)exercise of its powers to the General Assembly, which consists of all the UN members. It remains to be seen whether the procedural arrangement adopted in the resolution would be elevated to a ‘duty to give reasons’68 and how effective it may function as a tool for accountability; however, Russia and China were already required to explain themselves at the General Assembly69 when their negative votes prevented the Security Council from imposing new sanctions on North Korea.70 In either event, the regime of ‘automatic referral’ to the General Assembly increases the political cost of exercising the veto power.71 Another significant step was taken by the US. On 8 September 2022, Linda Thomas-Greenfield, US Ambassador to the UN, announced that ‘the United States will subscribe to six clear principles for responsible behavior for Security Council

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On 30 September 2022, Russia exercised its veto power again in relation to the issue of Ukraine to prevent the Security Council from condemning Russia for its organization of illegal so-called referenda in occupied territory of Ukraine. UN Doc. S/2022/720, 30 September 2022. The General Assembly took up the matter as part of its ongoing emergency special session on Ukraine. ‘General Assembly Takes Up Draft Resolution Condemning Russian Federation’s Annexation of Several Territories in Eastern Ukraine, Resuming Emergency Special Session’, United Nations, 10 October 2022, available at https://press.un.org/en/2022/ga12456.doc.htm. For implications that this fact may have, see Barber (2023). 66 UN Doc. A/76/L.52, 20 April 2022. 67 Olabuenaga (2023), at 284. 68 Moeckli and Fasel (2017). 69 ‘General Assembly Holds Landmark Debate on Security Council’s Veto of Draft Text Aimed at Tightening Sanctions against Democratic People’s Republic of Korea’, United Nations, 8 June 2022, available at https://press.un.org/en/2022/ga12423.doc.htm. 70 UN Doc. S/2022/431, 26 May 2022. 71 Schäfer (2022).

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Members’, to which, she admitted, ‘[w]e have not always lived up to … in the past— but we are committing to them going forward’.72 Among these principles, most significantly for our purposes, the US commits itself to ‘refrain from the use of the veto except in rare, extraordinary situations’.73 Although the commitment contains no concrete criteria by which whether an exercise of the veto power is acceptable is determined, this initiative should not be underestimated, considering that the permanent member, together with China and Russia, had long been reluctant to join any initiatives to rein in the veto power. As described above, since the outbreak of the war in Ukraine, significant improvements have been made to make the Security Council and its (permanent) members more accountable. However, it is arguable that such initiatives are unlikely to bring about a drastic change in practice. ‘We cannot expect a revolution, at best a slowly progressing evolution that makes the use of a veto at least in need of proper justification’.74 In this regard, it should be noted that all the discussions have been conducted on the premise that Security Council decisions play pivotal roles in the international legal order; thus, the veto power deserves serious considerations either to be preserved or reformed. However, considering the current situation, it is unclear until when the international community regards the functions of Security Council decisions as important and, thus, the veto power as a privilege.

4.4 The Veto Power Degraded? The international legal order appears to have gradually adapted to situations in which the Security Council cannot effectively respond to imminent threats to the international peace and security. First, while the veto power hampers the Security Council from making determinations pursuant to Article 39 of the UN Charter, other UN organs have demonstrated their own initiatives. The General Assembly, with recourse to its power under the Uniting for Peace Resolution of 1950,75 adopted Resolution ES-11/1 by 141 votes to 5, with 35 abstentions.76 It should be noted that the resolution ‘essentially reproduces the same text that had previously failed before the

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‘Remarks by Ambassador Linda Thomas-Greenfield on the Future of the United Nations’, United States Mission to the United Nations, 8 September 2022, available at https://usun.usmission.gov/ remarks-by-ambassador-linda-thomas-greenfield-on-the-future-of-the-united-nations/. 73 Ibid. 74 Schäfer (2022). 75 UN Doc. A/RES/377(V), 3 November 1950. Pursuant to paragraph 1 of the Uniting for Peace Resolution, on 27 February 2022, the Security Council decided to call an emergency session of the General Assembly. UN Doc. S/RES/2623, 27 February 2022. Russia’s negative vote did not prevent the Security Council from making the decision because it is of a procedural nature. See Rule 8(b) of the Rules of Procedures of the General Assembly, available at https://www.un.org/en/ga/about/ ropga/. 76 UN Doc. A/RES/ES-11/1, 2 March 2022.

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Security Council’77 ; that is, the General Assembly ‘[d]eplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter’ and ‘[d]emands that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State’ (paras 2–3). The General Assembly has taken a further step in Resolution ES-11/5, which recognizes as follows: [T]he Russian Federation must be held to account for any violations of international law in or against Ukraine, including its aggression in violation of the Charter of the United Nations, as well as any violations of international humanitarian law and international human rights law, and that it must bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts.78

What legal effects those resolutions may have remains to be seen; however, considering the representativeness of the General Assembly, it is arguable that they compensate, to a considerable extent, for the absence of a Security Council determination. Furthermore, the ICJ, ‘the principal judicial organ of the United Nations’ (Article 92 of the UN Charter), has also had an opportunity to declare its position on the compatibility of Russia’s acts with international law. In the Allegations of Genocide case, at the stage of making an order on a request for the indication of provisional measures, the Court established its prima facie jurisdiction based on Article IX of the Genocide Convention.79 However, in the introductory part of the order, the ICJ expressed its profound concern ‘about the use of force by the Russian Federation in Ukraine, which raises very serious issues of international law’,80 which appear to fall outside the scope of the Genocide Convention. In doing so, the Court emphasized ‘its own responsibilities in the maintenance of international peace and security’.81 The ICJ was so ‘creative’82 as to find that ‘Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine’83 ; however, it is debatable whether the right is derived from the Genocide Convention. Consequently, the Court ordered that ‘[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine’.84

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Arcari (2022), at 10. UN Doc. A/RES/ES-11/5, 11 November 2022, para 2. 79 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 16 March 2022, para 48. 80 Ibid., para 18. 81 Ibid. 82 Milanovic (2022). 83 Allegations of Genocide, supra note 79, para 60. 84 Ibid., para 96. 78

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Second, and related to the first point, it seems that the lack of a Security Council decision has not precluded States from adopting sanctions against Russia. Although the US, the European Union (EU), and others had already imposed sanctions against Russia over its annexation of Crimea in 2014,85 the invasion of 2022 ‘has triggered an unprecedented wave of sanctions targeting every facet of the Russian economy’.86 For instance, on 1 March 2022, Japan added, among others, Russia’s President Vladimir Putin, Foreign Minister Sergey Lavrov, and the Central Bank of the Russian Federation to its list of individuals and entities subject to asset freeze measures87 and thus joined the robust Western sanctions regime led by the US and the EU.88 However, some argue that the freezing of assets owned by foreign high-ranking officers, particularly Heads of State, runs counter to the rule of immunity under international law.89 Similarly, it is said that the assets of a foreign central bank enjoy immunity from execution under customary international law.90 Lavrov accused the US and its partners of ‘“illegal unilateral sanctions” which violate the UN Charter’ in his address at the General Assembly.91 China also ‘consistently opposes unilateral sanctions … that have no basis in international law or mandate from the Security Council’.92 Indeed, with a Security Council decision under Chapter VII of the UN Charter, there would be no problem with the legality of sanctions against Russia; however, a variety of arguments have been advanced to justify those measures without it. At the primary norm level, some suggest a restrictive approach to the scope of immunities so that the freezing of assets belonging to 85

For an overview, see Hayashi (2020). Chachko and Heath (2022), at 135. 87 ‘Measures Based on the Foreign Exchange and Foreign Trade Act regarding the Situation Surrounding Ukraine’ [in Japanese], Ministry of Foreign Affairs of Japan, 1 March 2022, available at https://www.mofa.go.jp/mofaj/press/release/press4_009282.html. 88 ‘U.S. Treasury Imposes Sanctions on Russian Federation President Vladimir Putin and Minister of Foreign Affairs Sergei Lavrov’, U.S. Department of the Treasury, 25 February 2022, available at https://home.treasury.gov/news/press-releases/jy0610; ‘Russia’s Military Aggression against Ukraine: EU Imposes Sanctions against President Putin and Foreign Minister Lavrov and Adopts Wide Ranging Individual and Economic Sanctions’, Council of the European Union, 25 February 2022, available at https://www.consilium.europa.eu/en/press/press-releases/2022/02/25/russia-smilitary-aggression-against-ukraine-eu-imposes-sanctions-against-president-putin-and-foreignminister-lavrov-and-adopts-wide-ranging-individual-and-economic-sanctions/. 89 See, e.g., Thouvenin (2013), at 175; see also Institut de Droit International, Resolution on ‘Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law’, Session of Vancouver, 26 August 2001, Art. 4(1). 90 See, e.g., Goldmann (2022); see also Thouvenin (2014). 91 ‘Russia Had “No Choice” But to Launch “Special Military Operation” in Ukraine, Lavrov Tells UN’, UN News, 24 September 2022, available at https://news.un.org/en/story/2022/09/1127881. 92 ‘Foreign Ministry Spokesperson Zhao Lijian’s Regular Press Conference on June 29, 2022’, Ministry of Foreign Affairs of the People’s Republic of China, 29 June 2022, available at https://www.fmprc.gov.cn/eng/xwfw_665399/s2510_665401/2511_665403/202206/t20220 629_10712209.html. 86

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foreign Heads of State and central banks does not trigger the application of immunity rules.93 Tom Ruys ‘tentatively argue[s]’, in a blog post written in 2017, that ‘immunity rules do not apply because these sanctions’, which are of an executive or legislative nature, ‘lack the required connection to a court proceeding at the national level’.94 This restrictive approach has recently attracted support in the face of Russia’s invasion of Ukraine.95 At the secondary norm level, it is increasingly argued that even if the freezing of assets is contrary to the international law of immunity, it may be justified as a (third-party) countermeasure.96 Intriguingly, as early as 2001, Antonio Cassese, bearing in mind Resolution ES-6/2 (1980)97 adopted by a very large majority and deploring the armed intervention by the Soviet Union (not named in the resolution) in Afghanistan, opined that the General Assembly may warrant economic sanctions taken by individual States or a group of States.98 Resolutions ES-11/1 and ES-11/5 may be regarded as corroborating his argument. However, it should be noted that the Security Council remains privileged in obliging States to take sanction measures against peace-threatening States, which is significant in terms of the effectiveness of sanctions. In this regard, some may be inclined to have recourse to the duty to cooperate or the duty of non-recognition and non-assistance in cases of a breach of a peremptory norm enshrined in ARSIWA Article 41. Assuming that the duties have come into existence as customary rules,99 Rana Essawy finds it difficult to conclude that they give rise to general obligations ‘to cooperate with other states imposing unilateral sanctions against a state breaching a peremptory norm’ and ‘to refrain from actions which reduce the impact of these sanctions’.100 However, the same author argues that the obligation to ‘refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’ under Article 2(5) of the UN Charter ‘extends to measures recommended by the General Assembly’.101

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See, e.g., Ruys (2017). Ibid.; see also Ruys (2019). 95 See, e.g., Brunk (2022b). There should be a distinction between the freezing and seizing of foreign assets. Stephan (2022). 96 See e.g., Goldmann (2022); Franchini (2023). 97 UN Doc. A/RES/ES-6/2, 14 January 1980. 98 Cassese (2001), at 241–242. 99 ‘Peremptory Norms of General International Law (Jus Cogens). Text of the Draft Conclusions and Commentaries Thereto’, Report of the International Law Commission, Seventy-third Session (18 April–3 June and 4 July–5 August), UN Doc. A/77/10 (2022), at 70–71, 76. 100 Essawy (2022). 101 Ibid. 94

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Third, the ICC does not believe that the absence of a Security Council referral hinders it from holding Putin criminally accountable in The Hague. On 17 March 2023, Pre-Trial Chamber II issued a warrant of arrest for the Russian president who is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute).102 Given that the crimes were allegedly committed in Ukrainian occupied territory, at least from 24 February 2022, and Ukraine declared its acceptance of the ICC’s jurisdiction pursuant to Article 12(3),103 the fact that Russia is not a party to the Rome Statute would not constitute an obstacle in the way of the Court exercising its jurisdiction over Russian nationals.104 However, the immunity ratione personae that Putin enjoys under international law as a Head of State is another question.105 This is not the first time that the ICC has prosecuted an incumbent Head of State of a non-party. In 2009, the ICC issued an arrest warrant for Omar Al-Bashir. Since, at that time, he was the president of Sudan, which had not become a party to the Rome Statute, the principle of the irrelevance of official capacity (in particular, its procedural aspect) stipulated in Article 27(2) of the Statute was not applicable. Therefore, the ICC was required to determine whether immunity ratione personae precluded the Court from exercising its jurisdiction over him and whether State Parties were entitled to refuse to cooperate with the ICC under Article 98(1) of the Statute. In the Al-Bashir case, the Appeal Chamber answered negatively to both questions.106 For the Appeal Chamber, ‘there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court’.107 It continued that ‘international courts act on behalf of the international community as a whole’ and thus ‘the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International 102

ICC, ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’, 17 March 2023, available at https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vla dimir-vladimirovich-putin-and. 103 ‘Ukraine, ICC-01/22’, available at https://www.icc-cpi.int/situations/ukraine. 104 Jackson (2023). 105 The ICC also issued an arrest warrant for Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. ICC, supra note 102. Regarding Lvova-Belova, the issue of immunity ratione materiae needs to be addressed. However, the case should be distinguished from Putin’s because it is often argued that immunity ratione materiae is not applicable in respect of certain crimes under international law, including war crimes. See, e.g., Art. 7 of the ILC’s Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, Report of the International Law Commission, Seventy-third Session (18 April–3 June and 4 July–5 August), UN Doc. A/77/10 (2022), at 190–191. But see O’Keefe (2015). 106 ICC-02/05-01/09-397-Corr (Appeal Chamber, 6 May 2019). 107 Ibid., para 113.

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Criminal Court’.108 Furthermore, ‘in the absence of Head of State immunity, article 98(1) of the Statute is not in its own right a fountain of immunity’, which led to the conclusion that ‘a State Party cannot refuse to arrest and surrender the Head of State of another State Party on the ground of Head of State immunity’.109 The Court’s reasoning has been harshly criticized110 ; however, it is also said that the outcome was ‘not a surprise’ and ‘correct’111 because it was the Security Council acting under Chapter VII that had referred the situation in Darfur to the Prosecutor of the ICC (Resolution 1593).112 Indeed, the Appeal Chamber also examined the legal effect of the resolution and considered that Article 13(b) of the Statute ‘puts the ICC at the disposal of the UN Security Council as a tool to maintain or restore international peace and security’.113 Resolution 1593 obliges Sudan to ‘cooperate fully with and provide any necessary assistance to the [ICC] and the Prosecutor’114 ; consequently, ‘the cooperation regime for States Parties to the Rome Statute’, including Article 27(2), ‘is applicable to Sudan’s cooperation with the Court’.115 This reasoning appears less controversial than that predicated on the non-existence of immunity under customary law. Why did the Appeal Chamber maintain the latter? Remarkably, Claus Kreß wrote observations as amicus curiae in the Al-Bashir case, emphasizing the significance of the ‘Customary Law avenue’ as follows: Only the Customary Law avenue enables the Court equally to exercise its jurisdiction under article 12(2) of the ICC Statute, over those Non-State Party officials who generally enjoy immunity ratione personae. Conversely, the Security Council avenue will be open to the Court only if the Security Council makes a political decision to that effect.116

His concern has now become apparent.117 Significantly for our purposes, it is observed that ‘the Appeals Chamber’s judgment in Al Bashir was less popular in the academy and in some Ministries before the invasion of Ukraine than afterwards; as always, events drive change’.118 If so, the existence of a Security Council resolution that refers a situation to the ICC would make no difference, although we must keep an eye on how States react to the arrest warrant for Putin.119 Fourth, a Security Council authorization is not the only exception to the prohibition on the use of force. Therefore, its significance as a safety valve is being degraded by Russia ‘distorting the facts to conform to the license given by Article 51’ of the UN 108

Ibid., para 115. Ibid., paras 130–132. 110 See, e.g., Akande (2019). 111 Batros (2019). 112 UN Doc. S/RES/1593, 31 March 2005, para 1. 113 ICC-02/05–01/09–397-Corr, supra note 106, para 135. 114 S/RES/1593, supra note 112, para 2. 115 ICC-02/05–01/09–397-Corr, supra note 106, paras 141, 143. 116 Written Observations of Professor Claus Kreß as Amicus Curiae, with the Assistance of Ms Erin Pobjie, ICC-02/05-01/09-359 (18 June 2018), para 7 (emphasis in original). 117 Liu (2023). 118 Jackson (2023) (emphasis in original); see also Sadat (2023). 119 Gurmendi (2023); see also Woolaver (2023). 109

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Charter and ‘interpreting that license creatively’.120 Russia’s arguments are unlikely to pass ‘the laugh test’121 ; thus, the impact would be limited.122 However, as admitted by Ingrid Brunk, the prohibition of the use of force has also been undermined by Western countries pursuing human rights and humanitarian ends, for instance, in Kosovo.123 Against this backdrop, she suggests a new ‘Concert of Powers’ modelled after the ‘Concert of Europe’ formed in 1815 that is expected to ensure peace among the world’s most powerful countries. According to this idea, international law should put the highest premium on norms of territorial integrity and sovereignty, ‘even at the occasional expense of humanitarian objectives’; more significantly for our purposes, powerful countries convene ‘in an informal forum that offers more space for real dialogue than the U.N. Security Council does’.124

4.5 Conclusion This study explores the impact of Russia’s invasion of Ukraine on the veto power and argues that the significance of Security Council decisions, and thus of the veto power, in the international legal order is being seriously impaired. Therefore, it comes as no surprise that the US has declared that it would ‘advance efforts to reform the UN Security Council’ as a part of its commitment to the sixth clear principles.125 ‘The Security Council should also better reflect the current global realities and incorporate more geographically diverse perspectives’126 ; otherwise, the privileged status of a permanent member would be merely symbolic. This is an undesirable future in the eyes of the permanent members, and would also be detrimental to the stability of the international legal order. US President Joe Biden in his address at the General Assembly articulated his belief that ‘the time has come for this institution to become more inclusive so that it can better respond to the needs of today’s world’ and continued that ‘the United States supports increasing the number of both permanent and non-permanent representatives of the Council’.127 On the same day, a US senior administration official 120

Franck (2006), at 96. Ibid. 122 Schäfer (2022). But see Tyler (2023). 123 Brunk (2022a). 124 Ibid. (emphasis added). 125 ‘Remarks by Ambassador Linda Thomas-Greenfield’, supra note 72. 126 Ibid. 127 ‘Remarks by President Biden Before the 77th Session of the United Nations General Assembly’, The White House, 21 September 2022, available at https://www.whitehouse.gov/briefing-room/ speeches-remarks/2022/09/21/remarks-by-president-biden-before-the-77th-session-of-the-unitednations-general-assembly/. 121

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stated in a press briefing that ‘we have historically and continue to stand behind the idea that Germany, Japan, and India should be permanent members of the Security Council’.128 Thus, those countries are expected to exercise their bargaining power vis-à-vis permanent members interested in restoring their privileged status. However, the candidates should assign higher priority to how to reform the decision-making process in the Security Council to improve its responsiveness to a threat to the peace over how to obtain permanent membership. Otherwise, what they have long sought would become worthless, and all their efforts would amount to nothing.

References Akande, Dapo. 2019. ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals. EJIL: Talk! 6 May 2019. Available at https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-noimmunity-under-customary-international-law-before-international-tribunals/. Arcari, Maurizio. 2022. The Conflict in Ukraine and the Hurdles of Collective Action. Questions of International Law, Zoom-out 96: 7–25. Barber, Rebecca. 2023. The U.N. General Assembly’s Veto Initiative Turns One: Is It Working? Just Security. 26 April 2023. Available at https://www.justsecurity.org/86140/the-u-n-generalassemblys-veto-initiative-turns-one-is-it-working/. Batros, Ben. 2019. A Confusing ICC Appeals Judgment on Head-of-State Immunity. Just Security. 7 May 2019. Available at https://www.justsecurity.org/63962/a-confusing-icc-appeals-judgmenton-head-of-state-immunity/. Beurret, Florent. 2022. Limiting the Veto in the Face of Jus Cogens Violations: Russia’s Latest (Ab)use of the Veto. Opinio Juris, 6 May 2022. Available at https://opiniojuris.org/2022/05/06/ limiting-the-veto-in-the-face-of-jus-cogens-violations-russias-latest-abuse-of-the-veto/. Brunk, Ingrid (Wuerth). 2022a. International Law and the Russian Invasion of Ukraine. Lawfare, 25 February 2022a. Available at https://www.lawfareblog.com/international-law-and-russianinvasion-ukraine. Brunk, Ingrid (Wuerth). 2022b. Does Foreign Sovereign Immunity Apply to Sanctions on Central Banks? Lawfare, 7 March 2022b. Available at https://www.lawfareblog.com/does-foreign-sov ereign-immunity-apply-sanctions-central-banks. Cassese, Antonio. 2001. International Law. Oxford University Press. Chachko, Elena, and J. Benton. Heath. 2022. A Watershed Moment for Sanctions? Russia, Ukraine, and the Economic Battlefield. AJIL Unbound 116: 135–139. Chappell, John., and Svoboda, Emma. 2022. Must Russia Abstain on Security Council Votes Regarding the Ukraine Crisis? Lawfare, 11 February 2022. Available at https://www.lawfar eblog.com/must-russia-abstain-security-council-votes-regarding-ukraine-crisis. De Hoogh, André. 2022. The Elephant in the Room: Invoking and Exercising the Right of Collective Self-Defemce in Support of Ukraine against Russia Aggression. Opinio Juris, 7 March 2022. Available at https://opiniojuris.org/2022/03/07/the-elephant-in-the-room-invoking-and-exerci sing-the-right-of-collective-self-defence-in-support-of-ukraine-against-russian-aggression/. 128

‘Background Press Briefing on President Biden’s Meetings at the United Nations’, The White House, 21 September 2022, available at https://www.whitehouse.gov/briefing-room/press-briefings/ 2022/09/21/background-press-briefing-on-president-bidens-meetings-at-the-united-nations/.

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Dörr, Oliver. 2019. Use of Force, Prohibition of. Max Planck Encyclopedia of Public International Law, last updated in August 2019. Available at https://opil.ouplaw.com/home/mpil. Doubek, Pavel. 2022. War in Ukraine: Time for a Collective Self-Defense? Opinio Juris, 29 March 2022. Available at http://opiniojuris.org/2022/03/29/war-in-ukraine-time-for-a-collective-selfdefense/. Essawy, Rana M. 2020. The Responsibility Not to Veto Revisited under the Theory of “Consequential Jus Cogens”. Global Responsibility to Protect 12: 299–335. Essawy, Rana Moustafa. 2022. Is There a Legal Duty to Cooperate in Implementing Western Sanctions on Russia? EJIL: Talk!, 25 April 2022. Available at https://www.ejiltalk.org/is-therea-legal-duty-to-cooperate-in-implementing-western-sanctions-on-russia/. Franchini, Daniel. 2023. Seizure of Russian State Assets: State Immunity and Countermeasures. Articles of War, 8 March 2023. Available at https://lieber.westpoint.edu/seizure-russian-stateassets-state-immunity-countermeasures/. Franck, Thomas. 2006. The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium. American Journal of International Law 100: 88–106. Gaja, Giorgio. 1993. Réflexions sur le rôle du Conseil de sécurité dans le nouvel ordre mondial: A propos des rapports entre maintien de la paix et crimes internationaux des Etats. Revue général de droit international public 97: 297–320. Goldmann, Matthias. 2022. Hot War and Cold Freezes: Targeting Russian Central Bank Assets. Verfassungsblog, 28 February 2022. Available at https://verfassungsblog.de/hot-war-and-coldfreezes/. Gurmendi, Alonso. 2023. Tracking State Reactions to the ICC’s Arrest Warrant against Vladimir Putin. Opinio Juris, 29 March 2023. Available at https://opiniojuris.org/2023/03/29/trackingstate-reactions-to-the-iccs-arrest-warrant-against-vladimir-putin/. Hayashi, Mika. 2020. Russia: The Crimea Question and Autonomous Sanctions. In Economic Sanctions in International Law and Practice, 223–243, ed. Masahiko Asada. Routledge. Hovell, Devika. 2022. Council at War: Russia, Ukraine and the UN Security Council. EJIL: Talk!, 25 February 2022. Available at https://www.ejiltalk.org/council-at-war-russia-ukraine-and-theun-security-council/. Hurd, Ian. 2008. Myths of Membership: The Politics of Legitimation in UN Security Council Reform. Global Governance 14: 199–217. Jackson, Miles. 2023. The ICC Arrest Warrants against Vladimir Putin and Maria Lvova-Belova: An Outline of Issues. EJIL: Talk!, 21 March 2023. Available at https://www.ejiltalk.org/the-iccarrest-warrants-against-vladimir-putin-and-maria-lvova-belova-an-outline-of-issues/. Krisch, Nico. 2012a. Introduction to Chapter VII: The General Framework. In The Charter of the United Nations: A Commentary, 3rd ed, Bruno Simma et al. 1237–1271, ed. Oxford University Press. Krisch, Nico. 2012b. ‘Article 39’. In The Charter of the United Nations: A Commentary, 3rd ed, Bruno Simma et al. 1272–1296, ed. Oxford University Press Liu, Yunqing. 2023. Do States Party to the International Criminal Court Statute have the Obligation to Arrest Vladimir Putin? EJIL: Talk!, 14 April 2023. Available at https://www.ejiltalk.org/do-sta tes-party-to-international-criminal-court-statute-have-the-obligation-to-arrest-vladimir-putin/. Milanovic, Marko. 2022. ICJ Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine: Russia Expelled from the Council of Europe. EJIL: Talk!, 16 March 2022. Available at https://www.ejiltalk.org/icj-indicates-provisional-measures-against-russiain-a-near-total-win-for-ukraine-russia-expelled-from-the-council-of-europe/. Moeckli, Daniel., and Fasel, Raffael N. 2017. A Duty to Give Reasons in the Security Council: Making Voting Transparent. International Organizations Law Review 14:13–86.

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Nollkaemper, André. (2022). Three Options for the Veto Power after the War in Ukraine. EJIL: Talk!, 11 April 2022. Available at https://www.ejiltalk.org/three-options-for-the-veto-power-after-thewar-in-ukraine/. O’Keefe, Roger. 2015. An “International Crime” Exception to the Immunity of State Officials from Foreign Criminal Jurisdiction: Not Currently Not Likely. AJIL Unbound 109: 167–172. Olabuenaga, Pablo Arrocha. 2023. G.A. Res. 76/262 on a Standing Mandate for a General Assembly debate when aveto is cast in the Security Council (U.N.). International Legal Materials 62:284– 288. Ratner, Steven R. 2004. The Security Council and International Law. In The UN Security Council: From the Cold War to the 21st Century, David M. Malone. 591–605, ed. Lynne Rienner. Ross, Alf. 1950. Constitution of the United Nations: Analysis of Structure and Function. Rinehart. Russell, Ruth B., assisted by Muther, Jeannette E. 1958. A History of the United Nations Charter: The Role of the United States 1940–1945. The Brookings Institution. Ruys, Tom. 2017. Non-UN Financial Sanctions against Central Banks and Heads of State: In Breach of International Immunity Law? EJIL: Talk!, 12 May 2017. Available at https://www.ejiltalk.org/non-un-financial-sanctions-against-central-banks-and-headsof-state-in-breach-of-international-immunity-law/. Ruys, Tom. 2019. Immunity, Inviolability and Countermeasures: A Closer Look at Non-UN Targeted Sanctions. In The Cambridge Handbook of Immunities and International Law, ed. Tom Ruys, and Nicolas Angelet (with Luca Ferro). Cambridge University Press. Sadat, Leila Nadya. 2023. Conferred Jurisdiction and the ICC’s Putin and Lvova-Belova Warrants Just Security, 21 April 2023. Available at https://www.justsecurity.org/86079/conferred-jurisd iction-and-the-iccs-putin-and-lvova-belova-warrants/. Schäfer, Raphael. 2022. The Echo of Quite Voices: Liechtenstein’s Veto Initiative and the American Six Principles. EJIL: Talk!, 10 October 2022. Available at https://www.ejiltalk.org/the-echo-ofquiet-voices-liechtensteins-veto-initiative-and-the-american-six-principles/. Seoka, Nao, 2012. Kokusai-Rengo ni okeru Kyohiken no Igi to Genkai (The Implications and Limitations of The Veto Power in the United Nations Security Council). Shinzansha. Sievers, Loraine and Daws, Sam 2014. The Procedure of the UN Security Council (Oxford University Press, 4th ed.). Stephan, Paul. 2022. Giving Russian Assets to Ukraine: Freezing Is Not Seizing. Lawfare, 26 April 2022. Available at https://www.lawfareblog.com/giving-russian-assets-ukraine-freezing-not-sei zing. Thouvenin, Jean-Marc. 2013. Sanctions économiques et droit international. Droits 57: 161–176. Thouvenin, Jean-Marc. 2014. Gel des fonds des banques centrales et immunité d’exécution. In Immunities in the Age of Global Constitutionalism, Anne Peters et al. 209–219, ed. Brill. Trahan, Jennifer. 2020. Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes. Cambridge University Press. Tyler, Melissa Conley. 2023. Russia’s Foreign Minister Got Laughter, Cheers and Shrugs in India: Outrage over the War Isn’t Universal. The Conversation, 6 March 2023. Available at https://theconversation.com/russias-foreign-minister-got-laughter-cheers-and-shrugsin-india-outrage-over-the-war-isnt-universal-201163. Trahan, Jennifer. 2022. Aggression and the Veto. Opinio Juris, 28 February 2022. Available at https://opiniojuris.org/2022/02/28/aggression-and-the-veto/. Weiss, Thomas G. 2022. UN Security Council is Powerless to Help Ukraine—But It’s Working as Designed to Prevent World War III. The Conversation, 8 April 2022. Available at https://theconversation.com/un-security-council-is-powerless-to-help-ukraine-but-itsworking-as-designed-to-prevent-world-war-iii-180936. Wood, Michael., and Sthoeger, Eran. 2022. The UN Security Council and International Law. Cambridge University Press.

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Woolaver, Hannah. 2023. South Africa and the ICC Arrest Warrant for Vladimir Putin: Déjà Vu All Over Again? EJIL: Talk!, 5 April 2023. Available at https://www.ejiltalk.org/south-africa-andthe-icc-arrest-warrant-for-vladimir-putin-deja-vu-all-over-again/. Zimmermann, Andreas. 2012. Article 27. In The Charter of the United Nations: A Commentary, 3rd ed, 871–938, ed. Bruno Simma et al. Oxford University Press.

Yohei Okada is Associate Professor of International Law, Graduate School of International Cooperation Studies, Kobe University, Japan.

Chapter 5

Sanctions on Russia: What Impact Do They Have on the Question of “Third-Party Countermeasures”? Takuhei Yamada

5.1 Introduction Since the Crimea crisis in 2014, Western countries have imposed sanctions on Russia. These countries reinforced their sanctions in response to Russia’s full-scale invasion of Ukraine in February 2022. What is the impact of these sanctions on Russia on legal issues related to unilateral coercive measures under international law? Since the sanctions on Russia comprise wide-ranging measures including the restriction or prohibition of trade, investment, financial transactions, and travel, they involve various legal issues. Thus, whether each sanction measure is legal would be considered with reference to a particular substantive rule applicable to that particular measure. Nevertheless, some issues are general and may be relevant to all measures. One example is whether a sanction measure that is prima facie inconsistent with an international obligation can be justified as a countermeasure under general international law. Here, the measure can be justified as a countermeasure if the State implementing it has been injured by a prior internationally wrongful act by the target State. Although most countries or international organizations that impose sanctions are generally not directly injured by the target State’s prior acts—namely third parties—some scholars argue that the measures taken by such third parties may also be justified as “thirdparty countermeasures” or “collective countermeasures” when taken in response to a breach of international obligations to protect the general interests of the international community as a whole.1 This argument has the following theoretical and

1 Tams (2005); Tams (2010), pp. 379–405; Katselli Proukaki (2010); Dawidowicz (2007), pp. 333– 418; Dawidowicz (2016), pp. 3–15; Dawidowicz (2017).

This paper is the result of my research as a Research Fellow at Ryukoku University (2021–2022). T. Yamada (B) Faculty of Law, Ryukoku University, Kyoto, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_5

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practical bases: Theoretically, third parties should be able to introduce countermeasures against a responsible State because breaches of obligations aimed at protecting the international community’s general interests—obligations erga omnes—infringe on the rights of all States. Practically, if third parties can join a sanction regime, the regime would become more effective,2 contributing to the enforcement of obligations erga omnes. However, the rule of countermeasures carries the problem that it might be abused by (especially powerful) countries, given that in a decentralized international society, countries judge the existence of prior wrongful acts by the target State. This risk of abuse is even greater in the case of third-party countermeasures, which many States other than the injured State may join.3 Additionally, some scholars have criticized third-party countermeasures on the basis that they could encroach on the competence of the UN Security Council, which is primarily responsible for maintaining international peace and security. This question should be answered based on international practice: Do recent sanctions contribute to creating the rule of third-party countermeasures? One recent practice to examine is the sanctions on Russia, for the following reasons: First, in this case, prior military actions by the target State—Russia—are apparently in breach of the prohibition of aggression, which is a notable example of obligations erga omnes. Second, numerous third countries have joined the sanction network. While there were some disagreements on the action to be taken regarding sanctions between the United States and other sanctioning States such as European countries and Japan before 2022, more countries have joined and strengthened sanctions since February 2022. Third, as the scope of sanction measures has expanded, they are more likely to contain measures that are prima facie inconsistent with the international obligations of the sanctioning States. In what follows, I first explore the history of the discussion on third-party countermeasures in Sect. 5.2. Then I examine the main contents of the sanctions on Russia in Sect. 5.3. Finally, in Sect. 5.4, I analyze the impact of the sanctions on Russia on the question of third-party countermeasures.

5.2 The Question of “Third-Party Countermeasures” 5.2.1 Discussion on the Proposal of the Drafting Committee in the UN International Law Commission (2000) The concept of third-party countermeasures was controversial in the process that led to the United Nations International Law Commission’s (ILC) Articles on State Responsibility. 2 3

Doxey (1980), p. 90. See Focarelli (2016), p. 22.

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In August 2000, the Drafting Committee of the ILC proposed draft Article 54 titled “Countermeasures by States other than the injured State.”4 This article provided for third-party countermeasures with some conditions: Paragraph 1 states that any noninjured State may take countermeasures at the request and on behalf of any State injured by the breach of an obligation erga omnes or erga omnes partes. Paragraph 2 states that in the case of a serious breach of an obligation erga omnes and essential for protecting the fundamental interests of the international community, any State may take countermeasures in the interest of the beneficiaries of the obligation. However, at the Sixth Committee of the UN General Assembly in autumn 2000, most UN Member States that made statements on the draft article criticized it. Of these, China and Cuba explicitly called for article deletion. The Chinese delegation stated the following: “[S]o-called ‘collective countermeasures’ … would … run counter to the basic principle that countermeasures should and could be taken only by a country injured by an internationally wrongful act. More ominously, ‘collective countermeasures’ could provide a further pretext for power politics in international relations. The reality was that only powerful States and blocs were in a position to take countermeasures, usually against weaker nations. Moreover, ‘collective countermeasures’ were inconsistent with the principle of proportionality enunciated in draft Article 52, for they would become tougher when non-injured States joined in, with the undesirable consequence that countermeasures might greatly outweigh the extent of the injury.”5

The Cuban delegation expressed the following reasons: “[T]he recognition in Article 54, paragraph 2, of the right of any State to take countermeasures in the interest of the beneficiaries of the obligation breached went well beyond the progressive development of international law. The lack of precision in the provisions proposed in the draft articles might lead to the justification of collective sanctions or collective interventions.”6

Moreover, in its written opinion, Mexico called for the deletion of the article, stating that “the position expressed in Article 54 is not supported by international law and raises serious difficulties” and “would have disruptive effects.”7 Mexico continued that “countermeasures have been controversial because of their close link with concepts that were considered outside the scope of law, such as self-help.” Furthermore, “there is still considerable room for caprice and arbitrariness” even if the new text sets strict criteria.8 Japan also requested deletion, particularly of 4

Draft Articles Provisionally Adopted by the Drafting Committee on Second Reading: State Responsibility, A/CN.4/L.600, Yearbook of the International Law Commission 2000, Vol. II, Part 2, pp. 70–71. 5 Sixth Committee, Summary record of the 14th meeting, 23 October 2000, A/C.6/55/SR.14, paras 40–41 (China). See also Comments and observations received from Governments, A/CN.4/515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 79 (China); Sixth Committee, Summary record of the 11th meeting, 29 October 2001, A/C.6/56/SR.11, p. 10, para 62 (China). 6 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 59 (Cuba). 7 Ibid. 8 Ibid., pp. 91–92, para 7.

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paragraph 2 of the article, because “entitlement of any State to countermeasures in such a manner … goes far beyond the progressive development of international law.”9 Draft Article 54 was criticized by many other States, some of which went further to criticize the countermeasures themselves. The most widely stated reason, as China asserted in the quote above and as suggested by Cuba and Mexico, is the risk of abuse by powerful countries, i.e., the risk of a group of States led by the West disguising political reasons as countermeasures under international law and imposing sanctions on certain weak countries. Tanzania stated that African and Asian States seldom take collective action, which is more common among Western States. Therefore, it was not surprising that some non-Western States considered the draft text as seeking to legitimize such a practice through the development of legal rules on State responsibility based on Western practices.10 India was wary of countermeasures, as they were merely sanctions under another name.11 Guatemala was concerned that since the effectiveness of countermeasures would vary because of the imbalance in the economic situation and other forms of influence between different States, the countermeasures would aggravate the negative consequences of such inequalities.12 Botswana warned that the wide scope of draft Article 54 was open to abuse by powerful States against weaker States that they might dislike for other reasons.13 Iraq highlighted the risk that large States would be able to use the countermeasures to serve their own interests.14 Sierra Leone stated that countermeasures should be regulated to ensure that they would not be used by powerful States as political weapons against weaker ones, especially developing countries.15 Greece’s delegation believed that the countermeasures constituted an archaic notion that favored more powerful States and thus had no place in an international community based on the sovereign equality of nations.16 The Algerian delegation expressed its reluctance to accept the inclusion of countermeasures in the draft articles, because it feared the introduction of a regime equivalent to sanctions regimes into relations between States. It would be even more difficult to accept the idea of collective countermeasures if the right 9

Comments and observations received from Governments, A/CN.4/515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, pp. 93–94 (Japan). 10 Sixth Committee, Summary record of the 14th meeting, 23 October 2000, A/C.6/55/SR.14, para 45 (United Republic of Tanzania). 11 Sixth Committee, Summary record of the 15th meeting, 24 October 2000, A/C.6/55/SR.15, para 29 (India). 12 Sixth Committee, Summary record of the 15th meeting, 24 October 2000, A/C.6/55/SR.15, para 43 (Guatemala). 13 Sixth Committee, Summary record of the 15th meeting, 24 October 2000, A/C.6/55/SR.15, para 63 (Botswana). 14 Sixth Committee, Summary record of the 16th meeting, 25 October 2000, A/C.6/55/SR.16, para 36 (Iraq). 15 Sixth Committee, Summary record of the 16th meeting, 25 October 2000, A/C.6/55/SR.16, para 51 (Sierra Leone). 16 Sixth Committee, Summary record of the 17th meeting, 27 October 2000, A/C.6/55/SR.17, para 85 (Greece).

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to react can be delegated to a group of countries acting outside any institutional framework.17 Slovenia contended that in certain circumstances such as in the case of serious and systematic human rights violations the proposed rules could be justified, but because of their broad scope, simultaneously risked giving rise to abuses.18 The Russian Federation stated that it would be unacceptable for any State to take countermeasures at the request of any injured State, because that would allow the powers to play the role of international policemen.19 Brazil commented that since the countermeasures should not become punitive instruments that opened the door to the abuse of power, the question of the rights of third States to take countermeasures needed further consideration.20 The delegation of Libya asserted that since the “collective countermeasures,” which seemed vague and imprecise, might give rise to abuses, the injured State alone ought to be entitled to take countermeasures after it had exhausted all other peaceful remedies.21 Regarding the collective countermeasures in Article 54(2), the Republic of Korea noted that further efforts were needed to find a way to reduce arbitrariness in the implementation process and alleviate the influence of more powerful States.22 The delegation of Colombia said on behalf of the Rio Group, an association of political consultation of Latin American and Caribbean countries, that countermeasures must be strictly regulated to prevent abuse and that the notion of collective countermeasures, which had raised serious difficulties, should be reviewed carefully by the Special Rapporteur.23 The second most widely asserted reason for criticizing Article 54 was that it would erode the system of enforcement measures by international organizations, especially the UN Security Council. Having criticized the notion of countermeasures, Greece continued that countermeasures should not be taken unilaterally by any State, particularly if the Security Council had seized the matter.24 Russia indicated its concern about the possible collision between third-party countermeasures and the jurisdiction of international organizations responsible for security matters.25 Mexico asserted that 17

Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, paras 2, 5 (Algeria). 18 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 27 (Slovenia). 19 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 51 (Russian Federation). 20 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 65 (Brazil). 21 Sixth Committee, Summary record of the 22nd meeting, 1 November 2000, A/C.6/55/SR.22, para 52 (Libyan Arab Jamahiriya). 22 Comments and observations received from Governments, A/CN.4/515 and Add.1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 94 (Republic of Korea). 23 Sixth Committee, Summary record of the 23rd meeting, 2 November 2000, A/C.6/55/SR.23, para 4 (Colombia). 24 Sixth Committee, Summary record of the 17th meeting, 27 October 2000, A/C.6/55/SR.17, para 85 (Greece). 25 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 51 (Russian Federation).

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since determining whether serious breaches of essential obligations to the international community had occurred was a matter to be dealt with under Chapter VII of the UN Charter, and the response to such a breach was provided for in the Charter, it was not appropriate to alter the principles of the Charter by allowing for collective countermeasures.26 For Libya, since collective countermeasures can be legitimate only in the context of intervention by the competent international or regional institutions, the handing over of the right to take countermeasures to a group of countries is unacceptable.27 Cameroon was concerned that draft Article 54 might lead to the simultaneous implementation of multilateral or collective countermeasures with other measures taken by competent United Nations bodies, arguing that the draft articles must not create overlapping legal regimes that could weaken the United Nations as a whole or marginalize the Security Council.28 Israel worried that draft provisions such as Article 54 would have a destabilizing effect by creating a parallel mechanism for responding to serious breaches that lacked the coordinated, balanced, and collective features of the existing mechanisms.29 Another reason for criticizing Article 54 was the potential conflict with the principle of proportionality of countermeasures. Apart from the Chinese statement, Jordan said that it was difficult to envisage how the principle of proportionality could be respected if any State was authorized to take countermeasures. Moreover, such countermeasures can provoke escalations instead of restoring legality.30 Austria considered it unclear how the rule of proportionality should be applied if several States take countermeasures, let alone if they are applying different countermeasures.31 As described above, many countries, mainly developing or non-Western, criticized Article 54 of the Drafting Committee. Notably, some developed and Western countries also criticized this article. The delegation of the United Kingdom feared that draft Article 54(2) was potentially highly destabilizing to treaty relations, questioning whether a State should be able to contravene any of its treaties including those of a technical nature such as postal service agreements in response to any serious breach by another State of any erga omnes obligations. They also questioned about what would happen if the most directly affected State did not want countermeasures 26

Sixth Committee, Summary record of the 20th meeting, 31 October 2000, A/C.6/55/SR.20, para 36 (Mexico). See also Comments and observations received from Governments, A/CN.4/515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 91, para 6 (Mexico). 27 Sixth Committee, Summary record of the 22nd meeting, 1 November 2000, A/C.6/55/SR.22, para 52 (Libyan Arab Jamahiriya). 28 Sixth Committee, Summary record of the 24th meeting, 3 November 2000, A/C.6/55/SR.24, para 64 (Cameroon). 29 Sixth Committee, Summary record of the 15th meeting, 24 October 2000, A/C.6/55/SR.15, para 25 (Israel). 30 Sixth Committee, Summary record of the 18th meeting, 27 October 2000, A/C.6/55/SR.18, para 17 (Jordan). See also Sixth Committee, Summary record of the 15th meeting, 1 November 2001, A/C.6/56/SR.15, p. 4, para 21 (Jordan). 31 Comments and observations received from Governments, A/CN.4/515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 94 (Austria).

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to be taken, and how the principle of proportionality would operate in that situation.32 Germany was concerned that disproportional unilateral acts could be disguised as countermeasures through Article 54.33 Japan considered the taking of countermeasures by non-injured States to be problematic. While the provision might be pertinent when an injured State was unable to take countermeasures, the risk of abuse could outweigh the benefits.34 Moreover, in its written statement, Japan stated that the basis of Article 54(1) was not established in international law; thus, introducing such a new system might involve a higher risk of abuse than benefit.35

5.2.2 Crawford’s Fourth Report and the Final Articles in the UN International Law Commission (2001) While Special Rapporteur Crawford kept the aforementioned criticisms in mind,36 he proposed a savings clause in his fourth report rather than merely deleting the drafting committee’s Article 54, because in his view, the deletion might imply that countermeasures could only be taken by narrowly defined injured States.37 Consequently, the final articles formulated in 2001 withheld conclusions on whether non-injured States can take countermeasures. Article 54, titled “Measures taken by States other than an injured State” in the final articles, reads: This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

The commentary of this article states that “the current state of international law on countermeasures taken in the general or collective interest is uncertain. State practice is sparse and involves a limited number of States.”38 In addition, the final articles did not conclude on the question of whether non-injured States may take 32

Sixth Committee, Summary record of the 14th meeting, 23 October 2000, A/C.6/55/SR.14, para 31 (United Kingdom). See also Comments and observations received from Governments, A/CN.4/ 515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 94 (United Kingdom of Great Britain and Northern Ireland). 33 Sixth Committee, Summary record of the 14th meeting, 23 October 2000, A/C.6/55/SR.14, para 54 (Germany). 34 Sixth Committee, Summary record of the 14th meeting, 23 October 2000, A/C.6/55/SR.14, para 67 (Japan). 35 Comments and observations received from Governments, A/CN.4/515 and Add. 1–3, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 93 (Japan). 36 James Crawford, “Fourth Report on State Responsibility”, A/CN.4/517 and Add. 1, Yearbook of the International Law Commission 2001, Vol. II, Part 1, p. 18, paras 71–73. 37 Ibid., p. 18, para 74. 38 Report of the International Law Commission on the work of its 53rd session (23 April–1 June and 2 July–10 August 2001), A/56/10 (2001), Yearbook of the International Law Commission 2001, Vol. II, Part 2, p. 139.

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countermeasures in response to a serious breach by another State of an obligation arising under a peremptory norm of general international law: Article 41(3) is a savings clause, only providing that “This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.” Therefore, the ILC did not clarify whether third-party countermeasures were acceptable.

5.2.3 Recent Discussion However, some countries were disappointed by Article 54 of the ILC’s Articles on State Responsibility, which withheld conclusions on third-party countermeasures. The Mongolian delegation regretted that the final draft omitted the provision in the former draft Article 54 by the drafting committee for a non-injured State to take countermeasures because Mongolia believed that the option of collective action should have been preserved in the draft articles.39 Furthermore, the issue of third-party countermeasures seems to have become more important in recent years, given the increase in autonomous measures in the absence of or beyond a Security Council resolution. Against this backdrop, strong positive arguments have emerged after the adoption of the ILC articles. For example, in 2005, the Institute of International Law adopted the “Resolution on Obligations erga omnes in International Law.”40 Therein, Article 5(c) provides: Should a widely acknowledged grave breach of an erga omnes obligation occur, all the States to which the obligation is owed … are entitled to take non-forcible counter-measures under conditions analogous to those applying to a State specially affected by the breach.

Moreover, several scholars have supported third-party countermeasures by comprehensively examining a large number of State practices.41 Are these arguments valid? Given that a number of governments criticized Article 54 of the drafting committee, which provided for the rule of third-party countermeasures under certain conditions in 2000–2001, the rule was not established under customary international law, at least at that time. Thus, we must address the question of whether the rule of third-party countermeasures has been established under customary international law in the last 20 years. This question needs to be examined in a study of recent State practices. Thus, as part of these studies, I examine the 39

Sixth Committee, Summary record of the 14th meeting, 1 November 2001, A/C.6/56/SR.14, p. 9, para 56 (Mongolia). 40 Institut de Droit International, ‘Resolution on Obligations erga omnes in International Law’, Annuaire de l’Institut de droit international, Vol. 71(2) (2005), pp. 286–289. 41 Supra note 1. Iwasawa acknowledges that the rule of third-party countermeasures in response to breaches of obligations erga omnes is now developing, if not established. IWASAWA (2020), p. 606.

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impact of the sanctions on Russia on the question of third-party countermeasures. I begin by considering the main contents of the sanctions.

5.3 The Sanctions Against Russia 5.3.1 Before February 2022 Sanctions on Russia were imposed, mainly in response to Russia’s 2014 invasion of Ukraine, by numerous countries or organizations including the United States,42 the European Union (EU),43 the United Kingdom (after leaving the EU), Japan,44 Switzerland, Norway, Albania, Liechtenstein, Montenegro, Iceland, Australia, Canada, New Zealand, Georgia, Ukraine, and Moldova.45 Since the United States imposed the most aggressive and extensive sanctions on Russia, I focus on these sanctions. Initially, the United States began to impose sanctions on Russia for reasons unrelated to Ukraine: In December 2012, it imposed sanctions under the Sergei Magnitsky Act, which was followed by the Global Magnitsky Act in 2016. The United States also imposed sanctions on Russia for reasons including malicious cyber-enabled activities including election interference, and the Chemical and Biological Weapons Control and Warfare Elimination Act after determining that Russia had used a chemical weapon concerning the March 2018 nerve agent attack on a former Russian military intelligence officer and his daughter in the United Kingdom. The sanctions that the United States imposed on Russia before February 2022 included the following: Trade Restrictions: . Prohibition of providing goods and services to designated persons . Prohibition or restriction of export or re-export of defense articles or services, and dual use items to Russia

42

US Department of the Treasury, ‘Ukraine-/Russia-related Sanctions’, https://home.treasury.gov/ policy-issues/financial-sanctions/sanctions-programs-and-country-information/ukraine-russia-rel ated-sanctions; US Department of State, ‘Ukraine and Russia Sanctions’, https://2009-2017.state. gov/e/eb/tfs/spi/ukrainerussia/index.htm (to 20 January 2017), https://www.state.gov/ukraine-andrussia-sanctions/ (from 21 January 2017). 43 European Council & Council of the EU, EU restrictive measures against Russia over Ukraine (since 2014), https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-againstrussia-over-ukraine/. 44 Ministry of Economy, Trade and Industry of Japan, ‘Measures related to the situation in Ukraine’, https://www.meti.go.jp/policy/external_economy/trade_control/01_seido/04_seisai/crimea.html; Ministry of Finance of Japan, ‘Sanction measures and list of sanctions target’, https://www.mof. go.jp/policy/international_policy/gaitame_kawase/gaitame/economic_sanctions/list.html. 45 See Timofeev (2021), p. 94.

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. Prohibition of providing goods, services, and technology for oil exploration and production projects . Prohibition of imports to and exports from Crimea Financial Restrictions: . Asset freezing and restrictions on capital transactions of designated persons (and entities of which they own more than 50%) Travel Restrictions: . Prohibition of entry of designated persons.

5.3.2 After February 2022 After Russia’s full-scale invasion of Ukraine in February 2022, the United States strengthened its sanctions by adding the following measures46 : Trade and Investment Restrictions: . Export controls targeting Russia’s defense, aerospace, and maritime sectors; energy production; and a wide range of commercial and industrial operations . Export controls on oil and gas extraction equipment . Prohibition of providing accounting, trust and corporate formation, management consulting, and quantum computing services . Prohibition of the export of American luxury goods and dollar-denominated banknotes . Prohibition of new investments by United States persons in Russia . Prohibition of trade and investment by United States persons in Russia-occupied regions of eastern Ukraine . Suspension of normal trade relations, i.e., Most Favored Nations (MFN) Treatment, with Russia and its ally Belarus . Ban on the import of Russian oil and other energy products to the United States . Prohibition of the import of gold, diamonds, seafood, and alcoholic beverages of Russian Federation origin Financial Restrictions: . Restrictions on transactions with Russia’s central bank, limiting its ability to draw on dollar-denominated foreign reserves, as well as on transactions with Russia’s Ministry of Finance and National Wealth Fund . Prohibition of secondary-market transactions by United States financial institutions in Russian sovereign debt

46

See Congressional Research Service, ‘Russia’s 2022 Invasion of Ukraine: Overview of U.S. Sanctions and Other Responses’, 20 December 2022, https://crsreports.congress.gov/product/pdf/ IN/IN11869.

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. Expansion of asset freeze designees: President Vladimir Putin, Prime Minister Mikhail Mishustin, members of Russia’s Security Council and administration (including the ministers of foreign affairs, defense, and finance; and heads of the armed forces and central bank), and regional governors; Russia’s legislature (the State Duma and Federation Council), Central Election Commission, and their members; seven of Russia’s largest banks including the largest two (Sberbank and VTB Bank), which account for 80% of bank deposits; defense, industrial, and technology conglomerate Rostec; Alrosa, the world’s largest diamond-mining company; and Nord Stream 2 AG, the parent company for a Russian natural gas pipeline project to Europe Transport Restrictions: . Entrance into and use of United States airspace . Entrance into ports of the United States.

5.4 Impact on the Question of “Third-Party Countermeasures” 5.4.1 Criteria for Consideration Several scholars opine that sanctions on Russia may contribute to the creation of customary rules for third-party countermeasures.47 According to Dawidowicz: The financial measures taken by EU member States against Russia are covered by Article I(2)(b) GATS and as such appear to violate the general obligation to provide MFN treatment in Article II GATS. No exemption to the application of Article II GATS seems applicable. EU Member States also did not invoke the national security exception in Article XIV bis GATS. The limited export embargo applicable to energy-related goods also amounts to a quantitative trade restriction which is prima facie unlawful under Article XI GATT. Again, EU Member States did not invoke the national security exception in Article XXI GATT as possible justification for their otherwise unlawful conduct. All States concerned are members of the WTO. These actions may thus be understood as third-party countermeasures.48

As mentioned in the Introduction, the sanctions on Russia seem to have some characteristics of third-party countermeasures. First, Russia’s military actions against Ukraine, which began in 2014 and expanded rapidly in 2022, constitute aggression, the prohibition of which is one of the obligations erga omnes. Second, the sanctions seem to include measures that are at first glance inconsistent with the international obligations the sanctioning States bear. For example, the suspension of MFN treatment to Russia may be inconsistent with Article I(1) of the General Agreement on 47

E.g., Hayashi (2019), p. 232. See also Desierto (2014); Mälksoo (2017). Ukraine, which is clearly a State directly injured by Russian aggression, is indisputably entitled to invoke countermeasures to justify their prima facie illegal measures. Barmore and Miller (2014), pp. 67–74. 48 Dawidowicz (2017), p. 235.

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Tariffs and Trade 1994 (GATT 1994), and the prohibition of the import and export of goods may be inconsistent with Article XI(1) of the GATT. However, for the sanctions on Russia to contribute to creating the rule of customary international law for third-party countermeasures, it is further required that the sanctioning States justify their measures as countermeasures. Certainly, as Dawidowicz rightly points out, it is not required that these countries explicitly invoked countermeasures; we can presume their intentions to rely on the concept of countermeasures through their words and deeds.49 However, if the sanctioning States actually invoked or intended to rely on grounds other than countermeasures under general international law, then they did not intend to rely on the concept of countermeasures. In this case, the practice does not contribute to creating rules for third-party countermeasures. Therefore, the grounds on which the sanctioning States intended to justify their measures against Russia must be examined.

5.4.2 Intentions of Sanctioning States In practice, sanctioning States are unwilling to state legal grounds justifying their measures under international law. However, when other States including a target State criticize them as illegal, sanctioning States feel more compelled to make legal justifications. Note that the question I consider here pertains to the grounds on which the sanctioning States intended to rely to justify the measures, not whether those grounds are objectively persuasive. Even when implementing countries believe that a measure is justified on legal grounds, the measure might still be objectively judged as illegal. This question of objective (il)legality is outside the scope of the following considerations.

5.4.2.1

The WTO Obligations

Russia’s Claims One of the grounds on which the Russian Federation has frequently criticized sanctions against the country as being illegal is the violation of the World Trade Organization (WTO) Agreements, especially the GATT 1994 and General Agreement on Trade in Services (GATS). Although Russia has not filed a complaint regarding the trade restriction measures under the WTO dispute settlement procedures, it submitted a communication to the Council for Trade in Services and Council for Trade in Goods on April 17, 2014, claiming that the sanctions measures adopted by the United States were illegal.50 In this communication and deliberations at the Council for Trade in 49

Dawidowicz (2017), pp. 252–253. ‘Certain Trade Restrictive Measures Adopted by the United States’, Communication from the Russian Federation, S/C/W/353, G/C/W/697 (23 April 2014).

50

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Services,51 Russia asserted that the measures violated the articles and obligations of the GATS, as follows: . Article II (MFN Treatment)—The measures put the Russian service suppliers and their services in a less favorable position than that of service suppliers and their services from any third country. . Article VI (Domestic Regulation)—The Executive order 13,66252 contains an illustrative list of sectors of the Russian economy (e.g., financial services, energy, mining, and engineering), the operators of which are subjected to the restrictions. Despite the United States’ specific commitments in respect of banking services, services incidental to mining, services incidental to energy distribution, and construction and engineering services, the United States applies a measure that is not administered in a reasonable, objective, or impartial manner. The application of the measures in respect of particular Russian persons is at the full discretion of the US Treasury without any clarification, guidance, or justification. . Article XI (Payments and Transfers)—The United States imposed restrictions on international transfers and payments for current transactions relating to the country’s specific commitments. . The United States’ Specific Commitments under Articles XVI (Market Access) and XVII (National Treatment)—The blocking of assets and prohibition of conducting any transaction within US territory effectively mean that service suppliers are precluded from supplying their services both through cross border trade (mode 1) and commercial presence (mode 3) notwithstanding the country’s specific commitments.

51

WTO Council for Trade in Services, Report of the meeting held on 8 May 2014, S/C/M/117 (27 May 2014), paras 7.1–7.7; WTO Council for Trade in Services, Report of the meeting held on 20 June 2014, S/C/M/118 (15 August 2014), paras 7.1–7.5. 52 Executive Order 13,662 of 20 March 2014, ‘Blocking Property of Additional Persons Contributing to the Situation in Ukraine’, Federal Register, Vol. 79, No. 56 (24 March 2014), p. 16,167.

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Furthermore, in another communication53 and deliberation at the General Council,54 Russia asserted the abovementioned violations of the GATS and the following violations of the provisions of GATT 199455 : . Article I (General MFN Treatment) and Article XI (General Elimination of Quantitative Restrictions)—The prohibition of trade in goods with certain Russian persons puts the goods destined to the Russian Federation in a less favorable position than like goods destined to any other country. This prohibition also constitutes a restriction on the exportation and sale for exports of products destined to the Russian Federation. . Article III (National Treatment on Internal Taxation and Regulation) These claims have been repeatedly made by the Russian Ministry of Foreign Affairs.56 Moreover, when sanctions were tightened in February 2022, Russia submitted a communication to the WTO General Council claiming that the following measures were inconsistent with the relevant provisions of the GATT 1994 and GATS57 : . Implementation of import tariffs above MFN rates . Import ban on Russian oil and oil refining products, as well as intentions to curb imports of other energy resources such as natural gas and coal . Restrictions on export to Russia of various goods including oil refining equipment and technologies, foodstuff, and industrial consumer goods . Blocking of Russian financial institutions including freezing a substantial part of its currency reserves, and transportation services companies

53

‘Certain Trade Restrictive Measures Adopted by Canada’, Communication from the Russian Federation, 28 May 2014, S/C/W/354, G/C/W/698 (3 June 2014). 54 WTO General Council, Minutes of the meeting on 24–25 July 2014, WT/GC/M/152 (9 October 2014), para 16.1. See also WTO General Council, Minutes of the meeting held on 12 May 2014, WT/GC/M/151 (30 June 2014), para 5.2–5.8. 55 See also WTO Council for Trade in Goods, Minutes of the Meeting of the Council for Trade in Goods, 19 June 2014, G/C/M/119 (31 October 2014), para 9.2. 56 Ministry of Foreign Affairs of the Russian Federation, ‘Comment by the Russian Ministry of Foreign Affairs regarding further anti-Russian sanctions agreed by the European Union’, 30 July 2014, https://mid.ru/en/foreign_policy/news/1629654/; ‘Deputy Foreign Minister Vasily Nebenzya’s interview with Rossiya Segodnya’, 31 December 2014, https://mid.ru/en/foreign_p olicy/news/1726431/; ‘Statement by Gennady M. Gatilov, Deputy Minister of Foreign Affairs of the Russian Federation, Head of the Russian Delegation at the 66th Session of the UN Economic Commission for Europe’, 14 April 2015, https://mid.ru/en/foreign_policy/news/1507309/; ‘Foreign Minister Sergey Lavrov’s remarks at a meeting with members of the Association of European Businesses in Russia Moscow’, 31 October 2017, https://mid.ru/en/foreign_policy/news/1556129/ ; ‘Foreign Minister Sergey Lavrov’s statement and answers to questions at the Primakov Readings International Forum’, 11 June 2019, https://mid.ru/en/foreign_policy/news/1463433/; ‘From Foreign Minister Sergey Lavrov’s interview with the MIC Izvestia multimedia information centre Vladivostok’, 4 September 2019, https://mid.ru/en/foreign_policy/news/1468699/. 57 Communication from the Russian Federation, WT/GC/245 (16 March 2022).

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. Prohibition of new investment in the Russian Federation, including in the country’s energy sector . Extreme export controls or total prohibition of trade in other goods and technologies critical for economic development In response to these claims, on what grounds have sanctioning States refuted them? Did they intend to rely on countermeasures to justify their trade restrictions? In discussing this question, there might be a preliminary question regarding whether the concept of countermeasures under general international law is available to justify the violations of WTO obligations. In this context, Azaria states that there is no evidence of any WTO member taking the view that the availability of countermeasures to justify trade restrictions should be excluded by the WTO Agreements.58 Therefore, WTO members can rely on countermeasures to justify trade restrictions.

Grounds for Justification: Before February 2022 When Russia claimed that the trade restriction measures imposed in response to the Crimea Crisis in 2014 violated the WTO Agreements, the sanctioning States did not clearly state the grounds justifying the measures. In the deliberations at the WTO General Council, as explained above, Russia asserted that the measures violated the WTO Agreements, The American representative “underscored that, with regard to the issues raised by the Russian Federation, the United States took its obligations under the WTO Agreement very seriously,” insisting that “[p]rior to instituting the measures … the United States had carefully considered their consistency with WTO rules” and it “remained confident that all of those actions were consistent with its WTO obligations.”59 In other words, it seems that the United States merely emphasized the compatibility of its measures with the WTO Agreements and did not provide a concrete basis for it.60 Similarly, the EU and Canada merely stated the compatibility of their measures with the Agreements, expressing no concrete grounds.61 This attitude was common among the sanctioning States: The United States and the EU at the Council for Trade in Services on May 8, 201462 ; the United States, Canada, and the EU at the General Council on May 12, 201463 ; the United States and Canada at the Council for Trade in Goods on June 19, 201464 ; and Canada, Australia, the United States, and the EU at the Council for 58

Azaria (2022), p. 408. Supra note 54(WT/GC/M/152), para 16.2. 60 See also Reuters (Tom Miles), ‘Russia says U.S. sanctions break WTO rules, may cause trade dispute’, 24 July 2014, https://www.reuters.com/article/us-ukraine-crisis-sanctions-wto/rus sia-says-u-s-sanctions-break-wto-rules-may-cause-trade-dispute-idUSKBN0FT1YI20140724. 61 Supra note 54(WT/GC/M/152), paras 16.9 (EU) & 16.12 (Canada). 62 Supra note 51(S/C/M/117), paras 7.8 (US) & 7.9 (Canada). 63 Supra note 54(WT/GC/M/151), paras 5.9 (US), 5.10 (Canada) & 5.11 (EU). 64 Supra note 55(G/C/M/119), paras 9.5 (US) & 9.6 (Canada). 59

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Trade in Services on June 20, 2014.65 Thus, in response to Russia’s assertion, the United States and other sanctioning States only emphasized the compatibility of their measures with the WTO Agreements without giving specific grounds. Outside the WTO, a similar attitude was evident in the answers of the US State Department Deputy Spokesperson to the question from one of the media at a press briefing on September 12, 2014, when the US Treasury Department and others issued new sanctions66 : QUESTION (from one of the media): You may have seen the Russians say that at least some of them violate WTO rules and that they’re going to—whatever—file suit or however you do that in the WTO. I presume that you disagree with that, yes? MS. HARF (Deputy Spokesperson): Again, it’s interesting that they now suddenly care about international law and are starting to use it as [a] justification for being upset with us. But we disagree with it, yes, of course. QUESTION: Okay, so—but—just can—I am looking for you just to say something like “we do not think that these sanctions violate any part of the WTO rules and regulations.” MS. HARF: Well, I would— QUESTION: Can you say that? MS. HARF: That’s—well, if you would like to join our press office and write my lines for me— (laughter)—then maybe that’s the next step here. QUESTION: Well, is that correct? MS. HARF: I will check with our team and see if it is. QUESTION: Just that you can say that and that the— MS. HARF: I can check with our team and see if it is. QUESTION:—people who put the sanctions together didn’t have this as a concern? MS. HARF: I can check with our team. Here, for the question of whether the measures of the United States violated the WTO Agreements, the spokesperson could not give an immediate answer despite it being nearly five months since Russia’s claim of the WTO Agreements having been breached. It seems that, in light of the United States’ attitude at the WTO organs, this was not simply due to a lack of preparation or mistakes by the spokesperson. This may indicate that the United States government took only the compatibility of its measures with the WTO Agreements for granted without being concerned with the grounds thereof. Moreover, neither the EU High Representative for Foreign Affairs and Security Policy nor the European Commission seemed to publicly mention the grounds

65

Supra note 51 (S/C/M/118), paras 7.7 (Canada), 7.9 (Australia), 7.10 (US) & 7.11 (EU). US Department of State, Daily Press Briefing, 12 September 2014, https://2009-2017.state.gov/ r/pa/prs/dpb/2014/09/231529.htm. The video is available at https://www.youtube.com/watch?v= 9ElD_8M9gaI (The quoted part is at 56:48–57:38). 66

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for justification under the WTO Agreements.67 Nor can we find that the Japanese government clearly stated the legal grounds for its measures; for instance, any legal questions under international law were not discussed at the Committee on Economy, Trade and Industry of the House of Representatives on October 28, 2016 when the sanctions on Russia were one of the items on the agenda.68 Therefore, against Russia’s claim that the trade restriction measures imposed in response to the Crimea Crisis in 2014 violated the WTO Agreements, sanctioning States such as the United States merely emphasized the compatibility of their measures with the Agreements. They did not seem interested in the specific grounds for justifying these measures.

Grounds for Justification: After February 2022 However, the sanctioning States made the legal grounds for justification clearer than before when sanctions were tightened in February 2022. In response to Russia’s abovementioned claim in communications submitted to the WTO General Council, Albania, Australia, Canada, the EU, Iceland, Japan, the Republic of Korea, Moldova, Montenegro, New Zealand, North Macedonia, Norway, the UK, and the United States issued a joint statement69 : We will take any actions, as WTO Members, that we each consider necessary to protect our essential security interests. These may include actions in support of Ukraine, or actions to suspend concessions or other obligations with respect to the Russian Federation, such as the suspension of most-favored-nation treatment to products and services of the Russian Federation. [italics added]

Given that they state “necessary to protect our essential security interests,” they intended to justify their measures including the suspension of MFN treatment by relying on Article XXI of GATT 1994.70 Furthermore, in the subsequent deliberations at the WTO organs, some of the joint statement countries—Albania, Australia, Canada, the EU, Iceland, and the UK—individually stated that they considered their actions necessary to protect their “essential security interests” within the meaning of the security exception clauses 67

However, in the case where certain Russian companies filed a lawsuit against the Council of the European Union at CJEU and alleged, among others, the incompatibility with GATT of the EU’s trade restrictions, the General Court dismissed the claim, deciding that even if GATT were directly applicable in the present case, the restrictions would be justified under Article XXI of GATT. T-715/ 14, PAO Rosneft Oil Company, formerly NK Rosneft OAO and Others v. Council of the European Union, Judgment of the General Court (Sixth Chamber) of 13 September 2018, paras 180–185. 68 See 192nd session, Minutes of the Committee on Economy, Trade and Industry of the House of Representatives, No. 5 (28 October 2016). 69 General Council, Communication from Albania, Australia, Canada, the European Union, Iceland, Japan, Republic of Korea, Moldova, Montenegro, New Zealand, North Macedonia, Norway, United Kingdom, and United States, WT/GC/244 (15 March 2022). 70 Cathleen D. Cimino-Isaacs et al., ‘Russia’s Trade Status, Tariffs, and WTO Issues’, CRS In Focus, IF12071, 11 April 2022.

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under the WTO Agreements such as Article XXI of GATT 1994.71 Certainly, as far as the minutes of meetings at the WTO organs show, it is unclear whether the remaining States expressly invoked security exceptions. However, at least one such State—Japan—referred to the security exception as legal grounds during debates regarding the sanctions on Russia in the National Diet. On April 19, 2022, when an opposition MP asked how the suspension of MFN treatment on Russia could be justified under international law including the WTO Agreements at the Committee on Financial Affairs of the House of Councillors, the Deputy Assistant Minister of the Minister’s Secretariat (Ministry of Foreign Affairs), referred to the security exception under the WTO Agreements as one of the grounds for justification.72 Therefore, since the spring 2022, many sanctioning States have been replying on security exception clauses in the WTO Agreements to justify their trade restriction measures. This indicates that these countries do not intend to rely on countermeasures under general international law to justify them.

5.4.2.2

Other Obligations

Human Rights Law Unilateral coercive measures have been criticized for negatively impacting individuals’ human rights including their economic and social rights in numerous resolutions adopted by the UN General Assembly and Human Rights Council.73 From this perspective, Russia places the responsibility for a global food crisis after its fullscale invasion of Ukraine in 2022 on the West’s sanctions, asserting that “the supply

71

Minutes of the Committee on Market Access, 30 & 31 March 2022, G/MA/M/76, para 4.32 (EU); Minutes of the Meeting of the Council for Trade in Goods, 21 & 22 April 2022, G/C/M/142, paras 43.21 (UK), 43.41 (Canada), 43.56 (Australia); Minutes of the Regular Meeting of the Committee on Safeguards, 25 April 2022, G/SG/M/60, para 10(Canada); Minutes of the Special Meeting of the Committee on Subsidies and Countervailing Measures, 26 April 2022, G/SCM/M/118, para 7 (Canada); Minutes of the Regular Meeting of the Committee on Anti-Dumping Practices, 27 April 2022, G/ADP/M/6, para 10 (Canada); Minutes of the Meeting of the General Council, 9–10 May 2022, WT/GC/M/198, paras 12.8 (EU), 12.10 (Canada), 12.18 (UK), 12.20 (Iceland); Report of the Meeting of the Council for Trade in Services, 16 May 2022, S/C/M/149, paras 10.33 (Canada), 10.46 (EU), 10.60 (Iceland), 10.78 (Albania); Minutes of the Meeting of the Council for Trade in Goods, 7 & 8 July 2022, G/C/M/143, paras 6.26 (EU), 6.58 (Canada), 6.69 (Australia). 72 208th Session, Minutes of the Committee on Financial Affairs of the House of Councillors, No. 11 (19 April 2022), p. 7, https://kokkai.ndl.go.jp/#/detail?minId=120814370X01120220419&cur rent=6. 73 Recent examples are: Resolution adopted by the Human Rights Council on 31 March 2022, ‘The negative impact of unilateral coercive measures on the enjoyment of human rights’, A/HRC/ RES/49/6, para 29; Resolution adopted by the General Assembly on 15 December 2022, ‘Human rights and unilateral coercive measures’, A/RES/77/214, para 1. See also Resolution adopted by the General Assembly on 17 December 2021, ‘Unilateral economic measures as a means of political and economic coercion against developing countries’, A/RES/76/191, para 3.

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chain of wheat has been disrupted by the unilateral measures imposed on Russia.”74 Through this argument, Russia may imply that the measures violate human rights such as the right to an adequate standard of living including adequate food, especially for vulnerable people in developing countries, as enshrined in Article 11 of the International Covenant on Economic, Social and Cultural Rights. Regarding this issue, the G7 Foreign Ministers issued a statement on May 14, 2022 that “our sanctions and export controls against Russia do not and will not target essential exports of food and agricultural inputs to developing countries and to this end include measures to avoid any negative consequences for the production and distribution of food.”75 Moreover, in response to Russia’s allegation, the EU delegation responded that while the EU’s latest sanctions stopped Russian ships from entering EU ports, ships with agricultural commodities and food products were exempted. The same approach, based on exemptions for agricultural and food products, was applied to freight road operators.76 The United States also rejected Russia’s allegation that sanctions had worsened global food insecurity.77 Thus, the sanctioning States have in mind that their measures, which exempt essential exports of food, cannot infringe on human rights such as the right to an adequate standard of living that people in developing countries enjoy. This indicates that they did not intend to rely on countermeasures in the context of the food crisis.

Investment Law On September 26, 2019, Nord Stream 2 AG (NSP2AG) commenced arbitration proceedings against the EU pursuant to Article 3 of the UNCITRAL Rules and Article 26(4)(b) of the Energy Charter Treaty (ECT) about investment in the oil and gas sector. NSP2AG claimed that the EU’s adoption of Directive (EU) 2019/692 and conduct in connection with it violated the EU’s obligations under the following provisions in Part III “Investment Promotion and Protection” of the ECT: Article 10(1), which includes the duty to accord fair and equitable treatment and the prohibition against unreasonable and discriminatory measures, Article 10(7) on national treatment and MFN treatment, and Article 13 prohibiting expropriation and equivalent measures.78 Against this claim, the EU replied that there was no violation of the substantive provisions. It did not find it necessary to refer to any of the exceptions set forth in 74

Council for Trade in Goods, Minutes of the Meeting of the Council for Trade in Goods, 7 & 8 July 2022, G/C/M/143, para 6.7. 75 G7 Foreign Ministers, Statement on Russia’s war against Ukraine, 14 May 2022, https://www. auswaertiges-amt.de/en/newsroom/news/g7-russias-war-aginst-ukaine/2531268, https://www.dip lomatie.gouv.fr/en/french-foreign-policy/development-assistance/news/2022/article/statement-onrussia-s-war-against-ukraine-g7-foreign-ministers-14-may-2022. 76 Council for Trade in Goods, Minutes of the Meeting of the Council for Trade in Goods, 7 & 8 July 2022, G/C/M/143, para 6.24. 77 Ibid., para 6.32. 78 Claimant’s Memorial, 3 July 2020, paras 4–5.

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Article 24 of the ECT or any of the justifications under general international law such as countermeasures.79

New START Treaty Inspection activities under the Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms (New START Treaty), the purpose of which is to place verifiable limits on all intercontinental-range nuclear weapons, have been suspended by an agreement between Russia and the United States since the beginning of the COVID-19 pandemic in 2020. In August 2022, Russia stated that the United States’ travel ban was an additional obstacle to resuming inspection activities under the treaty, as it had caused several problems such as the absence of normal air flights, neglect of Russia’s requests to confirm the possibility of its aircraft with inspectors traveling through the air spaces of transit countries, and visa problems during transit.80 Russia believes that the travel ban violated the United States’ obligation concerning inspection activities under the treaty. Against this complaint, the US Department of State answered that the United States’ sanctions on Russia were “fully compatible with the New START Treaty,” as they did not prevent Russian inspectors from conducting treaty inspections in the United States.81 Thus, the United States, which merely insisted on compatibility with its obligations under the treaty, did not intend to invoke countermeasures to address Russia’s complaints. Therefore, in response to Russia’s complaints that some measures are contrary to international obligations other than the WTO obligations, sanctioning States have generally replied that the measures are compatible with those obligations. This indicates that they do not find it necessary to rely on grounds for justification such as countermeasures under general international law.

79

Respondent’s Counter Memorial on the Merits, 3 May 2021; Respondent Rejoinder on Merits & Reply on Jurisdiction (Redacted), 22 February 2022. 80 Briefing by Deputy Director of the Foreign Ministry Information and Press Department Ivan Nechayev, Moscow, 11 August 2022, https://mid.ru/en/foreign_policy/news/1825841/. See also Foreign Ministry statement regarding the Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms (New START), 8 February 2023, https://mid.ru/en/foreign_p olicy/news/1852877/. 81 Department Press Briefing, 16 August 2022, https://www.state.gov/briefings/department-pressbriefing-august-16-2022/; Department Press Briefing, 22 August 2022, https://www.state.gov/bri efings/department-press-briefing-august-22-2022/.

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5.5 Concluding Remarks As mentioned in the Introduction, if we consider whether recent sanction practices may contribute to creating the rule of customary international law for third-party countermeasures, the sanctions on Russia are one of the practices we should examine the most. This is because the prior actions of the target State—Russia—are evidently in breach of the prohibition of aggression, which is a notable example of obligations erga omnes. Accordingly, we must consider the impact of the sanctions on Russia on the question of third-party countermeasures. For this, this chapter examined the grounds on which the sanctioning States intended to rely to justify their measures against Russia. This chapter reveals the following: First, regarding the complaint of violations of the WTO Agreements, while the sanctioning States did not seem interested in the specific grounds for justifying their pre-2022 trade restriction measures, many have more explicitly relied on security exception clauses in the WTO Agreements to justify the measures since spring 2022. Second, to Russia’s complaint that some measures are contrary to international obligations other than WTO obligations, the sanctioning States have responded that the measures are compatible with those obligations, indicating that they do not find it necessary to rely on any grounds for justification such as countermeasures. This analysis demonstrated that, overall, the sanctioning States did not intend to rely on (third-party) countermeasures to justify their measures. Thus, it follows that the sanctions on Russia are not considered a practice that may contribute to creating the rule of third-party countermeasures; in other words, this practice negatively impacts the question of third-party countermeasures.

References Azaria, D. 2022. Trade Countermeasures for Breaches of International Law outside the WTO. International & Comparative Law Quarterly 71: 389–423. Barmore, C., and C. Miller. 2014. Dumping Debt and Seizing Assets: Ukrainian Countermeasures for Russian Aggression. Stanford Law Review 67: 67–74. Dawidowicz, M. 2007. Public Law Enforcement without Public Law Safeguards?: An Analysis of State Practice on Third-party Countermeasures and their Relationship to the UN Security Council. British Yearbook of International Law 77 (2006): 333–418. Dawidowicz, M. 2016. Third-party Countermeasures: A Progressive Development of International Law? Questions of International Law, Zoom-in 29: 3–15. Dawidowicz, M. 2017. Third-Party Countermeasures in International Law. CUP. Desierto, D. 2014. The EU/US v. Russia Trade Wars: Revisiting GATT Article XXI and the International Law on Unilateral Economic Sanctions. EJIL: Talk!. 22 September 2014. https://www.ejiltalk.org/the-euus-v-russia-trade-wars-revisiting-gatt-article-xxi-and-theinternational-law-on-unilateral-economic-sanctions-2/. Doxey, M.P. 1980. Economic Sanctions and International Enforcement, 2nd ed. The Royal Institute of International Affairs.

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Focarelli, C. 2016. International Law and Third-Party Countermeasures in the Age of Global Instant Communication. Questions of International Law, Zoom-in 29: 17–23. Hayashi, M. 2019. Russia: The Crimea Question and Autonomous Sanctions. In Economic Sanctions in International Law and Practice, ed. M. Asada, 223. Springer. Iwasawa, Yuji. 2020. Kokusaiho (International Law). Tokyo: Tokyo University Press. Katselli Proukaki, E. 2010. The Problem of Enforcement in International Law: Countermeasures, the Non-injured State and the Idea of International Community. Routledge. Mälksoo, L. 2017. Russia, Sanctions, and the Future of International Law. OUPblog (11 September 2017). https://blog.oup.com/2017/09/russia-sanctions-international-law/. Tams, C.J. 2005. Enforcing Obligations Erga Omnes in International Law, Revised ed. 2010. CUP. Tams, C.J. 2010. Individual States as Guardians of Community Interests. In From Bilateralism to Community Interest: Essays in honour of Judge Bruno Simma, ed. U. Fastenrath et al., 379. OUP. Timofeev, I.N. 2021. Unilateral and Extraterritorial Sanctions Policy: The Russian Dimension. In Research Handbook on Unilateral and Extraterritorial Sanctions, ed. C. Beaucillon, 90. Edward Elgar.

Takuhei Yamada is a Professor of International Law at the Faculty of Law, Ryukoku University. He was a Visiting Fellow at the Lauterpacht Centre for International Law, University of Cambridge (2003–05, 2014–15). His publications include Necessity in International Law (Yuhikaku, 2014) (in Japanese) (Mineichiro Adachi Commemorative Prize, 2015); ‘The Formation of Customary International Law: An Analysis of Governments’ Opinions Regarding the Deliberations of the United Nations International Law Commission’, Annual Bulletin of the Ryukoku Institute for Social Science Research, Vol. 50 (2020), pp. 17–42; ‘Demands for Effectiveness in Countermeasures: Critical Study on International Practice’, Ryukoku Law Review, Vol. 51, No. 3 (2019), pp. 205–249; ‘Traditional Non-acceptance of the General Emergency Exception in International Law’, Kobe-Gakuin Law and Politics Review, Vol. 45, No. 2/3 (2015), pp. 1– 55; ‘The Defence of Necessity as Customary International Law: The Fisheries Jurisdiction Case (Spain v. Canada) Re-examined’, L’être situé, Effectiveness and Purposes of International Law: Essays in Honour of Professor Ryuichi Ida (Brill, 2015), pp. 238–254. He holds an LL.D. from Kyoto University.

Chapter 6

Impact of the Ukraine Conflict on Inter-State Dispute Settlement Procedures: The Allegations of Genocide Case (Ukraine v. Russia) Chisa Ishizuka

6.1 Introduction On 26 February 2022, two days after the Russian Federation (‘Russia’) launched its ‘special military operation’ in Ukraine, Ukraine submitted an application against Russia to the International Court of Justice (hereinafter ICJ or ‘the Court’) with regard to the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter ‘the Genocide Convention’1 ) (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), hereinafter ‘Allegations of Genocide’). Ukraine asserted before the Court that the Russian allegations of genocide against Ukraine were unfounded and that the ‘special military operation’ conducted on the basis of that allegation was unlawful. At the same time as it filed the application, Ukraine also requested that the Court indicate provisional measures. Although Russia declined to participate in the oral proceedings regarding this request, on 16 March 2022, the ICJ declared that it had prima facie jurisdiction to entertain this case and indicated provisional measures, including the order to Russia to suspend its military operations in Ukraine immediately.2 Russia refused to comply with this order, asserting the Court’s lack of jurisdiction over this case.3 1

UNTS, Vol. 78, p. 277. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022 (hereinafter ‘Allegations of Genocide (Provisional Measures)’), para 86. 3 See Gapsa (2022). 2

This study was written based on information available as of 31 March 2023. C. Ishizuka (B) Faculty of Law, Toyo University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_6

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Without a doubt, Russia’s invasion of Ukraine has become one of the most significant international crises of the twenty-first century, and it has also had a commensurate impact on inter-State dispute settlement procedures. In the legal evaluation of Russia’s military action, the role of the ICJ, also known as the World Court, has been put before the public eye. Although this Allegations of Genocide case is still pending, many aspects of its process provide interesting implications for the ICJ’s jurisprudence, like the examination on the Court’s jurisdiction ratione materiae and many States’ interventions. Accordingly, this study was undertaken to analyze the procedural issues at play in this case and its impact on inter-state dispute settlement procedures.

6.2 The Court’s Jurisdiction Under the Genocide Convention 6.2.1 Features of the Current Case The starting point of the argument is that Ukraine invokes Article IX of the Genocide Convention as the basis for the jurisdiction of the Court. This article confers jurisdiction on the Court over ‘[d]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention’. Therefore, the Court can only adjudicate specific issues related to genocide, not the Russian invasion in general. Among the ICJ cases regarding the Genocide Convention, the Allegations of Genocide case is unprecedented in that the applicant (Ukraine), not the respondent (Russia), is accused of committing genocide.4 The Genocide Convention has been invoked in many cases so far. In two cases concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Serbia and Montenegro and Croatia v. Serbia) with regard to the civil war in the former Yugoslavia, the Court rendered its judgments on the merits of the cases in 2007 and 2015, respectively. In its 2007 judgment in the Bosnia-Herzegovina v. Serbia case, the Court found that Serbia had violated its obligation stipulated in the Genocide Convention, particularly the prevention of genocide.5 Meanwhile, in the Croatia v. Serbia case, the Court rejected the applicant’s claims on its failure to substantiate its allegation that genocide was committed in its 2015 judgment.6 In 10 cases concerning Legality of the Use of Force (Serbia and Montenegro v. NATO States), the Court denied having even prima facie jurisdiction in the orders

4

Raju (2022). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43. 6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (hereinafter ‘Croatia v. Serbia (Merits)’), p. 3. 5

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of provisional measures.7 Finally, in the pending case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) with regard to the Rohingya, the Court declared that it had jurisdiction in its judgment on preliminary objections in July 20228 and proceeded to the merits of the case.9 In these cases, the applicants alleged that the respondents had committed acts of genocide.10 Contrary to these cases, in the Allegations of Genocide case, Ukraine, as the applicant denies the allegation that it had been committing genocide in the Donetsk and Luhansk oblasts of Ukraine, and it insists that the respondent’s (Russia) action to implement measures in the form of a ‘special military operation’ and its acts of recognition of the independence of Donetsk and Luhansk oblasts, all based on a false claim of genocide, are incompatible with the Genocide Convention and violate Ukraine’s rights.11 The restriction of the Court’s 7

Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 124; (Yugoslavia v. Canada), p. 259; (Yugoslavia v. France), p. 363; (Yugoslavia v. Germany), p. 422; (Yugoslavia v. Italy), p. 481; (Yugoslavia v. Netherlands), p. 542; (Yugoslavia v. Portugal), p. 656; (Yugoslavia v. Spain), p. 761; (Yugoslavia v. United Kingdom), p. 826; (Yugoslavia v. United States of America), p. 916. In the Yugoslavia v. Spain and the Yugoslavia v. United States of America cases, the Court concluded that it manifestly lacked jurisdiction and ordered that the cases be discontinued. In the other eight cases, in its 2004 judgments on preliminary objections, the Court lacked jurisdiction based on the fact that the applicant was not a party to the ICJ Statute at the time it filed its applications. Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 279; (Serbia and Montenegro v. Canada), p. 429; (Serbia and Montenegro v. France), p. 575; (Serbia and Montenegro v. Germany), p. 720; (Serbia and Montenegro v. Italy), p. 865; (Serbia and Montenegro v. Netherlands), p. 1011; (Serbia and Montenegro v. Portugal), p. 1160; (Serbia and Montenegro v. United Kingdom), p. 1307. 8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022 (hereinafter ‘The Gambia v. Myanmar (Preliminary Objections)’). 9 Article IX of the Genocide Convention was invoked in two other cases. In the case concerning Trial of Pakistani Prisoners of War, where only the public hearings on provisional measures were held and which was discontinued by Pakistan’s request in 1973, Pakistan seemed to invoke the article as the legal basis for the Court’s jurisdiction. See Application Instituting Proceedings, I.C.J. Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), p. 3, para 2. In the case concerning Armed Activities on the Territory of the Congo, the Court denied its jurisdiction under the Genocide Convention based on Rwanda’s reservation to Article IX. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 20–33, paras 28–70. See also Tams (2014), pp. 295–296. 10 It should be noted that, in these two cases, the respondent filed its counter-claims to allege that the applicants were also responsible for acts of genocide. In the former case, however, the respondent withdrew its counter-claims in 2001. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Order of 10 September 2001, Withdrawal of Counter-claims, I.C.J. Reports 2001, p. 572. In the latter case, the Court rejected its claims because neither genocide nor other violations of the Convention had been proven in its 2015 judgment. Croatia v. Serbia (Merits), supra note 6, pp. 129–153, paras 443–522. 11 Allegations of Genocide, Application instituting proceedings filed in the Registry of the Court on 26 February 2022, p. 16, para 29.

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jurisdiction to the interpretation, application or fulfilment of the Genocide Convention forced Ukraine to make such a claim. In addition, Ukraine also suggests Russia of planning acts of genocide in Ukraine.12 In response to Ukraine’s claim, Russia, as the respondent, denies the Court’s jurisdiction over any issues of the use of force as they fall outside the scope of the Genocide Convention. Because of the urgency of the provisional measures and their precedence over other proceedings, public hearings on provisional measures were held on 7 March 2022. In recent years, it has usually taken about a month from the request to indicate the provisional measures to its public hearings and a little over a month from the public hearings to the issuance of an order. Hence, this constituted an exceptionally rapid process. Due to the unusually early opening of public hearings on provisional measures, Russia declined to participate in the oral proceedings on the grounds that it would be almost impossible to perform all of the necessary preparations within this short period, and instead, it simply filed a document denying the Court’s jurisdiction.13 In this document, Russia claimed that ‘Ukraine is seeking to bring before the Court the issues of legality of the use of force by Russia in Ukraine and the recognition by Russia of the Donetsk and Lugansk Peoples’ Republics’,14 invoking the Genocide Convention, which does not refer to the use of force between States or the recognition of States.15 According to Russia, these issues are regulated by the UN Charter and customary international law16 ; as a result, Ukraine’s application and request for the indication of provisional measures ‘manifestly fall beyond the scope of the Convention’.17 Despite Russia’s non-appearance, the Court considered its written argument in accordance with the Court’s jurisprudence.18

6.2.2 The Court’s Order on Provisional Measures In its order of 16 March 2022, the Court, first examined the existence of a dispute between the parties regarding the interpretation, application, or fulfilment of the Genocide Convention. The Court noted that it must ascertain whether ‘the acts complained by the Applicant are capable of falling within the scope of that convention ratione materiae’.19 After an overview of the claims by the parties, the Court 12

Ibid., p. 14, para 24. Allegations of Genocide, Document (with annexes) from Russia setting out its position regarding the alleged ‘lack of jurisdiction’ of the Court in the case, 7 March 2022, paras 2–3. 14 Ibid., para 4. 15 Ibid., paras 10–12. 16 Ibid., paras 15–19. 17 Ibid., para 23. 18 Allegations of Genocide (Provisional Measures), supra note 2, para 22. See also Shaw (2016), Vol. III, pp. 1410–1414. 19 Allegations of Genocide (Provisional Measures), supra note 2, para 29. 13

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found that the existence of a dispute between the parties relating to the interpretation, application, or fulfilment of the Genocide Convention was prima facie established. Here, the Court said, ‘[t]he statements made by the State organs and senior officials of the Parties indicate a divergence of views as to whether certain acts allegedly committed by Ukraine in the Luhansk and Donetsk regions amount to genocide in violation of its obligations under the Genocide Convention, as well as whether the use of force by the Russian Federation for the stated purpose of preventing and punishing alleged genocide is a measure that can be taken in fulfilment of the obligation to prevent and punish genocide contained in Article I of the Convention. In the Court’s view, the acts complained of by the Applicant appear to be capable of falling within the provisions of the Genocide Convention’.20 The Court also added that ‘the Court is not required to ascertain whether any violations of obligations under the Genocide Convention have occurred’21 at the provisional measures phase. Next, the Court sought to ‘decide whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are plausible’and whether a link exists ‘between the rights whose protection is sought and the provisional measures being requested’.22 As a result, it found that Ukraine had ‘a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine’,23 and thus, it concluded that ‘a link exists between the right of Ukraine that the Court has found to be plausible and the requested provisional measures’.24 Lastly, it further recognized the urgency with which an irreparable violation of this right could occur.25 The order covering three points required, first, that Russia ‘immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine’; second, it directs Russia to ensure that its ‘military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operation’; and third, it indicated both Russia and Ukraine to ‘refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve’.26 The first two orders were adopted by a vote of 13 to 2, and the third was unanimous. Dissenting votes were cast by Russian and Chinese judges (Vice-President Gevorgian and Judge Xue).

20

Ibid., para 45. Ibid., para 43. 22 Ibid., para 51. 23 Ibid., para 60. 24 Ibid., para 64. 25 Ibid., para 77. 26 Ibid., para 86. 21

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6.2.3 Individual Opinions Appended to the Order The two dissenting judges questioned the Court’s jurisdiction ratione materiae. VicePresident Gevorgian and Judge Xue contended that the dispute relates directly to the use of force by Russia in the Ukrainian territory, and accordingly, that the Court manifestly lacks jurisdiction ratione materiae to entertain Ukraine’s application.27 Judge Bennouna, though voting in favor of the order, was not convinced by the Court’s logic regarding its jurisdiction and was also aware that genocide has been overused as a cause for international legal action.28 He said he voted in favor of the order because he felt compelled by the tragic situation in Ukraine.29 Several judges also compared this case to the Legality of the Use of Force cases. In the latter cases, the Court declared that it lacked even prima facie jurisdiction to entertain Yugoslavia’s application because of the lack of its jurisdiction ratione materiae and that it, therefore, did not indicate such measures, although Yugoslavia requested the Court that the respondents immediately cease its acts of use of force against Yugoslavia. Vice-President Gevorgian and Judge Xue observed that these cases and the current Allegations of Genocide case have the same background and therefore that the Court lacks jurisdiction ratione materiae.30 Judge Nolte remarked however that, in the Legality of the Use of Force cases, neither the applicant nor the respondents stated before the Court that the use of force by the respondents had the purpose of preventing an alleged genocide, and the applicant did not show that its request concerned acts of the respondents that were capable of coming within the provisions of the Genocide Convention.31 These differences may be due in large part to the applicants’ judicial strategies. The Court accepted the Ukrainian argument because the prima facie jurisdiction was sufficient for indicating provisional measures. However, it does not mean that the Court has jurisdiction definitively under the Genocide Convention to establish the legality or lack thereof of Russia’s use of force. Ukraine’s claim on this point is also referred to as ‘non-violation complaints’.32 Vice-President Gevorgian contends that such a complaint ‘cannot be brought before the Court in the absence of a compromise or specific treaty-based authorization. Applications of this type have only been entertained by the Court when there were brought under the much broader jurisdictional basis of Article 36(2) of the Statute,

27

Ibid., Declaration of Vice-President Gevorgian, paras 5–6; Declaration of Judge Xue, para 4. Ibid., Declaration of Judge Bennouna, paras 2–4. 29 Ibid., Declaration of Judge Bennouna, para 1. 30 Ibid., Declaration of Vice-President Gevorgian, paras 5–6; Declaration of Judge Xue, para 5. 31 Ibid., Declaration of Judge Nolte, paras 2–4. See also, Separate Opinion of Judge Robinson, paras 24–25. 32 Ibid., Declaration of Vice-President Gevorgian, para 8. See also Declaration of Intervention of the Republic of Latvia, pp. 12–13, paras 40–44. Raju (2022) refers to it as ‘reverse compliance proceedings’. 28

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or in combination with an actual violation complaint of the treaty in question’.33 A more detailed examination would be necessary before any conclusions could be drawn.

6.2.4 Compromissory Clauses of Multilateral Treaties The foreseeable consequence of this Court’s finding must be noted. If the ICJ did have jurisdiction over this issue, the possibility of future application on similar grounds would become more enlarged, and the Genocide Convention would come to be used more frequently as a basis for the Court’s jurisdiction. The historical background of Russia’s ratification illustrates this point. Russia originally signed the Genocide Convention with a reservation as to Article IX, but it withdrew the reservation in 1989, also joining other human rights conventions, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).34 Since then, Russia has often been a respondent before the ICJ. In 2008, Georgia submitted a case regarding the August 2008 armed conflict against Russia under ICERD (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)). Another case involving Ukraine was filed in 2017 under ICERD35 and the International Convention for the Suppression of the Financing of Terrorism36 with respect to the situation in Eastern Ukraine and Crimea, and this case is currently being heard at the merits phase (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)). All of these cases were submitted under the compromissory clause of the multilateral treaties. Not only the cases with Russia, compromissory clauses of multilateral treaties have commonly been invoked as the basis for the jurisdiction of the Court in recent years. Another possibility is compulsory jurisdiction under Article 36(2) of the ICJ Statute, which was considered to be the most central basis for jurisdiction when it was introduced at the time of the establishment of the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ. It is not practical however because the number of declaring States is relatively small (currently 74 States37 ), and many of these make reservations in order to exclude disputes that are unfavorable for them. It is also unimaginable to conclude a special agreement between hostile countries, such as those in armed conflict, to submit a dispute to the ICJ on a consensual 33

Allegations of Genocide (Provisional Measures), supra note 2, Declaration of Vice-President Gevorgian, para. 8. 34 See, for example, Schweisfurth (1990), pp. 110–117. 35 UNTS, Vol. 660, p. 195. 36 UNTS, Vol. 2178, p. 197. 37 The International Court of Justice. Declarations recognizing the jurisdiction of the Court as compulsory. https://www.icj-cij.org/declarations. Accessed 31 March 2023.

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basis. Some representative treaties for the peaceful settlement of disputes are only regional or bilateral, such as the American Treaty on Pacific Settlement (Pact of Bogotá),38 which was adopted by the Organization of American States in 1948, or the European Convention for the Peaceful Settlement of Disputes, adopted by the Council of Europe39 in 1957.40 Thus, the easiest way to bring a case to the ICJ is to claim that it is a dispute concerning the application or interpretation of a multilateral treaty containing a compromissory clause. Among those treaties, the Genocide Convention is one of the simplest instruments to access the ICJ. The compromissory clauses of many multilateral treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), require a failure to negotiate or establish an arbitration before being submitted to the ICJ (Article 30(1), CAT).41 Meanwhile, Article IX of the Genocide Convention imposes no prior conditions, including failure to negotiate. Another easiest instrument is the compromissory clause (Article 22) of ICERD, which only requires either failure of negotiations or referral to the Committee on the Elimination of Racial Discrimination.42 Applicants frequently invoke both treaties as the basis for the Court’s jurisdiction. In response, the respondents tend to deny the Court’s jurisdiction ratione materiae, stating that this dispute is not a dispute concerning the interpretation or application of the given convention, and thus, it does not fall within the provisions of the convention. Even in recent years, such as in the Qatar v. the United Arab Emirates (UAE) case under ICERD, although the Court declared that it had prima facie jurisdiction and thus indicated provisional measures in 2018,43 the Court then denied its jurisdiction to entertain Qatari application in 38

UNTS, Vol. 30, p. 55. UNTS, Vol. 320, p. 243. 40 On the universal level, there is the General Act for the Pacific Settlement of International Disputes (1928, revised in 1949), UNTS, Vol. 71, p. 101. However, there are not so many States parties and the Court has never recognized explicitly the jurisdiction under this Act. See Tomuschat (2002), pp. 977–994; Shaw (2016), Vol. II, pp. 673–674. 41 Other examples include the following: the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (UNTS, Vol. 974, p. 177), Article 14(1); the Convention on the Elimination of All Forms of Discrimination against Women (UNTS, Vol. 1249, p. 13), Article 29(1); the International Convention for the Suppression of the Financing of Terrorism, Article 24(1); the International Convention for the Protection of All Persons from Enforced Disappearance (UNTS, Vol. 2716, p. 3), Article 42(1). 42 The compromissory clause (Article 22) of ICERD is useful for the applicants. However, in the Georgia v. Russia case, the Court denied its jurisdiction because the precondition of negotiations in Article 22 of ICERD had not been fulfilled in the judgment on preliminary objections in 2011, although the Court found that it had prima facie jurisdiction under Article 22 and indicated provisional measures in 2008. Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 353; Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70. 43 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018, p. 406. 39

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the judgment on preliminary objections in February 2021.44 This is because the Court upheld one of UAE’s objections that the dispute fell outside of the scope ratione materiae of ICERD. Under the condition that the Court could not determine the matter of the Court’s jurisdiction in depth at the provisional measures phase, the recent sophistication of the applicants’ litigation strategy makes the Court’s decisions at the jurisdictional phase differ from the provisional measures phase. For an applicant who wishes to obtain at least provisional measures by the Court, a compromissory clause of a multilateral treaty is satisfactory as a useful tool. However, this new trend will leave a negative impression on some States. This negative effect is also found in another phase. After an unfavorable dispute is submitted to the ICJ, some States choose to withdraw the instrument that formed the basis of the Court’s jurisdiction for the case, although this action does not affect the jurisdiction over the case. In the case of declarations of the acceptance of compulsory jurisdiction under Article 36(2) of the ICJ Statute, it is common for States to withdraw their declarations or add reservations after a dispute that is undesirable to them has been submitted to the Court. For example, France withdrew its declaration in 1974 after the filing of the Nuclear Tests cases, and the United States also withdrew its declaration in 1985 after the Court declared that it had jurisdiction under Article 36(2) in the case concerning Military and Paramilitary Activities in and against Nicaragua. Similar action is found in the United Kingdom, a currently the only declaring State among the permanent members of the UN Security Council. It has amended its declaration twice (2014 and 2017) after being sued by the Marshall Islands in the case concerning Obligations Concerning Negotiations Relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament,45 making it impossible to submit a dispute with the United Kingdom to the Court without the express consent of the United Kingdom at each instance. In terms of the limitation of Article 36(2), the compromissory clause comes forth as a legal basis of the Court, which is more difficult for some States to withdraw or modify. A respondent still has a choice to denounce the treaty itself when it is dissatisfied with the applicant’s resort to a compromissory clause, but this poses a difficult hurdle with a high political cost. However, compromissory clause is also not free from limitation because of the State’s maneuver in a judicial phrase. In 2018, the U.S. administration announced its withdrawal from the Treaty of Amity, Economic Relations, and Consular Rights,46 concluded between the US and Iran in 1955, that had been invoked several times

44

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, p. 71. 45 For the practices regarding the withdrawal of the declaration of acceptance of compulsory jurisdiction under Article 36(2) of the ICJ Statute and the modification of reservations, please refer to the following website. The International Court of Justice. Declarations recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36, para 2, of the Statute of the Court. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-4&chapter=1& clang=_en. Accessed 31 March 2023. 46 UNTS, Vol. 284, p. 93.

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by Iran as the basis for the Court’s jurisdiction.47 Japan also withdrew from the International Convention for the Regulation of Whaling,48 which does not contain a compromissory clause in 201949 after the judgment in the case concerning Whaling in the Antarctic, modifying the declaration under Article 36(2) in 2015. Russia has so far shown no intention to withdraw from these treaties, even though it has been sued by Georgia and Ukraine under ICERD and under the Genocide Convention. It is, however, concerned that more States would opt out of the compromissory clause when a multilateral treaty is adopted in the future.

6.3 The Paralyzed UN Security Council and the Court 6.3.1 The Paralyzed UN Security Council and the Role of the UN General Assembly In this Ukraine conflict, the raison d’être of the UN Security Council and the veto power of the permanent members have been questioned in the international community. The UN Security Council is primarily responsible for maintaining international peace and security (Article 24, the UN Charter). As its decisions have the authority to bind all UN member States (Article 25), concurrence votes of all permanent members, each of which has veto power, are indispensable for making decisions (Article 27(3)). In other words, the Security Council cannot adopt resolutions with content that is unfavorable to a permanent member. When a conflict arises in which a permanent member is directly involved, the Security Council may adopt a resolution favorable to them but not unfavorable to them, due to their veto power. Russia also used its veto to block a resolution against the 2014 annexation of Crimea,50 and it has repeatedly used its veto power regarding resolution on its current military operation in Ukraine.51 The Security Council is thus incapable of taking effective measures to halt the Russian invasion of Ukraine, unlike cases such as Iraq’s invasion of Kuwait,52 the civil war in the former Yugoslavia,53 and the Libyan civil war.54 In these cases, the Security Council successfully authorized the use of force by member States to halt the military activities, protect civilians, and so on. In lieu of action by 47

Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment of 23 March 2023, para 32. 48 UNTS, Vol. 161, p. 71. 49 Japan’s Ministry of Foreign Affairs. Japan and the Management of Whales. https://www.mofa. go.jp/policy/economy/fishery/whales/japan.html. Accessed 31 March 2023. 50 UN Doc. S/2014/189 and S/PV.7138 (15 March 2014). 51 UN Doc. S/2022/155 and S/PV.8979 (25 February 2022); UN Doc. S/2022/720 and S/PV.9143 (30 September 2022). 52 For example, UN. Doc. S/RES/660 (2 August 1990); S/RES/678 (29 November 1990). 53 For example, UN. Doc. S/RES/713 (25 September 1991). 54 For example, UN. Doc. S/RES/1970 (26 February 2011); S/RES/1973 (17 March 2011).

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the paralyzed Security Council in the Ukraine conflict, the General Assembly of the UN convened an emergency special session and adopted several resolutions. The first resolution, adopted on 2 March 2022, expressing Russian military operation as ‘aggression against Ukraine’, demanded that Russia ‘immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders’.55 This resolution was sponsored by more than 90 members, including Japan.56 However, the recommendary character of the resolutions of the General Assembly (Article 10, the UN Charter) cannot force Russia to comply.

6.3.2 The Limited Role of the ICJ The ICJ, as the principal judicial organ of the UN, has thus a more important role than that of the General Assembly because the ICJ is one of the two main organs that make binding decisions on the States concerned with international peace and security. However, even if the ICJ’s decision is legally binding on the parties (Article 59, the ICJ Statute), it is unclear whether it will make a real contribution to resolving the conflict. First, the ICJ does not have the authority to enforce its decisions. In the case of non-compliance of one party with a judgment, the other party may have recourse to the Security Council under Article 94(2) of the UN Charter. However, if the party who has not complied with the judgment is a permanent member of the Security Council, this State will naturally veto any such attempt. In a previous case, Nicaragua had recourse to the Security Council, but the U.S. vetoed the draft resolution on the judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua.57 Therefore, it is not certain that ICJ rulings can resolve conflicts when the UN Security Council is paralyzed. Second, the ICJ itself refused to monitor the implementation of provisional measures in this case. It is said that Article 94(2) of the UN Charter does not apply to orders on provisional measures.58 However, the Court can monitor the implementation of the order under Article 8 of the Rules of the Court. In practice, in The Gambia v. Myanmar case in January 2020, the Court ordered the respondent to submit a periodic ‘report to the Court on all measures taken to give effect to this Order’,59

55

UN Doc. A/RES/ES-11/1 (2 March 2022). UN Doc. A/RES/ES-11/L.1 (1 March 2022). 57 UN Doc. S/18428 and S/PV. 2718 (28 October 1986). See Schulte (2004), pp. 198–205. 58 Oellers-Frahm (2012), p. 1967; Shaw (2016), p. 209. 59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 31, para 86. 56

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and the Court also ordered the parties to report on the implementation of provisional measures in the Ukraine v. Russia case submitted in 2017.60 In both cases, the respondents submitted regular reports while denying the Court’s jurisdiction as well as the admissibility of the application, and the applicants submit comments on these to the Court.61 In view of these examples, on 21 December 2020, the Court adopted its ‘Resolution concerning the Internal Judicial Practice of the Court’, Article 11 of which provides for a procedure to monitor the implementation of provisional measures.62 Accordingly, it was not out of the normal course of business that Ukraine asked the ICJ to indicate Russia ‘to provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court’.63 However, the ICJ refused this request, only saying that it did so ‘(i)n the circumstances of the present case’.64 This is quite a simple expression. The Court may have considered such the measure unnecessary, in anticipation of Russia’s failure to submit a report, given the circumstance of Russia’s complete denial of the Court’s jurisdiction and its absence from public hearings on provisional measures.65 Third, even if any decision on the merits is delivered in the future, the proceedings before the ICJ are supposed to take a very long time. In general, recent cases have experienced the prolonged procedure even with the existence of a friendly cooperation between an applicant and a respondent. Under a circumstance that Russia denies the jurisdiction of the Court, it certainly takes more years. Generally, it may take at least two years from the filing of an application for the judgment on preliminary objections to be delivered by the Court. Proceedings on the merits can be held after that and are expected to take several more years. Therefore, by the time that final judgment is rendered, this conflict will likely have already ended substantially. Ukraine has filed the case with the Court, knowing that it would be a long litigation until a final decision is delivered. The fact indicates that Ukraine is not expecting the ICJ’s decision to resolve the conflict directly, more likely being concerned with the impact on the international community of the provisional measures and the filing to the ICJ itself. With the Security Council unable to do anything in this case, the role of the ICJ is more important, but it is also clear that the Court’s role is extremely limited.

60

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 566, para 11. 61 Idem; The Gambia v. Myanmar (Preliminary Objections), supra note 8, para 11. 62 The ICJ Press Release No. 2020/38 (21 December 2020). 63 Allegations of Genocide, Request for the Indication of Provisional Measures submitted by Ukraine, 26 February 2022, p. 7. 64 Allegations of Genocide (Provisional Measures), supra note 2, para 83. 65 Judge Robinson notes that this decision is regrettable and that the Court should have granted this request. Ibid., Separate Opinion of Judge Robinson, para 33.

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6.4 International Support for Ukraine: Declarations of Intervention 6.4.1 Reaction of the International Community It is particularly noteworthy about the current proceedings at the ICJ that quite a few States in the international community have made clear expressions of their support for Ukraine. Among these, on 22 May 2022, a joint statement was issued by a crossregional group of 41 States as well as the EU as a whole, regarding this case.66 This joint statement indicates that the signatories agree ‘to explore all options to support Ukraine in its efforts before the ICJ and to consider a possible intervention in these proceedings’. They issued an additional joint statement on 13 July 2022.67 Since that time, 33 of these States have filed declarations of intervention under Article 63 of the ICJ Statute.68 Some States (Japan, the Marshall Islands and Micronesia) which participated in the joint statements but not parties to the Genocide Convention, are not entitled to intervene under Article 63 of the ICJ Statute because Ukraine’s application refers to this convention as the sole basis for the Court’s jurisdiction in this case. The EU furnished the Court with relevant information in the case as amicus curiae under Article 34(2) of the ICJ Statute because only States are entitled to be before the Court in contentious cases.69 Such a mass participation is unprecedented in contentious cases before the Court.70 For this reason, the Court’s Registrar informed all contracting parties to the Genocide Convention that ‘taking into account the number of declarations pursuant to Article 63 of the Statute of the Court that have been filed in this case, the Court considers that the interest of the sound of administration of justice and procedural efficiency would be advanced if any State that intends to avail itself of right of intervention conferred on it by Article 63 would file its declaration not later than Thursday 15 December 2022’,71 although Article 83(1) of the Rules of Court provides that a 66

This statement can be found on the websites of the foreign ministries of many countries, although the Japan’s Ministry of Foreign Affairs has not made an official comment on its website. See, for example, the Norway’s Ministry of Foreign Affairs website. https://www.norway.no/en/missions/ UN/news/ukraine-and-the-international-court-of-justice/. Accessed 31 March 2023. 67 The European Union External Action. Joint statement on supporting Ukraine in its proceeding at the International Court of Justice. 13 July 2022. https://www.eeas.europa.eu/eeas/joint-statementsupporting-ukraine-its-proceeding-international-court-justice_en. Accessed 31 March 2023. 68 Lichtenstein did not participate in the joint statements, but it has filed a declaration of intervention with the ICJ. The ICJ Press Release 2022/75 (16 December 2022). 69 The ICJ Press Release 2022/29 (18 August 2022). See also Melzer (2022). 70 McGarry (2022). In the Request for an Examination case, five States sought to intervene under Article 62 or/and Article 63. However, these requests were dismissed because the Court rejected New Zealand’s primary request. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Courts Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (New Zealand v. France), I. C. J. Reports 1995, p. 288, pp. 306–307, para 41. 71 Allegations of Genocide, Letter of 31 October 2022 from the Registrar of the Court to the Contracting Parties of the Genocide Convention. In: Joint Declaration of Intervention Pursuant

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declaration of intervention ‘shall be filed as soon as possible, and not later than the date fixed for the opening of the oral proceedings’. Thus, no more States are expected to file interventions in this case. The ICJ Statute provides two ways for filing interventions to the ICJ. The first is Article 62 to allow for the intervention of States whose ‘interests of a legal nature’ may be affected by the decision of the Court; another is Article 63 to allow for the intervention of the contracting parties in the construction of multilateral treaties. In this Allegations of Genocide case, all States that have hitherto filed interventions are taking the second approach. The question now arises whether a non-party to the Genocide Convention, such as Japan, can intervene in this case under Article 62. The position of the Court is not clear on this point. The Court has recognized that ‘all the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression, and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention’72 in the judgment on preliminary objections in The Gambia v. Myanmar case. However, the Court did not readily accept the requests for intervention under Article 62 so far. Furthermore, the Court has not clarified whether an interest in the fulfilment of an obligation erga omnes constitutes an ‘interest of a legal nature that may be affected by the decision’ (Article 62) of the Court.73 Taking into consideration the recent judicial developments, this intervention may be allowed by the Court.74 There is no reason to deny this request at this time. However, up to now, under such uncertain circumstances, no State would dare to submit for intervention under Article 62 and the support of non-parties to the Genocide Convention thus remains outside the activities of the Court. Nevertheless, the fact that even non-NATO and non-Western countries have officially pledged support could be morally important for Ukraine as well.

6.4.2 Intervention Under Article 63 of the ICJ Statute The intervention under Article 63 must concern the ‘construction of a convention to which States other than in the case are parties’ (Article 63(1), the ICJ Statute). This intervention is a right of the third State. Accordingly, the bar for admissibility is not high with just a limited condition, such as the interpretation of this treaty is an issue in the case, and an intervening State must be a party to this treaty.75 No link is required to base the Court’s jurisdiction.76 For example, in the Allegations of Geocide case,

to Article 63 of the Statute of the Court by the Government of Canada and the Kingdom of the Netherlands, para 8. 72 The Gambia v. Myanmar (Preliminary Objections), supra note 8, para 107. 73 See McGarry (2022). 74 See also Kolb (2013), p. 709. 75 Kolb (2013), pp. 732–734; Miron and Chinkin (2019), p. 1752. 76 Miron and Chinkin (2019), p. 1751.

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the United States, having reservation to Article IX, has filed an intervention in this case.77 All States seeking to intervene in this case have stated that they would argue on Ukraine’s side. Russia would express its dissatisfaction with this because it is not desirable from the perspective of the principles of equality of the parties or the fairness of the proceedings. This position is understandable. In the case concerning Whaling in the Antarctic, New Zealand filed an intervention, apparently standing on Australia’s side, to insist on its longstanding position of condemning whaling.78 Thus, it was natural for Japan to raise issues regarding the equality of parties,79 although Japan did not officially object as such to New Zealand’s intervention. Judge Owada expressed concern that, even if the State seeking to intervene satisfies the conditions for its own intervention in the proceedings, the Court should have the discretion to permit on based on the principle of equality of parties and other reasons.80 Meanwhile, in that case, the Court concluded that ‘such an intervention cannot affect the equality of the Parties to the dispute’,81 and it decided that the declaration of intervention that was filed by New Zealand was admissible. The composition of the Court could also matter. In the Allegations of Genocide case, Ukraine chose a judge ad hoc under Article 31(2) of the ICJ Statute because the Court included a judge of Russian nationality but no judge of Ukrainian nationality.82 The noticeable point is that there are also some judges of the nationalities of the States seeking to intervene currently on the Court’s bench; that is, there are currently American, Australian, French, German, and Slovakian judges. Article 31(5) of the Statute becomes relevant here, providing, ‘[s]hould there be several parties in the same interest, they shall … be reckoned as one party only’. In the case concerning Whaling in the Antarctic, the Court concluded that ‘since the intervention of New Zealand does not confer upon it the status of party to the proceedings, Australia and New Zealand cannot be regarded as being “parties in the same interest”… the presence on the bench of a judge of the nationality of the intervening State has no effect on the right of the judge ad hoc chosen by the applicant to sit in the

77

The United States makes the following reservation: ‘That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case’. United Nations Treaty Collection. Convention on the Prevention and Punishment of the Crime of Genocide. https://treaties.un.org/pages/ViewDetails.aspx?src=IND& mtdsg_no=IV-1&chapter=4&clang=_en. Accessed 31 Mar 2023. 78 Tamada (2016), pp. 163–184. 79 Whaling in the Antarctic (Australia v. Japan), Written Observation of Japan on the Declaration of Intervention by New Zealand (18 December 2012), paras 5–7. 80 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013 (hereinafter ‘Whaling in the Antarctic (Intervention)’), Separate Opinion of Judge Owada, pp.11–12, paras 1–6. 81 Ibid., p. 9, para 18. 82 However, the judge ad hoc chosen by Ukraine is a French national (Y. Daudet). Allegations of Genocide (Provisional Measures), supra note 2, para 9.

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case’,83 although this is between the intervening State and the party to the case. This reasoning would also apply to the Allegations of Genocide case. However, as there is no precedent about the relations between intervening States, the result is not substantially clear. In this case, many States seeking to intervene may feel obliged to do so, as Judge Cançado Trindade noted in the case concerning Whaling in the Antarctic, ‘States parties to multilateral treaties are committed to contribute to their proper interpretation. This is, in my perception, even more compelling when such treaties embody matters of collective interest, and are endowed with collective guarantee of the observance of the obligations contracted by the States parties’.84 The Court’s decisions under past precedents would logically make it difficult for the Court to refuse the interventions in this case. However, this large number of States’ interventions could not have been anticipated by the Court. Some States are willing to assist the Court by grouping their interventions together with similar interventions from other State parties.85 The Court’s management of this matter will call for more discussions in the future. Another issue to be raised is the intervention in the jurisdictional phase. On 3 October 2022, Russia submitted preliminary objections to the Court. Thus, the Court must examine its jurisdiction in this case before proceeding to the merits of the case. In fact, all States seeking to intervene are making their observations on the construction of not only provisions regarding the merits of this case but also those regarding the jurisdiction of the Court, namely, Article IX of the Genocide Convention. Some States explicitly insist that they are entitled to intervene in the jurisdictional phase.86 However, the Court has never yet authorized intervention in the jurisdictional phase. In the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court did not allow the intervention by El Salvador in the jurisdictional phase, noting that its declaration of intervention was ‘inadmissible inasmuch as it relates to the current phase of the proceedings’.87 because it presupposed ‘that the Court has jurisdiction to entertain the dispute between Nicaragua and the United States of America and that Nicaragua’s Application against the United States of America 83

Whaling in the Antarctic (Intervention), supra note 80, p. 9, para 21. Ibid., Separate Opinion of Judge Cançado Trindade, pp. 11–12, paras 1–6. This phrase is cited by some States seeking to intervene in the Allegations of Genocide case. Allegations of Genocide, Declaration of Intervention of Estonia, p. 5, para 14; Declaration of Intervention of Spain (p. 2, para 10). 85 See, for example, Allegations of Genocide, Declaration of Intervention of Slovakia, p. 6, para 19; Declaration of Intervention of Croatia, pp. 4–5, para 15. 86 See each State’s declarations of intervention. Allegations of Genocide, Latvia (p. 8, para 20); Lithuania (p. 6, para 18), Sweden (pp. 8–9, paras 22–23); Denmark (p. 3, para 13); Estonia (p. 5, para 15); Greece (p. 7, para 25); The Czech Republic (para 22); Malta (pp. 3–4, para 13); Norway (p. 8, para 24); Slovenia (para 12). Some States who submit the declaration of intervention after Russia’s submission of preliminary objections have limited their argument only with respect to Article IX, reserving their right to submit their argument with respect to the interpretation of the provisions on the merits. 87 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984, p. 2, para 15. 84

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in respect of that dispute is admissible’.88 Meanwhile, Judge Schwebel, only one dissenting judge from this Court’s decision, insisted that ‘intervention in the jurisdictional phase of a proceeding is within the scope of rights with which States are endowed by the terms of Article 63’.89 Some experts have also insisted that a third party is allowed to intervene in the jurisdictional phase.90 The difference between El Salvador in the case concerning Military and Paramilitary Activities in and against Nicaragua and the States seeking to intervene in the Allegations of Genocide case is that the argument of El Salvador was mainly addressed to the merits, not to the jurisdiction of the Court.91 If El Salvador tried expressly to give its interpretation with regard to the jurisdiction of the Court, the conclusion of the Court may have been different. Because the point is that with the Court’s jurisdiction ratione materiae, the most formidable hurdle that Ukraine must pass to win, the intervention of many experienced States will certainly reinforce Ukraine’s claims in the Court.

6.4.3 Multilateralization of International Judicial Settlements This Allegations of Genocide case is an example of multilateralization in the judicial settlement of inter-State disputes. This type of litigation can be seen in other cases as well. The typical example in recent years is The Gambia v. Myanmar case, filed at the ICJ in November 2019. Four States (the Maldives,92 Canada, the Netherlands,93 and the UK94 ) have announced their intention of availing of their right of intervention in the proceedings. The reason for the intervention is, for example, shown in the joint statement of Canada and the Netherlands ‘consider it our obligation to support 88

Idem. Ibid., Dissenting Opinion of Judge Schwebel, p. 223. 90 Thirlway (2013), p. 1031; Shaw (2016), Vol. III, p. 1533; Miron and Chinkin (2019), pp. 1762– 1764. Some difficulties are pointed out by Kolb. See Kolb (2013), pp. 736–737. 91 See Thirlway (2013), p. 1031; Tamada (2016), p. 168; Allegations of Genocide, Declaration of Latvia, pp. 12–13, paras 40–44. 92 Ministry of Foreign Affairs of Maldives. Maldives welcomes the joint statement by Canada and the Kingdom of the Netherlands announcing their intention to intervene in The Gambia v. Myanmar case at the International Court of Justice. 4 September 2020. https://www.gov.mv/en/news-andcommunications/maldives-welcomes-the-joint-statement-by-canada-and-the-kingdom-of-the-net herlands-announcing-their-intention-to-intervene-in-the-gambia-v-myanmar-case-at-the-internati onal-court-of-justice. Accessed 31 March 2023. 93 The Government of the Netherlands. Joint statement of Canada and the Kingdom of the Netherlands regarding intention to intervene in The Gambia v. Myanmar case at the International Court of Justice. 2 September 2020. https://www.government.nl/documents/diplomatic-statem ents/2020/09/02/joint-statement-of-canada-and-the-kingdom-of-the-netherlands-regarding-intent ion-to-intervene-in-the-gambia-v.-myanmar-case-at-the-international-court-of-justice. Accessed 31 March 2023. 94 Foreign, Commonwealth and Development and The RT Hon Amanda Milling MP. Fifth anniversary of the Rohingya crisis in Myanmar: UK statement. 25 August 2022. https://www.gov.uk/govern ment/news/uk-statement-on-the-5th-anniversary-of-the-rohingya-crisis. Accessed 31 March 2023. 89

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these efforts which are of concern to all of humanity’, and they ‘reiterate their call to all States parties to the Genocide Convention to support The Gambia’. Outside the proceedings of the Court, the United States recognized Myanmar’s actions as genocide on 21 March 2022, and it announced that it would share information with The Gambia on this matter.95 Then, in March 2021, Canada and the Netherlands announced that they were jointly initiating accountability proceedings against Syria under CAT in the Syrian Civil War,96 which is followed by an official institution of the proceedings before the ICJ as in the due course of CAT. In such cases, not only States seeking to intervene but also the applicants are not directly injured States. However, in The Gambia v. Myanmar case, the Court concluded that The Gambia has standing to bring its case before the Court under the Genocide Convention because ‘(a)ll the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention’.97 Regarding the cases under CAT, the Court had already declared that all States parties to CAT were entitled to invoke the responsibility of another State party to ascertain the alleged failure to comply with its obligations erga omnes partes under CAT in the judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite.98 Accordingly, it would seem natural for Canada and the Netherlands will be granted standing in this Syrian case. It follows that, for serious crimes in the international community, such as those against humanity and genocide, States other than those directly injured are entitled to bring these issues to the ICJ. Difficulty arises as to differentiation a party to the case from third parties in the proceedings. In short, the Allegations of Genocide case is not the first case of the multilateralization of international judicial settlements but is an outstanding case of the current trend. This case accelerates this new trend. The Ukraine conflict has been referred to not only the ICJ but also other international courts, where the support of many States can also be witnessed. In the case before the European Court of Human Rights,99 31 States and an NGO (the Geneva Academy of International Humanitarian Law and Human Rights) have expressed their intention to intervene as a third party under Article 36(2) of the Convention for the Protection of Human Rights and Fundamental

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US Department of State. Secretary Antony J. Blinken on the Genocide and Crimes Against Humanity in Burma. 21 March 2022. https://www.state.gov/secretary-antony-j-blinken-at-the-uni ted-states-holocaust-memorial-museum/. Accessed 31 March 2023. 96 The Government of the Netherlands. Joint statement of Canada and the Kingdom of the Netherlands regarding their cooperation in holding Syria to account. 12 March 2021. https://www. government.nl/documents/diplomatic-statements/2021/03/12/joint-statement-of-canada-and-thekingdom-of-the-netherlands-regarding-their-cooperation-in-holding-syria-to-account. Accessed 31 March 2023. 97 The Gambia v. Myanmar (Preliminary Objections), supra note 8, para 107. 98 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, pp. 448–450, paras 64–70. 99 Ukraine and the Netherlands v. Russia (nos. 8019/16, 43,800/14, 28,525/20 and 11,055/22), ECHR.

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Freedoms.100 ,101 On 28 February 2022, the Prosecutor of the International Criminal Court also announced that he would seek authorization to open an investigation into the situation in Ukraine. Since then, 43 States have referred the situation in Ukraine to the Office of the Prosecutor.102 Non-European countries such as Japan, Colombia, Costa Rica, and Chile are among them. The phenomenon is a clear manifestation of the united effort to condemn Russia’s exceptional invasion where every State is required to show their position to involve themselves in this incident. At the same time, this tendency could also create a serious division within the world.

6.5 Conclusion As noted at the beginning of this study, it is no exaggeration to say that Russia’s invasion of Ukraine in February 2022 is one of the most significant international crises of the twenty-first century. Unlike proactive organs such as the UN Security Council and the UN General Assembly, the ICJ plays a passive role in applying the existing international law. Especially in this case, the role of the ICJ seems more restricted because of the limitation of its jurisdiction ratione materiae, that shed doubt on whether the ICJ delivers meaningful decisions to help resolve this conflict. However, the ICJ’s legitimizing function cannot be ignored. As the UN’s principal judicial organ, even known as the World Court, the ICJ continues to grant legitimacy to stakeholders in various fields in the world. This function is also demonstrated in this case. Ukraine’s legitimate position is reaffirmed by the legally binding order that Russia immediately halt its military operations. Even if a conflict cannot be resolved immediately, it is important to submit the matter to the ICJ. Even if it takes some time before a final judgment is rendered, just obtaining provisional measures from the ICJ is worthwhile for the applicants. Faced with a sequence of unexpected incidents, the ICJ itself must reform the judicial mechanism to preserve its distinctive role in the world. The international community today is very different from when the PCIJ was established, and the use of the ICJ is likewise different. Recently, there has been a vast increase in the number of cases and advisory opinions referred to the ICJ103 ; accordingly, the number of incidental proceedings has increased as well, which appears to make it extremely difficult for only 15 judges to entertain the large volume of cases. The current Allegations of Genocide case is unique not only in involving significant impact in international politics but also in requiring the reconsideration of institutional arrangement. Many States tend to be interested in a single case and attempt to support it by intervening 100

UNTS, Vol. 213, p. 221. The ECHR Press Release 082 (2023) (17 March 2023). 102 For the facts at the ICC, refer to the following website: ICC. Situation in Ukraine, ICC-01/22. https://www.icc-cpi.int/situations/ukraine. Accessed 31 March 2023. 103 The International Court of Justice. Pending cases. https://www.icj-cij.org/pending-cases. Accessed 31 March 2023. 101

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in the proceedings of that case, but the ICJ’s procedures need to be reconsidered in the near future.

References Gapsa, M. 2022. On Russian explanations for non-compliance with provisional measures in Allegations of Genocide (Ukraine v. Russian Federation). International Law Blog. https://internati onallaw.blog/2022/11/07/on-russian-explanations-for-non-compliance-with-provisional-mea sures-in-allegations-of-genocide-ukraine-v-russian-federation/. Accessed 31 March 2023. Kolb, R. 2013. The International Court of Justice. Hart. McGarry, B. 2022. Mass Intervention? The Joint Statement of 41 States on Ukraine v. Russia, EJIL: Talk! https://www.ejiltalk.org/mass-intervention-the-joint-statement-of-41-states-on-ukr aine-v-russia/. Accessed 31 March 2023. Melzer, A. 2022. The ICJ’s only friend in Ukraine v. Russia: On the EU’s memorial in the case of Ukraine v. Russia before the ICJ. Völkerrechtsblog. https://doi.org/10.17176/20221007-110 301-0. Miron, A., and C. Chinkin. 2019. Article 63. In The Statute of the International Court of Justice; A Commentary, 3rd ed., ed. A. Zimmermann, et al., 1741–1774. Oxford University Press. Oellers-Frahm, K. 2012. Article 94. In The Charter of the United Nations: A Commentary, 3rd ed., ed. B. Simma, et al., 1957–1971. Oxford University Press. Raju, D. 2022. Ukraine v Russia: A “Reverse Compliance” Case on Genocide, EJIL: Talk! https://www.ejiltalk.org/ukraine-v-russia-a-reverse-compliance-case-on-genocide/. Accessed 31 March 2023. Schulte, C. 2004. Compliance with Decisions of the International Court of Justice. Oxford University Press. Schweisfurth, T. 1990. The acceptance by the soviet union of the compulsory jurisdiction of the ICJ for six human rights conventions. European Journal of International Law 2: 110–117. Shaw, M.N. 2016. Rosenne’s Law and Practice of the International Court 1920–2015, 5th ed. Brill/ Nijhoff. Tamada, D. 2016. Unfavourable but unavoidable procedures: Procedural aspects of the whaling case. In Whaling in the Antarctic: Significance and Implications of the ICJ Judgment, ed. M. Fitzmaurice, and D. Tamada, 163–192. Brill/Nijhoff. Tams, C.J. 2014. Article XI. In Convention on the Prevention and Punishment of the Crime of Genocide, a Commentary, ed. C.J. Tams, et al., 293–318. C.H.Beck/Hart/Nomos. Thirlway, H. 2013. The Law and Procedure of the International Court of Justice, Fifty Years of the Jurisprudence. Oxford University Press. Tomuschat, C. 2002. The 1928 general act for the pacific settlement of international disputes revisited. In Liber Amicorum Judge Shigeru Oda, ed. N. Ando, et al., 977–994. Kluwer Law International.

Chisa Ishizuka is an Associate Professor of International Law at the Faculty of Law, Toyo University in Tokyo, Japan. She obtained a Ph.D. in law from Hitotsubashi University in Tokyo, Japan.

Part II

International Human Rights Law

Chapter 7

Impacts on Refugee Law: Implications for Japanese Law, European Union Law and International Human Rights Law Yukari Ando

7.1 Introduction The Chapter examines how the reception of displaced Ukrainians as a consequence of the Russian invasion has impacted the development of the law in Japan, the European Union and international human rights law have been affected by refugee law in the wake of the reception of Ukrainians. Since 24th February 2022, there has been a massive movement of Ukrainians (Map 7.1) seeking protection to other countries. Border crossings from Ukraine (as of 23rd May 2023) have totalled 21,924,285. This figure reflects cross-border movements (and not individuals). An additional 105,000 persons moved to the Russian Federation from the Donetsk and Luhansk regions between the 18th and 23rd of February 2023.1 The Japanese Government’s support for Ukrainian ‘displaced persons’ began on 28th February 2022 with a statement by Prime Minister Fumio Kishida.2 This initiative has been led by the Immigration Service Agency of the Minister of Justice of Japan,3 other Ministries and Agencies, national and local authorities and private companies. The Japanese Government’s response to the status of Ukrainian residents in Japan was as follows: We will make appropriate decisions on residence permits for those Ukrainians in Japan who are anxious to return home so that they can continue to remain in Japan. Even for those who 1

https://data2.unhcr.org/en/situations/ukraine last visited on 25th May 2023. https://www.kantei.go.jp/jp/101_kishida/statement/2022/0228kaiken.html last visited on 25th May 2023. 3 https://www.moj.go.jp/isa/support/fresc/12_00031.html last visited on 25th May 2023. 2

Y. Ando (B) Institute of Liberal Arts and Sciences, University of Toyama, Toyama, Japan

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_7

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Map 7.1 Massive movement of Ukrainians to other countries. Source UNHCR have been issued with a deportation order, we will not deport them against their will. We will do the same as long as we consider that the situation in Ukraine has not improved. If a Ukrainian national has entered Japan from Ukraine with the status of ‘Temporary Visitor’ for the purpose of seeking refuge and wishes to stay in Japan, we will accept an application for permission to change his/her status of residence to ‘Designated Activities (1 year)’, which allows him/her to work.4

The legal status of Ukrainian ‘displaced persons’ in Japan is ‘designated activities with work permit’ as described above. It is not a stable status and there are concerns that assistance might end at any time, because it is ad hoc treatment without a solid legal basis. However, there has never been before a case in Japan of receiving such an urgent and large number of people (2434 persons as of 17th May 2023).5 The Ukrainian acceptance by Prefecture shows that the majority of Ukrainians tend to stay in greater Tokyo areas (Tokyo 600 persons, Chiba 105 persons, Kanagawa 163 persons, Saitama 85 persons) (Table 7.1).6 This support for Ukrainian ‘displaced persons’ has been granted residence permits by the Japanese Government, paid for partly by private foundations,7 individuals and others, and accepted by universities, Japanese language schools and communities. This kind of collaboration between the government, foundations, individuals, schools and community is similar to Canada’s private sponsorship of refugees.8 The main 4

https://www.moj.go.jp/isa/support/fresc/ukraine_support.html last visited on 25th May 2023. https://www.moj.go.jp/isa/publications/materials/01_00234.html last visited on 25th May 2023. 6 https://www.moj.go.jp/isa/content/001373694.pdf last visited on 25th May 2023. 7 https://www.nippon-foundation.or.jp/en last visited on 25th May 2023. 8 https://www.rstp.ca/en/refugee-sponsorship/the-private-sponsorship-of-refugees-program/ last visited on 25th May 2023. 5

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Table 7.1 Ukrainian acceptance by prefecture (as of 17th May 2023) Prefecture

Under 18 years

18–61 years

Over 61 years

Total (persons)

Ibaraki

3

45

4

52

Gunma

8

38

1

47

Saitama

17

52

16

85

Chiba

22

60

23

105

Tokyo

87

432

81

600

Kanagawa

39

96

28

163

408

1483

294

2185

All the prefectures

Source Immigration Service Agency, Minister of Justice of Japan

difference is that Canada’s private sponsorship of refugees involves the granting of a permanent residence permit, while Japan’s reception of Ukrainian refugees is ad hoc temporary stay basis. From this point of view, the framework is similar to the EU’s Temporary Protection Directive (2001/55/EC of 20 July 2001) applicable to Ukrainians. According to the European Council Implementing Decision (EU) 2022/ 382 dated 4th March 2022, the following persons are protected9 : Article 2 The persons to whom the temporary protection applies. 1. This Decision applies to the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date: (a) Ukrainian nationals residing in Ukraine before 24 February 2022; (b) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022; and, (c) family members of the persons referred to in points (a) and (b). The adoption/implementation of such practices if it is applied/implemented for groups other than Ukrainians. It sets a precedent or example of protective measures that may be applied in future to refugees and displaced persons in Japan. Therefore, examining the treatment of Ukrainians is significant and considering/examining the implications for Japanese law, EU law and international human rights law.

Global Refugee Sponsorship Initiative Partners https://refugeesponsorship.org/ last visited on 25th May 2023. Jennier Hyndman, William Payne, Shauna Jimenez “The State of Private Refugee Sponsorship in Canada: Trends, Issues, and Impacts” Centre for Refugee Studies, York University, December 2, 2016. 9 Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/ 55/EC, and having the effect of introducing temporary protection. https://eur-lex.europa.eu/eli/dec_impl/2022/382/oj last visited on 25th May 2023.

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The acceptance of Ukrainian ‘displaced persons’ is largely due to the fact that the Immigration Service Agency granted the status of ‘designated activities with work permit’ to Ukrainians at a very early stage and requested support to the organisations/ community on its website. It is also ground-breaking that many Japanese universities have accepted Ukrainian students and researchers (23 universities accepting applications for support, 39 universities that have finished or stopped accepting applications, 62 universities in total, as of 2nd May 2023).10 The acceptance of these students by the universities is understood to have been influenced by the government’s appeal.11 The Japanese government consistently utilises the term “displaced persons” for Ukrainians. However, it is not always clear what is meant by ‘displaced persons’ under Japanese law, EU law and international human rights law. The Japanese Government has a history of utilising the term ‘afflicted people’12 as a term similar to ‘displaced persons’.13 One of the mandates of the Secretariat of the International Peace Cooperation Headquarters, Cabinet Office of Japan, where the author formerly worked, is material cooperation under the Act on Cooperation with United Nations peacekeeping operations and Other Operations (hereinafter referred as to the International Peace Cooperation Act).14 Article 30(1) of the International Peace Cooperation Act stipulates that “the Government may provide material cooperation when it deems appropriate to cooperate in United Nations peacekeeping operations, international coordinated peace and security operations, humanitarian international relief operations or international election monitoring operations”. Under this provision, Japan has provided material assistance to the UN Transitional Authority in Cambodia (UNTAC), the UN Operation in Mozambique (ONUMOZ), the UN Force Drawdown Observer Force (UNDOF), the UN Mission in East Timor (UNAMET), the UN High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM).15 In 1997, the Humanitarian Relief Supplies Stockpiling (see Photo 7.1) Scheme was established, under which basic items necessary for refugees and others to live are selected and stockpiled, and five items—tents, blankets, sleeping mats, water containers and plastic sheets—are stockpiled in a stockpile warehouse in Dubai.16 These stockpiles were provided to UNHCR in October 2006, for instance, to assist 10

https://www.studyinjapan.go.jp/ja/planning/search-school/daigakukensaku/ukraine-u/post-1. html last visited on 25th May 2023. 11 https://www.moj.go.jp/isa/support/fresc/12_00030.html last visited on 25th May 2023. 12 https://www.cao.go.jp/pko/pko_e/operations/relief.html last visited on 25th May 2023. 13 Article 3(3) Act on Cooperation with United Nations peacekeeping operations and Other Operations (Act No. 79 of June 19, 1992) “Humanitarian international relief operations In accordance with resolutions adopted by the General Assembly, the Security Council or the Economic and Social Council of the United Nations or requests made by the international organisations listed in Annex II, conflicts that may endanger the maintenance of international peace and security (hereinafter referred to as ‘conflicts’). Residents and other persons (hereinafter referred to as ‘affected peoples’) who have suffered or are likely to suffer damage as a result of the conflict”. 14 https://www.cao.go.jp/pko/pko_e/data/law/pdf/law_01.pdf last visited on 25th May 2023. 15 https://www.cao.go.jp/pko/pko_j/operations/relief.html last visited on 25th May 2023. 16 ibid.

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Photo 7.1 Types of stockpiled supplies. Source Secretariat of the International Peace Cooperation Headquarters, Cabinet Office of Japan

UNHCR’s operations in Sri Lanka, which were being carried out in accordance with a Cabinet decision,17 in the form of refugee relief items (sleeping mats, water supply containers and plastic sheets). In May 2009, refugee relief items (tents, sleeping mats, plastic sheeting, water containers and mosquito nets) were provided to IOM in order to cooperate with IOM’s activities to assist the affected population in Sri Lanka.18 The acceptance of Ukrainians is a ‘paradigm shift’ in Japan, as Japan is now engaging in international cooperation within its territory as opposed to abroad/ externally in other countries as it has traditionally/historically done. As seen in the Table 7.2: G7 Comparative on Refugee Related Issues, Japan’s low refugee recognition rate and underdeveloped immigration legal system compared with other G7 countries has long been or consistently criticised by UN Human Rights Bodies.19

17

https://www.cao.go.jp/pko/pko_j/data/pdf/05/data05_13.pdf last visited on 25th May 2023. https://www.cao.go.jp/pko/pko_j/data/pdf/05/data05_18.pdf. 19 Human Rights Council Working Group on Arbitrary Detention Opinions adopted by the Working Group on Arbitrary Detention at its eighty-eighth session, 24–28 August 2020 Opinion No. 58/2020 concerning Deniz Yengin and Heydar Safari Diman (Japan) A/HRC/WGAD/2020/58, 25 September 2020. https://www.ohchr.org/Documents/Issues/Detention/Opinions/Session88/A_HRC_WGAD_2 020_58_Advance_Edited_Version.pdf last visited 25th May 2023. Joint Statement on Special Rapporteur on the human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (OL JPN 3/ 2021) 31 March 2021. https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId= 26325&fbclid=IwAR2TnEqjZnr0vYRU39NG3LmsxgHDvTrViX8BH38QS27xtS_nWF4d2 AB5nGQ last visited 25th May 2023. UNHCR Comments on amendments to the Immigration Control and Refugee Recognition Act (ICRRA) submitted to the 204th Diet session (9 April 2021) https://www.unhcr.org/jp/wp-content/ uploads/sites/34/2021/04/20210409-UNHCR-Full-Comments-on-ICRRA-Bill-English.pdf last visited 25th May 2023. Human Rights Council, “National Report Submitted Pursuant to Human Rights Council Resolutions 5/1 and 16/21, 10 November 2022,” A/HRC/WG.6/42/JPN/1, 10 November 2022 https:// www.ohchr.org/en/hr-bodies/upr/jp-index last visited 25th May 2023. Human Rights Committee, “Concluding Seventh Periodic Report Of Japan,” CCPR/C/JPN/CO/ 7, 30 November 2022. 18

Migrant 6 months, 18 moths if the person hinders removal (Residence Act s.62(4))

Migrant 90 days (CESEDA Art. L552-7)

Asylum Seeker Asylum Seeker no detention(Court 19 days(Asylum de cassation Sep Act s.18(a)) 2017 → March 2018 Immigration and Asylum Act)

◯

◯

Max length of immigration detention

Return directive s.15(5) each member state shall set a limited period of detention, which may not exceed six months

23% (2022)

Germany

15.5% (2021)

France

Refugee recognition rate

EU

Asylum Seeker 12 months (Reception Decree s.6(8))

Migrant 180 days (Article 14(5) TUI, as amended by Decree-Law 130/2020 and L. 173/ 2020)

◯

15% (2021)

Italy

Table 7.2 G7 comparative on refugee-related issues (as of 25th May 2023)

Asylum Seeker no detention

Migrants have no detention (in principle) unless under particular circumstances

Canada

90 days (Immigration and Nationality Act s.241(a)(1)), exception (s.241(a)(2))

No maximum length However, detention is subject to regular reviews (at 48 h, then 7 days, then every 30 days until the person is released or removed)

∆ × (no provision)

×

(continued)

Current 2023 immigration bill

Japan

32.2% (2021) 62.1% (2021) 0.67% (2021) 1.95% (2022)

USA

∆ ◯ (no provision)

65% (2021)

UK

142 Y. Ando

◯

◯

Exist

Suspension of deportation during RSD

Criminalisation evading deportation

Source Author

Exist

◯

15(2)(a) return directive

◯

Detention review by an independent body

Germany

France

EU

Table 7.2 (continued)

◯

◯

Italy

Exist

◯

◯

UK

Canada

Exist

◯

None

◯

∆ (not ◯ independent)

USA

None

◯

×

Exist

×

×

Current 2023 immigration bill

Japan

7 Impacts on Refugee Law: Implications for Japanese Law, European … 143

144

Y. Ando

There have been criticisms made in relation to the selection of Ukrainians for this protection gap by some NGO persons. The lack of protection of other groups is ‘based on racism and discrimination against nationality’. However, the rapid reception of Ukrainians is not only occurred in Japan but also in the EU.20 It is a rather political issue linked to the very rapid entry into force of the EU Temporary Protection Directive which had not been used since 2001.21 It is, therefore, noteworthy to accumulate ‘good practices’ by public institutions (government and universities) and rto relate them to the broader issue of foreigners in the future, as a cornerstone on the backbone of change to protect foreigners in Japan, which has been historically reluctant accepting refugees and displaced persons. The Attorney-at-Law, Koji Yamada, stated that this social situation may have encouraged the victory of the case for the revocation of the refugee non-recognition of Turkish Kurd (Sapporo High Court Judgement of 2nd May 2022),22 which led to the first refugee recognition (as of 28th July 2022) for Turkish Kurd in Japan.23

7.2 Definitional Theory of Refugee in the Japanese Immigration Act The Convention relating to the Status of Refugees (hereinafter referred to as the Refugee Convention), was adopted by the UN General Assembly in 1951 and had temporal (before 1st January 1951) and geographical (within Europe) restrictions. The Protocol Relating to the Status of Refugees was adopted in 1966 to remove these

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno= CCPR%2FC%2FJPN%2FCO%2F7&Lang=en last visited 25th May 2023. Mandates of the Special Rapporteur on the human rights of migrants; the Working Group on Arbitrary Detention and the Special Rapporteur on freedom of religion or belief Ref.: OL JPN 1/ 2023, 18 April 2023. https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId= 27995 last visited 25th May 2023. 20 Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/ 55/EC, and having the effect of introducing temporary protection https://eur-lex.europa.eu/eli/dec_ impl/2022/382/oj last visited 25th May 2023. 21 Proposal for a COUNCIL IMPLEMENTING DECISION establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/ 55/EC of 20 July 2001, and having the effect of introducing temporary protection COM/2022/91 final, 27 February 2022. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0091&qid=164 6384923837 last visited 25th May 2023. 22 https://www.lawlibrary.jp/pdf/z18817009-00-090522278_tkc.pdf last visited on 25th May 2023. https://www.nikkei.com/article/DGXZQOUE063HR0W2A600C2000000/ last visited on 25th May 2023. 23 https://www.asahi.com/articles/ASQ895H5VQ89UTIL01L.html last visited on 25th May 2023.

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restrictions and make the Refugee Convention universally applicable. Article 1A(2) of the Refugee Convention defines the term “refugee”: any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality”

According to Article 2 (iii-2) of the Japanese Immigration Control and Refugee Recognition Act (hereinafter referred to as the Immigration Act)24 : The term “refugee” means a refugee who falls under the provisions of Article 1 of the Convention relating to the Status of Refugees hereinafter (referred to as the “Refugee Convention” or the provisions of Article 1 of the) Protocol relating to the Status of Refugees.

As seen above, the Immigration Act simply refers to the definition of the Refugee Convention and thereby requires the application of international standards of interpretation of the Refugee Convention. The repeated reference of the definition of persecution in Japanese court decisions to ‘attacks or oppression that cause suffering unbearably to an ordinary person, meaning violation or suppression of life or physical freedom’ is an interpretation unique to Japan, which does deviate from the international interpretive standards for the Refugee Convention. The ‘beyond reasonable doubt’ standard for refugee recognition is applied in the Japanese Courts. However, it is not appropriate to impose the standards of criminal cases on refugee cases, resulting in only a very limited number of persons being granted refugee status. It should be noted that refugee status is declaratory. The UNHCR Handbook states that: A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. (para 28).

Other UNHCR publications also recognises “A person does not become a refugee by virtue of a recognition decision by the host country or UNHCR, but is recognized because he or she is a refugee. In other words, the recognition decision is declaratory: it acknowledges and formally confirms that the individual concerned is a refugee.25 ” Inter-American Court of Human Rights also has recognised26 : 145. Under the 1951 Convention, a person is a refugee as soon as he or she fulfils the criteria contained in the definition, which would necessarily occur prior to the time at which his or her refugee status is formally determined. Thus, the recognition of a person’s refugee 24

Immigration Control and Refugee Recognition Act (Cabinet Order No. 319 of October 4, 1951) https://www.japaneselawtranslation.go.jp/en/laws/view/3624 last visited on 25th May 2023. 25 UNHCR “Refugee Status Determination: Identifying who is a refugee, Self-study module 2” 2005, p. 4. https://www.unhcr.org/media/self-study-module-2-refugee-status-determination-identi fying-who-refugee last visited 25th May 2023. 26 Case of Pacheco Tineo v Bolivia, Inter-American Court of Human Rights, 25 November 2013.

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status is declaratory, not constitutive. A person does not become a refugee by virtue of a recognition decision, but is recognised because he or she is a refugee (emphasis added). 147. Given the declaratory nature of refugee status determination, and even considering the important role given to UNHCR in the context of international protection, it is the States Parties to the 1951 Convention that, as a matter of priority, are responsible for the recognition based on fair and efficient procedures for this purpose (emphasis added).

The Refugee Convention’s definition of ‘a well-founded fear’ has been recognised to have subjective and objective components, but how are the subjective and objective elements interpreted by States in refugee determination procedures? According to Dr. Linda Kirk (Adjunct Associate Professor at the University of New South Wales, Senior Member of the Administrative Appeals Tribunal and former judge of the Australian Immigration and Refugee Appeal Tribunal)27 : ‘well-founded fear’ requires courts and tribunals around the world to give meaning to this phrase and set appropriate standards in its application to the individual circumstances and claims of refugee claimants. International refugee law distinguishes between subjective and objective elements of a refugee claimant’s claim for refugee status, including where the standard of proof and burden of proof lies, which standard should be applied and for the grant of refugee status. In Australia, this aspect of the Refugee Convention definition has been the subject of judicial review. In the case of Chan, the High Court of Australia (Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379) held that the original court had erred in finding that the refugee status applicant did not face a substantial future risk of persecution. It held that the Court should have regard to the psychological and emotional state of the applicant for refugee status, as well as objective evidence relating to the applicant’s country of origin, as to the fact that ‘well-founded fear’ has both subjective and objective elements.

Also, according to Judge Martin Treadwell, Chair of the New Zealand Immigration and Protection Tribunal28 : “The New Zealand Refugee Status Appeals Authority set out its approach to the assessment and application of Article 1A(2) of the Refugee Convention in its initial decision, in the Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (‘the UNHCR Handbook’) and The Benipal decision (Benipal v Minister of Foreign Affairs, High Court Auckland, A No.878/83, 29th November 1985) of the High Court of New Zealand. The expression ‘well-founded fear’ denoted both subjective and objective elements to the test. With regard to the objective element, the Refugee Status Appeals Authority held in the Benipal decision that “‘well-founded’ is an adjectival clause of the noun ‘fear’. Hence it is necessary to decide the fear issue first. Only then can the basis for fear be ascertained. When ascertained the question can be asked whether the basis is well-founded.” Furthermore, the judge quotes Lord Keith in the Sivakumaran decision (R v Secretary of State for the Home Department, Ex Parte Sivakumaran (1998) AC 958, 992 G (HL)): 27

Yukari Ando・Judith Gleeson・Martin Treadwell・Linda Kirk “Genjitsu tekina Osore Eikoku, NZ, Australia ni okeru Risho Kijun no Hatten Keii (Development of Real Risk in the UK, New Zealand and Australia)” Refugee Studies Journal No. 7, 2017, pp. 80–98. 28 Ibid.

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“…the question whether the fear of persecution held by an applicant for refugee status is wellfounded is likewise intended to be objectively determined by reference to the circumstances at the prevailing in the country of the applicant’s nationality. This inference is fortified by the reflection that the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view the individual in question.”

What, then, are the criteria for a finding of ‘reasonable fear’? In this regard, he also states that: In New Zealand, in a decision-making process characterised by what Professor James Hathaway calls an ‘inherent evidence vacuum’, early decisions adopted the ‘real chance of it happening’ criterion, because of its clarity and simplicity of application. In other words, for fear to be well-founded, there must be a realistic chance of persecution, and the likelihood of persecution must not be near-unlikely. The criterion is much lower than 50% and could be as low as 10%, but it is undesirable to express this in percentages because it is misleading. It is preferable to consider whether there is a ‘real chance’ rather than a low likelihood. Not only is its application criteria low, but it shows that genuine refugees can meet the criteria and that any doubts, particularly with regard to the ‘real chance’ criteria, have been determined in the best interests of the refugee status applicant and applied in a way that does not result in an excessive legal burden of proof on the applicant.

Thus, the reason why it is unnecessary desirable for Judge Treadwell to express himself in percentages is that even a low probability is not certainly but well-founded/ real chance. For example, if you have to take a bus through an area controlled by an international terrorist group such as IS, and it is certain that only ‘one’ of the ten passengers will be killed, and there is only a 10% chance that you will be killed, what person would dare to board that bus? The same is true in the case of Russian roulette, where ten people take turns pulling the trigger by placing a bullet, which contains only one bullet, against their heads. In both cases, there is only a 10% chance of this happening, but it is not certainly but well-founded-real chance. The New Zealand Immigration Protection Tribunal states that where there is doubt about ‘real chance’, ‘benefit of doubt’ applies. The benefit of the doubt refers to the UNHCR Handbook “It is possible that an applicant makes a genuine effort to support their claim but lacks evidence for some parts of their statement. It is rare for a refugee to be able to ‘prove’ all of their case, and if this were required, the majority of refugees would not be able to obtain recognition. It is therefore frequently necessary to apply the principle of ‘benefit of the doubt’ to applicants.” This ‘benefit of the doubt’ is also applied in Australia, according to Dr. Kirk29 : For Australian authorities, there is no obligation to give ‘benefit of doubt’ to applicants. However, if the decision is not made with sufficient certainty, then in deciding whether the applicant has a well-founded fear, the decision-maker must consider the possibility that the decision is wrong. Ultimately, the benefit of doubt principle is relevant-internationally recognised.

29

Ibid.

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7.3 Treatment of the UNHCR Handbook and Guidelines in Japan UNHCR explains that the UNHCR Handbook/Guidelines, which is used as a guide for refugee status determination procedures, is treated as an ‘international standard for interpreting the Convention in refugee status procedures’ in each country and ‘as a basis for interpretation in the courts’. Article 35 of the Refugee Convention provides for ‘cooperation between the organs of the States Parties and the United Nations’, which ‘cooperates with the UNHCR and others’ and ‘provides facilities to these organs in the discharge of their responsibilities to supervise the application of the Convention’. The preamble to the Convention explicitly states that ‘UNHCR has the mandate to supervise the application of international conventions providing for the protection of refugees’ and that ‘cooperation between States and UNHCR enables effective coordination of measures taken to deal with refugee issues’. On that basis, the UNHCR Handbook confirms that “States Parties are committed to cooperating with UNHCR in carrying out its mandate under Article 35 of the Refugee Convention and, in particular, to facilitate UNHCR in carrying out its responsibility to supervise the application of the provisions of the Refugee Convention” and to “work towards a more UNHCR at the request of States participating in the Executive Committee on the work of the High Commissioner to promote a consistent approach”. The UNHCR Handbook was prepared at the request of the Executive Committee, which was established by UN General Assembly resolution 1166 (XII) and Economic and Social Council resolution 672 (XXV), which positioned the Executive Committee as a ‘policy-making body for the protection of refugees’. The Executive Committee is composed of representatives of government representatives to discuss and adopt the ‘Conclusions on the International Protection of Refugees’ in Geneva. The 28th session of the Executive Committee met at the UN Headquarters in Geneva from 4 to 12th October 1977 and adopted Conclusion No. 8 (XXVIII) ‘Determination of Refugee Status’.30 The UNHCR Handbook was published “with the aim of providing guidance to national governments” and its conclusions on the international protection of refugees “also provide significant guidance to ‘national’ government agencies responsible for granting asylum under the 1951 Refugee Convention” and although not legally binding under international law, it represents consensus of the national governments of the countries represented on the Executive Committee. It is positioned as ‘having the unanimous support of the representatives of national governments who are members and reflects the views shared by these governments. Subsequently, UNHCR has been updating the Guidelines on issues requiring new interpretative guidance’.

30

UN Doc. No. 12A (A/32/12/Add.1).

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While not ‘legally binding’, “UNHCR Handbook/Guidelines” are recognised and cited by government authorities and courts as ‘authoritative’ documents in the interpretation of the refugee definition and related procedural requirements. Although each State Party to the multilateral treaty is not allowed to adopt its own interpretation, Japanese courts usually reject UNHCR Handbook as not simply “legally binding”. Probably there is a hint of what Japanese academic debates and jurisprudence consider the authority of non ‘legally binding’ characteristics in the Vienna Convention on the Law of Treaties (hereinafter referred to as the VCLT). Professor Masanao Murakami considered the following four elements (i) Article 31(1) of the VCLT ‘interpretation in good faith’, (ii) Article 31(3)(b) of the VCLT ‘practices that arise later in the application of the Convention’, (iii) Article 32 of the VLCT ‘supplementary means of interpretation’, (iv) reserving which of the four elements of the VCLT is applicable to the treaty.31 He, then, took his position as (i) “interpretation in good faith”.32 In contrast, Judge/Professor Yuji Iwasawa explained that “Article 31(1) of the VCLT only sets out general principles of treaty interpretation” and that “it is difficult to recognise an independent role for the principle of good faith interpretation and to derive from this principle a specific method of interpretation”, so that general opinions of treaty bodies should be considered as “ex post facto practice may have to be positioned as ex post facto practice (Article 31(3)(b) of the VCLT ) or as a supplementary means of interpretation (Article 32 of the VCLT )”.33 Professor Kohki Abe stated that “the conclusions of the Executive Committee do not matter at all whether they are legally binding and that the ‘preparatory work’ of the Convention is not legally binding, but that the ‘preparatory work’ is considered as a supplementary instrument and the conclusions are a supplementary instrument of interpretation of the Refugee Convention (Article 32 of the VCLT )”.34 Furthermore, Professor Abe also cited the case against the refusal of fingerprinting (Osaka High Court Judgement, 28th October 1994),35 stating that “it is important that the general opinion was recognised as a supplementary means of interpretation”.36 Professor Hinako Takata and Professor Shotaro Hamamoto, citing the ICCPR as an example, point out that “the authority for such general comments and recommendations is based on the fact that human rights treaty bodies are empowered by the relevant treaty to issue general comments and recommendations.37 ” Apparently “pacta sunt servanda” is applied to State parties and Professor Machiko Kanetake 31

Masanao Murakami “Jinshu Sabetsu Teppai Joyaku to Nihon (CERD and Japan)” Nihon Hyoron Publishing, 2005, p. 8. 32 Ibid, p.10. 33 Yuji Iwasawa “Jiyuken Kiyaku Iinkai no Kiyaku Kaishaku no Hou teki Igi (Legal significance of the Human Rights Committee on the interpretation of the ICCPR)” Sekai Hou Nenpou, No. 29, 2010, p. 71. 34 Kohki Abe “Nanmin Joyaku to 60 Nichi Rule・Saikou (Refugee Convention and the 60-day rule, revisited)” Kokusai Jinken no Chihei, Gendai Jinbun Publshing, 2003, p. 173. 35 Hanrei Jihou No. 1513, p. 86. 36 ibid, p. 174. 37 Hinako Takata, Shotaro Hamamoto ‘Human Rights, Treaty Bodies, General Comments/ Recommendations’ in “Max Planck Encyclopedia of International Law”, 2023, para 59.

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also points out that “there is an obligation to cooperate with a committee, which is applicable to all the monitoring bodies, including the HRC. Such an obligation is based on the general obligation to perform a treaty in good faith, under Article 26 of the Vienna Convention on the Law of Treaties.38 ” It follows, it is not permissible for each State Party to “independently interpret” the Convention in accordance with the “obligation to cooperate” under Article 35 of the Refugee Convention, which is a multilateral treaty. If the obligation to comply with ratified treaties is to be refuted, then, as Professor Hamamoto states39 : If you consider that the understanding of international law by international tribunals is incorrect, there is a need to refute it ‘while developing a logic that can withstand the arguments of the international community of interpretation’.40

This tendency can be seen in the dissenting opinion of Justice Yuko Miyazaki and Justice Katsuya Uga (Supreme Court Decision of 23rd June 2021)41 in which they stated, “The Government of Japan does not contest this interpretation of the Committee on the Elimination of Discrimination against Women.” Also relevant is the possibile of using the “unilateral dispute resolution mechanism” of multilateral treaties that encompass anti-recessionary obligations such as international human rights treaties. It is theoretically possible to dispute the case in the International Court of Justice through the “dispute settlement clause” of Article 38 of the Refugee Convention. According to Professor Dai Tamada,42 it is possible under international human rights treaties to use the “unilateral dispute mechanism” in objective litigation. In other words, it is theoretically possible that State X, a party to the Refugee Convention, a multilateral treaty that encompasses interlocutory obligations, could “create a dispute” against Japan with respect to Japan’s refugee status criteria and file a special lawsuit in the International Court of Justice seeking confirmation of a violation of its obligations under the Refugee Convention. However, to date, Article 38 of the Refugee Convention has never been used.43 38

Machiko Kanetake, ‘Giving Due Consideration: A Normative Pathway between UN Human Rights Treaty-Monitoring Bodies and Domestic Courts’ in Niko Krisch ed. “Entangled Legalities Beyond the State”, Cambridge University Press, 2021, p. 151. 39 Shotaro Hamamoto “Saibankan wa Dare ni Kataru no ka-Nihon no Saibancho ni okeru Kokusaihou・Gaikokuhou no fu sansho (To whom the courts speak—(non) references to international law and foreign law in Japanese courts)” Yoichi Ito (eds) Saibankan Taiwa, Nihon Hyoron Publishing, 2023, p. 294. 40 Masaaki Saito “Tasouteki Rikken Shugi to Nihon Koku Kenpou (Multi-layered constitutionalism and the Constitution of Japan)” Shinzansha Publishing, 2022, p. 216. 41 https://www.courts.go.jp/app/files/hanrei_jp/412/090412_hanrei.pdf last visited 25th May 2023. 42 Dai Tamada “Genocide Jouyaku Tekiyou Jiken Gambia tai Myanmar Senketsu Teki Koben ([Case Study] Gambia v Myanmar, Application of the Genocide Convention, Gambia v Myanmar, Preliminary Defence (International Court of Justice, 22 July 2022)” Kokusai Hou Kenkyu, No. 12, 2023, pp. 211–212. 43 Mari Takeuchi “Nanmin Joyaku Kokunai Saibansho ni yoru Kokusai Joyaku no Kaishaku (Refugee Convention—Interpretation of international conventions by national courts)” Tadashi Mori (eds) Bunya Betsu Kokuasi Joyaku Handbook, Yuhikaku, 2020, p. 99.

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It may be said that the UNHCR Handbook/Guidelines are ‘supplementary means of interpretation’ under Article 32 of the Convention on the Law of Treaties and at the same time fall under any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty under Article 31(2)(a) of the Convention on the Law of Treaties. “UNHCR Handbook/Guidelines” serve as a guide to the legal interpretation of the Refugee Convention by government officials, judges, lawyers and others engaged in refugee status determination, and help in the significant work of providing international protection to people fleeing from persecution and serious violations of human rights. “UNHCR Handbook/Guidelines”, therefore, cannot be ignored as they represent an international (best) practice. As explained earlier, the Immigration Act does not provide its own definition of refugee, but rather “refers to refugee to whom the Refugee Convention is applied pursuant to the provisions of Article 1 of the Refugee Convention or Article 1 of the Refugee Protocol.” The interpretation of Refugee Convention is not left to the discretion of individual State Parties. Professor Yukio Okitsu, states44 that “If it is interpreted that the Convention and Protocol allow the Parties to have discretion regarding the recognition of refugees, then even if they are from the same country and have fled the same persecution, those who reach State Party A will receive protection as a refugee while those who reach State Party B may not receive any protection at all. Do the Convention and Protocol allow for such a situation?” He questions whether “the Convention and Protocol aim at a certain universal regime for the protection of refugees, and it is understood that the purpose of the Convention and Protocol is that refugees should receive the same protection under the same conditions from any State, at least once State Parties and have assumed obligations under the Convention and Protocol”. If so, it would be inappropriate/contradictory to allow discretion to be exercised by the State with regard to the recognition of refugees. There are many examples which demonstrate that the “UNHCR Handbook and Guidelines” guided the universal norm. For example, in Australia, ‘the UNHCR Handbook has no authoritative status in national law. However, it is regarded by the High Court of Australia as a practical guide to refugee status’.45 The most famous case in the High Court of Australia to address the use of the UNHCR Handbook is the Chan case.46 In that case, Justice Mason “I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting interpret the meaning of the relevant parts of 44

Yukio Okitsu “Global Gyosei Koui? Nanmin Nintei o Meguru Kokka to UNHCR no Kengen no Soukoku (A global administrative act?—Conflicts between state and UNHCR authority over refugee status)” Yokohama Hougaku, 27(3), 2019, p. 302. 45 John Vrachnas, Mirko Bagaric, Penny Dimopoulos, Athula Pathinayake, Migration and Refugee Law: Principles and Practice in Australia, Third Edition, Cambridge University Press, 2012, footnote 12, p. 193. 46 High Court of Australia, Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (9 December 1989).

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the Convention.”47 In an Australian Immigration and Refugee Law case commentary analysing Australian court cases on the use of the UNHCR Handbook in other cases, including the Chan case, Justice Gummow in the Somagi case and Justice Lockhart in the Morato case, which was even earlier cases than the Chan case, stated that “the Handbook as an aid to interpretation of Refugee Convention’.48 In Australia, the Handbook, although not legally binding, is used as an aid to treaty interpretation or as a practical guide for decision-makers. Its application is not squarely rejected which is a major difference from Japan. Judge Treadwell of the New Zealand said49 : ‘The UNHCR Handbook is not much of a reference today. This is not because the Handbook is bad, but because it represents a very basic approach to refugee law. Our case law has developed further from it, and some of it is incompatible with the Handbook.’ Judge Gleeson of the United Kingdom also stated50 : “When I started in this position in 1995, the only thing available was the Refugee Convention, and the domestic legal system was frugal because the European Convention on Human Rights and the Common European Asylum System were not yet available. At that time, I referred to the UNHCR Handbook, but now I rarely refer to it. This is because the legal system has developed so much since then and because we have also accumulated case law, that there are many other sources than the UNHCR Handbook. The UNHCR Handbook may underlie these systems and precedents.” These points suggest that the UNHCR Handbook provided very basic refugee protection guidelines internationally, which was subsequently developed by States and contributed significantly to the expansion of refugee protection. In Japanese cases, the UNHCR Handbook has rarely been referred to. An exception is the Appeal Case for the Revocation of the Disposition of Non-recognition of Refugee Status in Nepal (Nagoya High Court Judgement,13th July 2016) and the Appeal Case for the Revocation of the Disposition of Non-recognition of Refugee Status in Nepal (Nagoya High Court Judgement 7th September 2016), the UNHCR Handbook clearly applied as follows: In principle, the burden of proof in applying for refugee status lies with the applicant for refugee status. However, in its preamble, the Refugee Convention affirms the principle of the enjoyment without discrimination of the fundamental rights and freedoms of the human person as enshrined in the UN Charter and the Universal Declaration of Human Rights, and the protection of refugees is required of States Parties to the Refugee Convention, including Japan, as a humanitarian one based on ‘universal rights’ rather than ‘benefits’ from the Government. Refugee applicants are usually placed at a great disadvantage in refugee status determination procedures and “a strict solution of the burden of proof should not result in a situation where refugees in need of protection are denied protection”. 47

ibid, Justice Mason C.J., para 20. Mirko Bagaaric, Kim Boyd, Penny Dimopoulos, Sue Tongue, John Vrachnas, “Migration and Refugee Law in Australia: Cases and Commentary”, Cambridge University Press, 2007, p. 236. 49 Supra n.23. 50 Ibid. 48

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Then, the judgments refer to the UNHCR Handbook: It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. (para. 190) It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. (para. 196) The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. (para.197).

By referring to the UNHCR Handbook, these judgments give effect the objective and purpose of the Refugee Convention and the State’s obligation to cooperate is also fulfilled.

7.4 Are Ukrainian ‘Displaced Persons’ Refugees Under the Refugee Convention? There is an ongoing debate whether Ukrainian Displaced Persons satisfy the refugee definition under the Refugee Convention. The UNHCR itself is bound by the UNHCR Handbook and has historically failed to consider conflict-displaced persons as refugees under the Refugee Convention. The UNHCR Handbook explains “war refugees” as follows: Persons forced to leave their country of origin as a result of international or domestic armed conflict are not normally considered refugees under the Refugee Convention or Protocol. However, they enjoy the protection provided for in other international instruments, such as the Geneva Conventions relating to the Protection of Victims of War 1949 and the 1977 Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflict 1949. (para 164)

Against this historical backdrop, the EU Qualification Directive is a very significant safeguard to protect conflict-displaced persons. The EU Qualification Directive (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on the eligibility of third country nationals or stateless persons as beneficiaries of international protection), the uniform status of persons entitled to refugee or subsidiary protection and the criteria for the content of protection granted to them (Article 15 of the Directive, referred to as ‘Serious Harm’ in Article 15 Subsidiary Protection, provides that ‘Serious Harm’ comprises the following three elements (a) capital punishment or execution; (b) torture or inhuman or degrading treatment or punishment of the applicant in the country of origin; and (c) a serious

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and discrete threat to the life or limb of a civilian population through indiscriminate violence in situations of international or domestic armed conflict. Actually (a) and (b) overlap with Article 3 of the CAT, Articles 6 and 7 of the ICCPR and Article 3 of the European Convention on Human Rights, while (c) is a concept unique to the EU Qualification Directive and protects against “indiscriminate violence”.51 EU Qualification Directive 15(c) is influenced by the African Union’s 1969 African Refugee Convention and the OAS’s 1984 Cartagena Declaration. Article I(2) of the African Refugee Convention is ‘all persons who, on account of external aggression, occupation, foreign domination or events seriously disturbing public order in some or all of their country of origin or nationality, are compelled to leave their habitual place of residence to seek refuge in a place outside their country of origin or nationality’; and Article III(3) of the Cartagena Declaration is ‘any person whose life, safety or freedom is threatened and who has fled his or her country of origin because of generalised violence, external aggression, civil war, gross violations of human rights or circumstances seriously disturbing public order’. These do not require an individual threat or risk of harm and do not require a ‘persecution’ requirement. According to Dr Cornelis (Kees) Wouters52 of UNHCR’s International Protection Division, UNHCR has always applied an ‘exceptional approach’ to the protection of persons arising from conflict. However, in 2001, UNHCR began to take the position that conflict-displacement persons meet the refugee definition of the Refugee Convention.53 “The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees54 ” states that: Where conflicts victimise people fleeing due to ethnic, religious or political differences, today, in many cases, persons fleeing conflict fall within the refugee status of the Refugee Convention. (para 21) There are persons who flee the effects of indiscriminate violence associated with conflict and who do not have elements of persecution. These persons may not fall within the refugee definition of the Refugee Convention, but may require international protection for other reasons. (para 22)

51

International Association of Refugee and Migration Judges (IARMJ) and European Asylum Support Office (EASO) “Article 15(c) Qualification Directive (2011/95/EU) A Judicial Analysis” 2014. https://www.easo.europa.eu/country-guidance-nigeria/334-indiscriminate-violence last visited 25th May 2023. 52 Cornelis (Kees) Wouters ‘Chapter 45 Conflict Refugees’ “Oxford Handbook of International Refugee Law” Oxford University Press, 2021, p. 820. 53 Ibid., p. 821. 54 https://www.refworld.org/docid/3b20a3914.html last visited on 25th May 2023.

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This protection of those who cannot be protected by the Refugee Convention is called ‘complementary protection’.55 And in its Guidelines of 2nd December 2016, UNHCR clarified its position.56 Guideline 12 on International Protection57 : ‘Refugee claims against the background of situations of armed conflict and violence as defined in Article 1 A(2) of the 1951 Convention relating to the Status of Refugees and/or in the 1967 Protocol relating to the Status of Refugees and regional instruments relating to the status of refugees’ states that: Para 10. Article 1A(2) of the Convention applies to persons fleeing armed conflict and situations giving rise to violence, in the light of the ordinary meaning given to that term and the context, intent and purpose of the 1951 Convention. Paragraph 164 of the UNHCR Refugee Status Criteria Handbook, where it states that ‘persons forced to leave their country of origin as a result of international or national armed conflict are not normally considered refugees under the Refugee Convention or Protocol’, is based on the well-founded fear that a person may be subjected to persecution. It must be understood as applying exclusively to situations where there is no contributory relationship between a well-founded fear and the grounds under the 1951 Refugee Convention.

This recognition by the UNCHR, the EU Qualification Directive and the development of international human rights treaties have contributed to this paradigm shift. However, refugee status determination takes time. In practice, mass influxes such as Ukrainians are accepted on a temporary basis and move forward to the refugee status determination procedure. If a person does not satisfy the refugee definition in the Refugee Convention, then it is considered whether they are in need of complementary protection. Japan needs to follow the international trend of protecting persons in need of international protection who do not meet the refugee definition with regard to ratified international human rights law by Japanese Government.

7.5 Japanese Immigration Bill and Introduction of “Complementary Protection” In order to receive ‘conflict-displaced’ persons such as Ukrainians, the introduction of “complementary protection” is proposed under the Immigration Bill.58 The draft amendment to the Immigration Bill was approved by the Cabinet (hereinafter referred to as the 2023 Immigration Bill) on 7th March 2023, passed by a majority of the ruling party and other parties at a plenary session of the House of 55

https://www.unhcr.org/excom/standcom/3ae68d140/complementary-forms-protection-naturerelationship-international-refugee.html last visited on 25th May 2023. https://www.unhcr.org/435 df0aa2.pdf last visited on 25th May 2023. 56 Supra n.30, p. 821. 57 https://www.unhcr.org/jp/wp-content/uploads/sites/34/2018/03/Guidelines-on-International-Pro tection-No.12_JP.pdf. 58 Article 2 (3–2) “A person, other than a refugee, who meets the requirements of a refugee to whom the Refugee Convention applies, other than that the reason for being at risk of persecution is a reason as specified in Article 1A of the Refugee Convention”.

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Representatives on 9th May 2023, and sent to the House of Councillors. On the same day, the Constitutional Democratic Party of Japan and other parties submitted to the House of Councillors a Refugee Protection Bill and an Immigration Bill separately, which included the establishment of a new third-party organisation to increase transparency in the refugee status determination procedure. The 2023 Immigration Bill has had a minor change but keeps the main pillar which was repealed on 18th May 2021 (hereinafter referred to as the 2021 Immigration Bill) and is being debated in the Parliament session. From the perspective of the sincere application of international human rights law, particularly the ‘principle of non-refoulement’, needs to be examined. The points at issue are the exception to the effect of suspension of deportation and the crime of evading deportation from the perspective of the good faith application of international human rights law, in particular, the ‘principle of non-refoulement’. According to the Immigration Service Agency, the basic idea behind the revision of the Immigration Act is to (i) Ensure that those who should be protected are protected; (ii) Then, foreigners whose stay is not permitted should be deported as soon as possible; (iii) Even until their deportation, they should not be unnecessarily detained, and if they are detained, they should be treated in an appropriate manner. Based on these three basic concepts, a package of various measures is intended to provide an integrated solution to the problems of the Current Act. These ideas are in accordance with the State Party obligations of international human rights treaties that Japan has ratified. However, in reality, there are so many anti-Bill movements that are ongoing issues. For instance, many Bar Associations have expressed their deep concerns about the proposed Bill which violates the principle of non-refoulement.59 The UNHCR also has expressed its serious concerns, particularly, the violation of the principle of non-refoulement.60 With regard to the principle of non-refoulement, the creation of “complementary protection” was proposed, for persons who are not recognised as Convention refugees but who need protection from the ‘irreparable serious harm’, that they may face if deported. This is a welcome proposal. Having said that, the criteria and elements are different from EU subsidiary protection and the ‘complementary protection’ in international standards. The big difference is whether the element of “persecution” is a necessary or not (see Diagram 7.1 Concept of Complementary Protection). 59

Tokyo Bar Association on 18th January 2023; Kanbenren on 20th January 2023; Osaka Bar Association on 1st February 2023; Kanagawa Bar Association on 2nd February 2023; Ibaraki Bar Association on 3rd February 2023; Aichi Bar Association on 8th February 2023; Sendai Bar Association on 9th February 2023; Liberty Bar Association on 16th February 2023; Gunma Bar Association on 20th February 2023; Chiba Bar Association on 21st February 2023; Hiroshima Bar Association on 22nd February 2023; Hyogo Bar Association on 27th February 2023; Daini Tokyo Bar Association on 1st March 2023; Fukuoka Bar Association on 3rd March 2023. http://www.jlnr. jp/statements/#B last visited on 25th May 2023. 60 UNHCR Comments on amendments to the Immigration Control and Refugee Recognition Act (ICRRA) submitted to the 204th Diet session (9th April 2021) https://www.unhcr.org/jp/wp-con tent/uploads/sites/34/2021/04/20210409-UNHCR-Full-Comments-on-ICRRA-Bill-English.pdf last visited on 25th May 2023.

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Diagram 7.1 Concept of complementary protection. Source Author

In Japan, there was previously no system of complementary protection. On 19th February 2021, during the deliberations of the 204th Diet session, the Cabinet approved the 2021 Immigration Bill, and the ruling government (LDP and Komeito) proposed the creation of ‘complementary protection’. However, the ‘complementary protection’ in the 2021 Immigration Bill is not the same as complementary protection under international human rights treaties. Japanese ‘complementary protection’ stems from the recommendation of the Expert Group on the Refugee Recognition System within the Sixth Roundtable on Immigration Policy, a private panel of the Minister of Justice in 2014. The purpose of the recommendation is to improve international protection in Japan through “precise refugee claim by clarifying the scope of protection”. The complementary protection should be met with concerns from lawyers and organisations that support foreign nationals, including whether the protection would comply with international norms, and whether proper assessment and analysis of Country of Origin Information (COI) would be carried out. Although the 2021 Immigration Bill was abandoned as described before, the same provisions are proposed in the 2023 Immigration Bill. The concept of ‘serious harm’ is considered to be closest to Japanese domestic law. ‘Serious damage’ is defined in Article 25(3) of the Administrative Case Litigation Act (Act No. 139 of 16th May 1962) as “In determining whether or not serious damage has been caused as provided in the preceding paragraph, the court shall take into account the degree of difficulty of recovery of the damage, as well as the nature and extent of the damage and the content and nature of the disposition.” Whether or not to recognise/grant complementary protection is not at the discretion of the State and differs from protection by special permission to stay, which can be influenced by the discretion of the Minister of Justice based on humanitarian considerations. It should be noted that this is completely different from protection by special permission to stay, as it is a right based in law. The number of cases under

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Japan’s existing system where a person was not recognised as a refugee but was allowed to special permission to stay is based on humanitarian considerations, but the ground is different from that of complementary protection. On the other hand, complementary protection under international human rights treaties is a right based on treaties ratified by States Parties and therefore has clear standards of application as a norm and is not subject to external factors such as discretion of the Minister. International complementary protection can be broadly divided into narrow and broad categories. First, complementary protection in the narrow sense refers to cases in which the prohibition of expulsion and deportation to protect against torture and other forms of ill-treatment is applied. It is protection for persons who are at risk of torture or other ill-treatment if deported to their country of origin, and there are many cases where persons who were not recognised as Convention refugees have been protected. Specifically, Article 3(1) of the CAT, and Articles 6 and 7 of the ICCPR. This is protected under the principle of nonrefoulement based on many cases of individual reporting to the Committee against Torture. It should be noted that the wording of the Convention does not explicitly state that any ‘persecution’ is required. The criteria for the application of the principle of non-refoulement is that the risk must be foreseeable, individual, present and real.

7.6 Conclusion The drafters of the Refugee Convention did not envisage conflict-displaced persons as refugees under the Refugee Convention. The rejection of the International Committee of the Red Cross’s proposal during the travaux preparatoires is testimony to this fact. As a consequence, conflict-displaced persons, whom the public imagines as ‘refugees’, were not intended to be protected under the Refugee Convention. To protect these persons, the subsidiary protection of the EU Qualification Directive and the complementary protection under international human rights conventions were developed. However, a paradigm shift has now taken place, where victims of conflict based on ethnicity, religion or politics, even if conflict-induced, satisfy the definition of a refugee under the Refugee Convention. Furthermore, those who cannot be protected under the Refugee Convention due to the absence of the persecution element may receive ‘complementary protection’ where it is made available under regional and international human rights treaties. And by accepting an urgent and large number of Ukrainians, Japan has been drastically improving to receive the person in need of international protection. This is a positive step forward to take international solidarity.

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References Ando, Y., Judith Gleeson, Martin Treadwell, and Linda Kirk. 2017. Genjitsu tekina Osore Eikoku, NZ, Australia ni okeru Risho Kijun no Hatten Keii (Development of Real Risk in the UK, New Zealand and Australia). Refugee Studies Journal 7: 80–98. Ando, Y. 2022. Non-Refoulement Gensoku to Gaikokujiin no Taikyo Kyosei (The Principle of NonRefoulment and Expulsion of Foreigners). Shinzan Publishing. Ando, Y. 2022. Kokusai Jinken Joyaku ni okeru Hokanteki Hogo: Nihon ni okeru Hokanteki Hogo no Kairi (Complementary protection in international human rights treaties: Gap between international standards and Japan). Chuo Law Review 128 (10): 55–82. Cornelis (Kees) Wouters. 2021. Chapter 45 conflict refugees. In Oxford Handbook of International Refugee Law, 815–831. Oxford University Press. Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving such Persons and Bearing the Consequences Thereof. (TPD). http://data.europa.eu/eli/dir/2001/55/oj. Deniz Genc, H., and Nedime Asli Sirin. 2019. Why not activated? The temporary protection directive and the mystery of temporary protection in the European Union. International Journal of Political Science & Urban Studies. EASO. 2015. The Implementation of Article 15(c) QD in EU Member States. European Commission. 2016. Study on the Temporary Protection Directive Final report. https://ec. europa.eu/home-affairs/pages/document/012016-study-temporary-protection-directive_en. Foster, M., Hannah Gordon, Hélène Lambert, and Jane McAdam. 2022. ‘Time’ in refugee status determination in Australia and the United Kingdom: a clear and present danger from armed conflict? International Journal of Refugee Law 34 (2): 163–191. Goodwin-Gill, G. 5 Questions: Guy S Goodwin-Gill on the response to Ukraine’s refugees. March 21, 2022. https://www.kaldorcentre.unsw.edu.au/news/5-questions-guy-s-goodwin-gill-res ponse-ukraine%E2%80%99s-refugees?mc_cid=9ab572f893&mc_eid=344d02392b&fbclid= IwAR1DGMErdBuHG-cAlfjgRFb1bc6EiZUipTmsBEPXp1-CqLihVwpA0Z_Ggw8. Hashimoto, N. 2023. Nanmin/Hinanmin (Refugee/displaced persons). Hogaku Kyoshitsu 509: 35– 40. Horita, S. 2022. Ukraine Hinanmin Ukeire-Kongo no Nihon no Nanmin Seisaku ni motarasareru Kikai to Kadai ha Nani ka (Receiving displaced persons in Ukraine—What opportunities and challenges does it bring to Japan’s refugee policy in the future?) Kokuritsu Shakai Hosho/Jinko Mondai Kenkyu jo Working Paper Series 63: 1–17. Hyndman, J., William Payne, and Shauna Jimenez. 2016. The State of Private Refugee Sponsorship in Canada: Trends, Issues, and Impacts. Centre for Refugee Studies, York University. International Association of Refugee and Migration Judges (IARMJ) and European Asylum Support Office (EASO). 2014. Article 15(c) Qualification Directive (2011/95/EU) A Judicial Analysis. Matsui, Y. 2022. Takoku kan Shugi no Kiki-Ukraine Shinryaku to Kokusai Shakai no Shinro (The crisis of otheringism: Invasion to Ukraine and the Pathway of the international community). Sekai 959: 178–189. Osa, Y. 2022. Jindo Kiki kara miru Ukraine Josei (The situation in Ukraine from the perspective of the humanitarian crisis). Sekai 959: 190–190. Osa, Y. 2022. Saranaru Nanmin Kiki to Kokusai Shakai (Further refugee crises and the international community). Kokusai Mondai 709: 37–49. Peers, S. Temporary Protection for Ukrainians in the EU? Q and A. February 27, 2022. http://eul awanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html. https://twitter. com/StevePeers/status/1508373217068650497?s=20&t=yjqExy_C_E-zz-_a6Wc06w. Press Release. Ukraine: Commission proposes temporary protection for people fleeing war in Ukraine and guidelines for border checks. March 2, 2022. https://ec.europa.eu/commission/pre sscorner/detail/en/IP_22_1469?fbclid=IwAR2esQ37fU5__Qwid_va6OEIKaCDnjchdc1pcJpu dHtpfm34MgTxmjqOwU0.

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Sciaccaluga, G. 2017. IV. Sudden-onset disasters, human displacement, and the temporary protection directive: Space for a promising relationship? In Migration and the Environment: Some Reflections on Current Legal Issues and Possible Ways Forward, ed. Giovanni Carlo Bruno, Fulvio Maria Palombino, and Valentina Rossi. CNR edizioni. Sergio Carrera Meltem Ineli Ciger Lina VosyliuteLeiza Brumat “The EU Grants Temporary Protection for People Fleeing War in Ukraine: Time to rethink unequal solidarity in EU asylum policy”. CEPS Policy Insights, No 2022-09. March 14, 2022. https://www.ceps.eu/ceps-publications/eugrants-temporary-protection-for-people-fleeing-war-in-ukraine/. Tatematsu, M. 2023. Ukraine Shinkou to Ekyo Idou suru Hitobito (Invasion to Ukraine and crossborder movement of people). Kokusai Ho Kenkyu 11: 95–106. Vitiello, D. The Nansen Passport and the EU Temporary Protection Directive: Reflections on Solidarity, Mobility Rights and the Future of Asylum in Europe. https://www.europeanpapers. eu/en/europeanforum/nansen-passport-eu-temporary-protection-directive-solidarity-mobilityrights-future-asylum#_ftn13. Ziegler, R. Displacement from Conflict: Old Realities, New Protections? March 17, 2022. https://lieber.westpoint.edu/displacement-conflict-old-realities-new-protections/?fbclid= IwAR2P5J307D-NfbPKxbH2yqpRxKjnl5qJePkvtpss0CeRKzBw-O9tsI_Fh4g.

Yukari Ando is a Guest Professor of the Osaka School of International Public Policy at Osaka University. She obtained her Ph.D. from Osaka University entitled “The Principle of NonRefoulement and Deportation of Foreigners: The Role of “Specific Treaty” on McLean Case Judgement”.

Chapter 8

Impacts on the Monitoring System of the United Nations Human Rights Treaties Naoko Maeda

8.1 Introduction: Scope of This Chapter Since the Ukraine/the Russian Federation (Russia) conflict occurred, its impact has extended over various fields and institutions in the United Nations (UN). The monitoring system of the UN human rights treaties is one of them. It is, however, appropriate to underscore that the system is a safeguard for human rights protection under armed conflict situation. Although the UN human rights treaties may not be supposed to play a primary role in resolving armed conflicts themselves, the States have an obligation to protect human rights in conflict derived from the treaties. Even in time of public emergency which threatens the life of the nation and the existence of which officially proclaimed, such as armed conflicts, core human rights (right to life, right not to be tortured, right to religion and belief, etc.) must be protected although the State parties to human rights treaties may take measures derogating from their obligations under the treaty to the extent strictly required.1 In particular, prohibition of torture is absolute. No exceptional circumstances whatsoever—whether a state of war or a threat of war, internal political instability or any other public emergency—may be invoked as a justification of torture.2 According to the UN Human Rights Mission in Ukraine, it has recognized impact of hostilities on the civilian population and concrete cases (more than 8000 civilians have been killed and almost 14,000 injured.) have been documented. Particularly in 1

Article 4, the International Covenant on Civil and Political Rights (CCPR) (1966). Article 2, the Convention against Torture, other Cruel, Inhuman and Degrading Treatment (CAT) (1984). 2

N. Maeda (B) Faculty of Law, Kyoto Women’s University, 35 Kitahiyoshicho, Imakumano, Kyoto 605-8501, Japan

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_8

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occupied areas of Ukraine, summary executions and attacks on individual civilians by Russian armed forces and the pervasive use of arbitrary detention and enforced disappearances have been documented since 24 February 2022.3 The Mission has also documented sexual violence by 31 January 2023.4 Furthermore, this has been also enhanced as a consequence of ‘criminalization’ of international human rights law5 which includes the obligations to prohibit the acts, then, to investigate, prosecute and punish perpetrators as commensurate with the gravity of breach.6 It is noteworthy that the State reporting considerations for the both parties of the conflict, namely the Russian Federation and Ukraine, have been continuously conducted since 24 February 2022. This fact is valuable to be taken into accounts when reviewing the function and effectiveness of the UN human rights treaty monitoring system which consists of four pillars: State reporting, individual communications, inter-state communications and inquiry. This chapter aims to overview impacts of the conflict on the monitoring system of the UN human rights treaties and the respective bodies’ workload.7 Thereafter, it will lead a preliminary remark on how the UN human rights treaties and its bodies could contribute to human rights protection and remedies of victims in such an escalating, devastating and prolonged armed conflict.

3

Since 24 February 2022, 621 cases of enforced disappearances and arbitrary detention of civilians by Russian armed forces. Among the interviewed 127 cases, 90% reported that members of the Russian security forces tortured and ill-treated them while in detention, in some cases including sexual violence. Five of these civilians were boys, between 14 and 17 years old, who had been forcibly disappeared by Russian armed forces and subjected to ill-treatment or torture. Since 24 February 2022, the Mission documented 91 cases of enforced disappearances and arbitrary detention committed by Ukrainian security forces. Of the 73 victims those were interviewed, 53% had been tortured or ill-treated by members of Ukrainian armed forces and law enforcement agencies. Statement by the Head of the UN Human Rights Monitoring Mission in Ukraine Matilda Bogner, delivered at the launch of OHCHR’s 35th report on the human rights situation in Ukraine and a thematic report on the treatment of prisoners of war (https://ukraine.un.org/en/224744-un-human-rights-ukr aine-released-reports-treatment-prisoners-war-and-overall-human-rights, 24 March 2023). 4 It had been recorded 133 victims—comprising of 85 men, 45 women and 3 girls. 109 cases are attributable to Russian armed forces, Russian law enforcement authorities and penitentiary staff, and 24 cases are attributable to the Security Service of Ukraine (SBU), the Ukrainian police, and Ukrainian civilians or members of territorial defence forces. Sexual violence frequently occurred when civilians or prisoners of war were detained, as well as in residential areas that were controlled by Russian armed forces. 5 O’Flaherty and Higgins (2015). 6 E.g., article 2, CAT; article 4 the International Convention on the Elimination of all Forms of Racial Discriminations (CERD) (1965), etc. 7 This chapter will mainly touch upon the status of the so-called six core treaties: CERD, CCPR, CESCR (1966), CEDAW (1979), CAT, Convention of the Rights of Child (CRC) (1989).

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8.2 Extraterritorial State Responsibility and Applicability of UN Human Rights Treaties in Armed Conflict and Occupation The text of article 2(1) of the International Covenant on Civil and Political Rights (CCPR) seems expressly to exclude liability for a State party for acts which occur outside its territory. However, the Human Rights Committee has taken a liberal approach to the jurisdictional extent of a State’s CCPR obligations, confirming that States do have a level of extraterritorial responsibility.8 Para 10 of the general comment No. 319 states that “State parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Convention to anyone within the power or effective control of that State party, even if not situated within the territory of the State party….” State parties are required to ensure the implementation of CCPR rights within their sovereign territory, and within (other) territory over which they have effective control. For example, the Human Rights Committee has noted that Israel bears responsibility for implementation of the CCPR within Israel, as well as the Occupied Territories in the West Bank and Gaza. In Concluding Observations on Israel, the Human Rights Committee stated as follows10 : The Committee reiterates its view ……that the applicability of the regime of international humanitarian law during armed conflict, as well as in a situation of occupation, does not preclude the application of the Covenant, except by operation of article 4, whereby certain provision may be derogated from in time of public emergency. The Committee’s position has been endorsed, unanimously, by the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, I.C.J. Reports 2004, p. 136), according to which the Covenant is applicable in respect of acts done by a State in exercise of its jurisdiction outside its own territory. Furthermore, the applicability of the regime of international humanitarian law does not preclude accountability of States parties under article 2, paragraph 1, of the Covenant for the actions of their authorities or agents outside their own territories, including in occupied territories.

The Committee further continues that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.” As indicated in general comment No. 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory 8

Joseph and Castan (2014), p. 96. CCPR, General Comment No. 31 (UN Doc. CCPR/C/21/Rev.1/Add.13 (2004)). 10 UN Doc. CCPR/C/ISR/CO/3(2010), paras 5 and 10 and CCPR/CO/78/ISR (2003), para 11 and CCPR/C/79/Add.93(1999), para 10. 9

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or subject to the jurisdiction of the State party. This principle also applies to those within the power or effective control of the forces of a State party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State party assigned to an international peace-keeping or peace-enforcement operation. The Human Rights Committee interprets that State parties are responsible for the actions of their armed forces stationed abroad. As a precedence, the Human Rights Committee expressed concerns about human rights violations by armed forces stationed in other States’ territories by occupation or by operation of Peace Keeping Operations (PKO). The Committee against Torture has also confirmed the extraterritorial responsibility of the State party, despite that the wording on territory and jurisdiction of the Convention against Torture (CAT)11 is different from that of the CCPR. General comment No. 2 of the CAT confirms its extraterritorial scope, which is expressed using similar terms to general comment No. 31 of the CCPR. CAT general comment No. 2 notes that the concept of “any territory under its jurisdiction,” linked as it is with the principle of non-derogation, includes any territory or facilities and must be applied to protect any person, citizen or non-citizen without discrimination subject to the de jure or de facto control of a State party.12 The Committee emphasizes that the State’s obligation to prevent torture also applies to all persons who act, de jure or de facto, in the name of, in conjunction with, or at the behest of the State party. It is a matter of urgency that each State party should closely monitor its officials and those acting on its behalf and should identify and report to the Committee any incidents of torture or ill-treatment and the measures taken to investigate, punish, and prevent further torture or ill-treatment in the future, with particular attention to the legal responsibility of both the direct perpetrators and officials in the chain of command, whether by acts of instigation, consent or acquiescence. The Committee against Torture further underscores that article 2(1) of the Convention, requires that each State party shall take effective measures to prevent acts of torture not only in its sovereign territory but also “in any territory under its jurisdiction.” The Committee has recognized that “any territory” includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. […] The Committee notes that this interpretation reinforces article 5, paragraph 1 (b), which requires that a State party must take measures to exercise jurisdiction “when the alleged offender is a national of the State.13 ” The CAT has more strict wordings on territoriality with comparing to the CCPR or the Convention on the Rights of the Child (CRC), the Committee against Torture yet considers that the scope of “territory” under article 2 of the CAT must also include 11

Article 1 of the CAT. CAT, general comment No. 2, UN Doc. CAT/C/GC/2, Implementation of Article 2 by States parties (2008), para 7. 13 Ibid., para 16. 12

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situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention.

8.3 State Reporting 8.3.1 The Status of Reporting of the Two States and Respective Concluding Observations As mentioned above, even after the conflict occurred, consideration of the State reporting for the both parties have been proceeded. This section will introduce the status of consideration, the issues having been argued between the monitoring bodies and the State parties.

8.3.1.1

Russian Federation

CCPR The Human Rights Committee considered the eighth periodic report of the Russian Federation14 and adopted its concluding observation15 in October/November 2022 without in-person participation of the delegation of the Russian Federation. Despite the two postponements granted by the Committee following the requests submitted by the State party concerning the consideration of the report, scheduled first for the spring session (March) 2022 and for the summer session (July) 2022, Russia did not finally participate in the constructive dialogue with the Committee during its autumn (October) session 2022. The Human Rights Committee, in its concluding observation, reminds the State party that the obligation under article 40 of the Covenant to submit reports entails an expectation that the representatives of the States parties are present at meetings of the Committee when their reports are examined.16 The Committee emphasizes that the full engagement of States parties in the interactive dialogue with the human rights treaty bodies is a key component of the periodic review process.17 In this concluding observation, the following two parts: ‘protection of the Covenant rights in situation of armed conflict’ and ‘violations of Covenant rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, temporarily occupied by the Russian Federation’ are closely related to the ongoing conflict.

UN Doc. CCPR/C/RUS/8. UN Doc. CCPR/C/RUS/CO/8. 16 Rule 68 of Rules of Procedure of the Human Rights Committee (UN Doc. CCPR/C/3/Rev.13). 17 See General Assembly resolution 68/268. 14 15

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Russia has been obliged to protect the Covenant rights to the peoples under its control and, in particular, the issue of protection of the Covenant rights in situations of armed conflict is designated as a follow-up items to be provided by Russia information on the implementation of the recommendation by November 2025.18 The Committee expresses its extreme concern about the ongoing armed conflict in Ukraine initiated by Russia, which has resulted in large scale deprivation of life. In addition, it is noted with concern the reports of excessive use of force, killings, extrajudicial and summary executions, enforced disappearances, torture, rape and other sexual violence, arbitrary detentions, forced conscription of civilians and massive population displacement attributable to the State party, including in the areas where the State party exercises effective control. Lack of investigation of alleged violations of the Covenant committed during the armed conflicts in which the State party has been involved is also an issue of concern.19 As recommendations, the Committee urges Russia to (a) take all measures necessary to fully comply with its obligations to protect the right to life, including in situations of armed conflict; (b) ensure the full respect of all other Covenant rights for all individuals subject to its jurisdiction, including in connection with the acts perpetrated by its agents and other affiliated actors in the areas where the State party exercises effective control; (c) guarantee thorough, effective, independent and impartial investigation of human rights violations committed by the State party’s agents against individuals subject to its jurisdiction, including in the areas where the State party exercises effective control; prosecute perpetrators and punish them, if they are convicted, in a manner commensurate with the gravity of the acts committed; and provide victims with effective remedies, with recalling its general comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant and No. 36 on the right to life. It is significant that the Committee reiterates and underscores that the Covenant applies with regard to all conduct by the State party’s authorities or agents adversely affecting the enjoyment of the rights enshrined in the Covenant by persons subject to the State party’s jurisdiction in this regard.20 With regard to the issue of Crimea and other areas under occupation by Russia, the Committee recalls its previous concluding observation (for the seventh report of Russia), with reiterating its due regard for the General Assembly resolution 68/ 262 on the territorial integrity of Ukraine.21 It remains gravely concerned about the reported violations of the Covenant in the Autonomous Republic of Crimea and the city of Sevastopol, temporarily occupied by the Russian Federation, which are under the effective control of the State party, including alleged serious violations committed against inhabitants of Crimea.

18

UN Doc. CCPR/C/RUS/CO/8, para 43. UN Doc. CCPR/C/RUS/CO/8, para 6. 20 Ibid., para 7. 21 CCPR/C/RUS/CO/7, para 23. 19

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Since the occupation of Crimea by Russia, the Committee has kept paying its attention to the issue, in particular extrajudicial killings, abductions, enforced disappearances, politically motivated prosecutions, discrimination, harassment, intimidation, violence, including sexual violence, arbitrary arrests and detentions, torture and ill-treatment and the forcible transfer or deportation of inhabitants from Crimea to the Russian Federation, and the lack of investigation into these violations. And, the interference with peaceful assemblies and civic activism, including mass detentions of participants in peaceful assemblies is also reported and communicated.22 It is also seriously concerned about allegations of discrimination against the Crimean Tatar and Ukrainian communities in Crimea, affecting, among others, education in their language and, with regard to the dissolution of the Mejlis, political participation. It expresses its concern about the alleged persecutions, arrests and convictions of lawyers who provide professional assistance to victims of political repression, and about the serious deficiencies of the judicial system, including the suspension of public hearings under the pretext of the COVID-19 pandemic. It is gravely concerned about allegations of forced mobilization and conscription of thousands of Crimean inhabitants, many of whom are Indigenous people. It notes with serious concern reports of violations of freedom of religion and belief in Crimea, including intimidation and harassment of religious communities, such as the Orthodox Church of Ukraine and the Muslim community.23 The Committee again requests the State party to take all measures necessary to serious human rights violations, such as extrajudicial killings, abductions, arbitrary detention, enforced disappearances, torture and ill-treatment, to an end.24 These concerns and recommendation respectively are shared with other treaty bodies as referred the below.

CERD In March 2023, the twenty-fifth/twenty-sixth (combined) periodic report of the Russian Federation was considered in-person meetings by the Committee on the Elimination of Racial Discrimination (CERD). This dialogue highlighted the difference of views on mandate and function of the State reporting system between the Committee and the State party. A Country Rapporteur of the Committee expressed concerns about violations of international humanitarian law that targeted or affected members of groups protected under the Convention; forced mobilisation and conscription for the armed conflict that disproportionately affected specific ethnic groups or indigenous peoples, including Crimean Tatars, and migrants; and the rise of racist hate speech directed against Ukrainians in the context of the armed conflict. Then he presented some questions 22

There are two individual communication cases alleging violation of right to peaceful assembly and right to protest. See, Sect. 8.4. Individual Communication. 23 UN Doc. CCPR/C/RUS/CO/8, para 38. 24 UN Doc. CCPR/C/RUS/CO/8, para 39.

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in this regard, such as on measures taken in place to ensure that the armed forces complied with the State party’s obligations under international humanitarian law and international human rights law. It was also the issues of whether the negative consequences of the armed conflict did disproportionately affect specific ethnic groups, and that people under its effective control outside of the territory of the State party were discriminated against. In its intervention, the head of the delegation of the Russian Federation as well, said the subjects in the list of issues that addressed Crimea and situations regarding ICJ cases currently being reviewed could not be addressed by the delegation as they were sensitive and not consistent with the provisions of the Convention or the working methods of the Committee. Furthermore, the delegation said that the ICJ had decided that it was not appropriate for the Committee of any United Nations human rights treaty body to consider these issues, as receive communications regarding Crimea when they were submitted through the appropriate channels. The Russian State party applied the Convention in Crimea and the city of Sevastopol as well as the Donetsk, Kherson, Luhansk and Zaporizhzhia regions. The head of delegation said in concluding remarks that the Russian Federation had devoted serious efforts to combatting racial intolerance. He appealed to the Committee to show objectivity and avoid bias, especially in the context of the special military operation in Ukraine. The recommendations of the Committee would be analysed by the executive in detail and the necessary amendments would be made in the State party’s work.25 In its concluding observation,26 the Committee on the Elimination of Racial Discrimination touches upon ‘application of the Convention in context of armed conflict’ and ‘Convention rights of residents of Crimea and the City of Sevastopol, temporarily occupied by the Russian Federation.’ Regarding applicability of the CERD, the Committee recalls that, in situations of armed conflicts and hostilities, the applicability of international humanitarian law does not preclude the application of international human rights law, including the Convention, which operates independently. Reiterating the principle of territorial integrity of all Members States of the United Nations, as guaranteed under the Charter of the United Nations and General Assembly resolutions 68/262 and ES-11/4 on the territorial integrity of Ukraine, the Committee recalls that the State party’s obligations under the Convention apply not only on the territory of the State party, but also to all other territories over which the State party exercises effective control.27 With these concerns, the Committee recommends five measures to the State party and the following two are specified as follow-up items28 : (a) conduct effective, thorough and impartial investigations into allegations of violations and abuses of human rights committed during the ongoing armed conflict with Ukraine and other armed conflicts in which the State party is or has been involved, in particular against 25

Press release on 13 April 2023. (https://www.ohchr.org/en/news/2023/04/expert-committee-eli mination-racial-discrimination-expresses-serious-concern-incidents). 26 UN Doc. CERD/C/RUS/CO/25-26. 27 UN Doc. CERD/C/RUS/CO/25-26, para 4. 28 UN Doc. CERD/C/RUS/CO/25-26, para 44.

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ethnic Ukrainians, and prosecute and punish perpetrators of violations with penalties commensurate to the offences; and (c) adopt measures to monitor and combat racist hate speech, incitement to and promotion of racial hatred and discrimination, including in the State-owned radio and television, on the Internet and in social media as well as by its officials and public figures, including politicians and religious leaders, targeted at ethnic Ukrainians, and ensure that such incidents are effectively, thoroughly and impartially investigated and that perpetrators are prosecuted and punished with penalties commensurate to the offences.29 With regard to the Convention rights of residents of Crimea and the city of Sevastopol, temporarily occupied by Russia, the Committee impugns the statements by the State party. While noting the position of the State party that the Committee is barred from examining issues currently pending before the ICJ, the Committee highlights that the ICJ in its Judgment of 8 November 2019 on Preliminary Objections in the case Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) only examined the question of the jurisdiction of the Court and did not address or pronounce itself on the competences of the Committee. The Committee furthermore notes that the rule prohibiting duplication of procedures concerning the consideration of the same matter (lis pendens) applies only to the consideration of individual communications and not to the consideration of State parties’ reports, in line with the provisions of the Convention, particularly article 9, the relevant provisions of the Committee’s rules of procedure, and the well-established general practice of other UN Treaty Bodies.

The Committee, recalling its previous recommendation, requests the State party to conduct effective, thorough and impartial investigations into allegations of violations of human rights committed against members of ethnic minority groups and peoples in Crimea, prosecute those responsible, and appropriately punish those convicted. The above mentioned is added in the follow-up issues to be submitted information by April 2024.

CRC The Committee on the Rights of Child adopted its List of Issues (LOI) to Russia on 21st February 202330 and it invites the State party to submit replies by 2nd June 2023. The consideration of the report will be scheduled in autumn 2023. The LOI of the CRC is most extensive from perspectives of the best interest of child and the State’s obligation to protect children both in the Convention and the Optional Protocol to the Convention on the involvement of children in armed conflict.31 In para 12 of the LOI requests Russia to provide information concerning the evacuation and allegations of deportation and transfer of children from Ukraine to the territory of the State party, to that of any other States or within the occupied 29

UN Doc. CERD/C/RUS/CO/25-26, para 5. UN Doc. CRC/C/RUS/Q/6-7. 31 Its first concluding observation: UN Doc. CRC/C/OPAC/RUS/CO/1. 30

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territory of Ukraine by the State party, since 24 February 2022, including on: (a) the number of such children; (b) measures taken to ensure that children, in particular separated or unaccompanied children and children in care institutions in Ukraine, including in the occupied territory of Ukraine, are not moved in violation of rights under the Convention or relevant international humanitarian law, including article 49 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and article 78 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts; (c) measures taken to ensure that the right of such children to preserve their identity, including nationality, name and family relations, is protected, through a system of identity registration and record-keeping of any changes; and (d) measures taken to ensure that the whereabouts of such children are identified and tracked so as to enable their return to their families.32 This question is correlated to the decision of the International Criminal Court (ICC) which was made right after the adoption of this LOI. On 17th March 2023, the Pre-Trial Chamber II of the ICC issues the arrest warrant against two individuals: President and Commissioner of Children’s Rights in the Office of the President of Russian Federation. They are allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. The PreTrial Chamber II considered, based on the Prosecution’s applications of 22 February 2023, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.33 It is expected that the warrant of the ICC is of limited effectiveness because the Russian Federation is not a party. As to the State reporting procedure before the UN human rights treaty bodies, the Committee on the Rights of Child will have an opportunity to obtain views and concrete information on the implementation of the Convention directly from the State party.

Others Other UN human rights treaties which are ratified by the Russian Federation have continued its work on considerations of the State reporting. The Committee on Economic, Social and Cultural Rights will adopt the List of Issues for Russia in 32

UN Doc. CRC/C/RUS/Q/6-7, para 12. ICC, press release, 17 March 2023, Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (https://www.icccpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovichputin-and). 33

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October 2023 (thereafter, it is likely to have dialogue meetings for consideration of the report during 2024). The Committee against Torture has already adopted, before the occurence of this armed conflict since 24 February 2022, its List of Issues Prior to Reporting and received the seventh periodic report in December 2022, which is on a que for consideration.

8.3.1.2

Ukraine

CCPR The Human Rights Committee considered the eighth periodic report of Ukraine, in hybrid format due to COVID-19, in autumn 2021. Although it was before the armed conflict since 24 February 2022, the concluding observation expressed concerns about the human rights situation in the Autonomous Republic of Crimea and the city of Sevastopol, temporarily occupied by the Russian Federation.34 The Committee commends the measures by Ukraine to ensure the regions concerned, which are not under control or are occupied of its government. In addition, as a matter of special circumstances, enforced disappearance is highlighted and the Committee invites the State party to investigate, prosecute and punish the perpetrators in accordance with the obligation provided by the CCPR.35

CRC After the armed conflict has occurred since 24 February 2022, Ukraine had in-person dialogues about its combined fifth and sixth periodic report with the Committee on the Rights of Child in its ninety-first session (August/September) 2022. In general, the List of Issues adopted by the Committee includes questions relating to the protection of children in armed conflict as a consequence of state obligations provided by the Convention and its Optional Protocol. Furthermore, this consideration shed more light on the issue with reference to the situation of the ongoing conflict. In the concluding observations,36 the Committee commends the efforts of Ukraine to mitigate the adverse effects of the armed conflict on children, but is nevertheless gravely concerned about multiple credible, corroborated and consistent reports of gross violations of children’s rights since the beginning of the armed conflict, including killings of children, mass displacement of children internally and outside the country, and the destruction of homes, schools, hospitals and water and sanitation systems, committed mainly by the Russian Federation. Although the Committee is cooperative with Ukraine, it reiterates its stance on the State party’s obligation in armed conflict as follows: 34

UN Doc. CCPR/C/UKR/CO/8, para 5. Ibid., para 25–26. 36 UN Doc. CRC/C/UKR/CO/5–6. 35

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While noting that the State party has no access to areas controlled by armed forces of the Russian Federation and affiliated armed groups, the Committee reminds the State party that the rights under the Convention and its Optional Protocols apply to all children at all times and that it bears the primary responsibility to protect its population, and encourages it to continue to take all possible measures to protect its children, especially those in vulnerable situations.37

While noting the exceptional situation in the country due to the armed attack by the Russian Federation, the Committee draws the State party’s attention to the recommendations concerning the following areas, in respect of which urgent measures must be taken: the right to life, survival and development, violence against children, children deprived of a family environment, children with disabilities, mental health and internally displaced, asylum-seeking and refugee children.38 The Committee strongly urges the State party to take, as a matter of the highest priority, all measures necessary to protect children, and to provide clear instructions to the armed forces and security forces to prevent any possible killings and injuries of children in line with the international humanitarian law principles of distinction, proportionality and precaution. The Committee also calls for a prompt, independent, effective and transparent investigation into the violations of international human rights law and international humanitarian law committed since 24 February 2022 and before. In this regard, the Committee recommends that the State party continues to fully cooperate with the Independent International Commission of Inquiry on Ukraine and other accountability mechanisms established, regardless of the perpetrator.39 Regardless different scopes of the conventions, UN human rights treaty bodies confirm the responsibility to the Convention rights by the both State parties concerned in territorial/extraterritorial context with consolidated manners. It is apparent that, even an armed conflict is ongoing, the State reporting system contributes to dialogue, which is positive or negative, between the State parties and treaty bodies, to harmonize works of human rights treaty bodies and to cooperate with mechanisms under other UN forums. The follow-up procedure is expected to have a function not to let the State parties leave from continuous dialogues.40 It can keep the parties in the framework rather because all the procedures within the UN human rights treaties are not legally binding.

8.3.2 Emerging Asylum Issues for the Neighboring States This armed conflict impacts on the State reporting not only for the respective State party but also for the neighboring State parties. Protection of asylum-seekers or

37

Ibid., para 4. Ibid., para 6. 39 Ibid, para 17. 40 MAEDA (2017). 38

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refugees/evacuees is becoming emerging issues. In fact, many European countries have faced challenges to accept the influx of asylum seekers from Ukraine since February 2022, and it is reviewed in accordance with the principle of non-refoulement, the treatment of foreigners and due process, etc. As an example, this issue is touched upon by the Committee against Torture in the dialogue on the eighth periodic report of the Grand Duchy of Luxembourg in April 2023. The Committee asked the State party whether existing asylum structures were capable of absorbing the recent influx of Ukrainian asylum-seekers, with requesting updated data on the number of appeals filed against expulsion or extradition orders on the grounds that the applicant would be at risk of being subjected to torture in the destination country and on the outcome of those appeals.41 The government of Luxembourg explains that it has accepted Ukrainian refugees as a matter of urgency, initially providing them with emergency accommodation upon their arrival, then, in the stride, permanent accommodation in a reception structure, such as a home. In order to better organize applications for temporary protection from Ukrainian refugees, the competent Luxembourg authorities have set up a “one-stop shop”, bringing together in one place all the necessary players, such as the Directorate of Immigration, the Ministry of National Education, Childhood and Youth for the education of minors, or the POST Luxembourg for the opening of a bank account. Thanks to the establishment of the so-called “one-stop shop”, the Grand Duchy of Luxembourg was thus able to deal effectively with the urgent influx of Ukrainian refugees. It should be noted that 5088 people obtained temporary protection in the Grand Duchy of Luxembourg in 2022, including 4916 Ukrainian nationals. While from January to March 2023, 3633 people obtained the renewal of their temporary protection, including 3499 Ukrainian nationals.42 As with this case, in the name of solidarity, the States other than those with direct cause and results of the armed conflict also bear obligations to protect human rights in armed conflict, and efforts have been required to strengthen their implementation through considerations of periodic reports.

8.4 Individual Communications 8.4.1 Status of Ratification Individual communication is undoubtedly significant procedure so that the complainant is able to exercise his/her right to remedies, besides non-state actors, i.e. individuals, are given status as legal subjects in their capacity to bring claims against states at the international level.43 41

UN Doc. CAT/C/SR.1987, para 18. UN Docs. CAT/C/SR.1987, para 5 and CAT/C/SR.1990, para 22. 43 Ulfstein (2012), p 114. 42

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The both States have accepted individual communications procedure under some of, not all, human rights treaties respectively. In this regard, it is noted that Ukraine has made a declaration about territorial applicability on its ratification of the Optional Protocol to the CRC on Communications procedure44 as follows: Ukraine states that for the period of temporary occupation of a part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of the armed aggression of the Russian Federation and until complete restoration of the constitutional order and effective control by Ukraine over such occupied territory, as well as over certain districts of the Donetsk and Luhansk oblasts of Ukraine, the application and/or implementation by Ukraine of the obligations under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, as applied to the aforementioned occupied and uncontrolled territory of Ukraine, is limited and is not guaranteed.

As regards to human rights violations relating to armed conflicts between two parties, no case has been adopted.45

8.4.2 Admissibility Requirements The current overload of communications means that complainants may need to have patience for years before a substantive and final finding (‘views’) is adopted, notwithstanding majority of the new cases could be given interim measures, in practice, during the procedure for admissibility and merits. Though case backlogs have enlarged due to the COVID-19 pandemic in every committee, at the same time, it is necessary to duly take note of admissibility requirements and its impact. Among several elements, the following two criteria will be overviewed in this section.

8.4.2.1

Examination Under Another International Investigation or Settlement

In most UN human rights treaties, the Committee shall not consider any communications from an individual unless it has ascertained that the same matter has not been, and is not being, examined under another procedure of international investigation or settlement.46 CCPR OP1 has a narrow (victim friendly) scope on this point as it provides that ‘the Committee shall not consider any communication from an individual unless it has ascertained that: The same matter is not being examined under 44

Signature on 20 November 2014, ratification on 2 September 2016. There are two CCPR cases concerning the right to peaceful assembly (arts.21 and 26) against the Russian Federation after the annexation of Crimea and Sevastopol in 2014 (Ivanov v. Russian Federation (CCPR/C/131/D/2635/2015, 18 March 2021) and Alekseev v. Russian Federation (CCPR/C/ 130/D/2727/2016, 16 Oct 2020)). In the both cases, armed conflict or annexation is not a decisive factor, though individual opinion (concurring) touches upon the legal status of those regions. 46 E.g., CAT article 22 (5)(a), CEDAW-OP article 4 (2)(a), CRC-OPIC article 7(d), 45

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another procedure of international investigation or settlement. This means that the case would be acceptable in case that it has already examined.47 The notion of ‘another international investigation or settlement’ would include for example, not only procedures under another human rights treaty but also other regional, intergovernmental institutions or judicial bodies, such as the ICJ,48 the European Court of Human Rights (ECtHR), the Independent International Commission of Inquiry on Ukraine and the International Criminal Court, where other proceedings have already started.

8.4.2.2

Exhaustion of Domestic Remedies

The rule of exhaustion of domestic remedies is common requirement. Complainants who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a communication.49 This rule, however, shall not be applied in case where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the human rights violation. In fact, it is not easy to identify whether or not the available domestic remedies are effective or prolonged. For instance, according to jurisprudence of the CAT under which the both States accept individual communications, an assessment is taken into consideration the specific circumstances of the case. A remedy that remains pending after the act which it was designed to avert has already taken place becomes pointless, since the irreparable harm can no longer be avoided even if a subsequent judgement were to find in favor of the complaint.50 As regards to prolong element, the effectiveness of the remedy will depend also on the promptness of the investigation as well as provide redress to the victims. The Committee against Torture deemed unreasonably prolonged a torture investigation that took fifteen months to initiate and had been ongoing for almost two years at the time of the Committee’s review. In some cases, the short statute of limitations on bringing the torture cases to domestic proceedings are admitted ineffective and cause of prolong procedures.51 Besides, it seems that the situation of armed conflict with territorial disputes, as emergency of the States, makes decisions on admissibility complicated. It will need detailed assessments on which authority should provide what kinds of remedies in accordance with their legislative or administrative frameworks.

47

CCPR-OP1 article 2 (2). Case concerning allegations of genocide under the Convention on the Prevention und Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Request for the Indication of Provisional Measures, Order of 16 March 2022. 49 E.g., CCPR-OP1 articles 2 and 5(2); CAT article 22(5)(b); CERD article 14(7)(a). 50 Tebourski v. France, UN Doc. CAT/C/38/D/2006, para 7.3. 51 Nowak et al. (2020), pp. 612–613. 48

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8.5 Inter-State Communications 8.5.1 Framework and Precedents Most of the UN human rights treaties provide inter-state communication procedure which enables a State party to complain about alleged violations of the treaty obligations by another State party, in case the both have made declarations recognizing the competence of the respective Committee in this regard.52 It is noted that the interstates communication procedure represents the weakest monitoring procedure under the treaty frameworks because of the low number of acceptance and no concrete case existed until March 2018. This section tries to consider if inter-state communication provided by the UN human rights treaties could be available as a solution with immediate consequence for the armed conflict situation with reference to a few precedents.

8.5.1.1

Cases of Qatar v. UAE and Qatar v. Saudi Arabia

On 8 March 2018, for the first time in history, the Committee on the Elimination of Racial Discrimination received two interstate communications submitted by Qatar respectively against the Kingdom of Saudi Arabia and the United Arab Emirates under article 11 of the CERD. On 27 August 2019, the Committee decided that it has jurisdiction concerning the communications submitted by Qatar respectively against the Kingdom of Saudi Arabia and the United Arab Emirates.53 On the same date, the Committee declared admissible the two communications and requested its Chair to appoint, in accordance with article 12(1) of the Convention, the members of ad hoc Conciliation Commissions which shall make their good offices available to the States concerned with a view of an amicable solution of the matter. In February 2020, following consultations with the States parties concerned, the Chair of the Committee appointed the members of the ad hoc Commissions. On 11 January 2021, following the Al Ula Declaration concluded on 5 January 2021 between Qatar and its neighbours, including the respondents, Qatar transmitted two Notes verbales to the Secretariat requesting the suspension of the proceedings. The Al Ula Declaration provided the parties with a deadline of one year to terminate 52

Inter-State communications procedure are similarly envisaged by the following UN human rights treaties: CERD articles 11–12; CCPR articles 41–43; CAT article 21; OP-CESCR article 10; OPCRC-IC article 12;CED article 32, CMW article 47. 53 Qatar filed the same case to the International Court of Justice (ICJ) at the same time. Both the ICJ and the CERD Committee proceeded each case based on the interpretation that the pre-referral procedure stipulated in the dispute settlement cause of the CERD is not a cumulative requirement. Regarding jurisdiction, however, the ICJ judgment on preliminary objection denied its material jurisdiction because discrimination/distinction based on nationality is not included discrimination provided in article 1 (definition) of the CERD. See Tamada (2021).

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the proceedings from the date of its adoption. Both respondents, the United Arab Emirates and the Kingdom of Saudi Arabia, consented to the suspension of the proceedings, respectively, on 27 January 2021 and 2 February 2021. On 5 March 2021, the two ad hoc Conciliation Commissions held a joint online meeting and decided to take note of Qatar’s request for suspension, to take also note of the respondents’ consent to the suspension of the proceedings, to suspend the proceedings and to invite any of the States parties concerned to inform the ad hoc Conciliation Commission via the Secretariat within one year of the adoption of the Al Ula Declaration whether it wishes to resume the consideration of the matter before the ad hoc Conciliation Commissions or to provide any relevant information; and to remain seized of the matter. On 19 January 2022, concerning the case of Qatar v. Saudi Arabia, the Commission decided to terminate the proceedings, pursuant to its decision of 5 March 2022, since none of the States Parties concerned had expressed its wish to resume the consideration of the dispute.54 With regard to the case between Qatar and UAE, on 11 January 2022, Qatar informed the Commission that bilateral meetings with the United Arab Emirates under the Al Ula Declaration framework were ongoing and requested that the proceedings between the parties remain suspended until further notice. Subsequently, on 26 January 2022, the United Arab Emirates informed the Commission that given the expiration of the one-year deadline following the conclusion of the Al Ula Declaration, “neither party has expressed within the indicated timeframe any wish to resume the proceedings”. Therefore, the United Arab Emirates requested the proceedings to be terminated. On 23 December 2022, Qatar also requested the termination of the case. On 26 January 2023, the Commission, having noted that both States parties concerned requested the termination of the proceedings, decided to end its work.55

8.5.1.2

Case of the State of Palestine v. Israel

On 23 April 2018, the State of Palestine submitted an interstate communication to the Committee against Israel under article 11 of the Convention. On 7 November 2018, pursuant to article 11(2) of the Convention, the State of Palestine has referred the matter again to the Committee. On 14 December 2018, during its 97th session (26 November to 14 December 2018), the Committee requested the States parties to supply any relevant information on issues of jurisdiction of the Committee or admissibility of the communication, including the exhaustion of all available domestic 54

Decision of the ad hoc Conciliation Commission on the termination of the proceedings concerning the interstate communication Qatar v. the Kingdom of Saudi Arabia, 19 January 2022 (https://www.ohchr.org/sites/default/files/documents/hrbodies/cerd/decisions/202212-02/AHCC-CERD-Qatar-v-KSA-DECISION-TERMINATION.pdf). 55 Decision of the ad hoc Conciliation Commission on the termination of the proceedings concerning the interstate communication Qatar v. the United Arab Emirates, 26 January 2023 (https://www.ohchr.org/sites/default/files/documents/hrbodies/cerd/decisions/ahcccerd-qatar-v-uae-decision-termination-adopted-26-01-2023.doc).

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remedies. The Committee also decided to examine all preliminary questions related to inter-state communications at its 98th session (23 April to 10 May 2019), with the participation, without voting rights, of one representative from each concerned State, in compliance with article 11(5) of the Convention. On 10 May 2019, the Committee decided to postpone the consideration of the matter during the 99th session. Due to several procedural issues, the proceedings have been delayed again for the next session. The UN Office of Legal Affairs (OLA) expressed its assessment that there is lack of treaty relations between Israel and the State of Palestine because of Israel statement, which declines the bilateral effect of the CERD due to the absence of state recognition to the State of Palestine. Notwithstanding the assessment, on 12 December 2019, during its 100th session, the Committee decided that it had jurisdiction concerning the communication and decided to address the issue of jurisdiction at its next session.56 However, due to the Covid-19 pandemic and subsequent effect on the Committee’s sessions in 2020, the consideration of the matter has been postponed for the 103rd session (19–30 April 2021). In February 2020, the Committee decided that the background documents regarding the communication Palestine v. Israel should be made public. On 30 April 2021, during its 103rd session, the Committee decided that the communication was admissible and requested that its Chair carry out consultations concerning the establishment of an ad hoc Conciliation Commission in accordance with article 12 (1) (a) of the Convention. It is unlikely for Israel to accept the decisions on jurisdiction and admissibility by the Committee and has not shown cooperation with the process with the Conciliation Committee,57 although the Conciliation Committee continues its meetings.58

8.5.2 Challenge of Conciliation Regarding inter-state procedures, the European Convention on Human Rights has longer history and more cases.59 Ukraine submitted inter-state application against the Russian Federation60 to the ECtHR on 28 February 2022 right after the conflict occurred. The Court states that around 8500 individual applications, pursuant to article 34 of the Convention, are pending against Ukraine, Russia or both in relation 56

UN Doc. CERD/C/100/3, CERD/C/100/4, CERD/C/100/5. Ref., Complete list of documents concerning the case State of Palestine v. Israel (https://tbinte rnet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=6&DocTyp eID=187). 58 Ad hoc Conciliation Commission on the interstate communication State of Palestine versus Israel (https://www.ohchr.org/en/treaty-bodies/cerd/inter-state-communications). 59 Inter-state applications, List of cases, (https://www.echr.coe.int/Pages/home.aspx?p=caselaw/int erstate&c). 60 Application No. 11055/22, 28 February 2022. 57

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to the conflict in Ukraine since 2014.61 The Court is of the view that it remains competent to examine the applicant Governments’ complaints under article 19 read in conjunction with article 58 (2) and (3) of the Convention, underlying the applicant Governments’ Convention complaints occurred before 16 September 2022, the date on which the Russian Federation ceased to be a High Contracting Party to the Convention following the cessation of its membership of the Council of Europe.62 The procedure before the Court is judicial, and its judgment or decision is legally binding. This is dispute settlement with monitoring execution of judgements, although it has challenges of resource, legitimacy, effectiveness and so forth.63 It is said that inter-state application is complementary to individual communications. Similar and repetitive individual applications have been compiled to an inter-state case. Recalling the current situation, it is, however, ambiguous whether or not the Russian Federation responds and cooperates to the remaining proceedings. The inter-state communication of the UN human rights treaties is optional (except the CERD) conciliation process which is different from the inter-state application of the European Convention. This communication mechanism shall make available its good offices to the States concerned with a view to an amicable solution of the matter. If the respondent State party should not agree the procedure, particularly at the phases of Conciliation Commission, with any kind of reason, the relevant parties would be in difficulty to find a way out.

8.6 Inquiry 8.6.1 Legal Framework Inquiry procedure is the forth pillar to be overviewed here. At the time of adoption of the CAT, the inquiry procedure was the most innovative element of the monitoring mechanisms of the Convention and had no precedent in other human rights treaties. As will be explained below, the idea of carrying out confidential investigations into a systematic practice of serious (gross) and reliably attested human rights violations is based on the so-called 1503 procedure of the former Sub-Commission on the Promotion and Protection of Human Rights and a number of other mechanisms, such as for example the International Labour Organization (ILO)’s supervisory procedures. Since its first adoption in the CAT, the procedure has become a model for later treaties and to date six UN human rights treaties contain a similar mechanism.64 61

Case of Ukraine and the Netherland v. Russian Federation, Grand Chamber, Applications nos. 8019/16, 43,800/14 and 28,525/29, Decision, 30 November 2022, para 388. 62 Ibid., para 389. 63 Dzehtsiarou and Tzevelekos (2002), pp. 169–173. 64 UN human rights treaties which contain inquiry procedure: CAT article 20; CED article 33; OP-CESCR article 11; OP-CEDAW articles 8–10; OP-CRC article 13; OP-CRPD article 6.

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Because of its innovative character, this provision proved to be one of the most controversial one during the drafting history. The idea of an inquiry procedure was strongly opposed by the Soviet bloc, who criticized it for the broad definition of “reliable” information and because it envisaged a fact-finding mission in the territory of the State party concerned. In the end, a compromise was reached, and article 20 provides that although the inquiry procedure is not subject to an explicit declaration by States parties to accept this competence of the Committee against Torture, any State party may decide to “opt out” by means of a specific reservation in accordance with article 28.

8.6.2 Practice The most important part of the inquiry is a “visiting mission” to the country concerned, which includes meetings with high government officials, victims, witnesses, NGOs and other sources of information, inspections of detention facilities and private interviews with detainees, inspections of prison registers and similar documents and so forth (rule 86, CAT Rule of Procedure). If the Committee finds it necessary to visit the State party’s territory, it shall request the agreement of the State party and shall inform it of its wishes with regard to the timing of the mission and the facilities required to permit the members to perform their task (article 20(3), rule 86). This means that visits can be conducted only with the prior consent of State party. In practice, the Committee has considered it necessary to visit all States under inquiry and has usually requested such a visit immediately after deciding to undertake the inquiry.65 Regarding the CAT, this is applicable to the both parties as of May 2023 in theory because these parties do not currently opt out article 20. In fact, however, it is not easy task to conduct inquiries with the consent of the State party concerned in its sovereign territory or other territories under de facto controls by the parties or entities. The Committee against Torture has published 10 confidential inquiry reports or/and summaries66 till 2017,67 they have made it clear that the process needs several years (3–7 years approximately, depending on each case) and some of the case were closed without any visits due to absence of consents of the State parties

65

Egypt (1993) was the exception in which the Committee decided to undertake the inquiry during its tenth session, but waited until after the designated members had presented a progress report before requesting a visit (A/51/44, para 187). 66 CAT, article 20 (5). 67 OHCHR, Completed inquiries and related documentation by State party (https://tbinternet.ohchr. org/_layouts/15/TreatyBodyExternal/Inquiries.aspx). Turkiye (1994), Egypt (1996), Peru (2001), Sri Lanka (2002), Mexico (2003), Serbia and Montenegro (2004), Brazil (2008), Nepal (2012), Lebanon (2014), Egypt (2017).

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concerned.68 Furthermore, it seems that it is not realistic to conduct inquiries in armed conflicts situation, although the absence of authorization of on-site visit does not stop or suspend the Committee from continuing its inquiry. In fact, in the case of the Sri Lanka, the Committee did not visit the regions from which the worst or most numerous allegations of torture had been received. This omission was due to security reasons related to the ongoing civil conflict, but the Committee did not specify what whether security determination was made by the Committee or the government of Sri Lanka.69 In this regard, the Independent International Commission of Inquiry on Ukraine70 established by the Human Right Council has already started investigations71 and published reports noting that war crimes, violations of human rights and international humanitarian law have been committed in Ukraine and Russian armed forces are responsible for the vast majority of the violations identified.72 Although there may be difference of mandates between inquiry mechanism of the Human Rights Council and that of the treaty bodies, in exact meaning, it is significant to take swift actions regardless of frameworks.

8.7 Concluding Remarks In this chapter, we have overviewed impacts of the conflict on the monitoring system of the UN human rights treaties and possible contribution of the system to human rights protection in armed conflict, while noting the status of workload of their monitoring bodies in accordance with four pillars of procedures provided in the treaties. In case of armed conflict, it is needed to take into accounts criminalization, despite its definitions are not consolidated, throughout all procedures under human rights treaties, the phenomena have already appeared in the consideration of State reporting as referred above in Sect. 8.3 as many treaty bodies impose focus on criminal justice issues within their scope of respective conventions. Criminalization may make the application of international law less flexible. The black-and-white judgements (lawful or unlawful, guilty or not guilty) concerning the conduct of States and individuals make it less likely that international law works to encourage States to enter into dialogue for gradually improving the situation of their insufficient compliance. However, international law of providing objective standards

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CAT article 20 (3). Two cases of Egypt (UN Doc. A/51/44 (SUPP), paras 180–222, A/72/44, paras 58–71) and one case of Nepal (UN Doc. A/67/44, paras 88–100 and Annex XIII) were completed without the State parties’ consents to the Committee inquiry members visits. 69 UN Doc. A/57/44, para 129. 70 See the Chap. 11 by Furuya in this book. 71 The Human Rights Council Resolutions 49/1(2022) and 52/32(2023). 72 UN Doc. A/77/533(2022) and A/HRC/52/62(2023).

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for diplomatic interactions and indicating appropriate procedures for the settlement of dispute. Criminalization may increase the interventionist nature of international law. The rules of international law are implemented by the voluntary will of the State, and the cooperation of States is an essential basis of effective implementation. The increasing shift of international law to an accountability-oriented approach would have a risk of extinguishing the cooperative attitude of States, eventually making international law less effective. Without the proper understanding of this function, the policies and decisions made by the actors concerning international law could become more formalistic and less flexible.73 The traditional approach taken in human rights treaties and by their monitoring bodies was to encourage States to build a framework which would protect human rights domestically. The criminalization approach demands that States change or adopt their criminal law to standards set by the human rights monitoring bodies.74 In addition, a comprehensive analysis to see other forums’ movements and tendencies is important. As referred in Sect. 8.5.2, Russia’s expulsion from the Council of Europe (CoE) and, consequently, from the ECHR system has left almost seventeenthousand cases pending before the ECtHR. That number will rise further as the Court has declared that it will accept applications concerning acts and omissions under Russian jurisdiction up until 16 September 2022.75 It underscored that article 58 of the ECHR means that expulsion does not release the state party from its obligations. The obligations include ‘a duty to cooperate with the Convention bodies’ for as long as the Court remains competent to deal with the Russian legacy cases. There are, however, unwelcomed consequences. First, Russian government representatives ceased to participate in the ECtHR proceedings. Then, Russia adopted a federal law that absolved the government from the need to comply with any Strasbourg judgments finalized after 16 March 2022. Finally, on Russia’s exit from the Convention, the ECtHR abolished the office of the country’s national judge. The ECHR’s judicial proceedings and firm mechanism for execution of judgements are huge advantage, nevertheless, it seems to have lost cultivated connection with the Russian Federation for sharing the value of democracy and human rights. It is often evaluated that the framework of the UN human rights treaties is rather weak due to lack of legally binding nature of their decisions. This may not be wrong to some extent, it is the fact that some procedures before the treaty bodies have no immediate consequence or quick impact. On procedural levels among various institutions, there is certainly potential competition. It is, however, just one side of the whole figure. Recalling the ongoing status of the State reporting obliged by the UN human rights treaties, the process can keep dialogues, regardless of positive or 73

Furuya (2015), p. 16. O’Flaherty and Higgins (2015), p. 69. 75 Dmitry Kurnosov, No easy way out, the Strasbourg Court and legacy Russian cases, [Blog] Strasbourg obserbers.com, 24 March 2023 (/2023/03/24/no-easy-way-out-the-strasbourg-court-and-leg acy-russian-cases/). 74

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negative in any way, within the State parties concerned. On substance level, the UN human rights treaty bodies have made, so far and from now on, contributions to enrich jurisprudence of the international law in the field of human rights. The constructive dialogue approach must be a cornerstone definitely to restore and improve human rights from medium- or long-term perspective.

References Dzehtsiarou, Kanstantsin, and Vassilis P. Tzevelekos. 2002. The Aggression Against Ukraine and the Effectiveness of Inter-state Cases in Case of War. European Convention on Human Rights Law Review 3: 165–173. Furuya, Shuichi. 2015. The “Criminalization” of International Law: A Critical Overview. Japanese Yearbook of International Law 58: 1–16. Joseph, Sarah, and Castan. Melissa. 2014. The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, 3rd ed. OUP. Kurnosov, Dmitry. 2023. No Easy Way Out, the Strasbourg Court and Legacy Russian Cases. [Blog] Strasbourg obserbers.com, 24 March 2023 (/2023/03/24/no-easy-way-out-the-strasbourg-courtand-legacy-russian-cases/). Maeda, Naoko. 2017. Forty Years’ Practice of the UN Human Rights Committee for Implementation of the Covenant: A Universal Model for the Protection and Promotion of Human Rights. Japanese Yearbook of International Law 60: 212–242. Nowak, Mansfred, et al. (eds.). 2020. The United Nations Convention Against Torture and Its Optional Protocol: A Commentary. OUP. O’Flaherty, Michael, and Noelle Higgins. 2015. International Human Rights Law and “Criminalization.” Japanese Yearbook of International Law 58: 45–70. Tamada, Dai. 2021. Inter-State Communication Under ICERD: From Ad Hoc Conciliation to Collective Enforcement? Journal of International Dispute Settlement 12: 405–426. Ulfstein, Geir. 2012. Individual Communications. In UN Human Rights Treaty Bodies: Law and Legitimacy, ed. Helen Keller, and Geir Ulfstein, 73–115. Cambridge University Press.

Dr. Naoko Maeda is Professor of International Law at Kyoto Women’s University (Japan). She is also a member of the UN Committee against Torture since 2022. She specializes in public international law and in international human rights law. She obtained her Ph.D. from Kyoto University (Japan) in 2010 and LL.M from University of Leicester (UK) in 2001. Her main articles in English include: “Forty Years’ Practice of the UN Human Rights Committee for Implementation of the Covenant: A Universal Model for the Protection and Promotion of Human Rights,” Japanese Yearbook of International Law, vol. 60 (2018), pp. 212–242; “Reinforcement of Measures for the Execution of Judgements of the European Convention on Human Rights,” Nagoya University Journal of Law and Politics No. 258 (2016), pp. 91–102.

Chapter 9

Impacts of the Ukraine Conflict on European Human Rights Law: Challenges and Resilience of Multi-layered Regional Mechanisms Yota Negishi

The Russian invasion of Ukraine that occurred on 24 February 2022, has caused serious violations of international humanitarian law (IHL) and international human rights law (IHRL), and thereby, has had significant impacts on various fields of international law. In particular, unprecedented challenges are posed to the multilayered systems of human rights protection that have been developed over many years in the European region, where both Russia and Ukraine are located. This contribution will examine the impacts of the Ukraine Conflict on European human rights law and reactions thereof to Russia’s aggression in four points: (1) institutional sanctions imposed by the Council of Europe (CoE), which expelled Russia as an aggressor state; (2) judicial responses to human rights violations caused by the invasion by the European Court of Human Rights (ECtHR); (3) fact-finding investigations into the military invasion and relevant issues by the Organization for Security and Co-operation in Europe (OSCE); and (4) the actions taken by the CoE and the European Union (EU) institutions for ensuring individual and State responsibilities for the aggression.

9.1 Institutional Sanctions to the Aggressor The act of aggression undertaken by Russia has been strongly condemned by various actors in the international community, leading to the implementation of multiple sanctions. These sanctions have also been initiated by international organisations, such as the United Nations Human Rights Council (HRC), which has suspended Russia’s

Y. Negishi (B) Faculty of Law, Seinan Gakuin University, Fukuoka, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_9

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membership.1 The most radical approach taken by these international organisations has been the expulsion of Russia from the CoE. To provide context for this action, this section will first review the historical inclusion of Russia into the CoE (1), before examining the dynamics and limitations of its exclusion from the Council (2).

9.1.1 Inclusion of Russia into the CoE After the collapse of the Soviet Union, the successor Russian Federation applied to join the CoE on 7 May 1992 and acceded to it on 28 February 1996. Although the procedure was interrupted because of the conflict in Chechnya, the Parliamentary Assembly of the CoE (PACE) in its Opinion 193 (1996) recommended that the Committee of Ministers (CoM) invite the Russian Federation to become a member of the Council, on the basis of numerous commitments and understandings indicated to the Opinion.2 Russia’s accession to the CoE to some extent transformed its domestic legal systems in terms of the European Convention of Human Rights (ECHR) and its Protocols. One example is the moratorium of death penalty in accordance with Protocol No. 6 to the ECHR. Although Russia signed but not ratified the Protocol, the Russian Constitutional Court of Russia (RCC) ruled that the death penalty cannot be used in Russia even after the expiration of the moratorium.3 Another example is the State’s prolonged failure to enforce domestic judgments ordering monetary payments by the authorities. In this matter, the ECtHR applied a pilot judgment procedure of Burdov v Russia (No2), in which the Court clearly demanded legislative reform of the respondent state.4 Consequently, Russian authorities adopted the law which established the process of providing the compensation in case of a failure to conduct a trial or execute the judgement within reasonable time.5 Despite these positive aspects, Russian authorities had occasionally challenged against the Strasbourg law. In the Decision No. 21-P/2015, setting aside the constitutionality issues of the Federal Laws regarding the ECHR ratification and international treaties, the RCC generally reasoned that under Article 15(4) of the Constitution, the ‘practical implementation [of the ECHR and the ECtHR jurisprudence] in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force’.6 Subsequently, the legislation on 14 December 2015 clearly granted the RCC the power to declare impossible to implement decisions of human rights body when they are inconsistent with the Constitution of the Russian Federation. 1

UNGA (2022) para 1. PACE Opinion 193 (1996). 3 RCC (2009). 4 Burdov v Russia (no 2), para 137. 5 2010 Federal Law. 6 RCC (2015). 2

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The RCC’s new authority to justify incompliance with international decision has been in practice exercised in three important instances. The first case was the Decision No. 12-P/2016 concerning the restriction of electoral rights of individuals sentenced to deprivation of liberty under Article 32(3) of the Constitution, which was identified as the violation of Article 3 of Protocol No. 1 to the ECHR (right to free elections) by a ECtHR Chamber in Anchugov and Gladkov.7 The second occasion was the Decision No. 1-P/2017 pertinent to the Yukos saga where a ECtHR Chamber found the tax evasion criminal proceedings against the corporation causing pecuniary damages as the violation of Article 1 of the ECHR Protocol No. 1 (right to property).8 The third instance was the Opinion issued by the RCC on 16 March 2020 in respect of the draft constitutional amendments limiting the enforcement of decisions of interstate bodies contrary to the Constitution.9 The reluctant posture of Russia on the Strasbourg system is simultaneous with various interventions into neighboring countries. Moldova is one of these counties, a part of which has been occupied by the authorities of the self-proclaimed Moldavian Republic of Transdniestria. The ECtHR has dealt with human rights violations within the self-proclaimed region, over which Russia has exercised its jurisdiction in terms of Article 1 of the ECHR.10 In relation to Georgia, the Strasbourg Court made decisions on an Inter-State complaint that an administrative practice of arresting, detaining and collectively expelling Georgian nationals from the Russian Federation in the autumn of 2006 (Georgia v Russia (I)).11 Another Inter-State procedure was launched regarding the armed conflict that occurred between Georgia and the Russian Federation in August 2008, in which the latter exercising effective control over Abkhazia and South Ossetia. (Georgia v Russia (II)).12 The cases concerning the annexation of Crimea in 2014 (Ukraine v Russia (re Crimea)),13 and subsequent hostilities in eastern Ukraine including the shooting down of Malaysia Airlines Flight MH17 (Ukraine and the Netherlands v Russia),14 are also situated in these contexts, of which its ongoing aggression since 24 February 2022 is an outcome.

9.1.2 Expulsion of Russia from the CoE Just after the aggression by Russia, the CoM adopted a decision not only to condemn the aggression against Ukraine but also to agree the holding of an extraordinary meeting ‘with a view to considering measures to be taken, including under Article 8 7

RCC (2016). RCC (2017). 9 RCC (2020). 10 Ila¸scu and Others v Moldova and Russia. 11 Georgia v Russia (I). 12 Georgia v Russia (II). See also, Mamasakhlisi and Others v. Georgia and Russia. 13 Ukraine v Russia (re Crimea). 14 Ukraine and the Netherlands v. Russia. 8

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of the Statute of the Council of Europe’.15 This article supposes that any CoE member which has seriously violated Article 3 (the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms) may be suspended from its rights of representation and requested by the CoM to withdraw under Article 7. If such member does not comply with this request, the same article further notes, the Committee may decide that it has ceased to be a member of the Council from such date as the Committee may determine. The suspension of Russia’s rights under Article 8 within the Council was realised by the subsequent decision of the Committee on 25 February.16 Despite these measures, as there was no sign of Russia’s aggression subsiding, the CoM made a new decision on 10 March. In this decision, the Committee referred to acting in close co-ordination with the PACE in the context of further measures to be taken, and to consulting to the Parliamentary Assembly on potential further use of Article 8.17 This decision was followed by the PACE’s Opinion 300 (2022) adopted on 15 March where the General Assembly considered that ‘the Russian Federation can therefore no longer be a member State of the Organisation’. It therefore opined that the CoM ‘should request the Russian Federation to immediately withdraw from the Council of Europe’, and if Russia did not accept the request, the Committee should ‘determine the immediate possible date from which the Russian Federation would cease to be a member’ of the CoE.18 On 16 March 2022, the CoM finally adopted a resolution, by which the Russian Federation ceased to be a member of the CoE as from the date.19 As a result of expulsion, Russia became no longer a State party to the ECHR as of 16 September 2022. Before 2022, the CoE had experienced in its history the only one precedent of withdrawal therefrom, namely, the Greek case. Greece fell in a coup d’état in 1967 and announced to withdrawal from the Council under Article 7 of the Statute in 1969. Having restored democracy, the country finally readmitted to the CoE and it ratified against the ECHR in 1974. Compared to the experience in the past, the expulsion procedures against Russia taken by the relevant organs under Article 8 of the Statute seemed more rapid and intensive. In the legal sense, however, the measures were no less problematic than other international organisations since clear legal bases were offered under the Statute.20 Nonetheless, the sanction logic under the Statute should also be assessed not only a legalist perspective but from normative, political, and historical viewpoints.21 First, it is hugely detrimental to the principle of human rights protection under Article 3 of the Statute that the status of a State party to the ECHR automatically ceases as being expelled from the Council. As a result of Russia’s exclusion, only claims alleging 15

CoM, Decision of 24 February 2022. CoM, Decision of 25 February 2022. 17 CoM, Decision of 10 March 2022. 18 PACE, Opinion 300 (2022) of 15 March 2022, paras 19–20. 19 CoM, Resolution of 16 March 2022. 20 Buscemi 768. 21 Dzehtsiarou and Coffey. 16

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the violation of the Convention rights that occurred until that date of cessation is admissible to the Court, and the avenue for individual remedies was closed thereafter. Second, the sanction logic’s effectiveness is doubtful to achieve the Council’s aim of ‘a greater unity between its members of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’ under Article 1 of the Statute. As is critically noted, given the lack of economic nor security advantages, it would be naïve to assume that the imminent risk of being requested to cease the CoE membership might bring about the desired change in conduct of an aggressor.22 Third, the expulsion terminates the dialogue between Russia and other European countries, which has been maintained for nearly 30 years, and consequently, the Council’s strategy towards Russia can be seen to have temporarily failed.23 While such political ostracisation and isolation are sometimes necessary to demonstrate resolute solidarity in the short term, they are likely to make it impossible to resolve complex political tensions in the long term.24 The experience of Russian expulsion in the present context can be a lesson for the future modification of the sanction logic under the CoE Statute.25

9.2 Judicial Reactions to the Aggression With Russia’s expulsion from the CoE and its consequent loss of State Party status in the ECHR since 16 September 2022, concerns have arisen regarding the extent to which the ECtHR can exercise its jurisdiction over cases related to Russia. Despite these unprecedented challenges, the judicial organ of the Council has responded promptly to both the cases resulting from the aggression since 24 February 2022 (1) and those that were already pending before this date (2).

9.2.1 Post-aggression Cases Brought to the ECtHR Just after the outbreak of aggression by Russia, the Government of Ukraine launched an Inter-State case before the ECtHR. Within this context of Ukraine and Russia (X), the Applicant also requested the Strasbourg judges to indicate urgent interim measures under Rule 39 of the Court, regarding ‘massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine’. The urgent interim measures sought by Ukraine were granted on 1 March 2022, for the real and continuing risk of serious violations 22

Jahn. Obata 9. 24 Ní Aoláin. 25 Steininger. 23

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of, inter alia, right to life (Article 2), prohibition of torture and inhuman or degrading treatment or punishment (Article 3), and right to respect for private and family life (Article 8) under the ECHR. The Court indicated to Russia ‘to refrain from military attacks against civilians and civilian objects’, and ‘to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops’.26 Three days later, having already received multiple requests for interim measures from individuals against the Respondent, the ECtHR decided that the general scope of these measures ‘shall be considered to cover any request brought by persons falling into the above category of civilians who provide sufficient evidence showing that they face a serious and imminent risk of irreparable harm to their physical integrity and/or right to life’. It was particularly emphasised in this decision that the measures ‘should ensure unimpeded access of the civilian population to safe evacuation routes, healthcare, food and other essential supplies, rapid and unconstrained passage of humanitarian aid and movement of humanitarian workers’.27 Another request from the Government of Ukraine was submitted to Strasbourg on 16 March, alleging that Russia’s potential use of prohibited weapons, its attacks on nuclear facilities, and its operations aimed at assassination or abduction or disappearance of civilian leaderships and children in Ukraine. While reiterating the general nature of the interim measures ordered on 1 March to cover ‘any and all attacks against civilians’, the Court took into consideration the emerging problems such as ‘the use of any form of prohibited weapons, measures targeting particular civilians due to their status, as well as the destruction of civilian objects under the control of Russian forces’.28 Urgent interim measures were also directed to address specific issues in individual complaints. The first issue was the sentence to death of armed force members who surrendered during hostilities. In the Saadoune case concerning a Moroccan national,29 and the Pinner and Aslin cases involving two British nationals,30 the Court indicate to both the Governments of Ukraine and Russia to ensure that death penalties imposed on them were not executed, appropriate conditions of their detention including necessary medical assistance and medication were provided, and their rights under the convention were respected. The second issue was the alleged torture inflicted on Ukraine service personnel by Russian forces. The applicant in the Oliynichenko case insisted that her husband in public service was held by Russian forces and tortured in one of the prisoners of war camps. Interim measures were granted from Strasbourg for the victim, indicating the Russian and Ukrainian Governments to ensure respect for the applicant’s husband’s Convention rights, and particularly to Russia, to provide him with medical assistance should he need it.31 26

ECHR 068 (2022). ECHR 073 (2022). 28 ECHR 116 (2022). 29 ECHR 204 (2022). 30 ECHR 222 (2022). Pinner v Russia and Ukraine; Aslin v Russia and Ukraine. 31 ECHR 227 (2022). Oliynichenko v Russia and Ukraine. 27

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The responses from Strasbourg to Ukraine have extensively clarified the ongoing human rights issues at hand. Indeed, the ECtHR received from Ukrainian Government completed application form of the Inter-State case Ukraine v Russia (X) in June 2022. In addition to the already-mentioned violations under Articles 2, 3 and 8 of the ECHR, the Ukrainian Government complains that the Russian Federation is responsible for numerous problems such as under prohibition of slavery and forced labour (Article 4), right to liberty and security (Article 5), freedom of religion (Article 9), freedom of expression (Article10), freedom of assembly and association (Article 11), right to an effective remedy (Article 13), and prohibition of discrimination (Article 14) under the Convention. It also contains the alleged violations of the rights under Protocols to the Convention, namely, protection of property (Article 1 of Protocol No. 1) and right to education (Article 2 of Protocol No. 1), freedom of movement (Article 2 of Protocol No. 4) and prohibition of expulsion of nationals (Article 3 of Protocol No. 4). The Ukraine v Russia (X) case became an unprecedent opportunity in that more than a half of State Parties to the ECHR have requested leave to intervene as third parties in the proceedings. Under Article 36(2) of the Convention and Rule 44(3) of the Court, the President of the Court may grant third party intervention to make written submissions and, in exceptional cases, take part in public hearings. As of 23 September 2022, the Governments of Austria, Belgium, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden, as well as one non-governmental organisation, the Geneva Academy of International Humanitarian Law and Human Rights, requested the leave for intervention. The concurrent legal actions against Russia’s invasion by both individuals and Ukraine before the ECtHR has the potential to serve as a means of redress for individual victims, as well as a mechanism for collective enforcement of the ECHR standards. As was indicated in the Cyprus v Turkey judgment on just satisfaction, when an applicant Contracting Party complains about general issues in another Contracting Party, the primary goal is to vindicate the ordre public of Europe within the framework of collective responsibility under the Convention.32 The Applicant Government’s allegations of mass and gross human-rights violations by the Respondent Government in Ukraine v Russia (X) can also be regarded as the vindication of collective interests in the CoE members. The collective enforcement is corroborated by the multitude of third party intervention, in which intervening member States are living up as the guardians of the mechanism, providing legitimacy to the Court, and facilitating dialogue with Strasbourg judges.33 Meanwhile, there are various issues remaining unsolved on the Inter-State mechanism, especially in the cases of international armed conflict. First, concerning the classical type of war between States, the ECtHR’s jurisprudence shows that the events during the active phase of the hostilities do not fall within the jurisdiction of 32 33

Cyprus v Turkey, paras 43–46. Batura and Risini.

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the State Party for the purposes of Article 1 of the Convention. In Georgia v Russia (II), the Strasbourg Court explicated the reason for such a limitation that ‘[i]f, as in the present case, the Court is to be entrusted with the task of assessing acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State, it must be for the Contracting Parties to provide the necessary legal basis for such a task’.34 The same logic might be applied to the active phase of hostilities in the present context of Ukraine v Russia (X). Second, it is debatable whether an Inter-State procedure purporting to guaranteeing the collective goal of the European public order is detrimental to individual complaints on the same matter.35 The delicate balances between individual and collective interests should be struck on procedural issues such as prioritisation of inter-State cases over individual applications and awarding of just satisfaction in these instances in the benefit of individual victims.36 The Ukraine v Russia (X) case, in line with other Inter-State proceedings between the same parties, will be an opportunity for Strasbourg judges to clarify these points.

9.2.2 Pre-aggression Pending Cases Before the ECtHR According to the Court’s Analysis of Statistics 2022, Russia is the second highest case-count State holding 16,750 cases of 74,650 all pending applications (22.4%).37 Russian aggression against Ukraine not only produced new cases but also impacted the already pending cases before the ECtHR. Indeed, Russia’s cessation to be a State Party to the ECHR triggered various procedural problems under the ECHR and the Rules of Court: the Court’s jurisdiction ratione temporis; the office of Russian elected judge and the list of ad hoc judges; and the consequences of the Russian authorities’ failure to cooperate in the proceedings concerning pending cases. The mysteries have been mostly solved by recent judgments against Russia in the individual complaints Fedotova and Others, Kutayev, and Svetova and Others, as well as the Inter-State Ukraine and the Netherlands v Russia case. First, the ECtHR’s jurisdiction extends to only the alleged violations of Convention rights before the date of Russia’s cessation of State party status. Article 58(3) of the ECHR supposes that ‘[a]ny High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to [the] Convention under the same conditions’. However, the second paragraph of the same article makes a caveat: ‘Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under [the] Convention in 34

Georgia v Russia (II), para 142. Tigroudja. 36 These issues are currently under scrutiny in the work of the Drafting Group onEffective processing and resolution of cases relating to inter-State disputes (DH-SYSC-IV), operating under the authority of the Steering Committee for Human Rights (CDDH). 37 Analysis of statistics 2022, 7. 35

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respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective’. In terms of this provision, the Court’s plenary session, sitting in accordance with its Rule 20(1), adopted a resolution on 22 March 2022 regarding the cessation of Russia’s membership to the CoE in light of Article 58 of the ECHR. In this resolution, the Court clearly stated that it ‘remain[ed] competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022’.38 In the individual cases in Fedotova and Others v Russia, since the applications were lodged with the Court in 2010 and 2014, the Grand Chamber found the Court’s jurisdiction to deal with them.39 Similarly, in the interState litigation Ukraine and the Netherlands v Russia, the Grand Chamber confirmed its competence to examine the complaints by the Governments of Ukraine and the Netherlands under Article 19 read in conjunction with Article 58(2) and (3) of the Convention.40 The same approach was taken in the individual complaint cases Kutaev and Svetova and Others, respectively.41 Second, another procedural issue arose regarding the Russian judge and ad hoc judges from the Russian list on the bench under Article 26(4) of the Convention. This issue was technically resolved in Kutaev and Svetova and Others. In both cases, by analogy Rule 29(2) of the Court, the parties were informed that the President of the Section intended to appoint one of the sitting judges of the Court to act as an ad hoc judge for the examination of the present case. It was also informed to the Respondent Government to apply the same approach in respect of other applications against Russia for which the Court remained competent. Given any comments being made by them, the President of the Chamber decided to appoint an ad hoc judge from among the members of the composition, applying by analogy Rule 29(2)(b).42 Third, the Strasbourg Court clarified its approach to evidential and proof issue to counter Russia’s non-participation in the proceedings. The temporality of evidence assessment was addressed in the Inter-State Ukraine and the Netherlands v Russia case concerning the question of jurisdiction exercised by Russia over the relevant areas in eastern Ukraine. Given that the administrative practices representing Russia’s effective control were ongoing, the Courts retained its competence to assess the ‘[e]vidence of events post-dating the admissibility hearing will be relevant to the Court’s determinations at any subsequent merits stage as to whether any Russian jurisdiction established continued er 26 January and up until 16 September 2022’.43 In this case, the Court also touched upon the issues of burden of proof and drawing of inferences. In this respect, Article 38 of the ECHR requires the Contracting States to furnish all necessary facilities to the Court, and Rule 44(a) of the Court imposes 38

ECtHR Resolution, para 2. Fedotova and Others v. Russia, paras 68–73. 40 Ukraine and the Netherlands v. Russia, para 389. 41 Kutayev v Russia, paras 75–80; Svetova and Others v Rusia, paras 23–28. 42 Kutaev, paras 8–9; Svetova and Others, paras 11–12. 43 Ukraine and the Netherlands v. Russia, para 393. 39

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them the duty to cooperate fully in the conduct of the proceedings. As its Rule 44(c) stipulates, where a party fails to perform these duties, the Court may draw inferences as it deems appropriate. In fact, the Grand Chamber in Ukraine and the Netherlands v Russia found that the approach taken by the respondent Government did not represent a ‘constructive engagement’ with the Court’s requests for information or with the proceedings for the examination of the case.44 The Strasbourg judges then drew all the inferences that it deems relevant because the respondent Government have fallen short of their obligation to furnish all necessary facilities to the Court in its task of establishing the facts of the case, as required under Article 38 of the Convention and Rule 44 of the Court. The ECtHR’s solutions to the pending cases seem a straight-forward way according to the Convention and the Rules of the Court. Before 16 September 2022, Kanstantsin Dzehtsiarou expected four possible routes for the Court after Russia’s cessation to be a State Party to the ECHR: first, ‘business as usual’ simply continuing to deal with all pending Russian cases; second, ‘pick and choose’ select a number of leading cases; third, ‘total freeze’ suspending the adjudication of all applications against Russia until the situation changes; and fourth, ‘strike out’ excluding all the applications against Russia pending before the ECtHR. He considered the first option as implausible because Russia is no longer cooperative with the judges, and consequently, it would take a lot of resources from the Court, especially after the departure of the major contributor to the organisaion’s budget.45 As it turns out, however, the Court is now doing ‘business as usual’, by documenting relevant facts and declaring violations of the Convention rights. The value of the fact-finding and legal assessment effort is hard to overestimate for the ‘hope that Russia will seek to rejoin the organization after a hopefully peaceful transition to peace and democracy’, and for ‘our duty to ensure that Russian people understand that the prospect of regaining access to Europe’s human rights protection system remains’.46 However, it would be too optimistic if we simply appraise the ‘business as usual’ approach taken in Strasbourg because the Court’s authority is significantly limited. On 11 June 2022, the Russian parliament adopted twin laws, which essentially blocked any domestic effects to the ECtHR judgements pronounced after March 15. The first legislation, amending the Federation’s Code of Criminal Procedure, expressly states that the Federation shall not implement rulings of the European Court of Human Rights that have come into effect after that date.47 The second federal law, modifying the Federal Law on the Prosecutor’s Office, establishes that the verdicts of the European Court of Human Rights that entered into force after that date are not enforceable in the country, although monetary compensations to claimants pursuant to the ECHR decisions that entered into force through that date until 1 January 2023 will be paid.48 Given such legislative acts diminishing the ECtHR’s authority, the 44

Ukraine and the Netherlands v. Russia para 459. Dzehtsiarou. 46 Risini and Forde. 47 President of Russia, 11 June 2022. 48 President of Russia, 11 June 2022. 45

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Court now seems to function almost merely symbolically and its efficacy is question when it comes to the Russian cases.49

9.3 Fact Finding of the Aggression From the onset of the Ukraine Conflict, fact-finding missions have been deemed essential to record and document relevant facts that will be assessed at later stages. At the UN level, the Independent International Commission of Inquiry on Ukraine (IICIU) was established by the HRC on 4 March 2022 to investigate and document the situation.50 Similar steps have also been taken in Europe to investigate serious violations of IHL and IHRL. This section focuses on fact-finding missions carried out by the OSCE, which have rapidly and extensively monitored the situation both inside (1) and outside (2) Ukraine following the aggression.

9.3.1 Human Rights Violations Inside Ukraine The security situation on the territory of Ukraine was monitored by the OSCE since 2014. After the Russian Federation launched military attacks against the Autonomous Republic of Crimea, the Organisation’s Permanent Council adopted a decision to deploy a Special Monitoring Mission (SMM) to Ukraine.51 The task mandated to the Mission included gathering information and report on the security situation in the area of operation, and monitor and support respect for human rights and fundamental freedoms, including the rights of persons belonging to national minorities. Indeed, the SMM issued a number of in-depth thematic reports as the result of its work in the human dimension, focusing on different aspects of life affected by the conflict in Ukraine. Furthermore, daily reports have been continuously issued by the Mission in response to specific incidents on the ground with spot reports, until the Mission completed its temporary evacuation of international mission members from the Mission’s area of operationson 7 March 2022.52 Unfortunately, the OSCE Permanent Council on 31 March 2022 could not reach a consensus to extend the Mission’s mandate. As a result, the Secretary General to announced that the Organisation would take immediate steps to implement the closure of the eight-year-long mission of the SMM to Ukraine.53 Another route of the OSCE to tackle the Russian aggression is the Moscow Mechanism established at the last meeting of the Conference on the Human Dimension 49

Emtseva. A/HRC/RES/49/1. 51 OSCE, Permanent Council, Decision No. 1117. 52 SMM Daily Report 54/2022. 53 Press Release, OSCE, 31 March 2022. 50

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in Moscow in 1991.54 The mechanism offers the participating States to create ad hoc missions of independent experts to assist in the resolution of a specific human dimension problem within the OSCE region. In the present context of the Russian aggression, 45 participating States invoked the Moscow Mechanism on 3 March 2022 to mandate the mission of experts. The mission’s mandate was defined as to ‘[e]stablish the facts and circumstances surrounding possible contraventions of OSCE commitments, and violations and abuses of international human rights law and international humanitarian law; ‘[e]stablish the facts and circumstances of possible cases of war crimes and crimes against humanity’; and ‘collect, consolidate, and analyze this information with a view to presenting it to relevant accountability mechanisms’. The report under the mission was issued based on multiple sources including the SMM to Ukraine on 13 April 2022, which successfully documented not only clear patterns of IHL violations by the Russian forces but also incidents involving violations of the most fundamental human rights.55 The second momentum of the Moscow Mechanism was generated by 45 Participating States on 2 June 2022, to ‘consider, follow up and build upon the findings of the Moscow Mechanism report received by OSCE participating States on 12 April 2022’. The second report issued on 14 July largely confirmed the conclusions reached by the first mission, updating the relevant facts and legal evaluation during the ongoing armed conflict. Regarding human rights, the second mission captured the two alarming new phenomena which were missing in the first report: the establishment and use of socalled filtration centres and the tendency by the Russian Federation to bypass its international obligations by handing detained persons over to the two so-called People’s Republics and letting them engage in problematic practices, including the imposition of the death penalty.56 In parallel to such ad hoc missions, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) established the Ukraine Monitoring Initiative ‘to monitor and document the most serious violations of IHL and IHRL and provide accurate, timely and up-to-date information to the OSCE leadership, participating States and to a public audience’. In the first interim report published on 20 July 2022, the ODIHR documented a wide variety of serious IHL and IHRL violations and made a series of recommendations, calling on both parties to the conflict to respect and ensure respect for both branches of law, and to fulfil their duty to investigate violations and bring those responsible to justice in fair trials.57 The second report issued on 14 December 2022 provided an updated assessment of alleged violations of IHL and IHRL by focusing generally on events that occurred between 1 July and 1 November 2022.58 The accumulation of fact-findings in the OSCE scheme creates an environment in which various actors at the international and domestic levels interact based on the 54

See in general, see Szpak and Kolodziejska. Moscow Mechanism Report in April 2022, 1–3. 56 Moscow Mechanism Report in July 2022, 4. 57 ODIHR Interim Report. 58 ODIHR Second Report. 55

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findings. As the first mission’s report under the Moscow Mechanism characterises itself, despite its necessarily preliminary nature due to the short period of investigation in the context of an ongoing armed conflict, its findings of violations and abuses ‘can inform other bodies’ more in-depth investigations into legal accountability’ and ‘contribute to establish political accountability’.59 More concretely, the second mission of the same mechanism prospects that its identification of certain alarming patterns of behaviour need to be further investigated and considered by the IICIU at the UN level, and if the parties agree to use it, by the International Humanitarian Fact-Finding Commission (IHFFC). The second report also envisages that the issues of State responsibility will be considered by the ICJ, the ECtHR or another judicial body, and that of individual criminal responsibility have to be, and already are, considered by national courts in Ukraine, the Russian Federation or third countries, or by the International Criminal Court (ICC).60

9.3.2 Human Rights Violations Outside Ukraine Russia’s aggression does produce human rights problems not only against the victim State Ukraine but also within the aggressor State itself. To suppress the opinions opposing the ‘special military operations’, the Russian authorities have enforced various restrictive measures on the rights to freedom of assembly and expression. A typical example is the interference to the activities of daily newspaper Novaya Gazeta whose chief editors is the Dmitriy Andreyevich Muratov, the 2021 Nobel Peace laureate. Having received from Muratov the information on the governmental blocking of media activities in Russia, the ECtHR indicated to Russia ‘to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in the current circumstances could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention’.61 Even a decade before the aggression, the notorious legislation titled Foreign Agents Act adopted in 2012 received domestic and international criticisms.62 The legislation was substantially transformed from the 1995 Law on Non-Commercial Organisations, aiming at imposing heavy fines on the activities of NGOs that receive funding from foreign sources to such an extent that their work became very difficult or even impossible.63 For example, the Russian Supreme Court granted the prosecutor’s applications for the liquidation of International Memorial and the Memorial Human Rights Centre, the oldest and most established in this country, after the Ministry of Justice put them on the register of foreign agents within the legal framework. 59

Moscow Mechanism Report in April 2022, 94. Moscow Mechanism Report in July 2022, 115. 61 Press Release, ECHR 084 (2022) of no 11884/22. 62 Venice Commission, CDL-AD(2021)027, 6 July 2021. 63 The last reform was undertaken in July 2022 and entered into force on 1 December 2022. 60

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The incompatibility of this legislation with European human rights standards was challenged by 73 Russian NGOs including the two organisations in the Ecodefence and Others case before the ECtHR. The Strasbourg judges found the violation of Article 11 of the Convention interpreted in the light of Article 10 for the interference with the applicant organisations’ rights in a dual sense: the interference was neither ‘prescribed by law’ because Foreign Agents Act lacks oreseeability and protection, on the one hand; nor it was ‘necessary in a democratic society’ since the legislative restrictions accumulates in an unforeseeable and disproportionately severe manner generating a significant chilling effect, on the other.64 These legal and administrative practices restricting human rights in Russia were well documented under the OSCE’s Moscow Mechanism. On 28 July 2022, 38 OSCE participating States invoked Article 12 of the OSCE’s Moscow Document, in respect of particularly serious threats to the fulfilment of the provisions of the OSCE human dimension by the Russian Federation. Having comprehensively reviewed the recent practices in question, the single rapporteur Professor Angelika Nußberger gave an overall assessment: ‘Russian legislation and practice in recent years, which betrays fear of civil society as a “fifth column” that weakens the State, is not in line with OSCE standards based on pluralism and a strong and independent civil society’.65 The most recent action at the writing this paper is the invocation of the Moscow Mechanism by 38 OSCE participating States on 23 March 2023 to examine alleged human rights violations and abuses in Belarus. The mechanism was already mobilised in relation to systematic human rights violations and abuses committed with impunity and on a massive scale by Belarusian authorities before, during and following the fraudulent 9 August 2020 presidential election. Although the report of the Moscow Mechanism Mission released on 5 November 2020, the Belarusian authorities have failed to restore the serious violations and abuses as the report recommended.66 The second invocation was triggered by the Belarus’ further actions contradicting its fulfilment of OSCE human dimension commitments, including through the continued enabling of the Russian Federation’s war of aggression against Ukraine. The fact-finding investigations conducted through the Moscow Mechanism on human rights dimensions within Russia and Belarus are not directly related to the aggression in question. Rather, they focus on documenting systemic violations and abuses of democracy-related rights, including freedom of expression, assembly, and association in these countries. In essence, the reports produced under this mechanism capture the perspectives and actions of Russian and Belarusian citizens and organisations critical of the aggression, thereby supporting the peoples’ aspirations and ability to transition to peace and democracy.

64

Ecodefence and Others v. Russia, paras 89–118, 123–186. Moscow Mechanism Report in September 2022, 2. 66 Moscow Mechanism Report in November 2020. 65

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9.4 Responsibility Invocation for the Aggression Through judicial responses, and based on fact-finding investigations, individual responsibility for committing crimes and State responsibility for Russia’s internationally wrongful acts during the Ukraine Conflict will be established. However, existing international legal frameworks are insufficient to hold those responsible for acts of aggression accountable. In response to this gap, multilevel systems of human rights protection in Europe have taken effective measures to establish individual and State responsibility for Russia’s aggression, ahead of global approaches taken by the United Nations. Specifically, the following paragraphs demonstrate that the CoE/EU institutions have been proactive in establishing a special tribunal for the crime of aggression (1) and establishing comprehensive reparation mechanisms for resulting damages (2).67

9.4.1 Prosecution Faced with the aggression by Russia, the ICC Prosecutor stated on 28 February 2022 that he would seek authorisation to open an investigation into the situation of Ukraine. Although Ukraine is not a State Party to the Rome Statute, the State has twice exercised its prerogatives to legally accept the Court’s jurisdiction over alleged crimes under the Statute occurring on its territory in the sense of Article 12(3) thereof.68 From March to April 2022, the situation of Ukraine was referred to the ICC by 43 States Parties in terms of Articles 13(a) and 14. The scope of the situation encompasses any past and present allegations of the three core crimes, namely, war crimes, crimes against humanity or genocide, which committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards. Subsequently, on 17 March 2023, the ICC Pre-Trial Chamber II issued warrants of arrest for two high rank individuals in the situation: President Vladimir Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the President Office, for the war crimes under Articles 8(2)(a)(vii) and (b)(viii). Regrettably, the other core crime, i.e. the crime of aggression, is excluded from the State referral and the Court’s jurisdiction. Under the Rome Statute, Article 15 bis, introduced by the resolution RC/Res.6 adopted at the Review Conference held in Kampala, prohibits the Court to exert its jurisdiction over the crime of aggression when committed by a State’s nationals or on its territory if that State is not a party to this Statute (Paragraph 5). Since neither Russia nor Ukraine is a State Party to the Statute, the ICC’s jurisdiction does not extend to the crime of aggression in the 67

OSCE Parliamentary Assembly, Resolution, paras 35–36 referring to ‘a special international criminal tribunal’ to prosecute and punish those responsible for crimes including aggression. 68 The first declaration accepted ICC jurisdiction over alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014; The second declaration extended to encompass ongoing alleged crimes committed throughout the territory from 20 February 2014 onwards.

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current situation. The lacuna in the Statute was highlighted by leading politicians, academics and human rights lawyers and thus induced them to make proposals to fill it up. One of the most provocative ideas is a call for a Special Tribunal for Crime of Aggression on 4 March 2022, signed by high profile persons including Gordon Brown, former Prime Minister of the United Kingdom.69 Although this call quickly invited criticism for practical reasons70 or Western-favoured double standards,71 its envision has gradually proceeded towards the realisation in the wide support of European international orgasations. The quickest responses of international organisations came from the PACE on 28 April 2022 in its Recommendation and Resolution, respectively. In the former, the Parliamentary Assembly invited the CoM to ‘encourage all member States to participate in setting up an ad hoc international criminal tribunal to prosecute the crime of aggression allegedly committed by the political leaders and military commanders of the Russian Federation against Ukraine, by way of a multilateral treaty between like-minded States’; and ‘examine ways and means for the Council of Europe as a whole to play an active role in setting up and operating such a tribunal, including by providing logistical or other technical assistance’.72 In the latter, the parliament members resolved to call on ‘all member and observer States of the Council of Europe to: […] urgently set up an ad hoc international criminal tribunal, which should: […] receive a mandate to investigate and prosecute the crime of aggression allegedly committed by the political and military leadership of the Russian Federation; and the United Nations General Assembly (UNGA) was invited by them to ‘support setting up an ad hoc international criminal tribunal to prosecute the crime of aggression allegedly committed by the political leaders and military commanders of the Russian Federation against Ukraine and encourage United Nations member States to step up their efforts to provide full support to the establishment of such a tribunal’.73 In response to the PACE, the CoM adopted a decision on 15 September 2022, noting ‘with interest the Ukrainian proposals to establish an ad hoc special tribunal for the crime of aggression against Ukraine and a comprehensive international compensation mechanism, including, as a first step, an international register of damage’.74 Another round of dialogue between the CoE political organs occurred in early 2023. In its recommendation in 24 January hailing the CoM’s decision to convene the 4th Summit of the Heads of State and Government in Reykjavik on 16–17 May 2023, the PACE once again demanded the Heads to ‘support and lead the initiative to set up an ad hoc international criminal tribunal to investigate and prosecute the crime of aggression committed by the political and military leadership of the Russian Federation’ and call on the CoE and the member States ‘to provide concrete expert 69

Calling for a Special Tribunal for Crime of Aggression. Heller. 71 Wilde. 72 PACE, Recommendation 2231 (2022). 73 PACE, Resolution 2436 (2022). 74 CoM, CM/Del/Dec(2022)1442/2.3, para 3. 70

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and technical assistance in its setting up and also call on the Council of Europe to have an active leading role in the establishment of such an ad hoc international criminal tribunal’.75 The Assembly’s resolution two days later reiterates its strong support to create a special tribunal, enumerating the features including the jurisdiction ratione temporis, a definition of the crime of aggression, personal immunities, the principles of legality and non bis in idem, the principle of complementarity, co-operation with the ICC, and human and financial resources.76 In its resolution marking the first anniversary of aggression, the CoM ‘welcomed ongoing international efforts, in cooperation with Ukraine, to ensure accountability for the crime of aggression against Ukraine through the possible establishment of an appropriate mechanism for this purpose, and to ensure full reparation for the damage, loss or injury caused by Russia’s violations of international law in Ukraine, including through the establishment of a compensation mechanism’.77 A similar movement to support a special tribunal for the crime of aggression happens in the EU. The European Parliament passed a resolution on 19 May 2022, in which it called on the EU institutions ‘to support the creation without delay of an appropriate legal basis, with the support of established multilateral forums such as the UN and the Council of Europe, to allow for the setting up of a special international tribunal for the punishment of the crime of aggression committed against Ukraine by the political leaders and military commanders of Russia and its allies’.78 In the end of November, the European Commission presented two different options to Member States to make sure the responsibility for the crime of aggression: a special independent international tribunal based on a multilateral treaty, on the one hand, and a specialised, hybrid court integrated in a national justice system with international judges.79 In parallel to the CoE, the EU institutions advanced their support for the special tribunal for the crime of aggression in early 2023. The European Parliament’s resolution adopted on 19 January put the forward the belief that the creation of a special international tribunal to prosecute the crime of aggression ‘would fill the large gap in the current institutional international criminal justice set-up’.80 On 4 March 2023, the European Commission’s President Ursula von der Leyen, while showing the Union’s support for the ICC, stated that ‘there needs to be a dedicated tribunal to prosecute Russia’s crime of aggression’.81 These European institutional proposals to establish a special tribunal for the crime of aggression provoked critical debates. Leaving substantive and procedural issues to be discussed in other chapters in this volume, this section focuses on the institutional options of such a court in cooperation with the European international organisations. 75

PACE, Recommendation 2245 (2023), para 8.3.1. PACE, Resolution 2482 (2023), para 7. 77 CoM, CM/Del/Dec(2023)1457bis/2.3, para 6. 78 European Parliament, Resolution 2022/2655(RSP). 79 Press Release: European Commission, 30 November 2022. 80 European Parliament, Resolution 2022/3017(RSP), para 3. 81 Statement by President von der Leyen. 76

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In this respect, the two reports deserve to be mentioned: In-Depth Analysis of the European Parliament’s Subcommittee on Human Rights (DROI) and Information Documents of the CoE Secretary General (CoESG).82 Both reports acknowledge the legal difficulties inherent in the tribunal’s creation directly by the UN due to the veto right of the Russian Federation under the Security Council and the lack of power to create a tribunal binding on the Member State under General Assembly. Instead, they investigate the possibility of creating such a tribunal by an agreement between Ukraine and an international organisation or between States. DROI’s InDepth Analysis reminds us of a precedent establishment of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office, in which the EU and the CoE have already been involved.83 Indeed, the establishment of these bodies was triggered by the PACE’s Committee on Legal Affairs and Human Rights (AS/Jur),84 after which the European Union Rule of Law Mission in Kosovo (EULEX Kosovo) opened a preliminary investigation and set up a Special Investigative Task Force.85 This successful experience in the past can be a model for the attempts of the CoE/EU institutions to create a special tribunal for the present aggression.

9.4.2 Reparation Responsibility for the aggression is not limited to individual criminal responsibility of those who committed the crime. The Russian Federation itself also bears State responsibility of the internationally wrongful acts. In fact, the UNGA Resolution ES-11/5 adopted 14 November 2022 recognised ‘the need for the establishment, in cooperation with Ukraine, of an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine’. For that purpose, the General Assembly recommended the creation of an international register of damage by Member States, in cooperation with Ukraine, ‘to serve as a record, in documentary form, of evidence and claims information on damage, loss or injury to all natural and legal persons concerned, as well as the State of Ukraine, caused by internationally wrongful acts of the Russian Federation in or against Ukraine, as well as to promote and coordinate evidence-gathering’.86 In the CoE, the necessity to ‘compensate Ukraine and its citizens for any damage caused by the Russian Federation’s war of aggression’ was shared in the early stage.87 As the ongoing injuries expand to the environment and infrastructure, the PACE’s

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CoESG, Information Documents. In-Depth Analysis: Tribunal for the crime of aggression against Ukraine, 12–13, 18–19. 84 PACE, Doc. 12462. 85 EULEX statement. 86 A/RES/ES-11/5, paras 3–4. 87 PACE, Resolution 2436 (2022), para 11.9. 83

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resolution in June underscored the necessity to ‘start thinking now about the reconstruction of Ukraine’ and ‘promote and ensure a comprehensive system of accountability for the war of aggression against Ukraine and gross human rights breaches by institutionalising a compensation mechanism for Ukraine’.88 After a half year passed since the aggression, the CoM also expressed in its decision the ongoing efforts ‘to secure full reparation for the damage, loss or injury caused by Russia’s violations of international law in Ukraine’.89 The idea of full reparation is embodied in the PACE’s resolution in October as ‘set[ing] up a comprehensive international compensation mechanism, including an international register of damage’.90 Concrete steps to ensure reparation for injuries were taken around the turn of the year. On 14 December 2022, the CoM adopted the CoE Action Plan for Ukraine ‘Resilience, Recovery and Reconstruction’ 2023–2026, for which the overall budget for the four-year co-operation framework is estimated at e50 million, making it the largest ever budget for a country-specific Action Plan in the Council.91 The PACE’s resolution adopted on 26 January 2023 further elaborated the process of full reparation from the register at a first step to an international compensation commission at a later stage, which would be ‘mandated to review and adjudicate the claims submitted and documented by the register’.92 The CoM’s resolution on the first anniversary of aggression also invited the CoESG ‘to present modalities, including on complementarity with existing mechanisms, so that further consideration can be given to the possible establishment and functioning of such a register, in co-operation with Ukraine, under the auspices, or with the assistance, of the Council of Europe’.93 The EU institutions follow the global and regional trends to establish a comprehensive compensation mechanism for Ukrainian damages. The European Parliament expressly refers to the UNGA’s recommendation to establish ‘an international register of damage to serve as a record for future reparations for damage, loss or injury to all natural and legal persons concerned, and the long-term, widespread and severe damage to the natural environment and the climate, as well as to the state of Ukraine […] as well as to promote and coordinate evidence gathering’.94 The European Council also reiterated ‘the EU’s full support for establishing an international mechanism to register the damages’, and for that purpose, demonstrated that the EU would ‘step up work towards the use of Russia’s frozen and immobilised assets for Ukraine’s reconstruction and for the purposes of reparation, in accordance with EU and international law’.95 Whereas the damages suffered by Ukraine and its citizens from Russia’s aggression are record-breaking, the past experiences under international law may provide 88

PACE, Resolution 2448 (2022), para 10. CoM CM/Del/Dec(2022)1442/2.3, para 3. 90 PACE, Resolution 2463 (2022), para 13.6.3. 91 CoM, 1452nd meeting, CM(2022)187-final. 92 PACE Resolution 2482 (2023), para. 19.3. 93 CoM CM/Del/Dec(2023)1457bis/2.3, para 7. 94 European Parliament (n) para 14. 95 European Council, CO EUR 3 CONCL 2, para 8. 89

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lessons for the future scheme of full reparation in the present context. The substantive contents of compensation will be guided by the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Quantified amounts of post-conflict compensation indicated in the awards of the Eritrea-Ethiopia Claims Commission and the 2022 judgment of the International Court of Justice (ICJ) in Armed Activities in the Territory of The Congo (DRC v Uganda) are similarly suggestive. For procedural and institutional aspects, the CoESG’s Information Documents reminds us of two UN mechanisms: the United Nations Compensation Commission (UNCC) established in 1991 as the subsidiary organ of the UNSC regarding the invasion and occupation of Kuwait by Iraq, and the United Nations Register (UNRoD) created as a subsidiary organ of the UN General Assembly for the damages caused by the wall construction in the Occupied Palestinian Territory. We may add to the list other examples including the Iran-US Claims Tribunal (IUST) concerning the compensation for incidents during the 1979 Iranian Revolution, which resulted in more than $2.5 billion in awards to US nationals and companies, and the Commission for Real Property Claims (CRPC) established to allocate property rights of displaced persons and refugees after the 1992–1995 Bosnian War. The Government and the international community may learn from these instances to define the concept and the model of the overall compensation mechanism and its structural relation with the Register.

9.5 Conclusion This contribution has examined the impacts of the Ukraine Conflict on the regional multi-layered human rights systems in Europe. The triadic regional organisations and bodies mandated for human rights protection, namely, the CoE, the OSCE, and the EU, have mobilised their own vehicles for four issues: institutional sanctions, judicial reactions, fact-findings, responsibility invocation, against Russia’s aggression. Through these analyses, it was found that the multi-layered systems in the European region are facing serious challenges, revealing the limitations of the current legal framework. It should not be overlooked, however, the regional operations at the same time demonstrate a certain resilience by employing their original instruments for human rights protection. Thus, the ineffectiveness of the existing legal systems or the lacuna in the current legal situations does not mean that the regional multilayered systems are immediately collapsing. The following message from Ukrainebased international lawyer Maksym Vishchyk is encouraging to revitalise the belief for European human rights law. When the mechanism malfunctions, we do not dismantle it and refuse to use it any further or believe in its utility. Rather, we try to find out what went wrong and why. From this understanding, we add new precautions and safety valves until it malfunctions again, and, again, and we continue the same cycle. […] [W]e cannot

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let ourselves lose our belief in all humanity and legal order because of the atrocities perpetrated by some human beings.96

References UN Documents HRC (2022) A/HRC/RES/49/1 of 4 March 2022. UNGA (2022) A/RES/ES-11/3 of 7 April 2022. UNGA (2022) A/RES/ES-11/5 of 14 November 2022.

National Legislation and Judgments Amendments to laws in connection with making the ECHR rulings enacted after March 15, 2022, non-enforceable in Russia, President of Russia, 11 June 2022. http://www.en.kremlin.ru/acts/ news/68648. Law cancelling implementation in Russia of European Court of Human Rights rulings issued after March 15, 2022, President of Russia, 11 June. 2022 http://en.kremlin.ru/catalog/keywords/33/ events/68645. RCC (2009) Decision no 1344-O-P. RCC (2015) Decision no 21-P/2015. RCC (2016) Decision no 12-P/2016. RCC (2017) Decision no 1-P/2017. RCC (2020) Decision no 1-Z/2020. Russian Federal Law (2010) No. 68-FZ ‘On Compensation for Violation of the Right to Trial within a Reasonable Time or the Right to execution of a judicial act within a reasonable time’ http:// www.supcourt.ru/en/documents/compensation/.

International Cases Aslin v Russia and Ukraine (App no 31233/22). Burdov v Russia (no 2), ECtHR, App no 33509/504, Judgment on Merits and Just Satisfaction of 15 January 2009. Cyprus v Turkey, ECtHR (GC), App no 25781/94, Judgment on Just Satisfaction of 12 May 2014. Ecodefence and Others v. Russia, ECtHR, App nos 9988/13 and Others, Judgment on Merits and Just Satisfaction of 14 June 2022. Fedotova and Others v. Russia, ECtHR (GC), Application Nos. 40792/10, 30538/14 and 43439/14, Judgment of 17 January 2023. Georgia v Russia (I), ECtHR (GC), App no 13255/07, Judgment on Merits of 3 July 2014; on Just Satisfaction of 31 January 2019. Georgia v Russia (II), ECtHR (GC), App no 38263/08, Judgment on Merits of 21 January 2021. 96

Maksym Vishchyk, “Insight from Ukraine: Revitalizing Belief in International Law”, Just Security, 18 March 2022.

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Ila¸scu and Others v Moldova and Russia, ECtHR (GC), App no 48787/99, Judgment of Merits and Just Satisfaction of 8 July 2004. Kutayev v Russia, ECtHR, App no 17912/15, Judgment on Merits and Just Satisfaction of 24 January 2023. Mamasakhlisi and Others v. Georgia and Russia, ECtHR, App nos. 29999/04 41424/04, Judgment of Merits and Just Satisfaction of 7 March 2023. Oliynichenko v Russia and Ukraine (App no 31258/22). Pinner v Russia and Ukraine (App no 31217/22). Svetova and Others v Rusia, ECtHR, App no 54714/17, Judgment on Merits and Just Satisfaction of 24 January 2023. Ukraine v Russia (re Crimea), ECtHR (GC), App no 20958/14 38334/18, Decision of 16 December 2020. Ukraine and the Netherlands v. Russia, ECtHR (GC), App nos 8019/16, 43800/14 and 28525/20, Decision of 30 November 2022.

Council of Europe Analysis of statistics 2022, ECtHR, January 2023. CoESG, Information Documents SG/Inf(2023)7 of 31 January 2023. CoM, Decision CM/Del/Dec(2022)1426bis/2.3 of 24 February 2022. CoM, Decision CM/Del/Dec(2022)1426ter/2.3 of 25 February 2022. CoM, Decision CM/Del/Dec(2022)1428bis/2.3 of 10 March 2022. CoM, Resolution CM/Res(2022)2 of 16 March 2022. CoM, Decision CM/Del/Dec(2022)1442/2.3 of 15 September 2022. CoM, 1452nd meeting, CM(2022)187-final, 14 December 2022. CoM, Decision CM/Del/Dec(2023)1457bis/2.3 of 24 February 2023. ECtHR, Resolution on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights. PACE, Committee on Legal Affairs and Human Rights, Doc. 12462 of 7 January 2011. PACE Opinion 193 (1996) of 25 January 1996. PACE, Opinion 300 (2022) of 15 March 2022. PACE, Recommendation 2231 (2022) of 28 April 2022. PACE, Recommendation 2245 (2023) of 24 January 2023. PACE, Resolution 2436 (2022) of 28 April 2022. PACE, Resolution 2448 (2022) of 22 June 2022. PACE, Resolution 2463 (2022) of 13 October 2022. PACE, Resolution 2482 (2023) of 26 January 2023. Press Release, ECHR 068 (2022) of 1 March 2022. Press Release, ECHR 073 (2022) of 4 March 2022. Press Release, ECHR 084 (2022) of 10 March 2022. Press Release, ECHR 116 (2022) of 1 April 2022. Press Release, ECHR 204 (2022) of 16 June 2022. Press Release, ECHR 222 (2022) of 30 June 2022. Press Release, ECHR 227 (2022) of 1 July 2022. Venice Commission, CDL-AD(2021)027, 6 July 2021.

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Journal Article Buscemi, M. 2022. Outcasting the Aggressor: The Deployment of the Sanction of ‘Nonparticipation.’ American Journal of International Law 116: 764–774. Dzehtsiarou, K., and D.K. Coffey. 2019. Suspension and Expulsion of Members of the Council of Europe: Difficult Decisions in Troubled Times. International and Comparative Law Quarterly 68: 443–476. Obata, K. 2022. Aggression by Russia against Ukraine and the Council of Europe and the European Convention on Human Rights” (Roshia niyoru Ukuraina Shinryaku to Y¯oroppa Hy¯ogikai ・Y¯oroppa Jinken Jy¯oyaku). Jinken Hanrei Ho (Human Rights Jurisprudence Journal) 4: 5–9. Steininger, S. 2021. With or Without You: Suspension, Expulsion, and the Limits of Membership Sanctions in Regional Human Rights Regimes. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 81: 533–566. Szpak, A. and J. Kolodziejska. 2023. The Use of the OSCE Moscow Mechanism and International Humanitarian Law in the Russian Aggression Against Ukraine. Journal of Contemporary European Studies. Published online: 19 February 2023.

Scholarly Blog Article Batura, J., and I. Risini. 2022. Of Parties, Third Parties, and Treaty Interpretation: Ukraine v. Russia (X) before the European Court of Human Rights. EJIL Talk! 26 September 2022. https://www.ejiltalk.org/of-parties-third-parties-and-treaty-interpretation-ukr aine-v-russia-x-before-the-european-court-of-human-rights/. Dzehtsiarou, K. 2022. The Range of Solutions to the Russian Cases Pending before the European Court of Human Rights: Between “Business as Usual” and “Denial of Justice”. ECHR Blog. 16 August 2022. https://www.echrblog.com/2022/08/the-range-of-solutions-to-russiancases.html. Emtseva, J. 2023. The Withdrawal Mystery Solved: How the European Court of Human Rights Decided to Move Forward with the Cases against Russia. EJIL Talk! 8 February 2023. https://www.ejiltalk.org/the-withdrawal-mystery-solved-how-the-europeancourt-of-human-rights-decided-to-move-forward-with-the-cases-against-russia/. Heller, K.J. 2022. Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea. Opinio Juris. 7 March 2022. https://opiniojuris.org/2022/03/07/creating-a-special-tribunal-foraggression-against-ukraine-is-a-bad-idea/. Jahn, J. 2022. The Council of Europe Excludes Russia: A Setback for Human Rights’, EJIL Talk!. 23 March 2022. https://www.ejiltalk.org/the-council-of-europe-excludes-russia-a-setback-forhuman-rights/. Ní Aoláin, F. 2022. Why Pushing Russia Out of Multilateral Institutions is Not a Solution to the War. Just Security. 22 March 2022. https://www.justsecurity.org/80787/why-pushing-russia-out-ofmultilateral-institutions-is-not-a-solution-to-the-war/. Risini, I., and A. Forde. 2022. Parting Paths: Russia’s Inevitable Exit from the Council of Europe. Völkerrechtsblog. 12 March 2022. https://voelkerrechtsblog.org/parting-paths-russiasinevitable-exit-from-the-council-of-europe/. Tigroudja, H. 2021. Could the Collective Guarantee Mechanism be Detrimental to Individuals’ International Litigation Capacity? Thoughts on Parallel Inter-state and Individual Applications Before the ECtHR. Völkerrechtsblog. 30 April 2021. https://voelkerrechtsblog.org/could-the-col lective-guarantee-mechanism-be-detrimental-to-individuals-international-litigation-capacity/. Vishchyk, M. 2022. Insight from Ukraine: Revitalizing Belief in International Law. Just Security. 18 March 2022. https://www.justsecurity.org/80719/insight-from-ukraine-revitalizing-belief-in-int ernational-law/.

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Wilde, R. 2022. Hamster in a Wheel: International Law, Crisis, Exceptionalism, Whataboutery, Speaking Truth to Power, and Sociopathic, Racist Gaslighting. Opinio Juris. 17 March 2022. https://opiniojuris.org/2022/03/17/hamster-in-a-wheel-international-law-crisis-exception alism-whataboutery-speaking-truth-to-power-and-sociopathic-racist-gaslighting/.

OSCE Interim Report on Reported Violations of International Humanitarian Law and International Human Rights Law in Ukraine, ODIHR, 20 July 2022 (ODIHR Interim Report). OSCE Parliamentary Assembly, Resolution on the Russian’s Federation war of aggression against Ukraine and Its People, and Its Threat to Security Across the OSCE Region, Birmingham, 2–6 July 2022. OSCE, Permanent Council, Decision No. 1117 of 21 March 2014, Deployment of an OSCE Special Monitoring Mission to Ukraine. OSCE Rapporteur’s Report under the Moscow Mechanism on Alleged Human Rights Violations related to the Presidential Elections of 9 August 2020 in Belarus, by Professor Dr. Wolfgang Benedek, No. 358/2020, ODIHR.GAL/68/20/Corr.1, 5 November 2020 (Moscow Mechanism Report in November 2020). OSCE Special Monitoring Mission to Ukraine (SMM) Daily Report 54/2022 Issued on 7 March 2022. Press Release: Chairman-in-Office and Secretary General expressed regret that no consensus reached on extension of mandate of Special Monitoring Mission to Ukraine, 31 March 2022. https://www.osce.org/chairmanship/514958. Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed In Ukraine Since 24 February 2022’, OSCE, ODIHR.GAL/26/ 22/Rev.1, 13 April 2022 (Moscow Mechanism Report in April 2022). Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine (1 April – 25 June 2022), OSCE, ODIHR.GAL/36/ 22/Corr.1, 14 July 2022 (Moscow Mechanism Report in July 2022). Report on Russia’s Legal and Administrative Practice in Light of its OSCE Human Dimension Commitments, OSCE, ODIHR.GAL/58/22/Rev.1, 22 September 2022 (Moscow Mechanism Report in September 2022). Second Interim Report on Reported Violations of International Humanitarian Law and International Human Rights Law in Ukraine, 14 December 2022 (ODIHR Second Report).

European Union European Council, Conclusions of 23 March 2023, CO EUR 3 CONCL 2. European Parliament, Resolution 2022/2655(RSP) of 19 May 2022. European Parliament, Resolution 2022/3017(RSP) of 19 January 2023. In-Depth Analysis: Tribunal for the Crime of Aggression Against Ukraine—A Legal Assessment, prepared by Olivier Corten and Vaios Koutroulis, EP/EXPO/DROI./FWC/2019_01/Lot6/1/C/ 21 EN December 2022. Press Release: EULEX statement on Council of Europe report into human organ trafficking, Press Release, 28 January 2011. https://www.eulex-kosovo.eu/?page=2,10,1894. Press Release: Ukraine: Commission Presents Options to Make Sure that Russia Pays for Its Crimes, European Commission, 30 November 2022. https://ec.europa.eu/commission/presscorner/det ail/es/ip_22_7311.

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Statement by President von der Leyen on the establishment of the International Centre for the Prosecution of Crimes of Aggression against Ukraine, 4 March 2023. https://www.eeas.europa. eu/delegations/ukraine/statement-president-von-der-leyen-establishment-international-centre_ en?s=232.

Miscellaneous Calling for a Special Tribunal for Crime of Aggression and Other Updates on Ukraine, 4 March 2022.

Yota Negishi is Associate Professor (Public International Law), Seinan Gakuin University, Fukuoka, Japan (2017–present). He obtained a LL.M. and Ph.D. from Waseda University in Tokyo. He engaged in research projects of comparative public law and international law as doctoral and post-doctoral Research Fellow of the Japan Society for the Promotion of Science (2013–2017). To advance his research, Dr. Negishi stayed as a visiting scholar at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg (2014–2017). He published a monograph titled Conventionality Control of Domestic LawConstitutionalised International Adjudication and Internationalised Constitutional Adjudication (Nomos 2022), for which he was granted the 55th Adachi Mineichiro Memorial Prize. Negishi was also awarded the 6th IKUSHI Prize that was established by the Japan Society for the Promotion of Science with the endowment from Emperor Akihito.

Chapter 10

Impacts Relating to Gender Issues Stephanie Coop

Since the 1990s, the gendered aspects of armed conflict have become a growing focus of attention in international law and international(ized) institutions. The wars in the former Yugoslavia in the early 1990s and the 1994 genocide in Rwanda prompted the establishment of international criminal tribunals by the UN Security Council to investigate and prosecute atrocities in these situations, and both tribunals went on to produce groundbreaking jurisprudence that, among others, clarified the definitions of rape as a war crime and a crime against humanity, and confirmed that sexual violence could qualify as the crime of genocide, a grave breach of the 1949 Geneva Conventions, and the war crime and crime against humanity of torture. Further theoretical developments resulted from attention in other fora to the specific characteristics of violations in these and other conflicts. Forced pregnancy was included in the Rome Statute of the International Criminal Court (ICC Statute) as an independent crime against humanity primarily due to reports of forced pregnancy being perpetrated on a large scale in the wars in the former Yugoslavia (Hall et al. 2016, p. 274), and the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia developed the jurisprudence on crimes against humanity by analyzing cases of forced marriage in the situations they were tasked with addressing and holding that they fell within the scope of the crime against humanity of “other inhumane acts.” In addition to these developments in the fields of international criminal law (ICL) and international humanitarian law (IHL), international human rights mechanisms have also addressed the question of how international human rights law (IHRL) applies to issues of gender arising in situations of armed conflict, based on accumulated knowledge of problems that have occurred in armed conflicts around the world. In 2013, the Committee on the Elimination of Discrimination against Women S. Coop (B) Faculty of Law (Department of Human Rights), Aoyama Gakuin University, 4-4-25 Shibuya, Shibuya-ku, Tokyo 150-8366, Japan

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_10

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adopted General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, its first general recommendation to provide comprehensive and detailed guidance to State parties on how to meet their obligations under the Convention on the Elimination of All Forms of Discrimination against Women in such situations. These include taking measures to deal with issues including sexual violence and trafficking, and to ensure women’s access to education, employment and health care and their participation in peacemaking, peacekeeping and post-conflict reconstruction. More recently, in 2022, the question of how to ensure the human rights of sexual minorities in situations of armed conflict was addressed in a comprehensive report by the Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity, one of the special procedures appointed by the UN Human Rights Council. This chapter considers the impact that the gendered aspects of the current conflict in Ukraine may have on ICL, IHL, and IHRL. Many of the gender issues that have been reported in the conflict to date involve legal questions that have already been addressed in the jurisprudence of international and regional bodies tasked with interpreting and applying these bodies of law. For example, it is now well established that sexual violence in armed conflict (such as that reportedly perpetrated by Russian forces) is a violation of IHL and ICL, and that the lack of any legal form of recognition of same-sex partnerships (which has been raised as a particular concern by members of the Ukrainian armed forces in same-sex relationships, as in the event of their wounding or death their partner would not enjoy the same rights to make decisions about medical treatment or burial, or the same inheritance and tax rights as married heterosexual couples) (The Economist 2023) is a violation of IHRL. Other gender issues concern areas of law that are less well established, and there is thus a greater likelihood that the conflict may have an influence on these areas, depending on the response of international legal and investigatory mechanisms. This chapter will consider two such issues: (1) clarification of the scope of the crime against humanity of gender-based persecution, in light of the targeting of the LGBTQ+ community in areas occupied by Russian forces, and (2) the question of whether States owe any duty under IHL or IHRL to provide appropriate protective gear to women soldiers serving in active combat, in light of the problems experienced in this area by servicewomen in the Ukrainian military. The chapter will also touch on the broader implications of the conflict for the legitimacy of international law and mechanisms designed to protect human rights, given their particular importance for women and sexual minorities.

10.1 Gender-Based Persecution This section will first review the definition of gender-based persecution as a crime against humanity under the ICC Statute, then give an overview of acts targeting the LGBTQ+ community that have been reported in areas of Ukraine occupied by Russian forces. It will conclude with a discussion of prospects for these acts being

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prosecuted as the crime against humanity of persecution, in light of the response to them so far by the Independent International Commission of Inquiry on Ukraine and the ICC’s Office of the Prosecutor.

10.1.1 Gender-Based Persecution as a Crime Against Humanity The crime against humanity of persecution was first enumerated in the charters of the Nuremberg and Tokyo tribunals, but was restricted to persecution on political, racial or religious grounds for the former, and political or racial grounds for the latter. Likewise, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda were both empowered to prosecute persecution as a crime against humanity, but again only on political, racial or religious grounds. An important development followed with the adoption in 1998 of the ICC Statute, which listed “gender” for the first time as one of the grounds for the crime against humanity of persecution. Under Article 7(1) and 7(2)(g) of the Statute, this crime is defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” when “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(3) stipulates that “gender” means “the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” This definition of gender was adopted at the 1998 Rome Diplomatic Conference as a compromise between delegates who wished to restrict the concept of gender to biological sex (mainly to exclude sexual orientation from its scope), and those who wished to define it more broadly to include the social construction of gender (Oosterveld 2005, pp. 62–66). In its activities to date, the ICC’s Office of the Prosecutor (OTP) has clarified that it interprets this term in line with the latter approach, noting most recently in its 2022 Policy on the Crime of Gender Persecution (p.3) that: Gender refers to sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviours, activities and attributes. As a social construct, gender varies within societies and from society to society and can change over time.

The policy also makes it clear that the OTP understands the crime of gender persecution as encompassing persecution committed against persons because of their sexual orientation, gender identity, or intersex status, noting that “[g]roups targeted for gender persecution include … LGBTQI+ persons” (p. 6, para 5) and referring to the targeting of members of this group in Nazi Germany, Afghanistan, Yemen, Libya, Syria and Myanmar as examples of acts that may amount to gender persecution (pp. 7–8, para 11; p. 11, para 28). To date, three cases including gender persecution as a crime against humanity have reached the trial stage at the ICC (the Al Hassan, Said and Abd-Al-Rahman

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cases), but none involve acts of persecution against LGBTQ+ persons. The question of whether the Court will interpret the definition of “gender” to encompass acts specifically targeting members of this group has therefore yet to be decided.

10.1.2 Persecution Against LGBTQ+ Persons in Russian-Occupied Ukraine Discrimination against members of the LGBTQ+ community has been a longstanding problem in Ukraine, but the situation is significantly worse in the eastern region of the country that came under Russian control after 2014, with many reports of violence targeting sexual minorities (ADC Memorial 2016). Conditions have further deteriorated since the 2022 Russian invasion, which has been specifically framed by Putin as part of a clash of morals between Russia and the West, with the latter attempting to destroy Russia’s “traditional values”, which include hostility to the rights of sexual minorities: While a usefully vague and often undefined concept, “traditional values” are seen as encompassing patriotism, spirituality, rootedness in history, respect for authority, and adherence to heteronormative and patriarchal ideals of family and gender. In the rhetoric of the Kremlin and state-loyal media, LGBT rights, feminism, multiculturalism, and atheism are identified not only as foreign to Russia’s values, but as existential threats to the nation. (Edenborg 2022)

A 2022 report by a Ukrainian LGBTQ rights group documented 16 separate incidents following the invasion in the occupied Donetsk, Zaporizhzhya and Kherson oblasts in which violations against LGBTQ persons took place, including physical and sexual violence, kidnapping, torture, and attacks on LGBTQ centers. It noted that: Most of the war crimes occurred at checkpoints and or in places of patrolling by the Russian military in the occupied territories. The pretext for homo/transphobic abuse mostly was confidential information about the private life found on the victims’ phones, and in some cases, their appearance or manner of behavior. (Nash Svit Center 2022, p. 2)

Before the invasion began, the U.S. Permanent Representative to the United Nations and Other International Organizations in Geneva, Ambassador Bathsheba Nell Crocker, claimed in a letter to then-UN High Commissioner for Human Rights Michelle Bachelet that the US had information indicating that Russia planned to carry out human rights violations after the invasion, which “would likely target those who oppose Russian actions … and vulnerable populations such as religious and ethnic minorities and LGBTQI+ persons,” and that it had “credible information that indicates Russian forces are creating lists of identified Ukrainians to be killed or sent to camps following a military occupation” (The Washington Post 2022). Since then, further claims have been made of Russian forces possessing lists of LGBTQ activists, and of using dating sites to trap and subsequently abuse LGBTQI+ people (Fulloon and Shvets 2023).

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10.1.3 Prospects for Prosecution as the Crime Against Humanity of Gender-Based Persecution Given the above background, it would be reasonable to assume that international mechanisms for the investigation of human rights violations in the Ukraine conflict would include the alleged targeting of the LGBTQ+ community in their work. However, it is not clear from publicly available information whether this has been the case for the two most important such mechanisms, the Independent International Commission of Inquiry on Ukraine (IICIU) and the ICC. The IICIU was established by the UN Human Rights Council on 4 March 2022 to “investigate all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of the aggression against Ukraine by the Russian Federation, and to establish the facts, circumstances and root causes of any such violations and abuses”. An explicit part of its mandate is to “collect, consolidate and analyse evidence of such violations and abuses, including their gender dimension” (Human Rights Council 2022a, para 11). As of July 2023, it has issued two reports. The first report, which was released in October 2022 and focused on violations in the four provinces of Kyiv, Chernihiv, Kharkiv and Sumy in late February and March 2022, contains a section devoted specifically to sexual and gender-based violence (Independent International Commission of Inquiry on Ukraine 2022, paras 88–98). This describes acts of rape and other forms of sexual violence by Russian forces against women, girls and men aged 4 to over 80 years old, including cases where family members were forced to watch victims being raped and one case in which a couple were forced to have sexual intercourse in the presence of soldiers who had just sexually abused them. No information about the gender identity of victims is provided, and most cases appear to describe violations against at least nominally heterosexual people, judging from the use of phrases such as “her husband”/“his wife”. Further, there is no discussion in other sections of the report of whether the victims of other documented violations against personal integrity belonged to the LGBTQ+ community and were targeted as such. Similarly, the IICIU’s second report, released in March 2023, contains a separate section on sexual and gender-based violence (Independent International Commission of Inquiry on Ukraine 2023, paras 78–85). This report incorporated findings from the previous report along with findings from investigations that were not limited to particular geographical areas. According to the Commission, it documented cases of sexual and gender-based violence “in nine regions of Ukraine, and in the Russian Federation,” and found that “Russian authorities have committed sexual violence in two main situations: during house searches and against victims they had confined. In addition, the Commission documented situations in which Russian authorities imposed forced nudity, in detention, at checkpoints, and filtration points.” The victims of rapes during house searches were mainly women, and the victims of sexual and gender-based violence in confinement, which included “rape, electric shocks on genitals, traction on the penis using a rope, and emasculation” were mainly men. Victims of forced nudity were “men, women, and one 17-year-old boy.” The report

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concluded that “some members of Russian armed forces committed the war crime of rape and sexual violence, which can amount to torture. Rape and torture are war crimes, and violations of the corresponding human rights obligations. Acts of forced nudity can be a form of sexual violence and may constitute the war crime of outrages upon personal dignity.” Similarly to the October 2022 report, none of the victims in this section were identified as being members of a sexual or gender minority, and there was no discussion in other sections of the report of whether the victims of other documented violations against personal integrity belonged to the LGBTQ+ community and were targeted as such. Both reports documented some violations by Ukrainian armed forces, but none of these were specifically described as sexual or gender-based offenses. It is possible that the lack of any specific mention of offenses against the LGBTQ+ community in the IICIU reports may not be because the IICIU did not investigate this topic; it may simply be due to the fact that it did not find cases that were sufficiently grave or in sufficient numbers to identify them as a pattern, as “gravity of the allegations” and “their significance in demonstrating patterns of alleged violations” are specifically listed as criteria it uses regarding which incidents it chooses to focus on (Independent International Commission of Inquiry on Ukraine 2022, para 8). However, even if this were the case, one would expect at least a reference to the fact that the IICIU had attempted to investigate such allegations, given (a) the background described in Sect. 10.1.2 (of documented grave violations in areas occupied by Russia since 2014, the fact that Putin has associated LGBTQ+ rights with an existential threat to Russia, and documented grave violations subsequent to the invasion), and (b) the fact that the Commission itself stated in its October 2022 report that “[p]articular consideration is given to the gender dimensions of violations and their impact on women, children and people affected by intersectional inequalities” (para 8). In addition to the lack of reference by the IICIU to this issue, it is also striking that while numerous States referred to sexual and gender-based violence in their interventions in the interactive dialogues with the IICIU before the Human Rights Council in September 2022 and March 2023, none referred specifically to violations against the LGBTQ+ community or asked the Commission if it had addressed this issue. Of interventions by UN bodies and NGOs, only UN Women referred to the issue, referencing “sexual violence and corrective rape against LGBTQUIA+” (Human Rights Council 2022b). It may have been that some countries/organizations intended their general references to sexual and gender-based violence, or somewhat more specific phrases such as “groups in vulnerable situations” (New Zealand; Human Rights Council 2022b) or “persons belonging to minorities” (Australia; Human Rights Council 2023), to include the LGBTQ+ community and violations targeting it, but if that was the case it is unusual that they failed to take the opportunity afforded by the interactive dialogues to ask the IICIU members for more information. In contrast, Norway did request more information from the Commission on the question of whether sexual violence was being used as a weapon of war (Human Rights Council 2022b).

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The ICC OTP has opened an investigation into the situation in Ukraine, and arrest warrants have already been issued against President Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, on war crimes charges relating to the removal of children from occupied areas of Ukraine to Russian territory. To date no information has been released indicating that the OTP intends to investigate acts targeting LGBTQ+ persons as such, but the fact that it has so recently issued its Policy on the Crime of Gender Persecution, in which it noted that its failure to pursue charges of gender persecution in its cases over the past 20 years had left “a gap in the development of international criminal jurisprudence” (ICC OTP 2022, p. 4) and indicated the Prosecutor’s commitment to securing accountability for and preventing gender persecution (ICC OTP 2022, p. 5), suggests that the OTP is currently motivated to investigate such acts, and if evidence of gender-based persecution amounting to a crime against humanity in the Ukraine situation exists, it is likely to take the opportunity to prosecute it, with the aim of both contributing to the development of ICL at the theoretical level, and securing justice for victims in a way that best captures the nature of the offenses committed against them. If its investigations identify acts of violence against LGBTQ+ persons but the evidence is insufficient to prove the elements of persecution as a crime against humanity, it should at the very least consider prosecuting these acts as other offenses under the ICC Statute. Both of the IICIU’s reports note that the majority of summary executions documented were of men, with the October report adding that the majority were of men of fighting age. The reports also noted a pattern in who was targeted for torture, stating that the victims were mostly men and that one of the main purposes of torture was to obtain information about Ukrainian armed forces. While the IICIU only identified the cases of torture as possible crimes against humanity, the fact that both torture and summary executions appear to have been primarily targeted at men suggest that these incidents could potentially be charged as persecution on multiple grounds including gender. The OTP is currently pursuing charges of gender-based persecution against men in the Said and Abd-Al-Rahman cases currently at trial before the Court, and it may wish to pursue similar charges in the Ukraine situation.

10.2 Protective Gear for Women Soldiers This section will first consider the question of whether States have any obligation under IHL or IHRL to take measures to protect their own soldiers from avoidable deaths caused by the opposing party in situations of armed conflict. It will then discuss the difficulties that women soldiers in the Ukrainian military have experienced in obtaining appropriate protective gear, and conclude by considering whether the Ukrainian government has an obligation to provide such gear in the current conflict.

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10.2.1 Protection of a State’s Own Soldiers in Armed Conflict as a Potential International Legal Obligation Although IHL focuses primarily on the duties owed by parties to an armed conflict to protect persons affiliated with the opposing side, it also contains provisions that are applicable regardless of the victim’s affiliation. The question of whether the protection offered by IHL extends to a prohibition against intra-party sexual violence targeting child soldiers was examined by the ICC’s Appeals Chamber in the Ntaganda case. In a somewhat controversial judgment, the Appeals Chamber held that there was no “general rule excluding members of armed forces from protection against violations by members of the same armed force” (International Criminal Court, Prosecutor v. Bosco Ntaganda, 2017, para 65), and found that the defendant, the former deputy military head of a Congolese militia group, could be prosecuted for the war crimes of rape and sexual slavery committed by his forces against child soldiers serving as members of the same militia group. Rowe has ventured even further in examining the bounds of IHL, considering the question of whether there are any situations in which a State has an obligation “to act in a way as to avoid it being a cause of the death or wounding of a member of its armed forces” during an armed conflict (Rowe 2008, pp. 18–19), even if the primary cause for such a death or wounding is the actions of the enemy party. He concludes that at the present time there is no such obligation under treaty or customary law, but that in future, based on the requirements of humanity and public conscience as set out in the Marten’s clause, “a customary international law may crystallise to the effect that under international humanitarian law a State should take all feasible steps, in the circumstances ruling at the time, to prevent it from being a cause of the death or wounding of members of its armed forces” (Rowe 2008, p. 20). With regard to IHRL, it is clear that States do owe human rights duties to members of their armed forces, although such obligations are to be interpreted “in conformity … with the requirements of service” (OSCE 1994, para 32) and “taking into account the special characteristics of military life” (Council of Europe 2010, p. 6). Such duties include a positive duty to protect the right to life, and the European Court of Human Rights (ECtHR) has found several States, including Ukraine, liable for violations of this duty in cases involving the suicide of conscripts as a result of bullying (OSCE 2021, pp. 248–249). The ECtHR has not considered the extent of the duty of States to protect the right to life of its own soldiers in situations of armed conflict in any cases to date, but in its recommendations to member States of the Council of Europe, the Committee of Ministers has indicated that military authorities must take “reasonable measures” to avoid unnecessary danger to the lives of service personnel: Members of the armed forces, despite running a particular risk of death during certain dangerous operations, should not be exposed to situations where their lives would be put at avoidable risk without a clear and legitimate military purpose. Therefore, military authorities are under an obligation to take reasonable measures to ensure that military training, planning of operations and the equipment used does not unnecessarily endanger servicepersons’ lives.” (Council of Europe 2010, pp. 26–27)

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In the scholarly literature, this question has been discussed by Rowe (2008), Park (2018) and Wallace (2019). Rowe has examined the issue based on the ECtHR’s judgment in Osman v United Kingdom, in which the court determined the standard for finding a State liable for failing to fulfil its positive obligation to protect the right to life under Art. 2 of the European Convention on Human Rights (ECHR) in situations involving murder by a third party, namely that: … "the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” (p. 13)

In applying this standard to a situation of armed conflict, Rowe argues that relevant factors to be taken into consideration would include (1) “the nature of the armed conflict,” (2) “the steps actually taken by the State to guard against losses of its own soldiers,” (3) “the ‘option choices which must be made in terms of priorities and resources’,” and (4) “the reason given for a lack of equipment to protect its own soldiers.” (pp. 14–15) He concludes that it is theoretically possible, but extremely unlikely, that a State could be held liable for a breach of the right to life of its own soldiers based on the Osman standard. The analyses by Park (2018) and Wallace (2019) take into account the 2013 case Smith and others v Ministry of Defence, an appeal to the UK Supreme Court by the families of two UK servicemen who were killed in Iraq when the vehicles they were traveling in were destroyed by IEDs. The families argued that the UK had violated its positive obligations under Art. 2 of the ECHR to protect the servicemen’s right to life by failing to take certain measures, including the provision of suitably protected vehicles. After holding that the soldiers were under the jurisdiction of the UK at the time of their deaths and that therefore the ECHR could be applied, the court considered the question of which circumstances relating to deaths or injuries in combat were properly within the scope of Art. 2 and justiciable by the courts. Speaking for the majority, Lord Hope found that: [T]he court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy. So too if they relate to things done or not done when those who might be thought to be responsible for avoiding the risk of death or injury to others were actively engaged in direct contact with the enemy. But finding whether there is room for claims to be brought in the middle ground, so that the wide margin of appreciation which must be given to the authorities or to those actively engaged in armed conflict is fully recognised without depriving the article of content, is much more difficult. No hard and fast rules can be laid down. It will require the exercise of judgment. This can only be done in the light of the facts of each case. (para 76)

In discussing how the ECtHR might evaluate the scope of the positive obligation under Art. 2 with regard to procurement decisions, Park (2018) notes that “there is

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little support in ECtHR jurisprudence to suggest that procurement decisions made by States cannot, de jure, be considered by the ECtHR,” but that “the likelihood of the ECtHR finding a violation in this discrete respect … is extremely unlikely” (pp. 186–187). Both Park and Wallace note, however, that there will usually be many factors that contribute to a particular death, and it is difficult to neatly categorize them according to the framework set out above in Smith. With regard to the issue of protective gear, Wallace (2019, p. 106) describes the case of a UK serviceman killed in Iraq in 2003 as a case in point. The serviceman had originally been issued enhanced body armor, but because there was not enough of this armor to equip all the troops and he was a tank commander, he was ordered to relinquish the enhanced body armor and switch to combat body armor instead, which was less protective. He was subsequently killed in a friendly-fire incident that he would have survived if he had still been wearing the enhanced body armor. In considering how the ECtHR might have evaluated this case, Wallace notes that if it treated the matter simply as an issue of procurement (the State failing to provide sufficient quantities of enhanced body armor), it would be unlikely to find a violation of Art. 2, given that the UK Supreme Court had excluded procurement decisions from the scope of judicial review in Smith, and the ECtHR “has historically been extremely reluctant to substitute its views for those of the State’s authorities” (p. 107). However, if it had located the cause of death in the decision on the ground to redistribute body armor, which would fall within the “middle ground” identified by the court in Smith as amenable to judicial review, it might find a violation, which would indirectly impact on procurement decisions. Wallace concludes: Soldiers seldom have the perfect equipment for the job for a variety of reasons and the extension of the positive obligation in Article 2 may cause serious difficulties for States deploying troops without the perfect equipment. The distribution of armour represents one among a myriad of other procurement and deployment decisions a State will make during a military operation. The boundaries of the positive obligation in this field are not clear and the scope of the State’s liability is disturbingly wide. (p. 107)

10.2.2 Protective Gear for Women Soldiers in the Ukrainian Military The Armed Forces of Ukraine (AFU) were formed following Ukraine’s independence from the Soviet Union in 1991. Women were initially excluded from all combat positions in the AFU, but this began changing after the outbreak of armed conflict with Russian-backed separatists in the Donbas region in 2014, when the government started implementing measures to increase the size of the armed forces. Certain combat roles were opened to women in 2016, and in 2018 women were given “equal status to men within the military and were officially allowed to serve in combat specialties, including armored vehicle gunners, infantry commanders, and snipers.” (Trisko Darden 2023, p. 4) Thousands of women had already taken part in active combat on the front before that date, however, either as members of volunteer

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battalions or as members of the AFU officially assigned to service positions such as cooks, cleaners, or accountants, but in reality acting as snipers, machine-gunners, grenade launcher operators, reconnaissance soldiers, and artillerists (Koshulko and Dluhopolskyi 2022, p. 5; Palikot 2023). Since the Russian invasion of Ukraine in February 2022, thousands of women have come forward to join the armed forces, and there are now about 5,000 in combat positions, out of just under 50,000 serving in the “regular army, territorial defense forces, border guards, and intelligence and transport troops” (Oliker 2022). The participation of women in the defense of Ukraine has been lauded by the Ministry of Defense in its social media (Ukrainian Ministry of Defense 2022, 2023a, 2023b), and as part of its second National Action Plan for the implementation of UN Security Council Resolution 1325 (covering the period 2020–2025), the Ukrainian government has committed itself to providing servicewomen with uniforms, equipment, and body armor “in accordance with their anthropometric measurements” (National Action Plan 2020, Annex 1, pp. 4–5). However, this has not been sufficiently realized to date. While there is a female dress uniform, which includes “a coat, a skirt, and high-heeled shoes” (NAKO 2022), the Ministry of Defense has not approved a field uniform designed for women. Women soldiers must use the standard field uniform that is designed to fit the average male body, and which nearly 90% of women need to get altered (People’s Project). Women soldiers are reportedly wearing helmets that are “3 sizes bigger” and boots that are too large (O’Neill 2023). In 2017 the Ukrainian Ministry of Defense produced prototype underwear for female servicewomen, but it was poorly designed and criticized as uncomfortable to wear, and no further development took place (NAKO 2022; Veteranka 2022a). In October 2021 it was reported that the Ukrainian National Guard had commissioned the Ukrainian manufacturer Balistyka to develop a bulletproof vest for women (NAKO 2021), but in 2022 this was still not issued to women soldiers nor available for purchase from the manufacturer’s website (Veteranka 2022a). Non-governmental organizations have played the primary role in trying to fill this gap and provide material support for female soldiers. Among its many other activities supporting the Ukrainian military as a whole, Veteranka, an association of female veterans, has developed and produced a field uniform for women and has also provided women with helmets (Veteranka 2022b). The non-profit organization Zemlyachki has also produced its own field uniform for women in 16 different sizes, and purchased body armor, helmets and boots suitable for women for distribution to female soldiers. As of November 2022, they had assisted at least 3,000 women by providing equipment totaling $1 million. (Amanpour et al. 2022; Bida 2023). As noted by Vermeij (2020, p. 12), “[w]earing unisex or ill-fitting equipment is not only uncomfortable but also limits women’s functionality and capability and impacts their safety.” Helmets that are too large do not stay securely in place and can slide down and obscure the wearer’s vision. This has been reported as a problem some women soldiers are experiencing in current conflict in Ukraine (O’Neill 2023), and has also been cited as an issue in the United Kingdom, with “stories of helmets falling over women’s eyes, so they could not see when firing” (United Kingdom House of Commons Defence Committee 2021, p. 32). Ill-fitting body armor can

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impede movement and also leave parts of the body unprotected (United Kingdom House of Commons Defence Committee 2021, p. 32), while civilian underwear made of flammable material can cause burns (Strand et al. 2022, p. 10). The 2018 annual report of the United States Defense Department Advisory Committee on Women in the Services concluded that “[p]oorly fitting equipment is a leading cause of injury in Service members. Given that most traditional PPE was designed to fit men, women are the most likely to suffer from injuries as a result of incorrectly fitting gear” (Defense Advisory Committee on Women in the Services 2018, p. 28).

10.2.3 Possible Obligation of the Ukrainian Government to Provide Protective Gear to Women Soldiers Although the author is not aware of concrete cases in which lack of suitable protective gear has been linked to deaths in combat of female soldiers in the current conflict in Ukraine, it is clear that the lack of such gear increases the dangers of combat and could potentially result in loss of life. Rowe (2008, p. 24) has argued that soldiers are more likely to receive appropriate protection if States accept that they may owe duties to their own troops not only under domestic law, but also under international law. The discussion in Sect. 10.2.1 has demonstrated that while states are under no duty under IHL as it currently stands to take measures to protect their own soldiers from avoidable deaths caused by the opposing party in situations of armed conflict, such a duty may possibly arise under IHRL. In the current conditions, does the Ukrainian government owe any such duty to women soldiers to provide appropriate protective gear? In the current conditions, it is difficult to conclude that IHRL obliges the Ukrainian government to provide special gear for women in order to fulfill its positive obligation to protect the right to life, although it is not possible to make a conclusive evaluation without evaluating the actual facts of a concrete case. Ukraine is under a full-scale military invasion by a major power and has struggled to provide equipment, including protective gear, for the large number of new service personnel (Lederman and Flanagan 2022). In addition, as one of the co-founders of the non-profit organization Zemliachky notes: Not only (did) society not expect so many women to join the army (but) the government also did not expect that so many females would join the army, that’s why it just did not have any possibility to get ready with the female uniforms, the smaller sizes of boots with like lighter equipment. That’s why we exist. (O’Neill 2023)

Further, providing appropriate protective gear for women is not simply a matter of distributing gear that the military already has; it requires procurement, and, as noted in the discussion in Sect. 10.2.1, procurement decisions are unlikely to be questioned by courts, particularly under wartime conditions. In addition, the provision of suitable protective gear for female service personnel is an issue even in some well-funded militaries in developed countries. A 2021 report by the House of Commons Defence Committee described the situation in the UK as follows:

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We support the [Ministry of Defence]’s recent steps to provide more appropriate uniform and equipment to female Service personnel, including re-designing air crew equipment and trialling better-fitting body armour. However, women have been able to serve in all parts of the military since late 2018, and at least 7 out of 10 roles in each Service have been open for years longer ... . We find it extraordinary that uniforms and equipment are still a problem across all Services. Thousands of female Service personnel, already facing the dangers of military duty, are at greater risk of harm due to basic failures in their uniform and equipment, which can have consequences for their combat effectiveness and health. Fixing these problems is one of the simplest ways that the Forces can demonstrate they value servicewomen. These problems impede effectiveness and make combat more dangerous for women. (United Kingdom House of Commons Defence Committee, p. 34)

On the other hand, the situation experienced by Ukrainian women soldiers differs from the situations analysed by Rowe, Park and Wallace in that it also involves a question of discrimination, which is prohibited under Art. 14 of the ECHR and applies to the enjoyment of all other ECHR rights, including Art. 2. Given the fact that servicewomen around the world hesitate to raise the issue of inadequate gear (a recent study of servicewomen from 53 countries found that speaking up about “the inadequacy of their military equipment” remained a taboo) (Vermeij 2020, p. 12), and the fact that Ukrainian women would likely be particularly reticient to initiate a complaint about the problem under the current wartime conditions, it is unlikely that the ECtHR will be called upon to address this issue in the near future. This suggests a role for the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which could contribute toward improvement of the current situation over the long term by raising the issue of protective gear in its evaluation of Ukraine’s State reports on implementation of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In its General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, the CEDAW Committee notes the links between CEDAW and the UN Security Council’s Women, Peace and Security Agenda, the series of resolutions the Security Council has issued since 2000 that call for the equal participation of women in peacemaking and peacebuilding and for efforts to prevent and respond to conflict-related sexual violence (para 26): As all the areas of concern addressed in those resolutions find expression in the substantive provisions of the Convention, their implementation must be premised on a model of substantive equality and cover all rights enshrined in the Convention. The Committee reiterates the need for a concerted and integrated approach that places the implementation of the Security Council agenda on women, peace and security into the broader framework of the implementation of the Convention and its Optional Protocol.

It specifically recommends (para 28) that State parties: (a) Ensure that national action plans and strategies to implement Security Council resolution 1325 (2000) and subsequent resolutions are compliant with the Convention, and that adequate budgets are allocated for their implementation; (b) Ensure that the implementation of Security Council commitments reflects a model of substantive equality and takes into account the impact of conflict and post-conflict contexts on all rights enshrined in the Convention, in addition to those violations concerning conflictrelated gender-based violence, including sexual violence.

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In conjunction with the obligation under Art. 2 of CEDAW to “pursue by all appropriate means and without delay a policy of eliminating discrimination against women,” which the CEDAW Committee has previously confirmed extends to de facto or substantive equality (Committee on the Elimination of Discrimination against Women 2010, para 16), these recommendations provide a clear foundation for engaging in constructive dialogue with the Ukrainian government over the long term to fully implement the commitments in its second National Action Plan, including the commitment to provide servicewomen with appropriate body armor, uniforms and equipment.

10.3 Implications of the Conflict for the Legitimacy of International Human Rights Norms and Mechanisms The existence of universal human rights norms and robust international mechanisms for promotion and enforcement of these norms can be argued to be of particular importance to women and members of the LGBTQ+ community. While the gap is gradually narrowing, there is still no country in the world where women as a group hold equal economic and political power to men (World Economic Forum 2023), and members of the LGBTQ+ community form a minority in all nations and are therefore potentially more vulnerable even in States where laws and social attitudes are currently progressive. Being able to appeal to human rights norms grounded in the essential dignity and worth of all human beings and make claims for redress to international bodies can be powerful tools for members of these groups in advancing efforts on the domestic level to achieve full realization of their human rights. The disparity between how Western nations have reacted to Russia’s invasion of Ukraine in comparison to other situations involving equally serious violations of human rights threatens, however, to weaken rather than strengthen such international legal norms and mechanisms, whose legitimacy and persuasive force lie in their universality. As Amnesty International has stated: Western states vocally backed efforts by the International Criminal Court (ICC) to investigate allegations of war crimes in Ukraine; some had not done so in various other situations. The UK in effect earmarked additional assistance to the ICC and the USA provided political support despite its own non-ratification of the Rome Statute and its opposition to investigations involving political allies such as Israel or their own nationals in Afghanistan and Iraq. As it marked its 20th anniversary, the ICC’s actions begged the question of whether its principles applied equally to victims of crimes under international law in any situation or region. While it publicly promoted its absolutely vital large-scale investigation into the situation in Ukraine, it committed much fewer resources to other investigations, such as those into the situations in Nigeria and Palestine. In another example of inconsistency, the UN Human Rights Council, while rightly forthright in its condemnation of violations in Ukraine, failed to meaningfully address the conflict in Yemen, leaving a huge accountability gap. (Amnesty International 2023, p. 15)

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The Human Rights Council also acted inconsistently with regard to the conflict in Tigray, Ethiopia, which began on 3 November 2020 when the Ethiopian government began military operations against the Tigray People’s Liberation Front in the north of the country, with its ally Eritrea joining the fighting soon after. In late November Eritrean troops carried out several massacres that were condemned as possible crimes against humanity by the Office of the UN High Commissioner for Human Rights and Amnesty International (Kennedy 2021), but the Human Rights Council did not establish the International Commission of Human Rights Experts on Ethiopia until 17 December 2021. By the time a ceasefire was agreed in November 2022, the conflict had caused an estimated 600,000 civilian deaths (Naranjo 2023). In contrast, the Independent International Commission of Inquiry on Ukraine was set up much more quickly, less than a month after the Russian invasion began on 4 March 2022. While it is not appropriate to use the number of civilians killed in a particular conflict as the only standard for evaluating the gravity of human rights violations and triggering action by the Human Rights Council, the number of civilian deaths recorded so far in the Ukraine conflict has been much lower than those recorded in the conflict in Tigray, with the Office of the UN High Commissioner for Human Rights reporting a figure of 8490 deaths as of 9 April 2023 (Office of the UN High Commissioner for Human Rights 2023). The IICIU appears to have been scrupulous in maintaining fairness within the scope of its particular mandate, taking care to investigate allegations of human rights violations by Ukrainian forces as well as those by Russian forces, but the impact of its work on a larger scale is affected when doubts can be raised about the universality of the criteria used by the Human Rights Council in deciding which situations are selected for investigation by international commissions, and with what timing. In order to protect the long-term legitimacy of international human rights norms and mechanisms, States should reflect on the importance of acting on behalf of humanity as a whole and not in their own narrow self-interest.

10.4 Conclusion This chapter has demonstrated that the conflict in Ukraine may, depending on the decisions taken by the ICC OTP, the evidence it uncovers, and the strength of any cases it brings to trial, eventually result in the progressive development of the jurisprudence on the crime against humanity of gender-based persecution, if the Court ultimately hands down a judgment in the situation clarifying that the term “gender” in the ICC Statute is not restricted to biological sex but also covers attributes such as sexual orientation, gender indentity and intersex status. It has also demonstrated that the conflict is unlikely to have any impact on IHRL in the short term in the sense of the ECtHR recognizing the failure of the Ukrainian authorities to provide appropriate protective gear to servicewomen in active combat as a violation of Ukraine’s positive obligation to protect the right to life. However, it may result in a norm developing over the long term via the concluding observations of the CEDAW Committee if the Committee chooses to pursue this issue with Ukraine as a matter of gender discrimination.

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The information presented in the chapter also suggests that attention to the rights of LGBTQ+ persons has not necessarily been mainstreamed into the work of international investigatory mechanisms to the same extent that attention to the rights of victims of sexual violence has been, given the silence in the IICIU reports and interactive dialogues on the targeting of sexual minorities by Russian forces. While there may be valid reasons for the silence in this particular case, the conflict provides an opportunity for the international community to strengthen its commitment to protecting the rights of LGBTQ+ people, which are currently under increasing threat in many parts of the world.

Addendum: On 29 August 2023, after the author submitted this manuscript to production, the Independent International Commission of Inquiry on Ukraine released a “Conference room paper of the Independent International Commission of Inquiry on Ukraine” (A/HRC/52/CRP.4), which noted that the Commission had received and examined reports of sexual and gender-based violence against people belonging to the lesbian, gay, bisexual, transgender and intersex community.

References ADC Memorial. 2016. Violation of LGBTI Rights in Crimea and Donbass: The Problem of Homophobia in Territories Beyond Ukraine’s Control. Amanpour, C., M. Araujo, and C. Streib. 2022. Ukrainian Women on the Front Line Struggle to Find Uniforms that Fit. One Couple Aims to Fix that. CNN. https://edition.cnn.com/2022/11/ 13/europe/ukraine-women-front-line-uniforms-intl/index.html. Accessed July 9, 2023. Amnesty International. Amnesty International Report 2022/23: The State of the World’s Human Rights (2023). Bida, O. 2023. From Pregnancy Fatigues to Lip Balm: Volunteers Supply Gear For Women at War. Euromaidan Press. https://euromaidanpress.com/2023/02/10/from-pregnancy-fatigues-tolip-balm-volunteers-supply-gear-for-women-at-war/. Accessed July 9, 2023. Committee on the Elimination of Discrimination Against Women. 2010. General Recommendation No. 28 on the Core Obligations of States Parties Under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28. Committee on the Elimination of Discrimination Against Women. 2013. General Recommendation No. 30 on Women in Conflict Prevention, Conflict and Post-conflict Situations, CEDAW/C/GC/ 30. Council of Europe. 2010. Human Rights of Members of the Armed Forces: Recommendation CM/ Rec (2010) 4 and Explanatory Memorandum. Defense Advisory Committee on Women in the Services. 2018. DACOWITS 2018 Annual Report. Edenborg, E. 2022. Putin’s Anti-gay War on Ukraine. Boston Review. https://www.bostonreview. net/articles/putins-anti-gay-war-on-ukraine/. Accessed July 9, 2023. Fulloon, S, and L. Shvets. 2023. The Gay Ukrainians ‘Hunted’ by Russian Soldiers and the Allies Helping Them Escape. SBS News. https://www.sbs.com.au/news/article/the-gay-ukrainians-hun ted-by-russian-soldiers-and-the-allies-helping-them-escape/bkn2382f9. Accessed July 9, 2023. Hall, C.K., J. Powderly, and N. Hayes. 2016. Forced Pregnancy. In The Rome Statute of the International Criminal Court: A Commentary, 3rd ed., ed. O. Triffterer, and K. Ambos, 274–275. Beck oHG, München: Verlag C.H.

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Human Rights Council. 2022a. Resolution Adopted by the Human Rights Council on 4 March 2022, A/HRC/RES/49/1. Human Rights Council. 2022b. Interactive Dialogue: Commission of Inquiry on Ukraine. 20th Meeting, 51st Regular Session of Human Rights Council. 23 September 2022. https://media.un. org/en/asset/k1c/k1cy4redht. Accessed July 9, 2023. Human Rights Council. 2022c. Interactive Dialogue: Commission of Inquiry on Ukraine. 21st meeting, 51st Regular Session of Human Rights Council. 23 September 2022. https://media.un. org/en/asset/k1d/k1dfx9ho3b. Accessed July 9, 2023. Human Rights Council 2023. Interactive Dialogue. Commission of Inquiry on Ukraine. 34th Meeting, 52nd Regular Session of Human Rights Council. 20 March 2023. https://media.un. org/en/asset/k1l/k1lenwvrxr. Accessed July 9, 2023. Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, 2022, A/75/235. Independent International Commission of Inquiry on Ukraine. 2022. Report of the Independent International Commission of Inquiry on Ukraine, A/77/533 (18 October 2022). Independent International Commission of Inquiry on Ukraine. 2023. Report of the Independent International Commission of Inquiry on Ukraine, A/HRC/52/62 (15 March 2023). International Criminal Court, Appeals Chamber. Prosecutor v. Bosco Ntaganda. 2017. Judgment on the Appeal of Mr. Ntaganda Against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”. ICC-01/04-02/06 OA5, 15 June 2017. International Criminal Court, Office of the Prosecutor. 2022. Policy on the Crime of Gender Persecution. Kennedy, N. 2021. UN Rights chief Says War Crimes May Have Been Committed in Ethiopia After CNN Reveals Tigray Massacre. CNN. https://edition.cnn.com/2021/03/04/europe/ethiopia-tig ray-un-independent-probe-war-crimes-intl/index.html. Accessed July 9, 2023. Koshulko, O., and O. Dluhopolskyi. 2022. Exploring Women’s Resistance Against Occupation and War in Ukraine. Revista Estudos Feministas. https://doi.org/10.1590/1806-9584-2022v3 0n175862. Lederman, J., and E. Flanagan. 2022. Ukraine’s Soldiers Have Rockets and Drones, but Are Running Low in Boots and T-Shirts. NBC News. https://www.nbcnews.com/news/world/ukraines-sol diers-rockets-drones-are-running-low-boots-t-shirts-rcna43902. Accessed July 9, 2023. NAKO. 2021. Ukrainian Servicewomen Will Receive Comfortable Bullet Proof Vests. https://nako. org.ua/en/news/ukrayinski-zinki-viiskovosluzbovci-otrimayut-zrucni-bronezileti. Accessed July 9, 2023. NAKO. 2022. What Do Women in the Ukrainian Army Lack Most? https://nako.org.ua/en/news/ cogo-naibilse-brakuje-zinkam-u-viisku. Accessed July 9, 2023. National Action Plan for the Implementation of UN Security Council Resolution 1325 on Women, Peace, Security [sic] until 2025. 28 October 2020. https://1325naps.peacewomen.org/wp-con tent/uploads/2022/10/Ukraine-NAP2.pdf. Accessed July 9, 2023. Naranjo, J. 2023. Ethiopia’s Forgotten War is the Deadliest of the 21st Century, with Around 600,000 Civilian deaths. El Pais. https://english.elpais.com/international/2023-01-27/ethiopiasforgotten-war-is-the-deadliest-of-the-21st-century-with-around-600000-civilian-deaths.html. Accessed July 9, 2023. Nash Svit Center. 2022. LGBTQ and War: A Report on the Specific Problems of the Ukrainian LGBTQ Community Since the Beginning of the Russian Invasion’s New Phase. Office of the UN High Commissioner for Human Rights. 2023. Ukraine: Civilian Casualty Update 10 April 2023. https://www.ohchr.org/en/news/2023/04/ukraine-civilian-casualty-update-10-april2023. Accessed July 9, 2023. O’Neill, N. 2023. “Who, If Not Us, Should Stop Them?” The Stories of Ukrainian Women on the Front Lines. CTV News. https://www.ctvnews.ca/world/who-if-not-us-should-stop-them-the-sto ries-of-ukrainian-women-on-the-front-lines-1.6319129. Accessed July 9, 2023. Oosterveld, V. 2005. The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice? Harvard Human Rights Journal (Title change to Italic) 18: 55.

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Organization for Security and Co-operation in Europe (OSCE). 1994. Code of Conduct on Politico Military Aspects of Security. Organization for Security and Co-operation in Europe (OSCE). 2021. Human Rights of Armed Forces Personnel: Compendium of Standards, Good Practices and Recommendations. Palikot, A. 2023. Women at War: Ukraine’s Female Soldiers Dream of Freedom, Fight for Survival. Radio Free Europe. https://www.rferl.org/a/ukraine-war-women-soldiers-female-freedom-sur vival/32240805.html. Accessed July 9, 2023. Park, I. 2018. The Right to Life in Armed Conflict. Oxford: Oxford University Press. People’s Project. Ukraine Army Uniform: Combat Uniform & Amunition [sic] for Soldiers. https:/ /www.peoplesproject.com/en/ukraine-army-uniform/. Note that the Figure “Nearly 90%” Is Taken from the Ukrainian Version of This Web Page: https://www.peoplesproject.com/vijskovaforma-zsu/. Accessed July 9, 2023. Rowe, P. 2008. The Obligation of a State Under International Law to Protect Members of Its Own Armed Forces During Armed Conflict or Occupation. Yearbook of International Humanitarian Law 9: 3–24. https://doi.org/10.1017/S1389135906000031. Strand, S., A. Persson, and F. Sundevall. 2022. Solving “The Uniform Issue”: Gender and Professional Identity in the Swedish Military. Nordic Journal of Working Life Studies 12 (4). https:// doi.org/10.18291/njwls.131970 The Economist. 2023. Gays in Ukraine’s Armed Forces: A Battle Yet to Be Won. Trisko Darden, J. 2023. Ukrainian Wartime Policy and the Construction of Women’s Combatant Status. Women’s Studies International Forum 96: 1–8. https://doi.org/10.1016/j.wsif.2022. 102665 Ukrainian Ministry of Defense. 29 October 2022. Twitter. https://twitter.com/DefenceU/status/158 6364655064453121. Accessed July 9, 2023. Ukrainian Ministry of Defense. 17 January 2023a. Twitter. https://twitter.com/DefenceU/status/161 5360190878208000. Accessed July 9, 2023. Ukrainian Ministry of Defense. 8 March 2023b. Twitter. https://twitter.com/DefenceU/status/163 3466310503038976. Accessed July 9, 2023. United Kingdom House of Commons Defence Committee. 2021. Protecting Those Who Protect Us: Women in the Armed Forces from Recruitment to Civilian Life, Second Report of Session 2021–22, 25 July 2021. United Kingdom Supreme Court (2013) Smith and Others v Ministry of Defence. UKSC 41. Vermeij, L. 2020. Woman First, Soldier Second: Taboos and Stigmas Facing Military Women in UN Peace Operations. International Peace Institute. Veteranka. 2022a. What Do You Feminists Still Lack in the Army. https://www.uwvm.org.ua/?p= 5766&lang=en. Accessed July 9, 2023. Veteranka. 2022b. Endless February. YouTube. https://www.youtube.com/watch?v=enlr2im8S7E. Accessed July 9, 2023. Wallace, S. 2019. The Application of the European Convention on Human Rights to Military Operations. Cambridge: Cambridge University Press. The Washington Post. 2022. Letter to the U.N. Alleging Russia Is Planning Human Rights Abuses in Ukraine, 21 February 2022. https://www.washingtonpost.com/context/read-u-s-letter-to-theu-n-alleging-russia-is-planning-human-rights-abuses-in-ukraine/93a8d6a1-5b44-4ae8-89e5cd5d328dd150/. Accessed July 9, 2023. World Economic Forum. 2023. Global Gender Gap Report 2023.

Stephanie Coop is an associate professor in the Faculty of Law (Department of Human Rights) at Aoyama Gakuin University (Tokyo). She holds a Ph.D. in international law and her research interests center on the analysis of international criminal law from a gender perspective. Her book “Kokusai Keiji H¯o ni okeru Jend¯a B¯oryoku (Gender-Based Violence in International Criminal Law)” was awarded the Nishio Academic Award of the Japan Association of Gender and Law in 2013. Academic societies she is affiliated with include the International Human Rights Law Association and the Japan Association of Gender and Law.

Chapter 11

A Criminalised Commission of Inquiry into Ukraine: The Impact on Fact-Finding by the Human Rights Council Shuichi Furuya

11.1 Introduction In the wake of the Russian Federation’s aggression against Ukraine, the Human Rights Council (HRC) adopted Resolution 49/1 on 4 March 2022. In this resolution, acknowledging that international human rights law (IHRL) and international humanitarian law (IHL) are complementary and mutually reinforcing,1 the HRC condemns, in the strongest terms, the human rights violations and abuses, and violations of IHL resulting from Russia’s hostilities, and calls upon Russia to immediately end its current conduct in Ukraine.2 In addition, the HRC chose to establish an independent international commission of inquiry (COI) to investigate all alleged violations and abuses of human rights, violations of IHL and related crimes in the context of Russia’s assault on Ukraine; to collect, consolidate and analyse evidence of such violations and abuses; and to systematically record and preserve information, documentation and evidence in view of any future legal proceedings. This decision followed a paragraph stressing the importance of ensuring accountability for violations and abuses of human rights and violations of IHL, and underscoring the urgency of initiating a prompt, independent and impartial investigation into alleged abuses and violations to end impunity, and to ensure accountability for the perpetrators. Thus, the creation of an independent COI—and in this case, the Ukraine COI—suggests a strong link between fact-finding missions and criminal accountability for the perpetrators of crimes supposedly committed in the context of Russian antagonism. 1 HRC. Resolution 49/1 adopted on 4 March 2022, Situation of human rights in Ukraine stemming from the Russian aggression, UN Doc. A/HRC/RES/49/1 (7 March 2022), preamble para. 9. 2 Ibid., paras. 1 and 3.

S. Furuya (B) Waseda Law School, Waseda University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_11

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The HRC has so far founded more than 50 COIs. While these are mechanisms for “inquiry” or “fact-finding”, their basic aims differ from the fact-finding missions envisioned under traditional international law. As will be explained in detail later on, traditional inquiry or fact-finding mechanisms have purported to find facts in an impartial and neutral manner to promote peaceful resolution by parties to armed conflict.3 In contrast, most of the COIs established by the HRC are “criminalised” in that they have been mandated to find facts to condemn putative violations, and to identify individuals and entities responsible for those violations, which could help to ensure their prosecution and punishment before international or national criminal proceedings.4 The Ukraine COI is no exception; the HRC certainly expects it to work in line with the practices of its predecessors. At the same time, in light of the unique context of the conflict in Ukraine, the Ukraine COI seems to be taking a new direction in addition to its criminalised nature. In what manner and to what extent is the Ukraine COI criminalised? What aspects make it different from other COIs? The issues covered in this paper illustrate the impact of the conflict in Ukraine on the HRC in general and its fact-finding activities in particular. As such, this paper first reviews the historical development and basic characteristics of “original” inquiry or fact-finding under international law (Sect. 11.2) and clarifies the “criminalisation”5 of fact-finding in the COIs created by the HRC (Sect. 11.3). This paper then examines the Ukraine COI’s functions in the context of criminalisation and points out some new aspects that appear to extend beyond the missions of existing criminalised COIs (Sect. 11.4).

11.2 The Road to Criminalisation 11.2.1 The Original Model of Fact-Finding To shed light on the criminalisation of COIs, it is important to clarify the original factfinding model and its characteristics. The concept of “enquiry”, which is currently called “fact-finding”, can be traced back to the Hague Convention for the Pacific Settlement of International Disputes of 18996 ; Article 9 provides that if the means of diplomacy fail to resolve an international dispute arising from a difference of opinion regarding the facts, the parties involved may establish an international commission of

3

“Fact-finding is a process distinct from other forms of dispute settlement in the sense that it is aimed primarily at clarifying the disputed facts through impartial investigation, which would then facilitate the parties’ objective of identifying the final solution to the dispute”. Jache-Neale (2021), para. 1. 4 Van den Herik (2014), pp. 507–537. 5 As for criminalisation in general, see Furuya (2015), pp. 1–16. 6 Convention for the Pacific Settlement of International Disputes (29 July 1899) [1899 Hague Convention].

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enquiry that should elucidate the facts through an impartial and conscientious investigation, thereby facilitating the resolution of the dispute. An international commission of inquiry, which is formed through a special agreement between the parties in dispute, is composed of two commissioners chosen by each party and a fifth commissioner chosen by the four other commissioners (unless otherwise agreed upon). This procedure is left up to the decision of the relevant.7 This procedural flexibility was complemented by the 1907 Hague Convention for the Pacific Settlement of International Disputes, which set forth more detailed standard procedural rules.8 According to the abovementioned international agreements, the main purpose of a commission is to consistently clarify facts through an impartial, conscientious investigation and to facilitate the resolution of a given dispute. Hence, a commission’s final report is confined to a statement of facts and does not have the characteristics of an arbitral award. The effect of the statement is at the discretion of the parties involved.9 The fundamental purpose of this system is to buy time to prevent the escalation of disputes and to elucidate the facts of a given dispute before it reaches a deadlock due to differing evaluations of the facts.10 As a means of resolving disputes, this type of inquiry was used in cases such as the Dogger Bank incident, and was incorporated into bilateral treaties such as the Knox and Bryan treaties. The concept of an inquiry was introduced into the field of IHL in 1929. Article 30 of the Geneva Convention of 1929 on the Improvement of the Condition of the Wounded and Sick in Armed Forces in the Field provides for the institution of an inquiry at the request of the parties to a conflict to determine whether the Convention has been violated. If a violation is found, the parties involved must put an end to and repress it as promptly as possible.11 However, the 1929 Convention does not stipulate what to do if an agreement on the procedure for enquiry cannot be reached. To overcome this problem, the Geneva Conventions of 1949 indicate that if no agreement is reached on the procedure, the parties to the conflict should agree upon the choice of an umpire who will determine the procedure to be followed.12 Nevertheless, even in the 1949 Conventions, the inquiry is of an ad hoc character depending on the agreement of the parties. In order to overcome this problem, Article 90 of the First Additional Protocol to the Geneva Conventions of 1977 provides for the establishment of a permanent International Fact-Finding Commission with the competence to “enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol 7

Ibid,, Articles 10 and 32. Convention for the Pacific Settlement of International Disputes (18 October 1907) [1907 Hague Convention], Articles 9–36. 9 1899 Hague Convention, Article 14; 1907 Hague Convention, Article 35. 10 Van den Herik (2014), p. 511. 11 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva (27 July 1929), Article 30. 12 Geneva Convention on Wounded and Sick in Armed Forces in the Field (12 August 1949), Article 52; Geneva Convention on Wounded, Sick and Shipwrecked of Armed Forces at Sea, Article 53; Geneva Convention on Prisoners of War, Article 132; Geneva Convention on Civilians, Article 149. 8

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or other serious violation of the Conventions or of this Protocol”.13 Article 90(2)(a) of the Protocol set up a system similar to the acceptance of the optional clause in the International Court of Justice and indicates that State Parties may declare that, in relation to any other States accepting the same obligation, they recognise the competence of the Commission to receive and consider communication from other State Parties alleging violations. Thus, at the request of one State Party, it is possible for the Commission to initiate fact-finding into an alleged violation between the State Parties in dispute that have made such a declaration. As for the allegation against the State Party that has not made the declaration, the Commission can carry out its fact-finding, but only if that State Party gives ad hoc consent to the request of factfinding.14 In this regard, the Commission’s fact-finding competence is strictly based on the principle of consent. The Commission submits its findings to the State Parties in dispute with appropriate recommendations. Thus, strictly speaking, it cannot only clarify facts, but also make certain legal evaluations of relevant facts. The purpose of the fact-finding is not to identify and criticise the State or individual responsible for violations (i.e., to “name and shame”), but rather to restore an attitude of respect for the Geneva Conventions and the Additional Protocols.15 As such, the outcomes of an investigation are generally not made public unless the State Parties involved specifically request it,16 and the treatment of the report, including the recommendations, is left up to the discretion of the parties involved. In the United Nations (UN), a move was made to establish a permanent body of inquiry in the organisation’s early years. In 1949, the General Assembly adopted a resolution to create a “Panel for Inquiry and Conciliation” and requested member States to nominate suitable panel members.17 However, this panel has not been used.18 Instead, fact-finding has been employed and advanced through ad hoc missions established by the UN’s main organs.19 Since the 1960s, the UN has studied the use 13

Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (8 June 1977), Article 90 (1)(a) and (2)(b)(i). [Additional Protocol I]. 14 Ibid., Article 90 (2)(d). 15 Kussbach (1994), pp. 183–184; Garraway (2008), p. 815; Garraway (2013), pp. 443–444. 16 Additional Protocol I, Article 90 (5)(c). In fact, regarding the investigation of the incident in which a vehicle of the Organization for Security and Co-operation (OSCE) monitoring mission was bombed in eastern Ukraine in 2017, the Independent Forensic Investigation—established by the agreement between the International Fact-Finding Commission and the OSCE—has not disclosed its report, and only a brief summary has been released. See the Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an OSCE Special Monitoring Mission to Ukraine (SMM) Patrol on 23 April 2017, available at https://www.osce.org/ home/338361?download=true. 17 GA Resolution 268 (III) D, UN Doc. A/RES/268(III) D (28 April 1949). 18 Actually, the list of panel members nominated for the first time was not updated for a long time, and was renewed only once in 1961. Panel for Inquiry and Conciliation Created by General Assembly Resolution 268D (III) of 28 April 1949, Revised List of Persons Designated by Member States, Note by the Secretary-General, UN Doc. A/4686-S/4632 (20 January 1961). 19 van den Herik (2014), p. 523.

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of fact-finding procedures, including the activation of previously formed panels. In response to the General Assembly’s request in 1964 and 1966, the Secretary-General submitted two detailed reports on the historical and sectoral development of the enquiry procedure.20 These reports illustrate the role of fact-finding as a stabilising factor in situations that could endanger international peace and security, and highlight that fact-finding has played a role in providing a means of liaison and communication between conflicting parties.21 In response to these reports, the General Assembly adopted a resolution in 1967 requesting that member States more effectively use existing means of fact-finding, and encouraging them to consider the possibility of entrusting the ascertainment of facts to competent international organisations and bodies established by agreement between the parties concerned.22 Subsequent UN documents have often confirmed the basic manner of fact-finding, which takes a stance as an objective and neutral activity under the auspices or consent of the parties in dispute23 ; this eventually led the General Assembly to adopt the “Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security” in 1991.24 This Declaration follows the original understanding of the role of fact-finding by clarifying that “sending a fact-finding mission can signal the concern of the Organization and should contribute to building confidence and defusing the dispute or situation while avoiding any aggravation of it”25 and then pointing out that “the report should be limited to a presentation of findings of a factual nature.”26 As indicated above, fact-finding bodies and their procedures have significantly progressed along with a series of treaties formed and implemented in the UN. Factfinding missions also tend to have a conciliatory nature, such as in cases where reports are published or recommendations are made based on fact-finding. Until the early 1990s, nonetheless, the purpose of fact-finding was to clarify the facts in question, to promote efforts toward resolving disputes between the parties involved, and to avoid pursuing legal evaluations of violations or identifying the states or individuals responsible for violations. This is a common characteristic of the factfinding missions of the original model.

20

Report of the Secretary-General on methods of fact-finding, UN Doc. A/5694 (1 May 1964); Methods of fact-finding with respect to the execution of international agreements, UN Doc. A/6228 (22 April 1966). 21 Report of the Secretary-General on methods of fact-finding, para. 144. 22 GA Resolution 2329 (XXII), Question of Methods of Fact-finding, UN Doc. A/RES/2329(XXII) (18 December 1967), paras. 1 and 2. 23 E.g. Manila Declaration on the Peaceful Settlement of International Disputes, GA Resolution 37/ 10, UN Doc. A/RES/37/10 (15 November 1982), Part II, paras. 3 and 4. 24 GA Resolution 46/59, Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, UN Doc. A/RES/46/59 (9 December 1991). 25 Ibid., para. 5. 26 Ibid., para. 17.

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11.2.2 Shifting Toward Criminalisation The Yugoslav Wars and the Security Council’s response to them catalysed fundamental change in the function of fact-finding. Faced with Nazi-like “ethnic cleansing,” Europe reacted quickly to violations of IHL during these hostilities, as reflected by the Security Council’s actions. In August 1992, the Security Council called upon States and international humanitarian organisations to collate substantiated information in their possession relating to violations of IHL, including grave breaches of the Geneva Conventions, and to make this information available to the Council.27 Additionally, a month-and-a-half later, the Security Council requested the Secretary-General to establish a Commission of Experts (COE) “with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of [IHL] committed in the territory of the former Yugoslavia”.28 The creation of the COE went beyond the framework of traditional fact-finding missions in two respects. First, at the time, Yugoslavia was in the midst of an armed conflict, and fact-finding did not begin based on the requests or consent of the States that made up the former Yugoslavia. Second, when the COE was established, the Security Council assumed the existence of violations of IHL and required the COE to gather evidence to prove them. Normally, the determination of whether a violation has occurred is the result of fact-finding. However, the cart was placed before the horse. This situation was similar to a criminal investigation in which the purpose is to collect evidence to prove a criminal charge. Nevertheless, it is clear—at least when the COE was formed—that the Security Council expected it to gather evidence proving States’ violations of IHL, not those committed by individuals. The Interim Report, submitted by the COE in 1993, made a major turn toward criminalisation. First, the report not only clarified the facts, but also extracted international legal rules applicable to the situation in Yugoslavia and examined whether violations constituted war crimes or crimes against humanity in light of these rules.29 It also focused on individual criminal responsibility for violations of IHL30 and presented the idea of establishing an ad hoc international tribunal by the Security Council or other UN bodies.31 The UN General Assembly supported fact-finding relating to individual criminal responsibility. In April 1993, two months after the Interim Report was released, the General Assembly confirmed that all persons who had committed or authorised crimes against humanity or grave breaches of IHL must be held accountable, requested that the international community make every effort to bring them to justice, and called upon all parties involved to provide all pertinent information to the COE. 27

SC Resolution 771, UN Doc. S/RES/771 (13 August 1992), para. 5. SC Resolution 780, UN Doc. S/RES/780 (6 October 1992), para. 2. 29 Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/25274 (10 February 1993), paras. 47–50. 30 Ibid,, para. 28. 31 Ibid,, para. 74. 28

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Just one month after this General Assembly resolution, the Security Council decided to create the International Criminal Tribunal for the former Yugoslavia (ICTY) and requested that the COE continue to collect evidence of violations until a prosecutor was appointed. Since then, the fact-finding of the COE has been functionally linked to criminal trials before the ICTY. The COE concluded in its final report that the files, documents, and database should be transferred to the ICTY prosecutor, as he had been appointed.32 In fact, the Secretary-General, who received the COE’s final report, transferred the database and all other information gathered by the COE to the ICTY Prosecutor’s Office.33 While the criminalisation of the COE’s activities reflects the unique circumstances of the Yugoslav conflicts, it was also caused by an underlying trend in factfinding methodology. Prior to the Cold War era, UN fact-finding activities centred on confirming official documents and providing physical evidence, despite the results of some on-site investigations. International non-governmental organisations (NGOs) involved in human rights protection began to try to gain a more accurate understanding of violations by gathering testimony from victims in the 1970s and 1980s.34 These new methods were incorporated into truth and reconciliation commissions and other transitional justice mechanisms, which contributed to the political and social transition from military dictatorships and racial discrimination regimes to more democratic governance, and had an impact on fact-finding activities by intergovernmental organisations.35 As hearing testimony constituted evidence of violations from the victims’ perspectives, it inevitably aroused sympathy for the victims and strengthened the nuances of accusations against individual perpetrators. The victimoriented standpoint is linked to the accountability-oriented view, which may promote leaning toward criminal prosecution. Since the HRC was founded in 2006, this trend has become particularly strong within the UN. The criminalisation of fact-finding is not unrelated to the fact that, while more than 70 COIs have been created by the UN since the COE for the former Yugoslavia was established, most of them have been formed by the HRC, which is especially responsible for the promotion and protection of the human rights of vulnerable people, including women and children.

32

Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), annexed to the Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council, UN Doc. S/1994/674 (27 May 1994), para. 32. 33 Letter dated 24 May 1994 from the Secretary-General to the President of the Security Council, UN Doc. S/1994/674 (27 May 1994), p. 2. 34 Alston (2013), p. 61. 35 de Vries (2019), pp. 600–601.

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11.3 The Characteristics of Criminalisation The dimensions of criminalisation vary depending on the COI. The characteristics of criminalised COIs are generally revealed in the mandate given to them, applicable laws for evaluating facts, published outcomes, and recommendations made in their reports.

11.3.1 A Criminalised Mandate When considering criminalised aspects, it is important to examine the facts and purposes that COIs are mandated to investigate in the resolutions adopted by the Security Council or the HRC. In this regard, most crucial is the fact that many COIs have been explicitly authorised to determine whether “crimes” have been committed, in addition to investigating “violations” of IHRL and IHL. As noted earlier, the COE on Yugoslavia was not granted the power (at least explicitly) to scrutinise “crimes” allegedly committed by individuals. However, its final report addressed the criminal responsibility of those who had committed violations through the COE’s extended interpretation of the mandate. In addition, once the COI on Sudan/Darfur was given a mandate to determine whether genocide had occurred to ensure punishment of those responsible,36 similar resolutions were adopted one after another to explicitly authorise COIs to collect and establish evidence related to “crimes”. The COIs on Guinea,37 Libya,38 Syria,39 and the Occupied Palestinian Territory (OPT)40 fall under this category.

36

SC Resolution 1564, UN Doc. S/RES/1564 (2004) (18 September 2004), para. 12 [Sudan Darfur Resolution]. 37 Terms of reference for the Commission of Inquiry for Guinea, Annex to the Letter dated 28 October 2009 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2009/556 (28 October 2009), para. 2 [Guinea Terms of Reference]. 38 HRC Resolution S-15/1, Situation of human rights in the Libyan Arab Jamahiriya, UN Doc. A/ HRC/RES/S-15/1 (25 February 2011), para. 11 [Libya Resolution]. 39 HRC Resolution S-16/1, The current human rights situation in the Syrian Arab Republic in the context of recent events, UN Doc. A/HRC/RES/S-16/1 (29 April 2011), para. 7 [Syria Resolution S-16/1]. 40 HRC Resolution S-21/1, Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/RES/S-21/1 (23 July 2014), para. 13 [Palestine Resolution S-21/1].

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The COIs for North Korea,41 Eritrea,42 and Burundi43 were mandated to verify whether “international crimes” or “crimes against humanity” had occurred. As for the COIs on Syria and the OPT, their mandates have changed from investigating mere “crimes” to establishing the occurrence of “crimes against humanity” or “war crimes” along with the progress of fact-finding.44 Furthermore, many COIs are tasked with “identifying” the perpetrators of crimes or violations.45 This clearly indicates a trend toward shifting from traditional fact-finding on violations in interstate relations to investigations to verify individual responsibility. Some COIs are mandated to make recommendations on possible means of accountability for the persons responsible. Examples include the COIs for Guinea, Libya, and the OPT.46 Focusing on the accountability of responsible individuals and entities in their mandates—which assume the existence of violations before initiating investigations—may increase the risk of biased fact-finding activities. For instance, in the case of attacks on a humanitarian aid convoy transporting supplies to the OPT, the HRC decided to “dispatch an independent, international fact-finding mission to investigate violations of international law, including internatinal humanitarian and human rights law, resulting from Israeli attacks on the flotilla of ships carrying humanitarian assistance.”47 Here, the allegations that Israel conducted the attack, that the convoy was transporting humanitarian supplies rather than weapons, and that the attack on the convoy was a violation of international law were treated as facts. As a result, the relevant COI had to go to the trouble of explaining its stance in its report that “[t]he Mission did not interpret its task as proceeding on any such assumptions. It could not determine what its position was until the Mission came to its conclusion on the facts. The same can be said of the alleged actions by the 41

HRC Resolution S-22/13, Situation of human rights in the Democratic People’s Republic of Korea, UN Doc. A/HRC/RES/S-22/13 (21 March 2013), para. 5 [DPRK Resolution]. 42 HRC Resolution S-29/18, Situation of human rights in Eritrea, UN Doc. A/HRC/RES/S-29/18 (2 July 2015), para. 10. 43 HRC Resolution S-33/24, Situation of human rights in Burundi, UN Doc. A/HRC/RES/S-33/24 (30 September 2016), para. 23 [Burundi Resolution]. 44 HRC Resolution S-17/1, Situation of human rights in the Syrian Arab Republic, UN Doc. A/ HRC/S-17/2 (22 August 2011), para. 13 [Syria Resolution S-17/1]; HRC Resolution S-28/1, Violations of international law in the context of large-scale civilian protests in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/RES/S-28/1 (18 May 2018), para. 5 [Palestine Resolution S-28/1]. 45 Sudan Darfur Resolution, para. 12; Guinea Terms of Reference, para. 2; Libya Resolution, para. 11; Palestine Resolution S-21/1, para. 13; Palestine Resolution S-28/1, para. 5; Burundi Resolution, para 5; Syria Resolution S-17/1, para. 13; HRC Resolution 16/25, Situation of human rights in Côte d’Ivoire, UN Doc. A/HRC/RES/16/25 (25 March 2011), para. 10; HRC Resolution S-19/1, The deteriorating situation of human rights in the Syrian Arab Republic, and the recent killings in ElHouleh, UN Doc. A/HRC/S-19/1 (1 June 2012), para. 8; HRC Resolution 36/31, Human rights, technical assistance and capacity-building in Yemen, UN Doc. A/HRC/RES/36/31 (29 September 2017), para. 12. 46 Guinea Terms of Reference, para. 2; Libya Resolution, para. 11; Palestine Resolution S-21/1, para. 13; Palestine Resolution S-28/1, para. 5. 47 HRC Resolution 14/1, The grave attacks by Israeli forces against the humanitarian boat convoy, UN Doc. A/HRC/RES/14/1 (23 June 2010), para. 8.

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Israeli forces.”48 Likewise, regarding North Korea, the HRC “[s]trongly condemns the ongoing grave, widespread and systematic huma human rights violations in the Democratic People’s Republic of Korea”49 in the resolution establishing the COI to investigate the widespread, systematic human rights violations in question. The mandate of this COI is no longer to determine whether human rights violations exist, but rather to collect information to identify those responsible for such violations, especially crimes against humanity.50

11.3.2 The Application of International Criminal Law To evaluate these facts, certain criteria under applicable laws are necessary, and depending on those criteria, the outcome of the evaluation may change. Regarding criminalisation, the issue is whether COIs apply the norms of international criminal law (ICL) in addition to those of IHRL and IHL. The COI on Sudan/Darfur states that “[i]t also falls to the Commission to characterize, from the viewpoint of international criminal law, the violations of international human rights law and humanitarian law it may establish.”51 This marked the first official recognition of the application of ICL in fact-finding. Since then, many COIs have stated in their reports that they have used ICL norms as criteria for evaluating facts.

48

Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance, UN Doc. A/HRC/15/21 (27 September 2010), para. 6 [Flotilla Report]. 49 DPRK Resolution, para. 1. 50 van den Herik (2014), p. 531. 51 Report of the International Commission of Inquiry on Darfur to the Secretary-General, UN Doc. S/2005/60 (1 February 2005), para. 4 [Sudan Darfur Report].

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This applies to the COIs on Guinea,52 Libya,53 the OPT,54 Syria,55 North Korea,56 Eritrea,57 Burundi,58 and Yemen.59 The application of ICL introduces two perspectives for evaluating the facts. The first is to verify whether the violations found through fact-finding activities include elements of particular categories of crimes defined under ICL, particularly those related to crimes against humanity. In doing so, many COIs have referred to the Rome Statute, even if the States for which COIs were established are not parties to the Statute. Some COIs explicitly state that they will apply the customary law embodied in the Statute,60 while others do not pinpoint the reasons.61 Most COIs simply apply the definitions and elements of crimes under the Rome Statute, while others engage in a detailed discussion of the elements of crimes against humanity as the International Criminal Court (ICC) may do.62 The second perspective considers liability. Crimes investigated by international criminal tribunals and courts are usually organised acts by States or non-State entities, such as armed groups. Hence, ICL has developed theories that accuse not only the direct perpetrators of crimes but also the superiors who planned or ordered them; these include theories on joint criminal enterprises and the duties of the superiors involved. Many COIs that have introduced ICL as a criterion for fact-finding explicitly declare

52

Report of the International Commission of Inquiry mandated to establish the facts and circumstances of the events of 28 September 2009 in Guinea, UN Doc. S/2009/693 (18 December 2009), paras. 26–28 [Guinea Report]. 53 Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44 (12 January 2012), para. 4 [Libya 2012 Report]; Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68 (28 January 2014), para. 95 [Libya 2014 Report]. 54 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/ 12/48 (25 September 2009), para. 286 [Gaza 2009 Report]; Report of the detailed findings of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory, UN Doc. A/HRC/40/CRP.2 (18 March 2019), para. 37 [Palestine 2019 Report]. 55 Report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Syrian Arab Republic, UN Doc. A/HRC/18/53 (15 September 2011), para. 15 [Syria 2011 Report]. 56 Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, UN Doc. A/HRC/25/63 (7 February 2014), para. 21 [DPRK Report]. 57 Report of the commission of inquiry on human rights in Eritrea, UN Doc. A/HRC/32/47 (9 May 2016), para. 58 [Eritrea 2016 Report]. 58 Report of the commission of inquiry on Burundi, UN Doc. A/HRC/42/49 (6 August 2019), para. 9 [Burundi Report]. 59 Report of the Group of Eminent International and Regional Experts as submitted to the United Nations High Commissioner for Human Rights—Situation of human rights in Yemen, including violations and abuses since September 2014, UN Doc. A/HRC/42/17 (9 August 2019), para. 13 [Yemen Report]. 60 Eritrea 2016 Report, para. 58; Yemen Report, para. 13. 61 DPRK Report, para. 21. 62 Guinea Report, paras. 180–197.

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that they can rely on these theories to identify high-ranking perpetrators in addition to those directly responsible for crimes.63

11.3.3 Publication of Outcomes In their final reports, COIs—whose mandate addresses fact-finding on “crimes”— include findings not only on violations by the States concerned, but also on the occurrence of the crimes against humanity and war crimes.64 Furthermore, many COIs have identified the individuals responsible for such crimes. Generally, the names of the perpetrators are treated as confidential and are not released in the published reports. However, the COIs for Guinea65 and Myanmar66 explicitly indicate the names of the responsible parties in their respective reports. In particular, the report of the COI on Guinea examines the acts committed by each responsible individual and clarifies the level of responsibility individually, as is usually done in criminal court judgments.67 As for criminalisation, the outcomes of fact-finding have been disclosed in open reports. As already discussed, in the original model of inquiry or fact-finding, publication of outcomes is not necessarily obligatory. From the angle of promoting conflict resolution by the parties involved, it is sufficient and appropriate that a given report be submitted only to those parties. If the outcomes of fact-finding are published, this could hinder voluntary dispute settlement between the parties. This is the basic philosophy on which the International Fact-Finding Commission as mentioned earlier, do not publish reports unless the concerned parties request so. However, the publication of COIs’ reports suggests that they aim to facilitate conflict resolution in a more open and public manner, going beyond bilateral resolution between the parties involved. By publishing a report, awareness of a conflict is raised among UN member states and critical public opinion is mobilised, which will rationalise intervention by the UN and make it easier for the UN to take appropriate actions against a given conflict. Indeed, it is precisely with the goal of maximising the effect of “name and shame” that COIs have published their reports.68

63

Sudan Darfur Report, paras. 7–9; Guinea Report, paras. 213–214; Eritrea 2016 Report, para. 103; Libya 2014 Report, para. 95; Palestine 2019 Report, paras. 784 and 790. 64 Sudan Darfur Report, para. 630; Gaza 2009 Report, para. 172; Syria 2011 Report, para. 69; DPRK Report, paras. 75 and 80; Burundi Report, para. 62; Yemen Report, para. 97; Flotilla Report, para. 258; Report of the International Commission of Inquiry on Côte d’Ivoire, UN Doc. A/HRC/ 17/48 (1 July 2011), paras. 91–93 [Côte d’Ivoire Report]. 65 Guinea Report, paras. 215 and 243–253. 66 Report of the independent international fact-finding mission on Myanmar, UN Doc. A/HRC/39/ 64 (12 September 2018), para. 92 [Myanmar 2018 Report]. 67 Guinea Report, paras. 216–242. 68 van den Herik (2014), p. 510; Satterthwaite (2013), p. 62.

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11.3.4 Liaisons with Criminal Prosecution and Trial In many COIs’ reports, the outcomes of fact-finding strongly suggest liaisons with future criminal prosecutions and trials by recommending that the situation be referred to the ICC or that ad hoc criminal tribunals be created.69 In the case of Sudan/Darfur, the recommendation actually led the Security Council to refer the situation to the ICC.70 In addition, the recommendations of the COIs for Cambodia and Timor-Leste resulted in the establishment of ad hoc hybrid chambers in these States’ domestic judicial systems.71 Furthermore, many COIs’ recommendations have substantially led to referrals by State parties to the ICC or initiation by the Prosecutor of Investigations and/or preliminary examinations, such as those for Côte d’Ivoire, Burundi, Myanmar, Guinea, and the OPT. In some cases, COIs have also recommended that the responsible individuals listed be subject to “targeted sanctions” by the Security Council or by the States concerned.72 In the abovementioned cases, the COIs’ recommendations have generated a political impact that supports the Security Council’s decision to entrust the ICC or to establish an ad hoc tribunal; COIs’ recommendations have also served as strong backing for the ICC Prosecutor to initiate investigations proprio motu.73 While the COIs’ reports themselves do not have any legally binding force, they are regarded as fair and impartial evaluations, and they provide authoritative findings for recognising the occurrence of crimes and identifying their perpetrators. The facts reported are no longer disputed and are used by political organs in the UN and other international organisations to justify actions against specific States, as well as by international courts as evidence to prompt further investigations, even if more detailed evidence is required for prosecution and trial.74 Thus, COIs’ outcomes and recommendations have an important effect, accelerating the trend toward criminalisation. In addition, many COIs have recommended transferring the collected evidence and the list of responsible individuals to the ICC Prosecutor or other international, regional, or domestic prosecutorial authorities, or allowing such authorities access to them. As mentioned above, the COI on Sudan/Darfur was the first to take measures to transfer the evidence and list of perpetrators, followed by the COIs for Cote d’Ivoire and the OPT.75 In this way, COIs are closely linked to criminal trials and effectively positioned as intermediaries between original fact-finding and criminal proceedings. 69

Eritrea 2016 Report, para. 132; Guinea Report, paras. 266 and 278; Gaza 2009 Report, para. 1969; Syria 2011 Report, para. 94; DPRK Report, paras. 87 and 94. 70 Sudan Darfur Report, para. 643. 71 Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135, UN Doc. A/53/850-S/1999/231 (16 March 1999), paras. 139 and 219; Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, UN Doc. S/2006/822 (2 October 2006), para. 230 [Timor-Leste Report]. 72 Guinea Report, paras. 273 and 280; Palestine 2019 Report, para. 802. 73 Becker and Nouwen (2019), pp. 833–834. 74 Akande and Tonkin (2012). 75 Côte d’Ivoire Report, para. 118; Palestine 2019 Report, para. 783.

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11.4 Characteristics of the Ukraine COI: Criminalisation and Beyond As for criminalisation of the COIs thus far established, how can one evaluate the characteristics of the Ukraine COI? The HRC adopted two resolutions for its mandate: Resolution 49/1 on 4 March 202276 and Resolution S-34/1 on 12 May 2022.77 The former is the main resolution, which led to the creation of the Ukraine COI, while the latter is meant to add a more specific mandate to address violations of human rights committed in the areas of Kyiv, Chernihiv, Kharkiv, and Sumy regions under the control of Russian armed forces in late February and March 2022. Under the mandates granted by these resolutions, the Ukraine COI has been carrying out factfinding activities and published two reports on 18 October 2022 (the 2022 Report)78 and 15 March 2023 (the 2023 Report).79 These documents and activities clearly indicate some aspects of criminalisation, as do those of previous COIs. At the same time, Ukraine’s COI shows new aspects that may be regarded as the conflict’s impact on fact-finding by the HRC.

11.4.1 Aspects of Criminalisation In Resolution 49/1, the Ukraine COI is mandated to (a) investigate “related crimes” in addition to all alleged violations and abuses of human rights and violations of IHL in the context of the aggression against Ukraine by the Russian Federation; (b) to collect, consolidate and analyse evidence of such violations and abuses and to systematically record and preserve all information, documentation and evidence in view of any future legal proceedings; (c) to document and verify relevant information and evidence, including through field engagement, and to cooperate with judicial and other entities; (d) to identify, where possible, the individuals and entities responsible for violations or abuses of human rights or violations of IHL, or other related crimes, in Ukraine, with a view to ensuring that those responsible are held accountable; and (e) to make recommendations, in particular on accountability measures, all with a view to ending impunity and ensuring accountability, including, as appropriate, individual criminal responsibility, and access to justice for victims.80 While Resolution 49/1 only mentions “related crimes”, Resolution S-34/1 strongly condemns the reported violations and abuses of human rights committed in the 76

Resolution 49/1 adopted on 4 March 2022, Situation of human rights in Ukraine stemming from the Russian aggression, UN Doc. A/HRC/RES/49/1 (7 March 2022). 77 HRC, Resolution S-34/1 adopted on 12 May 2022, UN Doc. A/HRC/RES/S-34/1 (16 May 2022). 78 Report of the Independent International Commission of Inquiry on Ukraine, UN Doc. A/77/533 (18 October 2022) [2022 Report]. 79 Report of the Independent International Commission of Inquiry on Ukraine, UN Doc. A/HRC/ 52/62 (15 March 2023) [2023 Report]. 80 Resolution 49/1, para. 11.

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areas of Kyiv, Chernihiv, Kharkiv and Sumy regions as amounting to crimes against humanity and war crimes, and then requests that the COI address these events.81 The latter resolution indicates that, like the COIs on Syria and the OPT, the mandate of the Ukraine COI has been toned up from investigating mere crimes to collecting relevant evidence of the crimes against humanity and war crimes. In addition, the COI has the task of recording and preserving information, documents, and evidence “in view of any future legal proceedings”, which suggests the close relationship between fact-finding and future international or national criminal proceedings. The two reports also indicate that the COI has been working in line with other criminalised COIs. As reflecting the special situation of the conflict in Ukraine, which started due to the initial attacks by the Russian Federation, the 2023 Report states that “it has found reasonable grounds to conclude that the invasion and Russian armed forces’ attacks against Ukraine’s territory and armed forces qualify as acts of aggression against Ukraine”.82 Nevertheless, the 2023 Report devotes almost all of its pages to the investigation and evaluation of alleged violations of IHRL and IHL. Thus, it is obvious that the COI’s main concerns are not whether Russia’s use of force against Ukraine constitutes an act of aggression according to jus ad bellum, but whether concrete acts conducted by Russia’s armed forces constitute violations of international human rights and jus in bello, which may be identified as war crimes and crimes against humanity. In fact, both the 2022 and 2023 Reports clarify that the laws applicable to the mandate of the COI include ICL.83 In particular, they consider that pursuant to two declarations lodged by Ukraine and referrals by State Parties, the ICC has jurisdiction in Ukraine; therefore, the Rome Statute and its elements of crimes provide detailed elements for some of the alleged crimes in Ukraine. They further state that, where the ICC may be found to lack jurisdiction, the COI has applied the elements of crimes within the Rome Statute as long as they reflect customary international law.84 Three issues must be noted regarding the application of ICL. The first is the standard of proof. COIs do not have adversarial structures because they are not judicial bodies. No prosecutor bears the burden of proof; nor is there a defence lawyer to rebut the case. In this regard, the concept of the standard of proof is essentially irrelevant to COIs’ fact-finding. In fact, most COIs do not apply the “beyond the reasonable doubt” standard normally required in criminal trials. However, they usually explain in their reports the evidentiary thresholds that demonstrate the minimum required level of truthfulness and hence conduct a legal evaluation of the evidence they have collected.85 This is because a clarified standard of proof may enhance the credibility 81

Resolution S-34/1, preamble para. 10 and operative para. 4. 2023 Report, para. 3. 83 Ibid., para. 9; 2022 Report, para. 14. 84 Ibid., para. 18; 2023 Report, para. 11. The 2022 Report explains that “[t]he ratification of the Statute by a majority of the States Members of the United Nations reflects, on the whole, the definition of these crimes under customary international law” (para. 18), following the practice of the COI on the DPRK (see DPRK Report, para. 21). 85 Jacobs and Harwood (2013), pp. 339–342. 82

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of fact-finding reports, ensure the effectiveness of the resulting political impact, and facilitate cooperation with the ICC and other domestic and regional criminal judicial bodies. For example, the COI of North Korea notes that “[t]he commission is neither a judicial body nor a prosecutor. It cannot make final determinations of individual criminal responsibility. It can, however, determine whether its findings constitute reasonable grounds for establishing that crimes against humanity have been committed to merit a criminal investigation by a competent national or international organ of justice.”86 The standard of proof actually used varies among COIs. The COI on Libya uses the “balance of probability” standard,87 while the COIs on Sudan/Darfur, Guinea, East Timor, and the Democratic Republic of Congo use the “reasonable suspicion” standard.88 Most COIs base their evaluations of evidence on the “reasonable grounds to believe” standard,89 which requires that information be reliable such that “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.”90 This standard is lower than that required to find someone guilty in a criminal trial, but it is considered high enough to warrant further investigation by judicial authorities regarding the incident. The Ukraine COI follows the majority’s practices by using “reasonable grounds to conclude” which may lead the COI to determine “when, based on a body of verified information, an objective and ordinarily prudent observer would conclude that the facts took place as described.”91 The second issue relates to identifying those responsible for violating ICL. As mentioned earlier, many COIs commonly investigate not only direct perpetrators, but also superiors who plan and/or order the crimes in question in accordance with ICL theories on modes of responsibility. In line with these practices, the Ukraine COI declared that “[i]n all the cases examined, the Commission has sought to identify individual perpetrators of violations and crimes, the units deployed in the concerned areas, and their chain of command. It [has] attempted to determine whether crimes were committed in furtherance of orders or policies at a higher level”.92 In relation to attacks against Ukraine’s energy-related infrastructure, the COI cited President 86

DPRK Report, para. 74. Libya 2014 Report, para. 6. 88 Sudan Darfur Report, para. 15; Guinea Report, para. 215; Timor-Leste Report, paras. 12 and 110; Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003 (August 2010), p. 4, available at https://www.ohchr. org/Documents/Countries/CD/DRC_MAPPING_REPORT_FINAL_EN.pdf [DRC Report]. 89 See the Office of the United Nations High Commissioner for Human Rights (OHCHR), Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice (2015), pp. 62–63. 90 Palestine 2019 Report, para. 17; DPRK Report, para. 22; Report of the detailed findings of the Commission of Inquiry on Human Rights in Eritrea, UN Doc. A/HRC/29/CRP.1 (5 June 2015), para. 32 [Eritrea 2015 Report]. 91 2023 Report, para. 6. 92 Ibid., para. 22. 87

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Putin’s declaration that “at the proposal of the Defence Ministry and in accordance with the plan of Russia’s General Staff, a massive strike was launched with longrange precision air, sea and land-based weapons against Ukrainian energy, military and communication facilities”.93 Regarding torture, the COI emphasises the background policy by describing that “the targeting of specific categories of persons and the consistent use of the same methods of torture across several regions they controlled in Ukraine for extended periods of time led the Commission to find that Russian authorities used torture in a systematic and widespread manner”.94 Moreover, in terms of the forced transfer of children, it specifically mentions that “President Putin signed a decree facilitating application for Russian citizenship for some categories of children. In a media interview in July 2022, Ms. Lvova-Belova, Presidential Commissioner for Children’s Rights, declared that ‘now that the children have become Russian citizens, temporary guardianship can become permanent’.”95 In the recommendation part, the COI also requests that the Russian Federation “ensure that all perpetrators, including commanders and superiors, and those ordering, soliciting or inducing he commission of international crimes, are held accountable”.96 These sentences indicate how crucial the COI considers the chain of command and plan/ policy elements when identifying those responsible for alleged crimes. The third issue concerns the disclosure of identified perpetrators. Most COIs do not disclose the names of identified perpetrators as they consider those names to be confidential information, while the COIs for Guinea and Myanmar have fully or partially disclosed the names of perpetrators.97 The main reason for concealing a suspect’s identity is to uphold his/her right to the presumption of innocence. Since COIs are not criminal courts, their determination of criminal responsibility cannot be considered a final conviction. Hence, COIs cannot disclose the names of perpetrators as long as the presumption of innocence applies. In its 2023 Report, the Ukraine COI mentions that “[t]he Commission has developed a separate list of identified perpetrators and military units responsible for crimes and violations”, but does not state the names of those perpetrators; nor does the COI explain the reason for nondisclosure. In response to a relevant question by a journalist at the press conference, a member of the COI merely answered that the list of identified perpetrators, which was growing in accordance with the progress of the investigation, would be submitted to the High Commissioner for Human Rights.98 While the names of responsible persons not revealed, the Ukraine COI made its findings public, admitting the occurrence of war crimes and crimes against humanity:

93

Ibid., para. 40. Ibid., para. 77. 95 Ibid., para. 96. 96 Ibid., para. 114 (a). 97 Guinea Report, paras. 215 and 243–253; Myanmar 2018 Report, para. 92. 98 Answer by Mr. Pablo de Greiff, member of the Commission of Inquiry, in the press conference held on 16 March 2023, the video of the conference., available at https://www.ohchr.org/en/hr-bod ies/hrc/iicihr-ukraine/index. 94

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It has concluded that Russian authorities have committed numerous violations of international humanitarian law and violations of international human rights law, in addition to a wide range of war crimes, including the war crime of excessive incidental death, injury, or damage, wilful killings, torture, inhuman treatment, unlawful confinement, rape, as well as unlawful transfers and deportations. The Commission has also found that the Russian armed forces’ waves of attacks, starting 10 October 2022, on Ukraine’s energy-related infrastructure and the use of torture by Russian authorities may amount to crimes against humanity.99

In the findings, the occurrence of war crimes is certainly recognised, while the tone concerning crimes against humanity is slightly weaker with mentioning “may amount to”. In fact, the 2023 report states that, in terms of the attacks against energyrelated infrastructure, “[i]t has also found that the attacks have been widespread and systematic and may amount to a crime against humanity of other inhumane acts. Further time and resources are needed to investigate the attacks to clarify if their accumulated impact becomes comparable, as it possibly can, given their magnitude, to one of the enumerated acts of crimes against humanity, and to what extent the policy was directed against the civilian population”.100 As for the use of torture, the report found that “[t]hese circumstances, involving also elements of planning and available resources, indicate that the Russian authorities may have committed torture as crimes against humanity. The Commission recommends further investigations to ascertain whether torture committed by Russian authorities in the detention facilities they hold in Ukraine and the torture of detainees deported from Ukraine to the Russian Federation have been committed in furtherance of a specific policy in this regard”.101 Regarding elements of crimes, according to the ICC, an “attack directed against a civilian population” means a course of conduct involving the multiple commissions of acts against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such an attack.102 The findings in the Report suggest that the COI made public the commission of crimes against humanity by Russian armed forces before certain important elements, such as the policy element had not been sufficiently substantiated. This fact indicates that the Ukraine COI, like previous ones, still works within the framework of a fact-finding mission, even criminalised in many aspects, using a lower threshold of the standard of proof than the one used in criminal proceedings. Unlike prior COIs, which suggest liaisons with future criminal proceedings, the Ukraine COI does not mention any particular relations with the ICC or other international judiciaries in the recommendation part of the 2023 Report. It simply suggests that parties to the conflict ensure timely, effective, thorough, independent, impartial, and transparent investigation and prosecution of all allegations of international 99

2023 Report, para. 109. It also concluded that “In a limited number of cases, the Commission has found that the Ukrainian armed forces were likely responsible for violations of international humanitarian law and human rights law, and for some incidents which qualify as war crimes. They include indiscriminate attacks and two incidents of wounding and torture of Russian prisoners of war.” (Ibid., para. 110). 100 Ibid., para. 43. [Emphasis added by the author]. 101 Ibid., para. 77. [Emphasis added by the author]. 102 ICC, Elements of Crimes, Article 7 Crimes against humanity, Introduction, para. 3.

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crimes, and hold all perpetrators accountable through judicial proceedings.103 This may be partially due to the fact that the ICC has started investigations of alleged war crimes, crimes against humanity and genocide,104 and no particular recommendation was considered necessary to stimulate possible international criminal prosecution. However, this also relates to the changing aspects of criminalisation in the Ukraine COI, which will be explained next.

11.4.2 New Aspects in the Ukraine COI The Ukraine COI clarifies that it uses “a victim-centred approach” in its work.105 In a strict sense, this approach means that the COI will respect the “do not harm” principle relating to the confidentiality of the information provided by victims and witnesses and their protection.106 The victim-centred approach—going beyond mere procedural protection of victims—characterises the core methods of fact-finding adopted by the Ukraine COI and the accountability measures it recommends. The 2023 Report states that the members of the COI travelled eight times to Ukraine and visited 56 cities, towns, and settlements, as well as Estonia and Georgia, and held 610 interviews with 595 individuals (348 women and 247 men), both in person and remotely.107 Resolution 49/1 emphasises interviews and witness testimony as information and evidence to be systematically recorded and preserved.108 Compared to past COIs, the number of interviews was outstanding. Furthermore, Ukraine’s COI highlights its stance of relying primarily on first-hand information, including interviews with witnesses and victims of alleged violations and abuses.109 This stance led the COI to explain in detail the impact of armed conflict on the civilian population, particularly vulnerable groups, including women, children, older persons, people with disabilities, and minorities. The 2023 Report indicates that the Office of the UN High Commissioner for Human Rights (OHCHR) recorded 8006 civilians killed and 13,287 injured in Ukraine, of whom 61.1% were men and 39.9% were women. It also states that the UN High Commissioner for Refugees reported approximately eight million refugees from Ukraine across Europe, of which approximately 90% were women and children. This further indicates that the conflict has

103

2023 Report, para. 112 (f) and (g). ICC, Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation (2 March 2022), available at https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situat ion-ukraine-receipt-referrals-39-states. 105 2022 Report, para. 7; 2023 Report, para. 6. 106 2022 Report, para. 7. 107 2023 Report, para. 4. 108 Resolution 49/1, para. 11 (b). 109 2022 Report, para. 9. 104

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impacted people’s rights to health, education, adequate housing, food, and water.110 The Ukraine COI has attempted to investigate and clarify the “facts” from the perspective of ordinary victims by hearing their voices directly.111 This is one of the Ukraine COI’s distinctive features. The victim-centred approach also extends the scope of “accountability measures” which the COI was mandated to recommend. The reports of prior COIs also stress accountability, but this simply means criminal accountability to be assumed by individual perpetrators, leading to recommendations on the criminal trials of responsible persons by the ICC or ad hoc tribunals. The 2022 Report states the following in its final paragraph: The Commission will continue to act in a victim-centred way, which it interprets not only in terms of doing no harm to victims but also, and more positively, in terms of making recommendations concerning forms of accountability that supplement criminal accountability, including measures of recognition, reparation, rehabilitation, reconstruction, and, importantly, guarantees of non-repetition.112

The 2023 Report also underlines that “accountability measures”—which the COI was mandated to recommend—is a broad term covering not only criminal responsibility, but also non-judicial measures; the report mentions truth, reparations, and guarantees of non-recurrence as other dimensions of accountability.113 It points out that while complete fulfilment of victims’ rights must await the cessation of hostilities, steps can be taken to contribute to the eventual fulfilment of these rights, and priority should be given to a victim’s registry and institutional support, including mental health and psychosocial services.114 Then, in the recommendation section, it requests that Ukraine establish a victim registry as an institutional portal for better coordination of available government services as a preliminary step toward a comprehensive reparations program, and to thoroughly address mental health and psychosocial needs resulting from armed conflict by tackling access and allocation of resources to relevant services, as well as enhancing institutional coordination, legal regulation, monitoring, and evaluation.115 From the reports, it is evident that the Ukraine COI has introduced a new idea to the purpose of the fact-finding mission mandated by the HRC, which is to identify the needs of ordinary people, including victims affected by violations and abuses of IHRL and IHL and related international crimes, and to propose an appropriate reparations program in light of the unique context of a conflict zone. In other words,

110

2023 Report, para. 20. It is symbolic that the 2023 Report, in its recommendation part, stresses the importance of identifying those responsible and bringing them to account by directly citing the voice of one man whose father was executed by Russian armed forces: “They punished innocent people; now those who are guilty, if they are still alive, need to be punished to the fullest extent.” Ibid., para. 111. 112 2022 Report, para. 115. 113 2023 Report, paras. 103 and 105. 114 Ibid., para. 105. 115 Ibid., para. 115 (a) and (b). 111

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Ukraine’s COI suggests that the COI’s mission should contribute to the process of transitional justice in conflict and post-conflict societies.116 In the past few decades, the international community has employed the slogan of “ending the culture of impunity”, which has indisputably motivated the HRC to grant “criminal-investigation-oriented” mandates to COIs. There is no doubt that a policy to end the culture of impunity should be realised in the international community. However, it remains debateable whether COIs (and the HRC) should be primarily involved in this issue and devote valuable resources to collecting evidence for criminal accountability. In situations where the ICC and other international criminal bodies are not expected to work sufficiently to bring those responsible to justice, the criminalisation of COIs is inevitable and even advisable. This applies to the COIs for Syria and North Korea. That said, in most (if not all) situations in which COIs have been established by the HRC, the ICC has been the most likely to start (and has sometimes launched) a preliminary examination and/or investigation. Overlapping fact-finding for criminal accountability is redundant and even harmful for victims, who may be asked to explain their incidents repeatedly by different bodies. The Ukraine COI may be the first to intentionally address this problem117 and attempt to give new meaning to fact-finding under the auspices of the HRC, specifically fact-finding for victims’ reparations.118

11.5 Conclusion The collection of facts for criminal accountability may be left up to international, regional, and national criminal investigative bodies. This would be true if the ICC and/ or States were willing and able to be involved in the investigation and prosecution of those responsible for international crimes committed in the context of armed conflict. However, the rights of people in conflict zones, including those of direct and indirect victims, should be protected and restored by human rights bodies. While the criminalisation of COIs is still a manifest trend, the conflict in Ukraine reminds us that seeking out facts for criminal accountability is not the “one and only” task of a COI’s mechanism. On 4 April 2023, the HRC decided to extend the mandate of the Ukraine COI for one year. At the moment, however, the extent to which the COI will devote its resources and energy to fact-finding for victims—and, as a result, recommend 116

See Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc. S/2004/616 (23 August 2004), paras. 14–16 and 54–55. 117 The 2023 Report points out that “[t]he Commission encourages robust coordination of the many national and international accountability actors. Minimizing duplication and victim retraumatization while increasing efficient use of resources is achievable. Practical steps include mapping the actors conducting investigations, which could facilitate the establishment of an index of sharable evidence.” 2023 Report, para. 106. 118 As for the UN’s positive involvement in reparations mechanisms and their funds, see Furuya (2021), pp. 86–91.

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more concrete reparations measures—is unpredictable. In this regard, a way toward de-criminalised and more victim-oriented fact-finding is by no means easy. Notwithstanding, the seeds sown by the Ukraine COI should be cultivated in future COIs in an era when the ICC and other regional and national criminal bodies may be more effectively seeking criminal accountability for perpetrators of war crimes and crimes against humanity.

References Akande, D., and H. Tonkin. 2012. International Commissions of Inquiry: A New Form of Adjudication? EJIL:Talk! (published on 6 April 2012). Available at https://www.ejiltalk.org/internati onal-commissions-of-inquiry-a-new-form-of-adjudication/. Alston, P. 2013. Introduction: Third Generation Human Rights Fact-Finding. ASIL Proceedings 107: 61–62. Becker, M.A., and S.M.H. Nouwen. 2019. International Commissions of Inquiry: What Difference Do They Make? Taking an Empirical Approach. European Journal of International Law 30: 819–841. de Vries, B. 2019. Could International Fact-Finding Missions Possibly Render a Case Inadmissible for the ICC? Remarks on the Ongoing Attempts to Include International Criminal Law in Fact-finding. Journal of Conflict & Security Law 24: 593–616. Furuya, S. 2015. The “Criminalization’ of International Law”: A Critical Overview. Japanese Yearbook of International Law 58: 1–16. Furuya, S. 2021. The Right to Reparation for Victims of Armed Conflict: The Intertwined Development of Substantive and Procedural Aspects. In Reparation for Victims of Armed Conflict (CUP, 2021), ed. C. Correa, S. Furuya, and C. Sandoval, 16–91. Garraway, C. 2008. The International Humanitarian Fact-Finding Commission. Commonwealth Law Bulletin 34: 813–816. Garraway, C. 2013. Fact-Finding and the International Humanitarian Fact-Finding Commission. In Quality Control in Fact-Finding, ed. M. Bergsmo, 427–446 Torkel Opsahl Academic EPublisher. Jache-Neale, A. 2021. Fact-Finding, In the Max Planck Encyclopedia of Public International Law. Available at opil.ouplaw.com/home/EPIL. Jacobs, D., and C. Harwood. 2013. International Criminal Law Outside the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding by International Commissions of Inquiry. In Quality Control in Fact-Finding, ed. M. Bergsmo, 325–358. Torkel Opsahl Academic EPublisher. Kussbach, E. 1994. The International Humanitarian Fact-Finding Commission. International and Comparative Law Quarterly 43: 174–185. Satterthwaite, M. 2013. Finding. Verifying, and Curating Human Rights Facts, ASIL Proceedings 107: 62–65. van den Herik, L.J. 2014. An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law. Chinese Journal of International Law 13: 507–537.

Shuichi Furuya is a professor of international law at Waseda Law School, Tokyo. He was a member of the UN Human Rights Committee (2019–2022, Vice-Chair 2021–2022), a member of the International Humanitarian Fact-Finding Commission (2012–2021, Vice-President 2015–16), Co-Rapporteur of the ILA Committee on Reparation for Victims of Armed Conflict (2004–2014), and the editor-in-chief of Journal of International Law and Diplomacy (2014–2016).

Part III

International Humanitarian Law

Chapter 12

Equal Application of International Humanitarian Law in Wars of Aggression: Impacts of the Russo–Ukrainian War Kyo Arai

12.1 Introduction The Law of Armed Conflict, now known as International Humanitarian Law (IHL), is said to have been established on the premise of ‘equality of belligerents’. After the outlawry of war, international lawyers often questioned whether IHL should be applied equally to belligerents, which are legally characterised as either aggressors or victims, or whether the law should impose identical obligations and grant equal rights to the illegal aggressors and victims of aggression. This theory of the discriminatory application of IHL (or its opposing theory of equal application) has been the subject of active debate in the academic community after World War I and raised by some states. Nowadays, however, such debates lead to an understandable answer: an established theory that jus ad bellum (JAB) and jus in bello (JIB) should be separated in their application (principle of separation) for the reasons discussed below. This Chapter discusses the impact, if any, of the war between Russia and Ukraine, which began on 24 February 2022, and the international community’s perception of it for this established theory, given the recent development of international law.

K. Arai (B) Faculty of Law, Doshisha University, Kyoto, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_12

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The following two points deserve particular note. First, Russia’s use of force against Ukraine may be considered a clear violation of the UN Charter, which constitutes an act of aggression by any definition,1 and, if subject to its jurisdiction,2 could have constituted a crime of aggression by President Putin under the amended Statute of the International Criminal Court (ICC). The invasion of Ukraine, in which regular state forces’ open and wholesale cross-border attacks are carried out for territorial gain, is a classic example of an act of aggression. Although the United Nations Security Council could not recognise the act of aggression under Article 39 of the Charter due to Russia’s veto, Resolution ES-11/1, passed by an overwhelming majority of the UN General Assembly, ‘condemns in the strongest terms’ the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter.3 Since the claim for the equal application of IHL has mainly, if not exclusively, depended on the indeterminacy of the aggressor among parties in a given armed conflict, it might be questionable for some that Russia, declared collectively as the aggressor by an overwhelming majority of states, still has reasonable grounds to claim legal equality with Ukraine, the victim state, for the application of IHL. The second feature concerns the implications of developments in international law leading up to 2022. The first noteworthy development is that the 2010 Kampala amendments of the ICC Statute finally defined the crime of aggression. As a prerequisite, there have been several developments in the definition of the act of aggression by a state. Also, the 1974 UN General Assembly’s ‘Definition of Aggression’ resolution4 was recognised as a legitimate definition or open list of contemporary forms of aggression. Based on this definition, the Chambers of the ICC are allowed to legally recognise acts of aggression, even in the absence of a Security Council decision.5 Eventually, a well-thumbed excuse that ‘aggression cannot be legally defined’6 is not tenable in today’s international community. Another notable development in international law is that the IHL is no longer the sole benchmark applicable during an armed conflict as a self-contained regime or lex specialis. Today, based upon Article 31(3)(c) of the Vienna Convention on the Law of Treaties, ‘a rule of international law, whether customary or conventional, does not operate in a legal vacuum, [but] … in the context of a wider framework of legal rules of which it forms only a part.’7 The European Court of Human Rights applied this theory of harmonious interpretation to the relationship between the Human Rights Law (HRL) and IHL during armed conflict. The Court held that ‘Article 2 [of the 1

For discussion on the definition of an act and a crime of aggression, see generally Kress and Barriga (2017) passim. 2 Article 15 bis, paragraph 5, of the Statute of the International Criminal Court amended (‘In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.’) prevents the Court from exercising its jurisdiction for the Russian leaders for the crime of aggression against Ukraine. 3 A/RES/ES-11/1 (2022). 4 A/RES/3314 (1974). 5 Article 15 bis, paragraph 8, of the Statute of the International Criminal Court amended. 6 Abe (2013). 7 ICJ (1980), para. 10.

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European Convention on Human Rights] must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict.’8 Although the universal validity of the European Court’s view may be debatable, the persuasiveness of the traditional contrary assertion for the separate application of IHL and HRL has deteriorated. In 1996, the ICJ first clarified the relationship between the two branches of law, and opined with a misunderstanding of the theory of lex specialis9 that: In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. (Emphasis added)10

This complicated passage of the Advisory Opinion was hailed by two opposing positions: the authoritative recognition of the simultaneous application of HRL and IHL in the armed conflict context on the one hand, and the reservation for exclusive application of IHL, as lex specialis, on the other hand. This paragraph was heavily criticised for puzzling commentators, rather than giving them solutions. Thus, the Court, in later cases,11 changed the reasoning to a more nuanced one, recognising that there exist some armed conflict situations which ‘may be exclusively matters of HRL’ and which ‘may be matters of both of these branches’, and eventually dropped the reference to lex specialis for explaining the relationship between the two branches of international law. From the perspective of such a prevailing tendency of the harmonious interpretation of IHL in line with different areas of law, such as HRL, refugee law, or international environmental law, further explanation is necessary as to why this call for harmonic interpretation is negated categorically only between the JIB and JAB based on the principle of separation. Considering these current interests, does not the fact that Russia is engaging in an aggressive war in any way affect the application of the IHL? While condemning Russian aggression, the UN General Assembly Resolution ES-11/1 also calls for ‘respect for IHL’ by both parties. As of March 2023, the discriminatory application of IHL against Russia, the aggressor, had not been openly advocated. However, some have been observed to take a position in favour of the victimised country—Ukraine— for IHL application, as in the case of the harsh criticism of Amnesty International’s report condemning possible IHL violations by Ukraine, which will be discussed later. Such criticism has so far been limited to a policy-based one, accusing the mistiming 8

ECtHR (2009), para. 185. Milanovic (2016), pp. 106–701; Gowlland-Debbas and Gaggioli (2013), pp. 85–86; Lindroos (2005), p. 44. 10 ICJ (1996), p. 240, para. 25. 11 ICJ (2004), p. 178, para. 106; ICJ (2005), pp. 242–243, para. 216. 9

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of the publication in terms of being used for Russian propaganda or doubts about the veracity of Amnesty International’s findings. However, it is difficult to predict whether this will not develop into legal arguments for discriminatory application of IHL. Moreover, even if the theory of discriminatory application of IHL is not officially endorsed for this war, and if it is recognised that the illegality of Russia’s aggression and Ukraine’s legitimacy do not affect the application of IHL, these are not the end of the story. How can we reconcile this equal application of IHL with pursuing legal responsibility for Russia’s acts of aggression? As a hypothetical example, if Russia exercised the rights of occupying power in perfect conformity with the IHL in occupied Ukrainian territory, could this practice of occupation be assessed as an illegal act of aggression and held liable? Also, as a hypothesis, when Russia attacked a ‘legitimate target’ and the collateral damage therein to civilians was proportionate to Russia’s ‘military interests’ resulting from that attack, could such IHL-complying attacks be condemned in the pursuit of Russian liability under the JAB? Historically, these issues of possible conflict between JIB and JAB responsibilities may have been handled and settled with constructive ambiguity through the political process of the Peace Treaty or rump-sum compensation sanctioned. However, the adjustment of different and contradictory responsibilities may have become inevitable when pursuing legal accountability for acts of aggression, which is a critical part of the post bellum process from war to peace. Considering the war between Russia and Ukraine, this Chapter discusses the contour and rationale of the principle of equal application of IHL, possible challenges to the principle of equal application in a manifest case of aggressive war, and how the principle of equal application should be reconciled with the pursuit of accountability on the JAB in possible future cases.

12.2 Separation of JIB and JAB: Meaning and Rationale 12.2.1 The Substance of the Principles Although the idea that JIB and JAB operate separately is generally accepted, commentators have understood this in several different ways. According to Sassòli, the following interrelated four principles can be derived from the original fundamental idea.12 The first is the principle of equality of parties to conflict under IHL. Under modern international law that outlaws the use of force, the parties to an armed conflict are necessarily asymmetrical under the JAB, which logically classified parties as either illegal party that initiated the war or the victims. Still, it is theoretically possible to apply IHL equally to the acts of both parties, whether those of the aggressor party or the party acting in self-defence. 12

Sassòli (2019), pp. 460–463, MN9.97-9.106.

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Second, the principle that IHL applies independently of the legal characterisation of the conflict as a whole under the JAB follows as an extension of the first. Since Common Article 2 of the Geneva Conventions of 1949 introduced the concept of armed conflict, the application of IHL has been determined on a factual basis, relying only on the actual circumstances on the battlefield. This trigger shall be activated by objective criteria, independent of the legal characterisation of the use of force as such by parties or other stakeholders, or any other consideration or justification over the objective, purpose, and other features of that particular use of force. The third principle is that JAB considerations, whether justifying or condemning particular use of force, do not affect the interpretation of the JIB. For example, when scaling military advantage with incidental damage to civilians and civilian property to decide permissibility under the IHL, JAB justifications do not matter. Thus, ‘just causes’ for legal self-defence should not be considered when selecting the attack target or the method and means of warfare.13 Fourth, conversely, it is also stressed that compliance with IHL does not affect the legal evaluation of the use of force as a whole under the JAB. The practice of complying with IHL does not justify aggression, whereas a violation of IHL during the exercise of the right to self-defence does not necessarily undermine its legality under JAB.

12.2.2 Positive Legal Basis Legal grounds for the correlated principles of separation between JIB and JAB and the equal application of IHL are found in several positive sources. The most direct reference to the principles is found in paragraph 5 of the Preamble to the Additional Protocol I of 1977 (API), providing that ‘provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict’. The Geneva Conventions of 1949 and the API also state in Common Article 1 that ‘the High Contracting Parties 13

This is exactly the point that the Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons has been severely criticized, as it said in its operative paragraph, 2(E), It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. (ICJ 1996, para. 106).

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undertake to respect and to ensure respect for the present Convention (this Protocol) in all circumstances’. Additionally, Common Article 2 of the Conventions states that ‘the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.’14 Given the comprehensiveness of the text in Common Articles 1 and 2, it seems impossible to unilaterally deny the application of the Conventions, even in cases of armed conflict with an aggressor state. Second, more convincing evidence is almost unanimous practice, with a few exceptions,15 of applying the JIB equally, irrespective of its blameworthiness under the JAB.16 The precedents of the International Criminal Tribunal for the former Yugoslavia or the Special Court for Sierra Leone also confirmed that IHL ‘is applicable to everybody’, and those courts did not take into account the ‘political motivations’ or ‘just cause’ of the war for IHL application.17 14

This is supplemented by Article 1, paragraph 3 of the API, saying that ‘this Protocol…shall apply in the situations referred to in Article 2 common to [Geneva] Conventions’. 15 For example, the Democratic Republic of Viet Nam argued during the drafting process of API that aggressor states must comply with IHL, but victim states may be exempted from their obligations under IHL. For assessing this argument, the inadequacy of the IHL rules before the API (such as the imbalance between the lack of codified rules regulating the air strikes by the US and the widely protected POW status of the pilots who carried out such strikes) should also be recalled. See Fujita (1973), p. 454. 16 In the Hostage Trial, US Military Tribunal held, based upon Lauterpacht’s statement (Lauterpacht 1935, p. 174), that ‘whatever may be the cause of a war that has broken out, and whether or not the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done, and must be done by the belligerents themselves in making war against each other; and as between the belligerents and neutral States. This is so, even if the declaration of war is ipso facto a violation of International Law, as when … a State goes to war in patent violation of its obligations under the Covenant of the League or of the General Treaty for the Renunciation of War.’ (US Military Tribunal 1948, pp. 59–60). 17 In 2004, the ICTY Appeals Chamber declared, The unfortunate legacy of wars shows that until today many perpetrators believe that violations of binding international norms can be lawfully committed, because they are fighting for a “just cause”. Those people have to understand that international law is applicable to everybody, in particular during times of war. (ICTY 2004, para. 1082). SCSL Appeals Chamber in 2008 said, The basic distinction and historical separation between jus ad bellum and jus in bello underlies the desire of States to see that the protections afforded by jus in bello (i.e., international humanitarian law) are fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts. The political motivations of a combatant do not alter the demands on that combatant to ensure their conduct complies with the law…Consideration of political motive by a court applying international humanitarian law not only contravenes, but would undermine a bedrock principle of that law. (SCSL 2008, paras. 530–531).

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12.2.3 Substantive Justification The paragraphs above indicate the conventional and customary bases of the principle of separation/equal application. To ascertain the significance of these principles, it is worth clarifying further the substantive reason why the state necessitates the equal application of IHL, even in a war of aggression. In other words, what is the problem raised when parties or the international society decide to run counter to the principles? Both logical (objective) and humanitarian approaches are possible. Logical or Objective Needs As a matter of objective fact, the outlawry of war reduced the number of occurrences of the use of force between states but did not eliminate inter-state wars. This logically leads to the conclusion that the JIB, as a secondary rule, must apply when such a violation of the JAB as a primary rule occurs. However, this explanation leaves the question of consistency with the principle of ex injuria jus non oritur unanswered. Moreover, the self-evident necessity of mitigating the actual harm of war by IHL/ JIB does not necessarily justify the equal application of IHL. Additional supporting reasons are provided from the realistic viewpoint of world politics. The foremost one is the indeterminacy of illegal parties in an armed conflict. In many international armed conflicts, no authoritative declaration of an aggressor or breacher of peace is provided by the Security Council. On the contrary, the reality was that in many conflicts, the legal assessment of the causes of war posed by parties tended to be fragmented, reflecting the Cold War structure until 1990 or the recent new Cold War structure. In a situation where the parties accuse each other of aggression without the authoritative declaration of which side of the parties is an aggressor, it is not hard to imagine the devastating consequences of a ‘race to the bottom’ as a result of the mutual assertion of the discriminatory application of IHL against the ‘aggressor’ as which they self-define.18 Humanitarian Needs Humanitarian rationale is more compelling. This position emphasises that humanitarian protection for persons suffering from armed conflicts is equally necessary, regardless of whether the country to which those persons belong is an aggressive or victim state. An individual’s protected status should be admitted independently of the illegal aggression of their country. Moreover, because it is difficult to distinguish humanitarian provisions that should apply equally to all individuals from other provisions that should not, a practical solution based on humanitarian needs must be that IHL as a whole should apply equally. Commentators have also argued that, as an incentive for compliance with IHL, equal application of the law is indispensable. Due to the reciprocal nature of IHL between parties, it is unrealistic to suppose that one party declared an aggressor and denied equal and full enjoyment of humanitarian protection still sustains the incentive to assume all IHL obligations to protect people belonging to other parties. 18

Shany (2011), p. 433.

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As shown above, the principles of separation of JIB and JAB and equal application of IHL have a prima facie pragmatic basis and substantive necessity to sustain them. However, these principles recognised by treaty provisions, judicial precedents, and academic theories are declared in general terms. There is still uncertainty regarding the scope, content, and nature of these principles. Moreover, while these substantive reasons for the equal application of IHL are persuasive, it remains unclear whether the principles of separation of the JIB and JAB and the equal application of IHL should be viewed as a policy goal or a regulatory legal concept. If the latter is the case, further examination is needed to determine whether these are general principles that should be substantiated as much as possible through the application of more concrete rules, or legal rules, which requires full compliance and sanctions the violation. In the next section, by pointing out possible challenges to these principles, the extent to which the separation of JIB and JAB is feasible and the relationship between the two laws based on the premise of separation are explored.

12.3 Challenges to the Principle of Equal Application? Although the principle of JAB/JIB separation and its four implications have been widely accepted, the extent to which the principle should be implemented is still an open question. This lack of clarity may be problematic, especially when we encounter a manifest act of aggression while witnessing a tendency to harmoniously apply the rules of international law. One may wonder if it is possible to apply two branches of international law that regulate the same acts of conflicting parties in mutual and completely independent manner in today’s international legal environment. Recognising that it is undesirable from a humanitarian point of view to apply discriminatory IHL against the aggressor country or to give preferential treatment to the victim country by easing its obligations, one may still not have firm confidence to conclude that the legality/illegality of JAB, which is (mostly) unanimously declared, does not affect the application of JIB. To address these concerns, the principle needs more defence against challenges posed from legal or factual points of view.

12.3.1 Principle of Concurrent Application of JAB and JIB First, it is confirmed that both JAB and JIB are applied simultaneously, even under the principle of separation. As the JAB has developed over the last 100 years, the traditional wartime/peacetime distinction has become outdated as a legal framework, and temporal separation, based on such a distinction, between the JAB, which regulates only the initial phase or the cause of an armed conflict itself, and the JIB, which governs the conduct of combat during armed conflict, has lost its relevance. It is widely recognised that any single belligerent act may be regulated not only by

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the JIB but also by the JAB’s restraints on the use of force, such as necessity and proportionality. The ICJ’s Advisory Opinion on the legality of the threat or use of nuclear weapons stated that ‘a use of force that is proportionate under the law of self-defence must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law’.19 In subsequent litigation and Advisory Opinion proceedings before the ICJ, both in the arguments by the parties and other states and in the court’s opinion, military actions have been assessed under the IHL and the law on self-defence (JAB) simultaneously.20 Furthermore, in the 2022 Reparation Judgement of the Armed Activities on the Territory of the Congo case, the ICJ suggested that the JAB should even regulate legal acts under the JIB by the parties during wartime. It stated that Uganda’s reparations obligations may include ‘cases of displacement that have a sufficiently direct and certain causal nexus to Uganda’s violation of the jus ad bellum, even if they were not accompanied by violations of international humanitarian law or human rights obligation’.21 The argument that the JAB rules continuously function during armed conflict seems a logical consequence of the self-evident fact that war has been generally outlawed and acts of self-defence are permitted only within the limits of necessity and proportionality. Until the early 1990s, however, some commentators seriously argued that the JAB rules applied only up to the outbreak of armed conflict, and that once a state engaged in armed conflict, all conduct was subject only to the JIB rules.22 Such arguments emphasised that judging whether a particular military action complies with JAB requirements at the tactical context was so complicated that it was unrealistic to expect political leaders and military commanders to assess the JAB elements of necessity and proportionality for an ongoing armed conflict.23 However, it is undeniable that in some armed conflicts, such as a lesser-scale confrontation or in a particular geographical context, JAB judgments may not be too difficult, even during the actual combat phase. In short, in some conflicts, the JAB decision is immediately possible, whereas it is not in others. Even in the former cases, however, it is crucial to heed the cautious exhortations stated by those conservative commentators regarding the danger of confusion between terms commonly used in the JAB and JIB such as proportionality or (military) necessity. In this sense, the simultaneous application of

19

ICJ (1996), para. 42. Okimoto (2011), pp. 32–33. 21 ICJ (2022), para. 214. This passage cited the other caselaw of the EECC (EECC 2009, p. 731, para. 322). 22 IIHL (1995), pp. 76–77, para. 4.3. The result of the tense debate between the two sides was the black-letter rule in paragraph 4 of the Manual, providing ‘The principles of necessity and proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed conflict, required to repel an armed attack against it and to restore its security’. 23 IIHL (1995), p. 77, paras. 4.5–4.6. 20

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JAB and JIB in a given case should be based on the premise that these two branches must operate without hasty fusion.24

12.3.2 Interface Between JAB and JIB The next, more substantial issue is that if JAB and JIB apply simultaneously but function without being fused, how can the relationship between the two be perceived? In the past, no explanation was offered beyond the general principle that the two laws function independently. This attitude is nothing but an ingenious variant of the traditional view based on the wartime/peacetime bifurcation, which underestimates the significance of JAB assessments for combat phases. Today, although it is still not clearly formulated, it is recognised that the two laws can be related to some extent in operation.25 Given the theory that JAB and JIB are mutually exclusive in their application without correlating to each other is not tenable today, what possible interface between them could there be instead? Among the several approaches, Professor Hisakazu Fujita pointed out the following: Necessity for equal application of JIB expires when the JIB as such ceases its operation. That is when the JAB norms that apply discriminatory against the aggressor side become valid instead.26

This argument is a simple temporal distinction of the scope of application of the two areas of law into duranto bello (during armed conflict) when the equal application of the JIB is appropriate, and posto bellum (after armed conflict) when the discriminatory application of the JAB is appropriate. This could be a sufficient statement if the equal application of IHL works only within the scope of an armed conflict. Thus, it could be appropriate if the provisions of the IHL only apply during the conflict and their effects end entirely when the conflict is over, or if the application of the JAB is not raised during the conflict but only after that. This position has serious weaknesses, as Fujita admits, however, that these presuppositions have not been substantiated. First, a distinction between the periods during and after the war is materially impossible. Second, some IHL rules continue to be applied even after the end of active military operations or after the conclusion of

24

US Department of Defense (2016), para. 3.5.2. It is noteworthy that the 2016 US Law of War Manual stated that ‘Although as a general matter parties must comport with jus in bello rules, regardless of jus ad bellum considerations, sometimes jus ad bellum issues can affect how jus in bello rules operate.’ (US Department of Defense 2016, para. 3.5.3) The following paragraphs, however, just illustrated some examples of such effects and did not present a coherent description of the relationship between two areas of law exhaustively or systematically. 26 Fujita (2000), pp. 45–46. 25

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peace.27 Third, as shown above, in principle, the concurrent application of JAB and JIB is now recognised, and, also, in practice, there are some, not many, instances where JAB evaluations are legally discussed and then decided even when the heated conflict continues.28 As the Geneva Conventions recognise,29 the general closure of military operations does not necessarily mean the end of applying the JIB. In cases of lengthy armed conflict and prolonged military occupation, where the JIB still applies, arguments based on JAB evaluations sometimes become necessary and centre on legal arguments. Even if the arguments based on JAB have to wait for the end of an armed conflict, it would be difficult, in the first place, to define the end of such a conflict or occupation. Moreover, the more difficult question is, if the end of an armed conflict can be clearly defined, how the benefits for the aggressor given by the proper application of IHL or the effects of the violation of IHL by the victim side during the conflict can be reassessed after the conflict when the discriminatory application of the JAB comes to the fore. Therefore, distinguishing between the periods during and after the armed conflict does not solve all the problems related to the interface between the JAB and JIB. Another possible way to enable the principled simultaneous application of JAB and JIB is to distinguish JIB rules to be applied equaliy from those not to be based on their nature. For example, Wright argued that a state that illegally resorted to force could not exercise belligerent rights, such as occupation, destruction of troops, or seizure of foreign property, and that there could be no justification for destruction based on military necessity, but that it must comply with the obligations imposed on the belligerent.30 Von Grahn also distinguished between permissible and prohibitive norms of JIB and argued that only prohibitive norms apply to the aggressor state, whereas both norms apply to the victim state.31 These arguments embody the principle of ex injuria jus non oritur in the context of an illegal war. However, the assumption that the aggressor state has no rights but only obligations, or that it is not allowed to benefit and is subject only to prohibitive obligations, is unrealistic when applied to two warring parties. This completely ignores the reciprocal foundation of the JIB, which is essential for its application. Moreover, given the intertwined nature 27

For example, the Third Geneva Convention of 1949 for the Prisoners of War declares that the protection for the Prisoners of War lasts ‘until their final release and repatriation’ (Article 5, paragraph 1). It means that the application of the Convention does not cease when the Treaty of Peace as far as the Prisoners of War are not fully repatriated. 28 Taking an example, during the Falklands conflict, where the United Kingdom maintained that the legal basis for its military action was self-defence under Article 51 of the UN Charter, Argentina argued on several occasions that the British actions were disproportionate. Notable ones of those occasions were Britain’s establishment of the Total Exclusion Zone and the sinking of the Argentine Cruiser General Belgrano. The United Kingdom defended those actions not simply on the basis that these were lawful acts under the JIB but on the ground that they were necessary and proportionate measures of self-defence. See Greenwood (1995) pp. 149–150. 29 Article 5, paragraph 2 of the Fourth Geneva Convention of 1949. 30 Wright (1953), pp. 371–376. 31 Von Glahn (1957), pp. 5–6.

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and indivisibility of the rules contained in the IHL, the approach of distinguishing between humanitarian rules that should be applied equally and other rules that do not, or distinguishing rights and obligations is impracticable. Thus, even if the principle that JAB and JIB apply simultaneously to a single act of using military force is accepted, it is difficult to find a principled way to explain the relationship between them. The sole usable explanation, if any, is rhetoric, which might be seen as an evasive excuse, that they function independently in different layers. This explanation, however, does not answer core questions, such as whether military operations which are acceptable as belligerent acts under IHL but constitute an act of aggression should be allowed to have designated effects or should be denied any effects as a part of aggression. Under international law today, pursuing the accountability of individuals and states regarding military operations can start during an armed conflict without waiting for the end. In contemporary armed conflict settings, the development of warfare on battlefields has been widely monitored. Its legal implications in the context of the overall conflict can be easily assessed under both JAB and JIB by the external audience. Such outer evaluations, disliked by some military lawyers as lawfare, are now intensified and politicised to deter parties to the conflict from doing particular types of military operations in another way. In such a legal and technical environment, there is a serious concern that theoretically inadequate explanations of the JAB/JIB relationship may cause actual problems. Next section examines some cases in which such a concern is likely materialised in the context of the Russo-Ukrainian war.

12.3.3 (Potential) Problems in the Russo-Ukrainian War Rights of Occupying Power Acknowledging that the equal application of IHL is preferable in principle, some rights or privileges given to belligerent parties are claimed to be outside the scope of that principle. First of those are the occupying powers’ rights.32 The 1907 Hague Regulations on the Laws and Customs of Land Warfare gave the occupying powers many prerogatives. It may demand requisitions in kind and services for the needs of the army of occupation (Article 52), administrate or use immovable property ‘belonging to the hostile State, and situated in the occupied country’ (Article 55), and take possession of ‘all movable property belonging to the State which may be used for military operations’ (Article 53). These prerogatives under the IHL of the occupying power in occupied territory, over which the power exercises effective control and the territorial sovereign is ousted, are sometimes negatively understood as unfair benefits the aggressor state should not receive. Unlike active combat zones, where evaluations based on laws other than the IHL are hardly practicable, the measures of the occupying powers are 32

Wright, and others seconding the discriminatory application of JIB, referred to the maritime belligerent right as another example of the rights the aggressor state shall not exercise.

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exercised in relatively stable situations where they are more likely to be subject to holistic legal assessment, particularly under the necessity and proportionality requirements of the JAB. It may be questionable whether Russia, the aggressor country, can be granted these rights in Ukraine for the interests and needs of Russia committing an aggressive war, contrary to the interests of the residents of the occupied Ukrainian territory. Similarly, it may be counterintuitive to conclude that by relying exclusively on IHL, the requisition or seizure of resources and grain for Russia’s aggressive purposes in Ukraine is legally permissible. These questions can be raised immediately after an occupation is established, but they become more problematic as the occupation lasts longer and the situation becomes more stable. Compared with other areas of the JIB, the law of occupation is said to be an area of the JIB in which external considerations, such as the legality under the JAB and the territorial title, may be more decisive.33 In complex cases of the occupation of disputed lands, such as the Crimean Peninsula, or when the legitimacy of consent by a sham territorial state to the presence of foreign troops is highly dubious, as in the Donbas region of Ukrainian territory, the applicability of occupation law is evaluated in reference to, or strongly affected by, external consideration under general international law, including JAB. These intrusions of JAB for JIB application are likely to pave the way for the arbitrary non-application of JIB and might lead to the discriminatory application of JIB. The following hypothetical example illustrates this point: When Ukrainian forces regain, in future development, the Crimean Peninsula or Donbas area occupied and annexed by Russia, is the law of occupation applied to those territories? If the law of occupation applies in line with the objectivism for the application of IHL, of which it is a part, one may conclude that the law applies to those territories retaken from Russian rule, just because they were under another country before that time. The Eritrea-Ethiopian Compensation Committee (EECC) held the Partial Award for the occupation of certain lands which had been disputed between the two countries: [D]amage unlawfully caused by one Party to an international armed conflict to persons or property within territory that was peacefully administered by the other Party to that conflict prior to the outbreak of the conflict is damage for which the Party causing the damage should be responsible, and that such responsibility is not affected by where the boundary between them may subsequently be determined to be.34

This statement suggests that the application of the law of occupation may be triggered by the fact that one party establishes effective control over the territory previously under the control of another party, even when the former contests the territorial title of the latter over the territory concerned. Indeed, it is reasonable to exclude from the scope of this statement the cases where the territorial state regains its non-disputable territory, which is under unlawful rule by the aggressor state. Most commentators would agree that this is the case for Ukraine’s retrieval of lost territories, including Crimea where Russia contested the Ukraine’s title before the 33 34

Giladi (2008), pp. 246–301. EECC (2004), p. 169, para. 27.

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invasion in 2014. However, this departure from the objectivist principle might imply the discriminatory application of the law in favour of victims of Russian aggression. Moreover, as a cautious warning, it should be noted that the people residing there and those who have allegiance to Russia could be qualified and better protected as the ‘protected person’ under the Fourth Geneva Convention,35 regardless of their formal Ukrainian nationality, which is viewed by the world as more legitimate than illegally given Russian nationality. ‘Incidental’ Damage to Ukrainian Civilians: The Amnesty International Report Scandal The more difficult question concerns the admissibility of the military advantages of the aggressor state, Russia, in the application of the IHL to calculate the collateral damage resulting from Russian attacks on Ukrainian military targets. The only legitimate objective that a party to the conflict is allowed to endeavour is to ‘disable the greatest possible number of men’ to ‘weaken the enemy’s military forces’.36 Therefore, when attacking, ‘the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’. (API, Article 48). On the other hand, it is not illegal for an attack on combatants or military targets to have some lethal effects on the civilian population, and collateral casualties and damage to civilian and civilian objects that are not excessive ‘in relation to the concrete and direct military advantage anticipated’ are legally permissible (API, Article 57(2)(a)(iii) and (b)). There are significant practical difficulties in selecting, in accordance with IHL, particular targets and methods of warfare in the fog of war, especially when the attack may cause collateral damage to civilians. More are there if additionally considering the legality or illegality under JAB for measuring the degree of ‘military advantage’. One year after the start of the war in Ukraine, decision makers and academics did not openly call for the discriminatory application of the targeting rules of IHL. They have not supported the opinion that Russia should not claim its military advantage by a specific attack to justify incidental civilian damage, or that Ukraine should be given a wider margin of appreciation in targeting because of its legitimacy when fighting back against the aggressor. However, a complicated situation has arisen in which the obligation to take precautionary measures to minimise civilian collateral damage, which would be assumed equally by the attacker and defender, is seemingly not applied equally. When Amnesty International criticised37 some Ukrainian tactics, such as fighting near civilian population centres and using those civilians as human shields violating the principle of distinction,38 Amnesty International’s ‘equal 35

ICTY (1999), paras. 164–168. Saint Petersburg Declaration (1868), Preamble. 37 Amnesty International (2022). 38 If proved, such tactics would violate the combatants’ obligation ‘to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack’ (API, Article 44, paragraph 3), not to use ‘the presence … of the civilian population or 36

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application’ approach was sharply criticised.39 Such criticism has not been a legal allegation of the discriminatory application of the IHL. However, the atmosphere seems that the world opinion is more permissible to Ukrainians than the Russian side when discussing incidental damage to civilians.40 This may be a sign of the collapse of equal footing between the parties to the conflict for the obligation to take precautionary measures, which has been an essential condition for maximising civilian protection in the actual phases of combat.41 General Comment 36 of the Committee on the Covenant on Civil and Political Rights The Human Rights Committee on the Covenant on Civil and Political Rights issued General Comment No.36 on the Right to Life in 2019; however, its paragraph 70 was controversial. The paragraph describes the consequences of acts of aggression, including a passage that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant’.42 As indicated elsewhere in the General Comment (paragraph 64), IHL and the right to life have a complementary relationship. That is, the Committee understood that the use of lethal force consistent with IHL is ‘in general’ not constitute an arbitrary deprivation of life (i.e., does not violate Article 6 of the Covenant), whereas that which is inconsistent with IHL would also violate Article 6. The relationship between the IHL and HRL can no longer be explained in terms of the principle lex specialis derogat legi generali. Moreover, with the qualification by words ‘in general’, the possibility remains that an act consistent with IHL may still violate Article 6 of the Covenant. However, the Comment basically followed the understanding of guaranteeing the right to life in armed conflict situations as stated by the ICJ’s Nuclear Weapons Opinion. The Comment was problematic because, despite the view expressed in paragraph 64, paragraph 70 does not mention compliance with IHL and reads that all acts in a war of aggression, even those consistent with IHL, are by definition considered a violation of the right to life.43 Under this view, the aggressor country is accountable for violating the right to life for all belligerent acts individual civilian… to render certain points or areas immune from military operations…favour or impede military operations’ (API, Article 51, paragraph 7), and to ‘remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objective’ ‘to the maximum extent feasible’(API, Article 58 (a)). 39 New York Times (2022a). 40 Given the actual situation of the war, it is doubtful that Russia is showing a sincere attitude to respect the principle of distinction. 41 During the development of IHL, the tendency of the weak ‘defensive side’ to adopt an abusive practice that allowed combatants and military targets to blend into the sea of civilians was the most significant concern of the Western Powers. A manifestation of that is the reservations by those states to the second sentence of Article 44, paragraph 3 of API. As an example, Japan submitted the Declaration attempting to limit the scope of application of this sentence to ‘occupied territory or in armed conflicts covered by paragraph 4 of Article 1’. Also Australia, Belgium, Canada, France, Germany, Ireland, Italy, and the United Kingdom made identically worded declarations. 42 CCPR (2019a), para. 70. 43 Jackson and Akande (2022), p. 454.

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against the enemy, regardless of whether it complies with the IHL. It is from this perspective that this passage raises the concern that the ‘discriminatory application’ of IHL between the aggressor and the victim might result from the guarantee of the right to life. Concern was also expressed about such discriminatory applications resulting in a loss of incentive for the aggressor to comply with the IHL.44 Furthermore, it should be noted that many countries opposed this part of the Comment when drafting General Comments.45 They emphasised the mutual independence of the norms of the JIB, JAB, and HRL, in addition to the fact that the interpretation of the JAB is not within the jurisdiction of the Human Rights Committee. In addition, doubts about the extraterritorial application to the enemy territory of the Covenant were raised. Germany commented that ‘[n]otwithstanding the fact that an act of aggression may entail or lead to violations of human rights, a clear distinction between the different legal regimes should be maintained in order to allow for an adequate attribution of responsibilities in international law’.46 On the other hand, it was only Russia to have taken the position that the JIB was the sole applicable law in times of armed conflict,47 and no country indicated a clear position on the consequences of the simultaneous but mutually independent application of the JAB, JIB, and HRL or on how to harmonise the various norms. The states’ attitudes toward General Comment 36 show that the interconnectedness of the branches of international law being recognised, there is no settled view on the degree to which the independence between the JAB, JIB, and HRL should be maintained, and that although definitions of acts of aggression have been finally established in recent years, many uncertainties remain regarding its legal consequences.

12.4 Conclusion The principle of separation of the JAB and JIB and the principle of equal application of IHL seem to be firmly established through state practice, and supported by the conventional basis in Common Article 1 of the Geneva Conventions and API, and the Preamble to API. As indicated in this Chapter, there are sufficient and persuasive rationales to preserve the principle of separation between the JIB and other considerations, at least from a policy perspective. Above all, the protection worthiness of individuals should not be subject to their own state’s responsibility for the unlawful use of force. Recent developments have also clarified that most states are unwilling, from a legal perspective, to withdraw their commitment to the general principle of separation between the JAB and JIB. 44

But see, Jackson and Akande (2022), p. 458. CCPR (2019b). 46 Germany (2017). 47 Russia stated that ‘it is internationally recognized that in the context of an armed conflict, the norms of international humanitarian law prevail over all other branches of international law’ (Russia (non-dated)). 45

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Meanwhile, in today’s international law, it is generally recognized that IHL is not the only norm applicable in times of armed conflict; other sets of rules such as JAB or HRL may continue to apply to armed conflict situations, and harmonious interpretation between those applicable rules is also required. In this connection, while the principle of separation of JAB and JIB remains valid, the interface issue of how to harmonise the application of, or the effects stemming from, the two branches of international law remains unanswered. The potential danger of such ambiguity in logic that causes practical problems may not be ignored, especially in a war of outright aggression. That being said, the actual practice of the war between Russia and Ukraine reaffirms that maintaining the separation between the JAB and JIB, as empirical wisdom, outweighs the pursuit of theoretical consistency of international law. Since the beginning of the war, Russia has insisted on the legitimacy of its military actions as a ‘special military operations’. This self-assessment that the country is not at ‘war (armed conflict)’ may be purported to avoid condemnation under the JAB; however, it cannot be a valid reason for denying the application of IHL. It is possible to infer that such an unreasonable classification of the situation based on the self-claimed legitimacy of the Russian cause became the basis for the total or partial non-compliance or non-application of the IHL. It also caused flagrant violations in many parts of Ukraine based on the arbitrary interpretation of IHL, which mostly amounted to discriminatory application favouring Russia’s own side. As an additional case example, in October 2022, Russia condemned the mysterious attack on the Kerch Strait Bridge, a military objective under any interpretation of the IHL, as an illegal terrorist attack by Ukraine,48 and carried out an indiscriminate attack in a reprisal.49 These actions by Russia appear to violate its obligations under the IHL, including the prohibition of indiscriminate attacks (API, Article 51(4)); the prohibition of acts or threat of violence the primary purpose of which is to spread terror among the civilian population (API, Ariticle 51(2)); and the prohibition of attacking the civilian populations and civilians by way of reprisals (API, Article 51(6)). By ignoring the fact that the bridge in question was a military target and characterising this attack as a criminal act of terrorism based on a subjective assessment of the situation, Russia attempted to justify his departure from the IHL framework. Such a dangerous posture seeking the discriminatory application of or substantial departure from the framework of IHL is also evident in some Western arguments. They implicitly tied Russia’s responsibility under the JAB to the application of IHL, and tried to claim any attacks on Ukrainian combatants, whether in violation of IHL or not, also constituted war crimes, while others also considered Russian soldiers who were forcibly mobilised to be victims who shall be legally protected.50 These arguments are moves that will significantly hinder the application of IHL and could even dissolve the normative framework of IHL itself.

48

New York Times (2022b). Guardian (2022). 50 Goodman and Harper (2022). 49

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Given these moves, it is better to stress that, as the exact relationship between the JAB and JIB cannot be consistently formulated yet, the best solution is to continue to regard them as separate systems for a while.

References A/RES/3314. 1974. U.N.Doc. A/RES/3314(XXIX), 14 December 1974. A/RES/ES-11/1. 2022. U.N.Doc. A/RES/ES-11/1, 2 March 2022. Abe, S. 2013. Answer by (then) Prime Minister Abe in the Committee on Budget of the House of Councillors, the National Diet of Japan, 23 April 2013. Amnesty International. 2022. Ukraine: Ukrainian Fighting Tactics Endanger Civilians, 4 August 2022. https://www.amnesty.org/en/latest/news/2022/08/ukraine-ukrainian-fighting-tactics-end anger-civilians/. Accessed 31 Mar 2023. CCPR. 2019a. General Comment No. 36, CCPR/C/GC/36, 3 September 2019. CCPR. 2019b. General Comment No. 36 On Article 6: Right to Life, Inputs Received. https:/ /www.ohchr.org/en/calls-for-input/general-comment-no-36-article-6-right-life. Accessed 31 Mar 2023. ECtHR. 2009. Varnava et al. Turkey, No.16064/90, 18 September 2009. EECC. 2004. Partial Award: Central Front-Ethiopia’s Claim 2, 28 April 2004, RIAA, 26. EECC. 2009. Final Award, Ethiopia’s Damages Claims, Decision of 17 August 2009, RIAA, 26. Fujita, H. 1973. Minzoku kaiho senso to sensoho (People’s Liberation War and the Law of War). In Hendoki no kokusaiho: Tabata Shigejiro sensei kanreki kinen (International Law in the Upheaval Era: In honour of Professor Shigejiro Tabata’s 60th Birthday), ed. K. Taijudo. Yushindo. Fujita, H. 2000. Kokusai jindoho, shinpan, zoho (Droit international humanitaire, nouvelle édition révisée et mise à jour) Yushindo. Germany. 2017. Submission from Germany on the draft General Comment on Article 6 of the International Covenant on Civil and Political Rights—Right to life, 6 October 2017. https://www.ohchr.org/sites/default/files/Documents/HRBodies/CCPR/GCArticle6/Ger many.docx. Accessed 31 Mar 2023. Giladi, R. 2008. The jus ad bellum/jus in bello Distinction and the Law of Occupation. Israel LR 41(1&2). Goodman., R. and K. Harper. 2022. Toward a Better Accounting of the Human Toll in Putin’s War of Aggression. Just Security, 24 May 2022. https://www.justsecurity.org/81625/. Accessed 31 Mar 2023. Gowlland-Debbas, V., and G. Gaggioli. 2013. The Relationship between International Uman Rights and Humanitarian Law: An Overview. In Research Handbook on Human Rights and Humanitarian Law, ed. K. Kolb, G. Gaggioli. Edward Elgar. Greenwood, C. 1995. Effects of the United Nations Charter on the Law of Naval Warfare. In Visit, Search, Diversion and Capture; The Effect of the United Nations Charter on the Law of Naval Warfare, ed. W. Heintschel von Heinegg. UVB Univerisitätverlag Dr. N. Brockmeyer. Guardian. 2022. Putin warns of further retaliation as Ukraine hit by massive wave of strikes. The Guardian, 10 October 2022. ICJ. 1980. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt. Advisory Opinion, ICJ Reports 1980: 73. ICJ. 1996. Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion, ICJ Reports 1996: 226. ICJ. 2004. Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, avis consultatif , C.I.J. Recueil 2004, 136. ICJ. 2005. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, 168.

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ICJ. 2022. Activités armées sur le territoire du Congo (République démocratique du Congo c. Ouganda), arrêt du 9 février 2022. ICTY. 1999. Prosecutor v. Tadic, Judgment, IT-94-1-A, Appeals Chamber, 15 July 1999. ˇ ICTY. 2004. Prosecutor v. Kordi´c & Cerkez, IT-95-14/2-A, Appeal Judgment, 17 December 2004. IIHL. 1995. San Remo Manual on International Law Applicable to Armed Conflicts at Sea: Commentary. Cambridge University Press. Jackson, M., and D. Akande. 2022. The Right to Life and the jus ad bellum: Belligerent Equality and the Duty to Prosecute Acts of Aggression. Intl and Comp L Q 71. Kress, C., and S. Barriga (eds). 2017. The Crime of Aggression: A Commentary, vol. 1. Cambridge University Press. Lauterpacht, H. 1935. Oppenheim’s International Law, vol. II, 5th ed., Longmans, Green & Co. Lindroos, A. 2005. Addressing the norm conflicts in a fragmented system: the doctrine of lex specialis. Nordic Journal of International Law, 74. Milanovic, M. 2016. The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law. In Theoretical Boundaries of Armed Conflict and Human Rights (ed.), J.D. Ohlin, Cambridge University Press. New York Times. 2022a. An Amnesty International assessment that Ukraine ‘put civilians in harm’s way’ stirs outrage. The New York Times 7 August 2022. New York Times. 2022b. Putin Calls Bridge Blast an Act of Terror. The New York Times 9 October 2022. Okimoto, K. 2011. The Distinction and Relationship between Jus ad Bellum and Jus in Bello. Hart. Russia. non-dated. Preliminary Comments on the Draft General Comment No. 36 on Article 6 (Right to Life) of the International Covenant on Civil and Political Right. https://www.ohchr.org/sites/ default/files/Documents/HRBodies/CCPR/GCArticle6/RussianFederation.docx. Accessed 31 Mar 2023. Saint Petersburg Declaration. 1868. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight. Saint Petersburg, 29 November/11 December 1868. Sassòli, M. 2019. International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Edward Elgar. SCSL. 2008. Prosecutor v. Fofana and Kondewa, SCSL-04-14-A, Appeal Judgment, 28 May 2008. Shany, Y. 2011. A Rebuttal to Marco Sassoli. Intl R the Red Cross 93. US Department of Defense. 2016. Law of War Manual. US Military Tribunal. 1948. Trial of Wilhelm List and others (the Hostages Trial), 19 February 1948, United Nations War Crimes Commission. Law Reports of Trials of War Criminals 8. Von Glahn, G. 1957. The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation. The University of Minnesota Press. Wright, Q. 1953. The Outlawry of War and the Law of War. American Journal of International Law 47(3).

Kyo Arai is Professor of International Law, Faculty of Law, Doshisha University, Kyoto, since 2007. His major academic interest includes International Humanitarian Law, Law of Naval Warfare, and International Criminal Law. To his article “Between Consented and Un-Contested Occupation” Israel Law Review Vol.51, No.3 (2018), the Israel Law Review Prize 2018 was awarded.

Chapter 13

The Qualification of the Ukraine Conflict in International Humanitarian Law Shin Kawagishi

13.1 Introduction The Ukraine conflict has a global impact on the status of participants in hostilities under international humanitarian law (IHL). For example, in April 2022 three members of the Ukraine armed forces (two British nationals and one Moroccan national) surrendered to Russia and were prosecuted for participating in hostilities by the self-proclaimed Donetsk People’s Republic.1 It was alleged that the prosecution in this case was considered incompatible with IHL.2 Admittedly, should these members of the Ukraine armed forces have combatant status, they would enjoy combatant immunity, according to which they cannot be punished by the enemy for participating in hostilities as long as they comply with IHL. However, combatant status is recognized in an international armed conflict (IAC), not a non-international armed conflict (NIAC). Hence, to examine whether the prosecution in this case is considered incompatible with IHL, it is necessary to investigate whether the Ukraine conflict qualifies as an IAC or a NIAC. Against this background, this Chapter aims to analyze the qualification of the Ukraine conflict in IHL. Considering these introductory comments, this Chapter is constructed as follows: First, before beginning an investigation of the qualification of the Ukraine conflict in IHL, I will present an overview of the facts of this conflict in Part 2. Second, keeping that in mind, Part 3 will clarify the legal framework of the qualification of conflicts in IHL. In this context, I will concentrate on some key concepts in IHL: an IAC, a NIAC, and internationalization of a NIAC. Third, to determine the qualification of the Ukraine conflict in IHL, Part 4 will evaluate the facts of this conflict from the perspective of international law, especially IHL. 1 2

Roth and Sinmaz (2022). Hill-Cawthorne (2022).

S. Kawagishi (B) Faculty of Humanities and Social Sciences , Shizuoka University, Shizuoka, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_13

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Finally, in Part 5 I will set out some concluding thoughts on issues, including who has combatant status in the Ukraine conflict. This Chapter’s investigation of the qualification of the Ukraine conflict in IHL is based on source materials which had been published by May 2023.

13.2 An Overview of the Facts of the Ukraine Conflict On February 21, 2022, the President of Russia, Vladimir Putin, ordered the Russian armed forces to enter eastern Ukraine.3 Soon after that, on February 24, 2022, Russia launched a massive military operation against Ukraine, which was called a ‘special military operation’, in particular to protect the people in Donetsk and Luhansk from the Kiev government.4 From February 24, 2022, to February 5, 2023, the Office of the High Commissioner for Human Rights (OHCHR) recorded about 18,000 civilian casualties in Ukraine, and acknowledged that the actual figures were considerably higher.5 Apparently, it was from February 24, 2022, that the ‘special military operation’ commenced. However, apart from the ‘special military operation’, military engagement between Russia and Ukraine dated back to the crisis in eastern Ukraine as well as Crimea in 2014. After the Euromaidan protest forced the then President of Ukraine, Victor Yanukovych, to flee to Russia, the Russian armed forces were considered to be present in Donetsk and Luhansk. In fact, the Kiev government claimed that Russian armed forces were captured while fighting in eastern Ukraine.6 Although Vladimir Putin initially insisted that the Russian armed forces were not present in Donetsk and Luhansk, he later acknowledged that they performed certain military operations in eastern Ukraine.7 At the same time, military engagement between the Ukraine government and the pro-Russian armed groups on Ukrainian territory also intensified. In April 2014, the pro-Russian armed groups declared the independence of the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic.8 In the wake of this declaration, the fighting between the Ukraine government and the pro-Russian armed groups escalated. Although in September 2014 a ceasefire was signed by the Ukraine government and the pro-Russian armed groups, the death toll from the violence in Ukraine exceeded 5000 people.9 The members of the pro-Russian armed groups called themselves the United Armed Forces of Novorossiya. By using the term ‘Novorossiya’,

3

Roth and Borger (2022). United Nations Security Council: UN Doc S/2022/154 (2022), 6. 5 Office of the High Commissioner for Human Rights (2023). 6 Luhn (2015). 7 Dorell (2015). 8 Grytsenko (2014). 9 Westcott (2015). 4

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the pro-Russian armed groups wanted to show that they were autonomous units with allegiance to Russia.10 Importantly, in this context the Russian armed forces were involved in the fighting between the Ukraine government and the pro-Russian armed groups. Specifically, the Russian armed forces conducted activities such as training and equipping the pro-Russian armed groups in Ukraine.11 It was not completely clear whether the support by the Russian armed forces for the pro-Russian armed groups went beyond training and equipping. However, it was said that the pro-Russian armed groups received orders and instructions for certain military operations from the Russian armed forces.12 How can we evaluate these facts to determine the qualification of the Ukraine conflict in IHL? Keeping in mind an overview of the facts of the Ukraine conflict, in Part 3 I will clarify the legal framework of the qualification of conflicts in IHL.

13.3 The Legal Framework of the Qualification of Conflicts in International Humanitarian Law 13.3.1 An International Armed Conflict The legal framework of the qualification of conflicts in IHL is based on the dichotomy between an IAC and a NIAC. This dichotomy was created by the Geneva Conventions of 1949, and continues despite some convergence between the two categories since 1990s.13 An IAC is an inter-State conflict. Common Article 2 of the Geneva Conventions defines ‘armed conflict’ as occurring ‘between two or more of the High Contracting Parties’.14 Both parties to an IAC have combatant status. Specifically, the members of the armed forces of a party to an IAC have the right to participate in hostilities.15 As a result of this status, they enjoy two privileges, namely, combatant immunity and treatment as prisoners of war. The former means that the members of the armed forces of a party to an IAC cannot be punished by the enemy for participating in hostilities as long as they comply with IHL. The latter means that if they

10

Robins-Early (2014). Gordon and Kramer (2014). 12 Bellingcat (2018). 13 See Kolb and Hyde (2008), 65–71. 14 In addition to inter-State conflicts, self-determination conflicts of national liberation and conflicts in which belligerency is recognized are thought of as an IAC. See Akande (2020), 33–40. These two conflicts are of little importance to the subject of this Chapter, and thus are not dealt with here. 15 Article 43(2) of Additional Protocol I stipulates that ‘[m]embers of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities’. On this provision, see Sandoz et al. (1987), 515 [1677]. 11

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fall into the power of the enemy, they must be treated as prisoners of war, and given protections as provided for in IHL. There has been discussion among scholars on whether the threshold of intensity of violence should be the same for both an IAC and a NIAC.16 However, it has been established by international courts that although a high threshold of the intensity of violence is required for a NIAC, an IAC can exist regardless of the intensity of violence. For example, the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Zejnil Delalic17 distinguished between these two categories of armed conflict in terms of the intensity of violence by opining that: ‘[i]n the former situation [an IAC], the existence of armed force between States is sufficient of itself to trigger the application of international humanitarian law. In the latter situation [a NIAC], in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organization of the parties involved’.18 This judgment clarified that the ICTY followed the position of the International Committee of the Red Cross (ICRC) by holding that ‘the Trial Chamber is guided by the Commentary to the Fourth Geneva Convention, which considers that “[a]ny difference arising between two States and leading to the intervention of members of armed forces” is an international armed conflict and “[i]t makes no difference how long the conflict lasts, or how much slaughter takes place”’.19 It is therefore reasonable to assert that an IAC can exist irrespective of the intensity of violence.20

13.3.2 A Non-international Armed Conflict A NIAC is considered as a conflict between a government and armed groups, or between armed groups themselves occurring within the territory of one State.21 By contrast to an IAC, combatant status and the two privileges are not recognized in a NIAC. Armed groups comprise at least one of the parties to a NIAC. The fact of 16

Some scholars insist that the same threshold of intensity of violence should be applied for both an IAC and a NIAC. See, for example, Pejic (2007), 81–82; Bothe et al. (2013), 46. By contrast, other scholars maintain that the threshold of intensity of violence should be applied differently depending on whether it is an IAC or a NIAC. See, for instance, Schindler (1979), 121, 131–132, 146–149; Provost (2002), 247–269. 17 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic et al. (Judgment), IT-96-21-T, ICTY, 16 November 1998. 18 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic et al. (Judgment), IT-96-21-T, ICTY, 16 November 1998, [184]. 19 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic et al. (Judgment), IT-96-21-T, ICTY, 16 November 1998, [208]. 20 Besides the judgments of the ICTY, the judgment of the International Criminal Court (ICC) in Prosecutor v. Thomas Lubanga Dyilo also followed the position of the ICRC. Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges), ICC-01/04-01/06, ICC, 29 January 2007, [206–207]. 21 Akande (2020), 40–44.

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their participating in hostilities is referred to as a violation of the domestic law of the territorial State. It follows that a government is able to suppress the activities of armed groups by resorting to law enforcement measures, such as punishment under domestic law. This is confirmed by Common Article 3 of the Geneva Conventions,22 to the effect that its application does not limit the power of government to punish those who violate domestic law.23 Accordingly, there is no room for combatant status and the two privileges do not apply in a NIAC. The criteria for determining whether a NIAC exists are the intensity of violence and the organization of armed groups.24 The ICTY in Prosecutor v. Ljube Boskoski25 indicated illustratively several factors to evaluate the intensity of violence: the seriousness of attacks; the spread of clashes over territory and over a period of time; any increase in the number of government forces; the distribution of weapons among both parties to the conflict; whether the conflict has attracted the attention of the United Nations Security Council and whether any resolutions on the matter have been passed; the number of civilians forced to flee from the combat zones; the types of weapons used.26 Likewise, the ICTY in Prosecutor v. Ljube Boskoski also suggested illustratively several factors to assess the organization of armed groups: the presence of a command structure; factors indicating that the group could carry out operations in an organized manner; factors indicating a level of logistics; factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3 of the Geneva Conventions; factors indicating that the armed groups were able to speak with one voice.27 This is a case by case analysis of the situation and there is no particular formula for weighting these factors.28

22

This provision stipulates that ‘[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict’. As regards the meaning of this provision, the ICRC Commentary indicates that ‘[the fact of the application of Common Article 3 of the Geneva Conventions] does not limit in any way the Government’s right to suppress a rebellion using all the means–including arms–provided for under its own laws’. Pictet (1952), 61. 23 In this context, Article 3(1) of Additional Protocol II is also pertinent. This provision stipulates that ‘[n]othing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State’. As regards the meaning of this provision, the ICRC Commentary explains that ‘[this provision] does not affect the right of States to take appropriate measures for maintaining or restoring law and order, defending their national unity and territorial integrity’. Sandoz et al. (1987), 1362 [4500]. 24 On this topic, see Fortin (2017), 125-142. 25 Prosecutor v. Ljube Boskoski (Judgment), IT-04-82-T, ICTY, 10 July 2008. 26 Prosecutor v. Ljube Boskoski (Judgment), IT-04-82-T, ICTY, 10 July 2008, [177–193]. 27 Prosecutor v. Ljube Boskoski (Judgment), IT-04-82-T, ICTY, 10 July 2008, [194–206]. 28 Needless to say, Additional Protocol II is also designed to apply to a NIAC. As is well-known, the threshold of application of Additional Protocol II is higher than that of application of Common Article 3 of the Geneva Conventions. On this topic, see Moir (2002), 99–109.

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13.3.3 Internationalization of a Non-international Armed Conflict 13.3.3.1

Mixed Approach V. Global Approach

As a consequence of foreign intervention in a NIAC, the conflict can be internationalized. The term ‘internationalized’ (or ‘internationalization’) has been used by scholars in different ways.29 However, this Chapter defines it as ‘the transformation of a prima facie NIAC into an IAC, thereby applying to this conflict the more comprehensive IAC legal regime’.30 We need therefore to inquire under which conditions a NIAC can be internationalized. There has been debate among scholars about the conditions of internationalization of a NIAC as a consequence of foreign intervention. The first school of thought insists that when the armed forces of a foreign State intervene in a NIAC, its legal effect varies depending on which side of the conflict they intervene.31 When the armed forces of a foreign State intervene on the side of the government against armed groups, the conflict remains a NIAC. However, when the armed forces of a foreign State intervene on the side of armed groups against the government, an IAC (between the foreign State and the territorial State) and a NIAC (between the government and armed groups) can co-exist. In any case, the existence of a foreign State’s armed forces in itself does not make it sufficient to internationalize a NIAC. This position has been called the ‘Mixed Approach’.32 By contrast, the second school of thought claims that when the armed forces of a foreign State intervene in a NIAC, it is internationalized regardless of which side of the conflict they intervene.33 The existence of a foreign State’s armed forces in itself makes it sufficient to internationalize a NIAC. This position has been called the ‘Global Approach’.34 Importantly, although there has been controversy among scholars about the qualification of the Ex-Yugoslavia conflict,35 the ICTY endorses the ‘Mixed Approach’.36

29

On this topic, see Maˇcák (2018), 24–28. Milanovic and Hadzi-Vidanovic (2013), 271. 31 See, for example, Schindler (1965), 93–95; Pinto (1965), 455–456; Baxter (1974), 523–524. 32 Stewart (2003), 333–335. 33 See, for instance, Seyersted (1966), 214; Farer (1971), 69–70; David (1978), 372–377. 34 Stewart (2003), 333–335. 35 Some scholars have applied the ‘Mixed Approach’ to the qualification of the Ex-Yugoslavia conflict in IHL. See, for example, Oeter (1993), 17. By contrast, other scholars have applied the ‘Global Approach’ to the qualification of the Ex-Yugoslavia conflict in IHL. See, for instance, Meron (1994), 80–81. 36 Greenwood (1996), 270. 30

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Indeed, the ICTY in Prosecutor v. Dusko Tadic37 holds that ‘we conclude that the conflicts in the former Yugoslavia have both internal and international aspects’.38 Likewise, it is noteworthy that the debates in the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict in 1971 also support the ‘Mixed Approach’. The ICRC submitted the following proposal to the government experts: When, in case of non-international armed conflict, one or the other Party, or both, benefits from the assistance of operational armed forces afforded by a third State, the Parties to the conflict shall apply the whole of the international humanitarian law applicable in international armed conflicts.39

This proposal merits examination. First, it considers ‘the assistance of operational armed forces afforded by a third State’ as the form of a foreign intervention. This means that it presumes a situation in which the armed forces are dispatched by a foreign State to intervene in a NIAC.40 Second, this proposal provides that in a NIAC, ‘the Parties to the conflict shall apply the whole of the international humanitarian law applicable in international armed conflicts’. Accordingly, it admits that as a consequence of a foreign intervention, a NIAC is internationalized.41 Third, this proposal does not clarify who benefits from a foreign intervention by referring to the term ‘one or the other Party, or both’. In other words, it does not distinguish between foreign interventions on the side of the government and on the side of armed groups.42 37

Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72, ICTY, 2 October 1995. 38 Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72, ICTY, 2 October 1995, [77]. 39 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of Victims of Armed Conflicts (1971), 21. 40 This means that assistance other than a dispatch of the armed forces of a foreign State, such as political support, was not assumed in this proposal. In fact, it was said that when drafting this proposal, ‘[t]he experts did not consider that that [political backing to one or the other Party to the conflict] could modify the qualification of the conflict’. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of Victims of Armed Conflicts (1971), 18. By contrast, when drafting this proposal, the experts were said to agree that ‘an aid in the form of a dispatch of armed forces was of a nature to transform the qualification of a non-international armed conflict’. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of Victims of Armed Conflicts (1971), 20. 41 Indeed, it was said that when drafting this proposal, ‘it was generally agreed that foreign military intervention, on the side of either party, could transform an internal conflict into an international one, calling for the application of the laws and customs of war’. United Nations General Assembly: UN Doc A/8052 (1970), 44 [135]. 42 Admittedly, the experts were said to acknowledge as follows: ‘[i]t is to be recalled that for a long time the teachings of the publicists had distinguished between the aid granted to the legal government and the aid granted to the rebels. The view was that, because of its sovereignty, the established State had the right to ask for an outside military aid, which aid would still not modify the qualification of the conflict, since the action of the intervening State had the same characteristics as that of the government being assisted. But when the foreign aid was granted to the insurgents, it was a matter of

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To summarize, the essence of this proposal is that when the armed forces of a foreign State intervene in a NIAC, it is internationalized regardless of which side of the conflict they intervene.43 Hence, the position of this proposal can be regarded as an example of the ‘Global Approach’. However, government experts finally rejected this proposal.44 The reason for such rejection was that according to this proposal, as soon as the armed forces of a foreign State intervene in a NIAC, armed groups must be treated as combatants, namely prisoners of war, even though they do not belong to a State.45 In the end, the government experts endorsed a position which was completely different from this proposal.46 They distinguished between foreign interventions on the side of the government and on the side of armed groups. In case of the former, ‘the arrival of such troops to reinforce those of the government would in no way change the nature of the relations between the legal government and the rebels’47 and ‘[s]uch relations would continue to be subject to [Common] Article 3 [of the Geneva Conventions]’.48 By contrast, in case of the latter, ‘[t]he relations between the rebels and the legitimate government would have to continue to be subject to [Common] Article 3 [of the Geneva Conventions], while [Common] Article 2 [of the Geneva Conventions] would of course apply

interference in the internal affairs of a State, leading to an internationalisation of the conflict, at least as between the forces of the legal government and those of the intervening State…this situation is always true de lege lata’. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of Victims of Armed Conflicts (1971), 20. However, it was said that when drafting this proposal, ‘as a whole, the experts have argued against this dichotomy and have unanimously stated that no distinction should any longer be made between the dispatch of armed forces to the insurgents and the dispatch made to the authorities in power’. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of Victims of Armed Conflicts (1971), 20. 43 See Wilhelm (1972), 357. 44 See Gasser (1983), 146; Bierzanek (1984), 284; Reisman and Silk (1988), 465–466. 45 In fact, many government experts were said to insist that ‘[i]f the ICRC proposal were adopted, then as soon as a foreign State sent its troops over the border to help the rebels, thereby trespassing to begin with on the territorial rights of the neighbouring State, the State which suffered such aggression would have to treat its own rebels as prisoners of war’. Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971), 51 [301]. They were said to continue to claim that ‘[n]o government could accept that’. Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971), 51 [301]. 46 See Rosas (1976), 284. 47 Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971), 51 [301]. 48 Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971), 51 [301].

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to relations between government forces and those of the foreign State’.49 Hence, the position of the government experts can be regarded as an example of the ‘Mixed Approach’.50 All things considered, it is reasonable to evaluate that the ‘Mixed Approach’ reflects the current state of the law on this topic. However, according to the ‘Mixed Approach’, the existence of a foreign State’s armed forces in itself does not make it sufficient to internationalize a NIAC. Is there a possibility for internationalization of a NIAC to occur under the ‘Mixed Approach’? The ICTY accepts this by relying on two alternative standards. Now, we will therefore explore the reasoning of the judgment of the ICTY.

13.3.3.2

The First Standard for Internationalization of a Non-international Armed Conflict in the Judgment of the ICTY

In the judgment of the ICTY, the ‘overall control’ test is the most famous standard for internationalization of a NIAC. The judgment in Prosecutor v. Dusko Tadic51 is considered as a focal point for the ICTY on internationalization of a NIAC. For this judgment, the definition of combatants is a starting point for their discussion.52 Specifically, this judgment focuses on the term ‘belonging to a Party to the conflict’ laid down in Article 4A(2) of the Third Geneva Convention of 1949.53 As is wellknown, when interpreting this term, this judgment refers to control by a foreign State over armed groups as its key component.54

49

Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971), 51 [301]. 50 In addition to the debates in the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts in 1971, we could also find out that the debates in the same conference in 1972 also support the ‘Mixed Approach’. See, for example, Bothe (1977), 591. 51 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999. 52 This judgment holds that ‘[a] starting point for this discussion is provided by the criteria for lawful combatants laid down in the Third Geneva Convention of 1949’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [92]. 53 This judgment holds that ‘[u]nder this Convention, militias or paramilitary groups or units may be regarded as legitimate combatants if they… “belong […]” to a “Party to the conflict” (Article 4A(2))’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [92]. On the drafting history of the term ‘belonging to a Party to the conflict’ laid down in Article 4A(2) of the Third Geneva Convention of 1949, see Del Mar (2010), 109–113. 54 This judgment holds that ‘[i]n order for irregulars to qualify as lawful combatants, it appears that international rules and State practice therefore require control over them by a Party to an international armed conflict’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [94].

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However, this judgment reveals that IHL in itself does not have any criteria on control.55 In the face of this difficulty, this judgment relies upon criteria on control under general international law, in particular the rules on attribution of conduct performed by armed groups to a State under the law of State responsibility.56 In this context, this judgment criticizes the ‘effective control’ test established by the International Court of Justice (ICJ) as too high. One of the criticisms is that the ‘effective control’ test is contrary to the findings of international judicial and State practices.57 In fact, this judgment refers to several international judicial and State practices.58 These practices include the Stephens case in the Mexico-United States General Claims Commission,59 the Kenneth P. Yeager case in the Iran-United States Claims Tribunal,60 the Loizidou v. Turkey case in the European Court of Human Rights61 and the Jorgic case in Oberlandesgericht of Düsseldorf.62 Based on these practices, this judgment criticizes the ‘effective control’ test and instead advances the ‘overall control’ test.63 Importantly, the ‘overall control’ test is a lower degree

55

This judgment holds that ‘[i]nternational humanitarian law does not contain any criteria unique to this body of law for establishing when a group of individuals may be regarded as being under the control of a State, that is, as acting as de facto State officials’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [98]. 56 This judgment holds as follows: ‘it is necessary to examine the notion of control by a State over individuals, laid down in general international law, for the purpose of establishing whether those individuals may be regarded as acting as de facto State officials. This notion can be found in those general international rules on State responsibility which set out the legal criteria for attributing to a State acts performed by individuals not having the formal status of State officials’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [98]. 57 This judgment holds as follows: ‘[t]he “effective control” test propounded by the International Court of Justice as an exclusive and all-embracing test is at variance with international judicial and State practice: such practice has envisaged State responsibility in circumstance where a lower degree of control than that demanded by the Nicaragua test was exercised’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [124]. Besides this criticism, this judgment also argues that the ‘effective control’ test is not consistent with the rationale behind the rules on attribution of conduct performed by armed groups to a State under the law of State responsibility. This judgment holds as follows: ‘[a] first ground on which the Nicaragua test as such may be held to be unconvincing is based on the very logic of the entire system of international law on State responsibility…[t]he rationale behind this rule is to prevent States from escaping international responsibility by having private individuals carry out tasks that may not or should not be performed by State officials’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [116–117]. 58 There has been discussion among scholars on whether the ‘effective control’ test is contrary to the findings of these practices. Some scholars insist that this test is not contrary to them. See, for example, Milanovic (2006), 586–587. By contrast, other scholars claim that this test is contrary to them. See, for instance, Cassese (2007), 658. 59 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [125]. 60 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [126–127]. 61 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [128]. 62 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [129]. 63 Yet, this judgment leaves room for the ‘effective control’ test to be true for unorganized armed groups. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [137].

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of control than the ‘effective control’ test.64 We need therefore to ask ourselves what elements the ‘overall control’ test comprises. On this question, this judgment elaborates on the ‘overall control’ test by opining as follows: The control required by international law may be deemed to exist when a State (…) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.65

In short, the ‘overall control’ test consists of two elements: the provision of financial and training assistance, military equipment and operational support; and the participation in the organization, coordination or planning of military operations. Hence, when a foreign State exercises ‘overall control’ over armed groups against the government, these groups can be regarded as the armed forces of that State. This means that a conflict between a government and armed groups occurring within the territory of one State is transformed into an inter-State conflict. This judgment thereby accepts that the ‘overall control’ test could lead to internationalization of a NIAC.

13.3.3.3

The Second Standard for Internationalization of a Non-international Armed Conflict in the Judgment of the ICTY

A majority of scholars have focused on the ‘overall control’ test as a standard for internationalization of a NIAC in the judgment of the ICTY.66 However, apart from the ‘overall control’ test, the ICTY leaves open the possibility of permitting one more standard for internationalization of a NIAC. In this context, the judgment in Prosecutor v. Mladen Naletilic67 merits investigation. Importantly, this judgment concludes by opining as follows: The Chamber thus finds that the conflict between the HVO [Croatian armed group] and the ABiH [armed forces of the government of Bosnia and Herzegovina] in Bosnia and Herzegovina was internationalised by the intervention of the troops of the Republic of Croatia in the conflict.68

It is not clear whether the reference to the term ‘internationalized’ in this judgment has the same meaning as in this Chapter. As noted earlier, this Chapter defines it as 64

In this context, this judgment emphasizes that ‘[the ‘overall control’ test] does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation’. Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [137]. 65 Prosecutor v. Dusko Tadic (Judgment), IT-94-1-A, ICTY, 15 July 1999, [137]. 66 See, for example, Rogers (2004), 298–300; Mettraux (2005), 55–59; Fleck (2008), 606; Bianchi and Naqvi (2011), 66–73; D’Aspremont and Hemptinne (2012), 52–61; Kolb (2014), 116–120; Milanovic (2015), 34–40; Solis (2016), 165–166; Zamir (2017), 126–127; Sassòli (2019), 174–175; Crawford and Pert (2020), 82–84. 67 Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003. 68 Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [196] [emphasis added].

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‘transformation of a prima facie NIAC into an IAC, thereby applying to this conflict the more comprehensive IAC legal regime’. We must therefore inquire what the reference to the term ‘internationalized’ in this judgment means. On this question, we can derive certain implications from the following sentence of this judgment: [T]he conflict between the ABiH [armed forces of the government of Bosnia and Herzegovina] and the HVO [Croatian armed group] must be looked upon as a whole and, if it is found to be international in character through the participation of HV [Croatian armed forces] troops, then Article 2 of the Statute will apply to the entire territory of the conflict.69

For the application of Article 2 of the ICTY Statute, the conflict in question must be characterized as an IAC.70 Hence, this sentence implies that this judgment refers to the term ‘internationalized’ as meaning the circumstance in which a prima facie NIAC is transformed into an IAC, thereby rendering the law of an IAC applicable to this conflict.71 This means that the reference to the term ‘internationalized’ in this judgment has the same meaning as in this Chapter.72 In fact, many scholars have agreed with this evaluation.73 We must therefore ask what factor leads to internationalization of a NIAC in this judgment. On this question, the reasoning of this judgment is quite ambiguous.74 Nevertheless, there is a room for advancing some interpretations of this judgment for the purpose of answering this question. First, we might understand the existence of the armed forces of a foreign State as a factor leading to internationalization of a NIAC.75 Admittedly, this judgment often points out the fact that in the context of the conflict between the ABiH (armed forces of the government of Bosnia and Herzegovina) and the HVO (Croatian armed group), HV (Croatian armed forces) are present on the territory of Bosnia and Herzegovina. For example, in order to demonstrate this fact, this judgment opines as follows: The Chamber heard numerous testimonies and received ample documentary evidence showing the presence of HV [Croatian armed forces] soldiers and units on the territory

69

Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [194]. The judgment in Prosecutor v. Dusko Tadic holds that ‘the Appeals Chamber must conclude that, in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflict’. Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1-AR72, ICTY, 2 October 1995, [84]. 71 David (2008), 175. 72 In another sentence, this judgment holds that ‘proof of the direct intervention of HV [Croatian armed forces] troops in the conflict between the HVO [Croatian armed group] and the ABiH [armed forces of the government of Bosnia and Herzegovina] in Bosnia and Herzegovina is sufficient to establish that the conflict was international in character’. Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [197]. This sentence also implies that the reference to the term ‘internationalized’ in this judgment has the same meaning as in this Chapter. 73 See, for example, Stewart (2003), 328–329; Kolb (2009), 186–187; Hoffman (2010), 231–232; Gray (2012), 81–85. 74 Cryer (2002), 44. 75 Stewart (2003), 330. 70

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of Bosnia and Herzegovina in the context of the conflict between the HVO [Croatian armed group] and the ABiH [armed forces of the government of Bosnia and Herzegovina].76

However, this interpretation is problematic. As noted earlier, the ICTY endorses the ‘Mixed Approach’. It follows that in the judgment of the ICTY, the existence of the armed forces of a foreign State in itself does not make it sufficient to internationalize a NIAC. Hence, this interpretation is inconsistent with the assumption that the ICTY endorses the ‘Mixed Approach’. Importantly, besides the existence of the armed forces of a foreign State, this judgment also points out the fact that a foreign State supports armed groups. Secondly, we might understand the support by a foreign State for armed groups as a factor leading to internationalization of a NIAC.77 Specifically, this judgment mentions that HV (Croatian armed forces) supports the HVO (Croatian armed group). Indeed, in this context this judgment opines as follows: Similarly, in early 1994, the Secretary General of the United Nations informed the Security Council that the Republic of Croatia was providing support to the HVO [Croatian armed group] and indicated in particular that: the Croatian Army (HV) has directly supported the HVO [Croatian armed group] in terms of manpower, equipment and weapons for some time.78

In short, HV (Croatian armed forces) supports the HVO (Croatian armed group) by providing it with ‘manpower, equipment and weapons’. If this interpretation is correct, there is room for reading this judgment as implicitly acknowledging the support (‘manpower, equipment and weapons’) by a foreign state for armed groups as a factor leading to internationalization of a NIAC. It is almost agreed that the support by a foreign State for armed groups such as the provision of weapons and other logistics could be evaluated as amounting to the use of force in international law.79 In light of this evaluation, the support by a foreign State for armed groups such as the provision of ‘manpower, equipment and weapons’ could be regarded as being similar to the use of force in international law. Importantly, the support by a foreign State for armed groups such as the provision of ‘manpower, equipment and weapons’ may be thought of as a lower degree 76

Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [191]. Similarly, this judgment holds as follows: ‘[i]n spite of the denial of political officials from the Republic of Croatia and HZ-HB, personnel from the ECMM and UNPROFOR witnessed the presence and direct intervention of HV [Croatian armed forces] troops in Bosnia and Herzegovina in general, and in the area of Mostar in particular, throughout 1993. The Chamber also takes note of numerous United Nations documents condemning the presence of HV [Croatian armed forces] troops in the region. As early as 1992, the United Nations Security Council adopted resolutions demanding that all form of external interference cease immediately, and that “all forces, in particular elements of the Croatian Army, be withdrawn, or be subject to the authority of the Government of the Republic of Bosnia and Herzegovina, or be disbanded or disarmed”’. Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [192]. 77 Stewart (2003), 331. 78 Prosecutor v. Mladen Naletilic (Judgment), IT-98-34-T, ICTY, 31 March 2003, [192] [emphasis added]. 79 As is well-known, the ICJ considers ‘assistance to rebels in the form of the provision of weapons or logistical or other support’ as ‘a threat or use of force’. Case Concerning Military and Paramilitary Activities in and against Nicaragua: ICJ Reports (1986), 104 [195].

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of control than the ‘overall control’ test. As noted earlier, the ‘overall control’ test comprises two elements: the provision of financial and training assistance, military equipment and operational support; and the participation in the organization, coordination or planning of military operations. Taking into consideration these two elements, the provision of ‘manpower, equipment and weapons’ cannot be regarded as meeting the ‘overall control’ test. As noted earlier, there are ambiguities on the reasoning of this judgment on this question. Nevertheless, there is room for reading this judgment as implicitly acknowledging a lower degree of control than the ‘overall control’ test as a factor leading to internationalization of a NIAC.

13.4 Evaluation of the Facts from the Perspective of International Law, Especially International Humanitarian Law 13.4.1 Military Engagement Between Russia and Ukraine: An International Armed Conflict How should we determine the qualification of the Ukraine conflict, using the legal framework of the qualification of conflicts in IHL? It is necessary for us to distinguish military engagement between Russia and Ukraine from that between the Ukraine government and the pro-Russian armed groups. We will investigate the qualification of each of these engagements in IHL in turn. As noted earlier, on February 24, 2022, Russia launched a massive military operation against Ukraine, which was called a ‘special military operation’.80 From February 24, 2022, to February 5, 2023, the OHCHR estimated about 18,000 civilian casualties in Ukraine.81 Apart from the ‘special military operation’, military engagement between Russia and Ukraine dated back to the crisis in eastern Ukraine in 2014. In fact, Russia deployed its armed forces in eastern Ukraine in 2014.82 An IAC is an inter-State conflict. In this context, the threshold of intensity of violence does not matter. It follows that an IAC can occur irrespective of the intensity of violence. Hence, it is reasonable to assess that an IAC had already started from 2014 and has continued thereafter. This means that military engagement between Russia and Ukraine could qualify as an IAC.

80

United Nations Security Council: UN Doc S/2022/154 (2022), 6. Office of the High Commissioner for Human Rights (2023). 82 Luhn (2015); Dorell (2015). 81

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13.4.2 Military Engagement Between the Ukraine Government and the Pro-Russian Armed Groups 13.4.2.1

A Non-international Armed Conflict

As noted earlier, military engagement between the Ukraine government and the pro-Russian armed groups also intensified. In 2014, the pro-Russian armed groups declared the independence of the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic.83 We need therefore to examine whether they could be considered as States. Should they be considered as States, this engagement could qualify as an IAC. The criteria for statehood are formulated in Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933.84 This article provides that ‘[t]he State as a person in international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States’. Keeping this article in mind, we wonder whether the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic possess the ‘government’. The ‘government’ as one of the criteria for statehood must be based on the effectiveness. This means that the ‘government’ must be an entity which exercises effective control over the territory and population in question.85 Yet, it was reported that the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic controlled only one third of their territory.86 Reportedly, the rest of their territory was controlled by Ukraine from which they sought to secede. Taking into account this situation, the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic cannot be thought of as possessing the ‘government’. It is therefore reasonable to assert that they cannot be considered a State. Even if the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic possess the ‘government’, we doubt their statehood from the perspective of ‘legitimacy’.87 They sought unilateral secession from Ukraine. Hence, we must inquire whether their unilateral secession from Ukraine could be justified by the exercise of the right to self-determination. There has been discussion among scholars about the legality of unilateral secession in cases other than decolonization.88 In this context, we should recall the finding of the Advisory Opinion of the

83

Grytsenko (2014). See, for example, Crawford (2006), 45. 85 See, for example, Cassese (2005), 13. 86 Weller (2022). 87 On ‘legitimacy’, see in detail Lowe (2007), 159. 88 Opinions are divided on the lawfulness of the so-called remedial secession. See Borgen (2015), 221–234. The first school of thought insists that remedial secession is recognized only as a measure of last resort. See, for example, Tomuschat (2006), 41. By contrast, the second school of thought claims that there is no legal basis for remedial secession. See, for instance, Del Mar (2013), 81–95. 84

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Canadian Supreme Court in Reference Re Secession of Quebec.89 This opinion examines whether the exercise of the right to self-determination could justify unilateral secession in cases other than decolonization. This opinion states as follows: A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance…[T]he underlying proposition is that, when a people is blocked from the meaningful exercise of its right to selfdetermination internally, it is entitled, as a last resort, to exercise it by secession…[I]t remains unclear whether this third proposition actually reflects an established international law standard.90

There are several interpretations of these sentences. However, in the author’s view, this opinion seems to find it difficult that unilateral secession in cases other than decolonization could be justified by the exercise of the right to self-determination.91 Even if this opinion leaves room for the legality of unilateral secession in cases other than decolonization, the secession is subject to the condition that a people is prevented from exercising the right to self-determination internally. Yet, the populations in the regions of Donetsk and Luhansk were not denied access to parliamentary elections in 2014.92 Taking into consideration this circumstance, it is reasonable to assert that people in eastern Ukraine are not prevented from exercising the right to selfdetermination internally. Hence, their unilateral secession from Ukraine does not fulfill the condition. All things considered, the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic cannot be considered a State.93 This means that one of the parties to the conflict in Ukraine is a non-state actor, specifically the proRussian armed groups. Accordingly, there is a possibility that military engagement between the Ukraine government and the pro-Russian armed groups could qualify as a NIAC. However, it must be analyzed whether military engagement between the Ukraine government and the pro-Russian armed groups could meet the two requirements, namely intensity of violence and organization of armed groups. On this question, it is agreed by scholars that military engagement between the Ukraine government and the pro-Russian armed groups can fulfill these requirements.94 As regards intensity of violence, since 2014 casualties have increased for both the Ukraine government and the pro-Russian armed groups. As noted earlier, although in September 2014 a ceasefire was signed by the Ukraine government and the pro-Russian armed groups, the death toll from the violence in Ukraine exceeded 5000 people.95 As regards organization of armed groups, there was an indication that the pro-Russian armed groups 89

Reference Re Secession of Quebec (1998). Reference Re Secession of Quebec (1998), [134–135]. 91 See, for example, Toope (1999), 524–525. 92 Kinstler (2014). 93 See, for example, Wilmshurst (2022); Bellinger (2022). 94 See, for example, Heinsch (2015), 355–356; Reeves and Wallace (2015), 381–383; Szpak (2017), 273–274; Schmitt (2022). 95 Westcott (2015). 90

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have a hierarchical structure for commanding officers to give orders to soldiers. As noted earlier, the members of the pro-Russian armed groups called themselves the United Armed Forces of Novorossiya to show that they were autonomously united.96 Hence, military engagement between the Ukraine government and the pro-Russian armed groups could meet the two requirements. This means that military engagement between the Ukraine government and the pro-Russian armed groups could qualify as a NIAC.97

13.4.2.2

Internationalization of a Non-international Armed Conflict

The Ukraine conflict consists of both an IAC (between Russia and Ukraine) and a NIAC (between the Ukraine government and the pro-Russian armed groups). However, there is a question as to whether a NIAC can be internationalized due to the fact that Russia has intervened on the side of the pro-Russian armed groups. On this question, opinions are divided among scholars. Some scholars insist that a NIAC can be internationalized by the sufficiency of Russia’s involvement and consequently there exists only an IAC.98 By contrast, other scholars claim that a NIAC cannot be internationalized by the insufficiency of Russia’s involvement and therefore there remains both an IAC and a NIAC.99 In the face of this disagreement among scholars, we need to investigate whether a NIAC can be internationalized in the context of the Ukraine conflict. It is difficult to determine the extent of which the Russian armed forces are involved in the fighting between the Ukraine government and the pro-Russian armed groups. Nevertheless, we could suggest several indications on the control by the Russian armed forces over the pro-Russian armed groups. First of all, it is reportedly alleged that the Russian armed forces conducted activities such as training and equipping the pro-Russian armed groups in Ukraine.100 Second, it is also reportedly alleged that the pro-Russian armed groups received orders and instructions for certain military operations from the Russian armed forces.101 If these allegations are correct, the control by the Russian armed forces over the pro-Russian armed groups can be considered as going beyond ‘overall control’. This means that the pro-Russian armed groups are regarded as the Russian armed forces. As a consequence, a NIAC can be internationalized and thereby there exists only an IAC. As noted earlier, at first sight, the Ukraine conflict comprises both an IAC and a NIAC. However, observing the Ukraine conflict carefully, the possibility that there exists only an IAC is not 96

Robins-Early (2014). In fact, the prosecutor of the ICC also admits that military engagement between the Ukraine government and the pro-Russian armed groups could qualify as a NIAC. Office of the Prosecutor (2016), 37 [168]. 98 See, for example, Heinsch (2015), 360; Schmitt (2022). 99 See, for instance, Reeves and Wallace (2015), 382; Szpak (2017), 276. 100 Gordon and Kramer (2014). 101 Bellingcat (2018). 97

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excluded. Taking into consideration this possibility, it is reasonable to determine that the Ukraine conflict consists of only an IAC. In this context, the judgment of the Hague District Court in the MH 17 102 merits examinations.103 This judgment addressed whether military engagement between the Ukraine government and the pro-Russian armed groups was characterized as an IAC due to Russia’s involvement.104 In so doing, this judgment found that there was an evidence that Russia played a role not only in financing, training and equipping, or providing operational support to the pro-Russian armed groups, but also in organizing, coordinating, or planning their military actions and giving orders and instructions to them.105 On the basis of this evidence, this judgment concluded that Russia exercised ‘overall control’ over the pro-Russian armed groups and military engagement between the Ukraine government and the pro-Russian armed groups was thereby characterized as an IAC.106

13.5 Conclusions At first sight, the Ukraine conflict qualifies as both an IAC and a NIAC. However, the possibility that a NIAC is internationalized by Russia’s involvement is not excluded. Consequently, there is room for the possibility that the Ukraine conflict qualifies as only an IAC. This means that in the Ukraine conflict, the participants in hostilities, specifically the members of the Ukraine armed forces, those of the Russian armed forces and those of the pro-Russian armed groups have combatant status under IHL. It follows that they would enjoy combatant immunity, according to which they cannot be punished by the enemy for participating in hostilities as long as they comply with IHL. As noted earlier, in April 2022 three members of the Ukraine armed forces (two British nationals and one Moroccan national) surrendered to Russia and were prosecuted for participating in hostilities by the self-proclaimed Donetsk People’s Republic. However, taking into consideration this Chapter’s analysis, the prosecution in this case is considered incompatible with IHL. It must be pointed out that the members of the Ukraine armed forces have combatant status and therefore enjoy combatant immunity in the context of the Ukraine conflict, which qualifies as only an IAC.

102

The MH judgment (2022). On this judgment, see in detail Yanev (2022). 104 The MH judgment (2022), [4.4.3.1.3]. 105 The MH judgment (2022), [4.4.3.1.3]. 106 The MH judgment (2022), [4.4.3.1.3]. 103

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Farer, Tom. 1971. Humanitarian Law and Armed Conflicts: Towards the Definition of ‘International Armed Conflict’. Columbia Law Review 71. Fleck, Dieter. 2008. The Law of Non-International Armed Conflicts. In The Handbook of International Humanitarian Law, ed. Dieter Fleck. Oxford: Oxford University Press. Fortin, Katharine. 2017. The Accountability of Armed Groups under Human Rights Law. Oxford: Oxford University Press. Gasser, Hans-Peter. 1983. Internationalized Non-International Armed Conflitcs: Case Studies of Afghanistan, Kampuchea, and Lebanon. American University Law Review 33. Gordon, Michael, and Andrew Kramer. 2014. Russia Continues to Train and Equip Ukraine Rebels, NATO Officials Says. New York Times. 3 November 2014. Available at: https://www.nytimes.com/2014/11/04/world/europe/donestk-luhansk-ukraine-vote-zak harchenko-plotnitsky.html (Accessed 5 May 2023). Gray, Christine. 2012. The Meaning of Armed Conflict: Non-international Armed Conflict. In What is War? An Investigation in the Wake of 9/11, ed. Mary Ellen O’Connell. Leiden/Boston: Nijhoff. Greenwood, Christopher. 1996. International Humanitarian Law and the Tadic Case. European Journal of International Law 7. Grytsenko, Oksana. 2014. Armed pro-Russian insurgents in Luhansk say they are ready for police raid. Kyiv Post. 12 April 2014. Available at: https://www.kyivpost.com/post/7776 (Accessed 6 May 2023). Heinsch, Robert. 2015. Conflict Classification in Ukraine: The Return of the “Proxy War”? International Law Studies 91. Hill-Cawthorne, Lawrence. 2022. The Prosecution of British Fighters by Pro-Russian Separatists in Ukraine. EJIL Talk! 14 June 2022. Available at: https://www.ejiltalk.org/the-prosecution-ofbritish-fighters-by-pro-russian-separatists-in-ukraine/ (Accessed 3 May 2023). Hoffman, Tamas. 2010. Squaring the Circle?: International Humanitarian Law and Transnational Armed Conflicts. In Les règles et institutions du droit international humanitaire à l’épreuve des conflits armés récents, ed. Michael Matheson and Djamchid Momtaz. Leiden/Boston: Nijhoff. Kinstler, Linda. 2014. Ukraine’s election wasn’t just a win for pro-europeans. It was a win for democracy itself. The New Republic. 28 October 2014. Available at: https://newrepublic.com/ article/120002/ukraine-2014-parliamentary-election-results-win-democracy (Accessed 2 May 2023). Kolb, Robert. 2009. Ius in bello: Le droit international des conflits armés. Bâle: Helbing Lichtenhahn. Kolb, Robert. 2014. Advanced Introduction to International Humanitarian Law. Cheltenham: Edward Elgar. Kolb, Robert, and Richard Hyde. 2008. An Introduction to the International Law of Armed Conflicts. Oxford: Hart Publishing. Lowe, Vaughan. 2007. International Law. Oxford: Oxford University Press. Luhn, Alec. 2015. ‘Russian soldiers’ captured in Ukraine to face trial on terrorism charges. The Guardian. 18 May 2015. Available at: https://www.theguardian.com/world/2015/may/18/rus sian-soldiers-ukraine-trial-terrorism-charges (Accessed 8 Feb 2023). Maˇcák, Kubo. 2018. Internationalized Armed Conflicts in International Law. Oxford: Oxford University Press. Meron, Theodor. 1994. War Crimes in Yugoslavia and the Development of International Law. American Journal of International Law 88. Mettraux, Guénaël. 2005. International Crimes and the Ad Hoc Tribunals. Oxford: Oxford University Press. Milanovic, Marko. 2006. State Responsibility for Genocide. European Journal of International Law 17. Milanovic, Marko. 2015. The Applicability of the Conventions to ‘Transnational’ and ‘Mixed’ Conflicts. In The 1949 Geneva Conventions: A Commentary, ed. Andrew Clapham, Paola Gaeta, and Marco Sassòli. Oxford: Oxford University Press.

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Milanovic, Marko, and Vidan Hadzi-Vidanovic. 2013. A taxonomy of armed conflict. In Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello and Jus post Bellum, ed. Nigel White, and Christian Henderson. Cheltenham: Edward Elgar. Moir, Lindsay. 2002. The Law of Internal Armed Conflict. Cambridge: Cambridge University Press. Oeter, Stefan. 1993. Kriegsverbrechen in den Konflikten um das Erbe Jugoslawiens: Ein Beitrag zu den Fragen der kollektiven und individuellen Verantwortlichkeit für Verletzungen des Humanitären Völkerrechts. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 53. Office of the High Commissioner for Human Rights. 2023. Ukraine: civilian casualty update 6 February 2023. Available at https://www.ohchr.org/en/news/2023/02/ukraine-civilian-casualtyupdate-6-february-2023 (Accessed 13 Feb 2023). Office of the Prosecutor. 2016. Report on Preliminary Examination Activities, 14 November 2016. Pejic, Jelena. 2007. The Status of Armed Conflict. In Perspectives on the ICRC Study on Customary International Humanitarian Law, ed. Elizabeth Wilmshurst, and Susan Breau. Cambridge: Cambridge University Press. Pictet, Jean. 1952. Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field: Commentary. Geneva: ICRC. Pinto, Roger. 1965. Les règles du droit international concernant la guerre civile. Recueil des Cours 114. Provost, René. 2002. International Human Rights and Humanitarian Law. Cambridge: Cambridge University Press. Reeves, Shane, and David Wallace. 2015. The Combatant Status of the “Little Green Man” and Other Participants in the Ukraine Conflict. International Law Studies 91. Reisman, Michael, and James Silk. 1988. Which Law Applies to the Afghan Conflict? American Journal of International Law 82. Report on the Work of the Conference: Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1971). Robins-Early, Nick. 2014. Here’s Why Putin Calling Eastern Ukraine ‘Novorossiya’ Is Important. Huffpost. 18 April 2014. Available at: https://www.huffpost.com/entry/putin-novorossiya-ukr aine_n_5173559 (Accessed 6 May 2023). Rogers, A.P.V. 2004. Law on the battlefield. Manchester: Manchester University Press. Rosas, Alan. 1976. The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts. Helsinki: Suomalainen Tiedeakatemia. Roth, Andrew, and Julian Borger. 2022. Putin orders troops into eastern Ukraine on ‘peacekeeping duties’. The Guardian. 21 February 2022. Available at: https://www.theguardian.com/world/ 2022/feb/21/ukraine-putin-decide-recognition-breakaway-states-today (Accessed 9 Feb 2023). Roth, Andrew, and Emine Sinmaz. 2022. Britons sentenced to death after ‘show trial’ in Russianoccupied Ukraine. The Guardian. 9 June 2022. Available at: https://www.theguardian.com/ world/2022/jun/09/britons-sentenced-to-death-russian-occupied-ukraine-aiden-aslin-shaunpinner (Accessed 3 May 2023). Sandoz, Yves, Christophe Swinarski, and Bruno Zimmermann. 1987. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Geneva: Nijhoff. Sassòli, Marco. 2019. International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare. Cheltenham: Edward Elgar. Schindler, Dietrich. 1965. Die Anwendung der Genfer Rotkreuzabkommen seit 1949. Annuaire suisse de droit international 22. Schindler, Dietrich. 1979. The Different Types of Armed Conflicts according to the Geneva Conventions and Protocols. Recueil des Cours 163. Schmitt, Michael. 2022. Ukraine Symposium-Classification of the Conflict (s). Lieber Institute West Point. 14 December 2022. Available at: https://lieber.westpoint.edu/classification-of-the-confli cts/ (Accessed 15 May 2023). Seyersted, Finn. 1966. United Nations Forces in the Law of Peace and War. Leyden: Sijthoff. Solis, Gary. 2016. The Law of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press.

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Stewart, James. 2003. Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict. International Review of the Red Cross 85. Szpak, Agnieszka. 2017. Legal classification of the armed conflict in Ukraine in light of international humanitarian law. Hungarian Journal of Legal Studies 58. Tomuschat, Christian. 2006. Secession and Self-Determination. In Secession: International Law Perspectives, ed. Marcelo Kohen. Cambridge: Cambridge University Press. Toope, Stephen. 1999. Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada. American Journal of International Law 93. United Nations General Assembly: UN Doc A/8052. 1970. Report of the Secretary-General: Respect for Human Rights in Armed Conflicts. United Nations Security Council: UN Doc S/2022/154. 2022. Letter dated 24 February 2022 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary General. Weller, Marc. 2022. Russia’s Recognition of the ‘Separatist Republics’ in Ukraine was Manifestly Unlawful. EJIL Talk! 9 March 2022. Available at: http://www.ejiltalk.org/russias-recognitionof-the-separatist-republics-in-ukraine-was-manifestly-unlawful/ (Accessed 14 May 2023). Westcott, Lucy. 2015. Ukraine Deaths Top 5000 After Week of Violence. Newsweek. 23 January 2015. Available at: https://www.newsweek.com/ukraine-deaths-top-5000-after-week-violence301675 (Accessed 6 May 2023). Wilhelm, René-Jean. 1972. Problèms relatifs à la protection de la personne humaine par le droit international dans les conflits armés ne présentant pas un caractère international. Recueil des Cours 137. Wilmshurst, Elizabeth. 2022. Ukraine: Debunking Russia’s Legal Justifications. Chatham House. 24 February 2022. Available at: https://www.chathamhouse.org/2022/02/ukraine-debunkingrussias-legal-justifications (Accessed 22 May 2023). Yanev, Lachezar. 2022. The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine. EJIL Talk! 7 December 2022. Available at: http://www.ejiltalk.org/the-mh17-judgment-an-interesting-take-on-the-nature-of-thearmed-conflict-in-eastern-ukraine/ (Accessed 16 May 2023). Zamir, Noam. 2017. Classification of Conflicts in International Humanitarian Law: The Legal Impact of Foreign Intervention in Civil Wars. Cheltenham: Edward Elgar.

Shin Kawagishi currently teaches several courses and seminars on public international law as a Professor of Public International Law at the Faculty of Humanities and Social Sciences (Department of Law) in Shizuoka University, Japan. Prior to coming to Shizuoka University, his working experiences include an Assistant Professor of Public International Law at the Graduate School of Law in Kyoto University. He was previously a Visiting Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. He holds LLD (Doctor of Laws) and LLM (Master of Laws) respectively from the Graduate School of Law at Kyoto University. He also holds LLB (Bachelor of Laws) from the Faculty of Law at Keio University. He wrote and published articles on public international law, especially law on the use of force, international humanitarian law, and international criminal law.

Chapter 14

The Impact of the United Nations General Assembly’s Qualification of Aggression on the Law of Neutrality Saori Matsuyama

14.1 Introduction During the Russo-Ukrainian conflict, which began on February 24, 2022, Western and other states actively provided arms and financial assistance to the Ukrainian side. It is also noteworthy that the military assistance of the third states in the armed conflict includes the provision of detailed military intelligence, with a significant military contribution through the use of high-tech satellites. Thus, several states in the international community are convinced of the jus ad bellum legitimacy of the Ukrainian side and provide some form of support. One of the peculiarities of the Russo-Ukrainian conflict is that the UN Security Council has not qualified the existence of aggression. This raises the question of whether the law of neutrality is appropriate in this situation. That is, in a situation where the majority of the international community recognizes that Russia has committed an act of aggression, is a third state in an armed conflict bound by the obligation of neutrality because of the absence of aggression qualified by the Security Council? Military assistance from a third state, as described above, is inconsistent with the traditional obligations of neutrality. The current academic controversy over military assistance concerns the legality of such assistance and whether it is illegal in relation to the law of neutrality. Thus, the classic legal debate on the duty of neutrality resurfaced during the Russo-Ukrainian conflict, on which excellent discussions have already been issued.1 Such arguments, however, do not seem to go beyond the traditional debate on the status of nonbelligerents that originated with the U.S. claims before its participation in the Second World War. 1 On whether assistance to Ukraine violates neutrality obligations, see, e.g., Wolff (2022). https:// lieber.westpoint.edu/neutrality-in-the-war-against-ukraine/; Talmon (2022).

S. Matsuyama (B) Faculty of Law, Osaka University of Economics and Law, Osaka, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_14

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In contrast, the object of this chapter is not to address the legality of third-party military support for the conflict but to identify the impact of the Russo-Ukrainian conflict in forcing a change in the content of the law of neutrality. As of March 2023, there were no such state practices. The reasons are as follows. According to conventional understanding, there is no obligation to participate in the coercive measures decided by the Security Council, which supersedes the obligation of neutrality; therefore, theoretically, there is room for the law of neutrality. While the law of neutrality may be applicable to this conflict, there is currently no use of force by a party against a third state providing military assistance; thus, there is no opportunity to question the application of the law of neutrality and the existence of a violation. In the absence of aggression found by the Security Council, from Russia’s perspective the actions of a non-belligerent state could constitute illegal military assistance, and there is a possibility that it will take action under the right of self-defense. Similarly, the Ukrainian side did not react to the provision of military bases by Belarus. Therefore, in the current situation, the state practice has no impact on the law of neutrality. However, this is a rare situation in history in which aggression was qualified by the UN General Assembly.2 The General Assembly’s resolutions are recommendations and not legally binding on member states of the UN. But what would be the effect of the General Assembly’s resolution condemning Russia and confirming the illegality of its actions? Whether such a third state will respond to future actions by a belligerent State in relation to the law of neutrality (assuming the application of the law of neutrality) could have important theoretical implications for how the relationship between the law of neutrality and the UN’s collective security regime, including the General Assembly, is viewed.3 This study examines the implications of the law of neutrality in the UN General Assembly’s recognition of aggression in the Russo-Ukrainian conflict.

2

See, UN General Assembly Resolution ES-11/1, Aggression against Ukraine, UN Doc. A/RES/ ES-11/1 (2 March 2022), available from https://digitallibrary.un.org/record/3965290. 3 The collective security of the UN is provided for in Chapter VII of the UN Charter. Under the Charter, the Security Council has primary responsibility over international peace and security (Article 39, 41 and 42 of the Charter). However, the General Assembly has secondary authority over international peace and security, as provided for in Articles 10–12 of the Charter. In an attempt to further strengthen the functions of the General Assembly, a Uniting for Peace Resolution (resolution 377 A (V)) was adopted at the time of the Korean War, giving the General Assembly the authority to make recommendations for military action. This point will be discussed Sect. 4.1.

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14.2 Conflicting Theories on the Contemporary Law of Neutrality 14.2.1 Basic Content of Traditional Neutrality Duty This study defines the law of neutrality as the body of law governing the relationship between a party in an armed conflict (belligerent) and a neutral state. Neutrality is defined in international law as the status of a state which is not participating in an armed conflict between other states. Neutral status gives rise to rights and duties in the relationship between the neutral state on one hand and the parties to the conflict on the other.4 Traditionally, the duties of the law of neutrality are the duty of impartiality (subdivided into the duty of abstention and the duty of prevention) and the duty of acquiescence. The basis of the duty of impartiality is explained as fairness to the parties in an armed conflict, whereas the basis of the duty of acquiescence is to prevent the spread or escalation of the effects of armed conflict. Today, the core of customary international law on neutrality is the two 1907 Hague Conventions. We will summarize the contents of Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land and Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War.5 Under the duty of impartiality, the duty of abstention means that a neutral state must refrain from giving aid, directly or indirectly which contributes to the conduct of war to a belligerent. This differs from other duties, such as the duty of prevention or acquiescence, in that it limits the active conduct of the neutral state. In times of peace, general international law does not prohibit the provision of military, economic, or other types of assistance from one state to another. Therefore, neutral states are obliged to refrain from acts, which are lawful during peacetime. The duty of prevention is the obligation of a neutral state to take all necessary measures to prevent its territory from being used by a belligerent in the conduct of war. In neutral territory, which is inviolable, parties to an armed conflict are prohibited from conducting hostilities, passing troops, establishing and using communications, forming units, or recruiting troops (Articles 1–4 of the Hague Convention on the Neutrality of Land Warfare). Corresponding to this obligation imposed on the parties to an armed conflict, an obligation to prevent neutral states was established (Article 5 of the Convention). Furthermore, Article 10 of the Convention provides that if the armed forces of a party to the armed conflict invade the territory of a neutral state, the neutral state may expel the armed forces by force, but this will not result in war, and the neutral state may continue to maintain its neutral status. Notwithstanding the obligation of neutral nations to refrain, their nationals are free to engage in neutral commerce as private citizens. However, belligerents seek to impede these commercial activities to the extent that they enhance the ability of 4 5

Fleck (2021), p. 602. About traditional understanding about the law of neutrality, See Wani (2017).

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other belligerents to wage wars. The maritime seizure and blockade system served to balance the interests of both sides. Belligerents could seize neutral goods or war contraband that would enhance the enemy’s ability to wage war. The duty of acquiescence is an obligation on the part of the neutral state to acquiesce to a certain extent, the disadvantages suffered by its own citizens and not to seek compensation for damages. The basic principles established by Paris Declaration Respecting Maritime Law. As mentioned above, the Hague Land Neutrality Treaty and the Hague Maritime Neutrality Treaty declare that the territory of neutral nations is inviolable and that hostilities in their territorial waters are also prohibited. Therefore, except in the case of a violation of the obligation to prevent, there is no obligation for a neutral state to tacitly acknowledge the damage caused to its territory. In other words, the obligation of acquiescence arises everywhere, outside the territory of a neutral state.

14.2.2 Content of Neutrality Obligation and Existence of the Law of Neutrality in the Modern Era In the Russo-Ukrainian conflict, we can identify actions that are not consistent with the obligation of countries to prevent the provision of weapons, ammunition, and military intelligence to the Ukrainian side. There are also actions that deviate from its obligation to prevent, namely, the provision of its own territory to Russia by Belarus. However, does this mean, especially in this conflict, that third states do not deny the legality of military assistance? The traditional system of neutrality was based on international law before the two World Wars, when it was legal to resort to war, considering belligerents as equals. The prohibition on the use of force, an important rule in contemporary international law, divides parties into those who use force illegally and those who are victims, raising the question of whether neutral law, which treats belligerents as equals, is still valid. In particular, the law has lost its basis in the obligation of impartiality, which requires it to be fair to all parties in an armed conflict.6 The position of nonbelligerent status, which allows a state to act in a non-neutral manner when assisting a victim in an illegal war of aggression, is now being advocated. Non-belligerent status is also referred to as qualified neutrality, which refers to the status under international law of being able to provide assistance to one of the parties in an armed conflict that the law of neutrality prohibit neutral states from doing.7 6

Kurosaki (2021), p. 596. The United States used the qualified neutrality doctrine in the World War II era, and thus applying it in response to Russia’s invasion would not depart from that past legal interpretation. In the Context of Russo-Ukraine conflict, as explained in the report of Congressional Research Service of United States, “some countries, including the United States, have adopted the doctrine of qualified neutrality. Under this doctrine, states can take non-neutral acts when supporting the victim of an unlawful war of aggression.” Congressional Research Service, “International Neutrality Law and

7

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Significantly, in 1963, Brownlie suggested that the now universal prohibition on the use of force allows a third state to avoid any obligations related to Neutral Status by arguing that it is responding to the illegal use of force with a countermeasure.8 Failure to observe such obligations can therefore be presented as a sanction, reprisal or countermeasure against the aggressor state, and this precludes the wrongfulness of the behaviour of the non-belligerent state. This was indeed part of the US argumentation to explain why its support for Britain before the United States entered the Second World War did not breach the law on neutrality.9 The legal status of countries that take non-belligerent status (non-belligerents) is debatable, though, many current studies affirm the legality of non-belligerent status in contemporary international law.10 Schindler concluded ‘A third State may assist the victim of armed attack without regard to the existence of a state of war’.11 Gioia argued that state behaviour during the Iran–Iraq conflict suggested that ‘States not wishing to enter into an armed conflict are no longer under a legal duty to abide by the traditional laws of neutrality’.12 And Gioia went on to outline the legal relevance of states’ having a choice to remain neutral, or take an intermediate position of ‘qualified neutrality’ or ‘non-belligerence’.13 Clapham asked a question; now that the recourse to force is forbidden, why should states be forbidden from acting in ways that punish the wrongdoing aggressive state and assist the innocent victim state?14 On the other hand, some scholars are cautious. Fleck urges there is no sufficiently uniform general practice which would justify the conclusion that non-belligerency has become a notion recognized by customary international law. The cases of nonbelligerency either arose in the absence of a conflict of sufficient scope to require the application of the law of neutrality (or in a conflict which was not considered as such) or were simply violations of the law of neutrality. If a ‘non-belligerent’ state violates the law of neutrality it must bear the consequences, for instance reprisals.15 Upcher, results of extensive states practice observations, conclude the law of neutrality is prima facie applicable to non-participating States rather than an optional position that States are free to discard at will.16 These studies also acknowledge it is not the U.S. Military Assistance to Ukraine”, (April 26, 2022), available from https://crsreports.congress. gov/product/pdf/LSB/LSB10735/3. 8 Brownlie (1963), p. 403. 9 Ibid., pp. 79, 106–07. See also Clapham (2021), p. 57. 10 The non-belligerent status is enshrined in Article 4 B (2) of the Geneva III Convention of 1949. 11 Schindler (1988), p. 213. 12 Gioia (1994) p. 68. 13 Ibid., p. 86. Under this approach, only those states that declare themselves to have Neutral Status in a particular prolonged conflict (and this would include states with a status of Permanent Neutrality such as Switzerland) will take on the duties of Neutral Status ‘in its strict sense’; See Schindler (1988), p. 213. See also Clapham (2021), pp. 57–58. 14 Clapham (2021), p. 71. 15 Fleck (2021), p. 603. 16 Upcher (2020), pp. 22–37.

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case if and to the extent that the law of neutrality is modified by the UN Charter, in particular by a binding decision of the Security Council (see below, Sect. 14.3).17 However, the basis of the obligation of acquiescence is the localization of the effects of armed conflict, and this requirement remains even after the use of force has been outlawed. In state practice, non-belligerents tend to observe the implicit obligation of acquiescence. In particular, it can be seen that even when the commercial activities of non-belligerents are affected by maritime economic warfare measures taken by parties to armed conflicts in the Arab–Israeli War, the Indo-Pacific War, and the Iran-Iraq War, the practice of states is to tolerate such activities within the limits of the tacit acquiescence obligation of the law of neutrality. Whether non-belligerent status is legally permissible under contemporary international law cannot be concluded in this chapter. In today’s academic world, a few actively deny the validity of the law of neutrality, but most agree that even if it is valid, its content is vague or weakened. The situation of military assistance to Ukraine by most states is an example of the absence of a duty of impartiality or little awareness of such a duty. The existence of a set of customary rules to supplement binding and non-binding instruments is an open question, especially because state practices have not been uniform since the 1990s. Nevertheless, the fact that the law of neutrality have been incorporated into the military manuals of several states provides ample evidence that the essentials of this area of the law of armed conflict continue to be generally recognized as valid. Moreover, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ) stated that the principle of neutrality has the same fundamental character as humanitarian principles and is applicable to all international armed conflicts subject to the relevant provisions of the UN Charter.18

14.3 Neutrality and Collective Security of United Nations The UN Charter provides the Security Council with the primary responsibility for determining the illegality of the use of force (Article 39 of the Charter) and coercive measures (Articles 41 and 42 of the Charter). Since the decisions of the Security Council are legally binding on the UN member states (Article 25 of the Charter), and the obligation to comply with its decisions takes precedence over other obligations under international law (Article 103 of the Charter). Member states must comply with the decisions of the Security Council. The following is a summary of the relationship between Security Council actions and the law of neutrality. Since the law of neutrality

17

Fleck (2021), p. 103. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, p. 261, para. 89. 18

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applies only to international armed conflicts, the cases discussed below are also limited to international armed conflicts. (1) The scenario when Article 39 determination has been made and the responsible state has been identified. When the Security Council decides on enforcement measures against a responsible state under Chapter VII of the UN Charter, there is no possibility of neutrality, at least for the UN member states, because they are subject to Article 103. One should understand that, from the perspective of a UN member state, once the Security Council has authorized the use of force and the UN member states are bound by decisions of the Council in terms of what they must do to cooperate, then no duties related to Neutral Status apply. The state which is not participating in an armed conflict is simply obliged as a UN member state to do whatever the Security Council demands.19 The Korean War and the Gulf War are examples of such cases. In the Gulf War in particular, Iraq’s actions were identified as a breach of peace (Resolution 660),20 and all member states were obliged to take non-military measures against the country (Resolution 661).21 (2) In the absence of a determination pursuant to Article 39 of the UN Charter. What happens if there are no findings under Article 39 of the UN Charter despite the existence of an illegal use of force?22 Where an international armed conflict arises without any Security Council authorization and demands on the member states, the international law on Neutrality may apply to a state that has assumed Neutral Status.23 Minority theory holds that a third state automatically becomes neutral unless the Security Council makes a decision, and that the provision of military assistance to a belligerent by a state that is not a belligerent is interpreted as a violation of the obligation of neutrality. Conversely, it is generally understood that the application of the law of neutrality is optional because even without Security Council authorization, it is possible to distinguish between a side using illegal force and a side exercising its right of self-defense, and individual states may respond accordingly.24 Schindler states that, following the developments in the law on the use of force, neutrality has

19

Clapham (2021), p. 68. UN Security Council Resolution 660, The Situation between Iraq and Kuwait, UN Doc. S/RES/ 660 (2 August 1990), available from https://digitallibrary.un.org/record/94220. 21 UN Security Council Resolution 661, The Situation between Iraq and Kuwait, UN Doc. S/RES/ 661 (6 August 1990), available from https://digitallibrary.un.org/record/94221. 22 In this case, there is also the question of how to determine the point in time at which neutral status can arise, but that is outside the scope of this chapter. 23 Clapham (2021), p. 68. 24 Morikawa (1997), p. 214. While in practice it is often difficult to distinguish between the side using illegal force and the side exercising its right to self-defense, the Russo-Ukrainian conflict seems to be an exception to this rule. 20

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become a purely optional legal relationship that non-participant States are free to take up if they wish.25 Moreover, as there was no Security Council decision to take coercive measures in this case, there was no obligation that was incompatible with the obligation of neutrality. Therefore, it is possible to choose the status of neutrality, except in cases where there is no escape from participation in the coercive measures of international organizations. (3) Cases where a determination pursuant to Article 39 of the UN Charter is made, but the responsible state is not identified. There are also cases in which the existence of threat to peace pursuant to Article 39 is recognized, but the responsible country has not been identified. In the IranIraq War, the Security Council recognized the existence of a breach of peace and demanded a ceasefire from both countries without specifying which country was responsible (Resolution 59826 ). In this case, neutral status would probably be granted and countries are not precluded from taking discriminatory measures, unless the Security Council decides on the mandatory measures. In the absence of a Security Council decision on enforcement measures, as in cases (2) and (3), a third state has the option of being a belligerent, non-belligerent, or a neutral state. A third state may be a non-belligerent if its actions are inconsistent with its duty of impartiality. There is no illegality in military assistance itself, since it has not chosen to apply the law of neutrality. Conversely, a party to an armed conflict convinced of the legality of its own use of force may perceive the actions of a non-belligerent as support for the illegal use of force by another party to the armed conflict. Therefore, the possibility of being attacked based on the right to self-defense or other grounds cannot be ruled out. Nor has the UN Charter abolished the status of neutrality. It has, however, had a significant effect on the way in which the status of neutrality operates. In Bothe’s words, the UN Charter constitutes a kind of overlay network of norms under which the old law still exists, but may, to a certain extent, take on a different shape or be deprived of some of its traditional effects.27 In summary, the UN Charter gives the Security Council primary responsibility for recognizing the unlawful use of force and determining enforcement measures in response. However, apart from a collective assessment by the Security Council, third countries in a conflict are not precluded from making individual judgments or taking discriminatory measures based on such judgments. However, it is not necessary to determine the illegality of armed conflicts between other states. Therefore, it is possible to choose a neutral status, and in this sense, the application of the law of neutrality is voluntary. The advisory opinion of the ICJ held that the system of 25

Schindler (1991), pp. 367, 373. UN Security Council Resolution 598, The Situation between Iran and Iraq, UN Doc. S/RES/598 (20 July 1987), available from https://digitallibrary.un.org/record/137345?ln=en. 27 Bothe (1994), pp. 35, 36. 26

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neutrality is applicable, subject to the relevant provisions of the UN Charter.28 This implies that the law of neutrality does not apply when collective security measures are invoked; conversely, the neutrality system can be applied in other cases.

14.4 Special Circumstances of the Russo-Ukrainian Conflict—Qualification of the Aggression by the General Assembly of the United Nations In the Russo-Ukrainian conflict, one of the characteristic events was the qualification and condemnation of acts of aggression by the Uniting for Peace Resolution (ES-11/ 1), although no Security Council resolutions were adopted. This is roughly the same situation as in the absence of recognition under Article 39 of the UN Charter, as described in Sect. 14.3 (2). But should it be regarded as exactly the same situation on the application of neutral law by supposing there is no effect of recognition by the General Assembly?

14.4.1 Duties and Powers of the General Assembly of the United Nations with Respect to the Maintenance of International Peace and Security The Security Council has the primary responsibility to maintain international peace and security (Article 24(1) of the UN Charter), but the General Assembly also has complementary responsibilities. The General Assembly shall consider and make recommendations on any question or matter within the scope of the Charter, or relating to the powers and functions of the organs of the UN, except when a conflict or situation is under consideration by the Security Council (Article 10 of the Charter). The General Assembly considers and makes recommendations on all questions on international peace and security, except those also considered by the Security Council (Article 11 of the Charter). During the Cold War, attempts were made to strengthen the functions of the General Assembly against the background of the failure of the collective security system with the Security Council centered due to the conflict between the East and West. On 3 November 1950, the General Assembly adopted resolution 377 A (V), which was given the title ‘Uniting for Peace’.29 The adoption of this resolution came as a response to the strategy of the Union of Soviet Socialist Republics (USSR) to block 28

Legality of the Threat or Use of Nuclear Weapons, para. 89. UN General Assembly, Uniting for peace, UN Doc. A/RES/377(V)(3 November, 1950), available from https://digitallibrary.un.org/record/670279?ln=en.

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any determination by the Security Council on measures to be taken in order to protect the Republic of Korea against the aggression launched against it by military forces from North Korea.30 Under the Uniting for Peace Resolution, the General Assembly may act on behalf of the Security Council in the event that the latter is unable to exercise its primary responsibility for the maintenance of international peace and security due to a lack of consensus among the permanent members, despite the existence of a perceived threat to international peace, breach of peace, or acts of aggression.31 The General Assembly is also empowered, in the event of a breach of peace or an act of aggression, to take up the matter immediately to recommend collective security measures to its members, including the use of force, if it deems such measures necessary to maintain or restore international peace and security. In other words, the General Assembly can rule on the illegality of the use of force by a particular country, and recommend collective measures including the use of force. In general, however, General Assembly resolutions are not legally binding to the UN member states, obliging them to act based on such finding. Although the Charter issues often arise when granting authority to the General Assembly, it has often convened under this resolution, as it did on the occurrence of Korean War, and it also convened under the resolution during the Russo-Ukrainian conflict. The Uniting for Peace Resolution is an authoritative way for the UN to express its will in the absence of a Security Council decision.

14.4.2 Recognition of Aggression by the General Assembly in the Russo-Ukrainian Conflict UN General Assembly Resolution ES-11/1, adopted on March 2, 2022, by 141 countries (5 against, 35 abstentions and non-voting 12), bears the title ‘Aggression against Ukraine’. The General Assembly ‘deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter’, and demanded Russia to ‘immediately cease its use of force against Ukraine’ and ‘immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders’. ES-11/1 was adopted at the 11th special emergency session requested by the Security Council 30

Tomuschat (1950), available from https://legal.un.org/avl/ha/ufp/ufp.html. To date, ten emergency special sessions of the General Assembly on which the resolution is based have been convened. The session are as follows; 1st session (convened in 1956; Suez Crisis), 2nd session (1956; Hungarian uprisings), 3rd session (1958; situation in Lebanon), 4th session (1960; Congo uprisings), 5th session (1967; Third Middle East War), 6th session (1980; Soviet invasion of Afghanistan), 7th session (1980, the situation in Palestine), the 8th session (1981, the situation in Namibia), the 9th session (1982, the situation in the Middle East), the 10th session (1997, the situation in Palestine), and 11th session(2022; Russo-Ukraine conflict).Until it comes to end, it can at any time be resumed upon request by Member States.

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under the Resolution 2623 for ‘taking into account that the lack of unanimity of the permanent members of the Security Council at its 8979th meeting has prevented it from exercising its primary responsibility for the maintenance of international peace and security’. Although no recommendation for collective measure was made in ES11/1, the finding of aggression by the General Assembly is historically rare and of significance in this context; it is worth considering. ES-11/1 was adopted by an overwhelming majority. Although the resolution was not legally binding, it underscored Russia’s isolation from the international community. Given the sanctions imposed on Russia by individual and groups of states, the assessment that Russia’s action was aggression was justified. Can a third state choose to remain neutral in a conflict when the General Assembly collectively assesses the jus ad bellum legitimacy of the affected state, complementing the Security Council? It is well known that the General Assembly’s demands on the Russian side have not yet been met. On February 24, 2023, one year after the start of the armed invasion, the UN General Assembly adopted a resolution32 (141 in favor, 7 against, 32 abstentions, 13 non-voting) calling for comprehensive, just, and lasting peace in Ukraine and reiterating its demand for the immediate, complete, and unconditional withdrawal of Russian troops.

14.5 Applicability of the Law of Neutrality and Third State Options 14.5.1 Conditions Under Which a Third State May Opt for the Law of Neutrality Would a third state choose neutrality in a situation where a responsible state has been collectively and authoritatively recognized based on jus ad bellum? According to the general understanding before the outbreak of the RussoUkrainian conflict, in a situation where there is no authoritative recognition of culpable aggression by the Security Council, the law of neutrality has room for validity and may be applied voluntarily. Some commentators do consider that General Assembly resolutions might provide a political stimulus towards the abandonment of neutrality, to the extent that a State had not assumed treaty obligations to the contrary.33 Kolb states this is perhaps too rigid a view. He urges “It does seem possible that, amongst the ‘permissive’ effects of a recommendation, there might be room to include an authorisation to take a certain

32

UN General Assembly, UN Doc. A/RES/ES-11/6 (2 March 2023), available from https://docume nts-dds-ny.un.org/doc/UNDOC/GEN/N23/063/07/PDF/N2306307.pdf?OpenElement. 33 Meyrowitz (1970), pp. 347, 359.

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distance from the strict law on neutrality”.34 ‘There is no doubt that in such cases Article 2(5) of the Charter is triggered, albeit there is no binding obligation to render such assistance. No legal obligation exists, but a legal faculty (or right)’.35 More radically, Talmon argues that while the General Assembly, unlike the Security Council, cannot determine the aggressor with legally binding force, its resolutions are widely viewed as an expression of world opinion.36 He concludes that in this situation, the duty of impartiality no longer applies, and that, on the contrary, adherence to the neutrality obligation would favor the aggressor and amount to a declaration of legal and moral bankruptcy. Certainly, ES-11/1 does not make new positive obligation to abandon neutrality. However, the existence of aggression which clarified by the General Assembly might shake the legal basis of neutral duties. Among the neutral duties, the duty of impartiality, which has lost its validity owing to the illegitimacy of the use of force, no longer exists when the aggressor country has been identified, which is also consistent with the practices of the states supporting the Ukrainian side. On the other hand, does the duty of acquiescence, the remaining neutral duty in this situation, exist? Theoretically, the demand for the limitation of conflict, which is the basis for the duty of acquiescence, remains. If all reasons for the duties of neutrality are lost, the law of neutrality will no longer be valid, so the size of the benefit of observing the duty of acquiescence will determine whether neutrality can be established. The decision is based on a comparison of the benefits of not complying with the obligation of acquiescence and the demand for localization. Relative to the demand for the localization of conflicts, the advantages of not complying with the obligation are the abovementioned avoidance of casualties for the victim countries of aggression and for third countries whose own citizens are harmed, as well as the guarantee of collective security by the General Assembly. In other words, the existence of the obligation is determined relative to these interests. Uniting for Peace Resolution is a safeguard for the collective security regime, in case the UN Security Council does not function. If the law of neutrality is applied to this situation, it can be interpreted as unfairly benefiting an illegitimate state that ignores the demands of the international community expressed in the form of a General Assembly resolution and continues its aggression. Moreover, it would also confirm that the collective security of the UN cannot function adequately even if there is a finding of aggression by the General Assembly, in exchange for the localization of the armed conflict.

34

Kolb (2018), p. 312. Ibid. 36 See Talmon (2022), p. 20. However, legal effect of ‘an expression of world opinion’ was not clear. 35

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14.5.2 Attitudes to Be Taken by States that Do not Choose Neutrality In the Russo-Ukrainian conflict, non-belligerents that do not wish to engage in belligerence but choose not to remain neutral should keep in mind that they should not be considered to act in accordance with the acquiescence obligation of the law of neutrality. They should not acquiesce in the case of direct contact with the armed forces of a party to an armed conflict. An example of direct contact would be through capture at sea. That is, it can be a state practice that the law of neutrality is applicable even when there is a clear illegality on the jus ad bellum.37 It means that the third state accepts that the neutral law is valid, even when aggression is recognized by the General Assembly. If the recognition by the UN General Assembly is to be respected and made effective, it is necessary to take countermeasures against Russia’s actions without acquiescence. Alternatively, even if there are a few acquiesces, it would be necessary that many states do not to take such action. Maritime commerce of third States with belligerents in times of armed conflict itself can occur in any ocean area, and states located far from the disputed country are not immune to such problems. In particular, a state that interprets the General Assembly’s finding as a valid authoritative interpretation must take actions consistent with it (the state should not assume that neutral law can be applied to firmly establish collective security). It should therefore refrain from any action that could be said to presuppose the application of neutral law.

14.5.3 Possibility of a Third State Choosing Neutrality Is the demand to localize armed conflict, which is the basis for the obligation of acquiescence even after indulging in the disadvantages of these multiple perspectives, still relatively strong? It can be said that the international community in general wants not only an early end to the conflict in Ukraine, but also the localization of the damage and the avoidance of a scenario in which the number of parties to the conflict increases. At present, no country might want to actively engage Russia. The scenario that could lead to an increase in the number of parties to the conflict would be if Russia was to attack and the other party decides to return fire. Russia has repeatedly warned Ukraine’s allies not to supply them with modern weapons. It has stressed that if they do, they will become a party to the war. Putting aside the validity of Russia’s criteria for entering the war (criteria for becoming a belligerent), it is not illegal for a third state to enter the war or provide military support, but the possibility that a supporting country may be attacked by 37

Mayama (2023), p. 43.

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Russia even if it does not want to enter the war cannot be denied. This is because in the absence of a competent assessment by the Security Council, Russia could argue that its support for Ukraine is illegal. If donor countries want to avoid being attacked, it is important to know how to act in a way that does not involve them in the conflict. In this case, the legal defense would be to act in a way that is clearly consistent with their obligations in terms of neutrality hereafter.38 Currently, there is no legal obstacle to change its position to a neutral country to avoid attack from Russia. In the current situation of prolonged armed conflict, third countries may reconsider their position in the future.

14.6 Conclusion In the Russo-Ukrainian conflict, the status that a third state in the armed conflict may express regarding this armed conflict, and the actions it takes in response to that status may determine the future direction of jus ad bellum and the law of neutrality. In this conflict, there are various means of expressing solidarity with Ukraine. Economic sanctions is of course one way, but also the participation of third countries in the case of Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide pending before the ICJ, and the idea of establishing a special tribunal to pursue individual responsibility for the crime of aggression. However, the aid which contributes to the conduct of war to a belligerent will undoubtedly have a more direct effect than other forms of support. Among traditional neutral obligations, the impartiality obligation, which is based on fairness to the parties to the conflict, has been considered to have lost its relevance after the use of force was outlawed, as there is no obligation to treat a state that uses force illegally impartially. Once the Security Council makes a finding of illegality and decides on coercive measures, the law of neutrality does not apply to the UN member states because they naturally supersede the neutrality obligation. In the Russo-Ukrainian conflict, there is no such decision of the Security Council in terms of recognition and implementation of measures. However, the actions of states providing assistance to the Ukrainian side indicate that even without a competent recognition by the Security Council, the duty of impartiality is no longer conscious today, especially in situations where the aggressor state has been identified. The extent to which the duty of acquiescence can be fulfilled will play a role in determining whether neutrality can be established, since the law of neutrality cease to be valid when all grounds for the duty of neutrality are lost—particularly in situations where there is no end to the conflict in sight. To prevent the spread of damage caused by armed conflict, that is, to prevent other countries from being drawn into the armed conflict, if a third state in the conflict acts in accordance with the content of the obligation of neutrality, it can legally defend itself. In this sense, the law of neutrality can have a raison d’etre. 38

See Wani (2022), p. 21.

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Conversely, the accumulation of a large number of state practices that adhere to the acquiescence obligation of neutral law, in a situation where the responsible state is clear on the jus ad bellum, could have an important impact on determining the direction of the application of law of neutrality. Careful action considering whether to link Russia’s actions against the third state with the law of neutrality will be necessary, as this will be an important state practice of how the third state perceives the relationship between the law of neutrality and the UN collective security regime, including the General Assembly. A state that interprets the General Assembly’s finding as an authoritative interpretation must act in a manner consistent with that interpretation. Kolb states that neutrality tends to retreat or advance, by a process of flux and reflux, according to the place it holds within the international system of collective security. Collective security and neutrality are linked but complementary: when collective security is strong, neutrality declines; when collective security is in decline, neutrality grows in importance.39 The Emergency Special Session of the General Assembly, convened based on the Uniting for Peace Resolution, is a tool in the event that the UN Security Council fails to function; in other words, it is a safeguard for the UN collective security regime. States that interpret the authoritative interpretation of the General Assembly’s authorization as valid in this case must act in accordance with it. Therefore, to establish the collective security of the UN, the law of neutrality must not be applied. Third countries that respect the content of a General Assembly resolution should refrain from any action that could justify the application of the law of neutrality. It can be said that no direct impact of the Russo-Ukrainian conflict that transformed the law of neutrality could be identified as of March 2023. However, future actions of third states could have an impact on the future content of the law of neutrality.

References Books and Articles Bothe, M. 1994. Comments. In International Economic Law and Armed Conflict. ed. H.H.G. Post, 35–36. Dordrecht: Martinus Nijhoff. Brownlie, I. 1963. International Law and the Use of Force by States. OUP. Clapham, A. 2021. War. OUP. Fleck, D. 2021. 18 The Law of Neutrality. In The Handbook of International Humanitarian Law, 4th edn. OUP. Gioia, A. 1994. Neutrality and Non-belligerency. In International Economic Law and Armed Conflict, ed. H.G.P Harry, 51–110. Brill. Kolb, R. 2018. 10. Chapter VII of the Charter and Neutrality. In: International Law on the Maintenance of Peace: Jus Contra Bellum, 305–317. Edward Elgar Publishing Ltd.

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Kolb (2018), pp. 314–315.

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Kurosaki, M. 2021. Churituho (The law of Neutrality). In Boei Jitsumu Kokusaiho (Law of Armed conflict and International Security: A practitioners‘Manulal), ed. M. Kurosaki et al., 582–605. Kobundo. Mayama, A. 2023. Russia-Ukraine hunsou to Montor¯u Jouyaku・kaisenhouki・kaijotyuurituhouki (The Russo-Ukrainian War: The Montreax Convention and the Law of Naval Warfare and Neutrality). In Sencho (Captain), No. 140, 25–43. Japan Captain’s Association. Meyrowitz, H. 1970. Le principe de l’égalité des belligérants devant le droitde la guerre, Editions A. Pedone, Paris, 1970 (Published online by Cambridge University Press: 19 April 2010). Morikawa, K. 1997. Churitsu (Neutrality). In Kokusaihou-Keyword (Keyword of International law), ed. N. Okudera, and A. Kodera, 212–215. Yuhikaku. Schindler, D. 1988. Commentary to the 1907 Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War. In The Law of Naval Warfare: A. Collection of Agreements and Documents with Commentaries, ed. N. Ronzitti. Brill. Schindler, D. 1991. Transformations in the Law of Neutrality Since 1945. In Humanitarian Law of Armed Conflict: Challenges Ahead, ed. A.J. Delissen, and G.J. Tanja, 367–386. Dordrecht: Martinus Nijhoff. Talmon, A.G. 2022. The Provision of Arms to the Victim of Armed Aggression: The Case of Ukraine. Bonn Research Papers on Public International Law 20. https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=4077084. Tomuschat, C. 1950. Introductory Note-Uniting for Peace General Assembly resolution 377 (V). In audiovisual library of international law, available from https://legal.un.org/avl/ha/ufp/ufp.html. Upcher, J. 2020. Neutrality in Contemporary International Law. OUP. Wani, K. 2017. Neutrality in International Law: From the Sixteenth Century to 1945. Routledge. Wani, K. 2022. Russia ni yoru Ukraine Gunjishinkou no Gouhosei to Kokusaishakai no Hannou (The Legality of Russia’s Military Invasion of Ukraine and the International Community’s Response) in Kokusaimondai (International Affairs). Nihon Kokusai Mondai Kenkyujo (The Japan Institute of International Affairs), 710: 15–24. Wolff, H. von H. 2022. Neutrality in the War against Ukraine. Lieber Institute West Point: Articles of War (March 1, 2022). https://lieber.westpoint.edu/neutrality-in-the-war-against-ukraine/.

UN or Government Document Congressional Research Service, “International Neutrality Law and U.S. Military Assistance to Ukraine”, (April 26, 2022), available from https://crsreports.congress.gov/product/pdf/LSB/ LSB10735/3. UN General Assembly Resolution ES-11/1, Aggression against Ukraine, UN Doc. A/RES/ES-11/ 1 (2 March 2022), available from https://digitallibrary.un.org/record/3965290. UN General Assembly Resolution, UN Doc. A/RES/ES-11/6 (2 March 2023), available from https:/ /documents-dds-ny.un.org/doc/UNDOC/GEN/N23/063/07/PDF/N2306307.pdf?OpenElement. UN General Assembly, Uniting for peace, UN Doc. A/RES/377(V)(3 November,1950), available from https://digitallibrary.un.org/record/670279?ln=en. UN Security Council Resolution 660, The Situation between Iraq and Kuwait, UN Doc. S/RES/ 660 (2 August 1990), available from https://digitallibrary.un.org/record/94220. UN Security Council Resolution 661, The Situation between Iraq and Kuwait, UN Doc. S/RES/ 661 (6 August 1990), available from https://digitallibrary.un.org/record/94221. UN Security Council Resolution 598, The Situation between Iran and Iraq, UN Doc. S/RES/598 (20 July 1987), available from https://digitallibrary.un.org/record/137345?ln=en.

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Jurisprudence Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 226.

Saori Matsuyama is Associate Professor of international law at Osaka University of Economics and Law, Osaka, Japan. In the field of international law, she was the member of the international panel of evaluation for the written round of the Competition International Criminal Court Moot Court Competition (2018, 2019). She wrote articles on international humanitarian law and international criminal law, especially focusing on laws of non-international armed conflict, including the concept of armed conflict, and war crimes. She has PhD in law from Osaka University (2018).

Chapter 15

International Law of the Military Uses of Outer Space in Light of the War in Ukraine as the First Commercial Space War Setsuko Aoki

15.1 Introduction The War in Ukraine has not necessarily opened a new era in the military uses of outer space. It is true that the Ukrainian armed forces have been extensively using data and information from commercial communications and remote sensing satellites as well as the United States (US) GPS signals available all over the world in fighting against Russia, but this type of space use has been repeated since the 1991 Gulf War, which is often cited as “the first space war” due to the unprecedentedly heavy use of space-based technology to strengthen terrestrial warfighting capabilities.1 Such military use of space is categorized as the “militarization of space”, in contrast to the “weaponization of space”, meaning resorting to the use of force to, from, or within outer space. Destroying satellites using ground-based missiles or killer satellites orbiting around the Earth is an example of the “weaponization of space”.2 To date, no action corresponding to the “weaponization of space” has been conducted. However, the war in Ukraine yet demonstrates new phenomenon of the military uses of outer space in that foreign private companies are the major providers of spacebased data to the Ukrainian armed forces with the exception of the ubiquitous US GPS signals available globally. This poses a specific challenge that had only been restricted to a theoretical exercise previously: if a commercial satellite of a non-belligerent or neutral State is used to “make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (Art. 52 (2) of the Additional Protocol 1 2

Maogoto and Freeland (2007), p. 1107. Freeland (2015), pp. 81–112; Mowthorpe (2004), pp. 1–4; Tronchetti (2015), pp. 333–334.

S. Aoki (B) Keio University Law School, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_15

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I3 ), would it become a “military objective” and therefore a legitimate target for attack?; and does it imply that such a non-belligerent or neutral State has violated the international law of neutrality? Increased dependence on commercial satellites by military forces had started already in the last decade of the twentieth century due to the rapid increase in demand for space-based data, in particular, communication data. During the Gulf War in 1991, about 20 percent of all satellite communication services for the US and its allies were provided by commercial satellites, and by the time of the Iraqi War in 2003, commercial services accounted for roughly 80 percent of all satellite communications bandwidth.4 In the War in Afghanistan in 2001, the US National Reconnaissance Office (NRO) and National Imaging and Mapping Agency (NIMA) (currently National Geospatial-Intelligence Agency (NGA)) purchased virtually all satellite images of US space imaging companies and acquired also large amounts of images taken by the French company SPOT Image.5 Thus, questions mentioned above could have been seriously studied in the early twenty-first century. But scarecely has such study been conducted as huge disparity in space technologies between the US and its allies and their adversaries did not necessitate it. The War in Ukraine is different in that Russia possesses the technologies and experiences to destroy satellites owned by private persons of the US and its allies which have been providing Ukraine with space data. Following the confirmation of the legally permissible scope of the military uses of outer space (15.2), this chapter refers to concrete examples of the satellite data utilization by the Ukrainian armed forces (15.3). The chapter then proceeds to study whether, to what extent and how the jus in bello, or the existing law of armed conflict (LOAC) would be applicable to outer space with special emphasis on the question of whether and when a commercial satellite could be a target for attack (15.4). Considering the unique situations in the War in Ukraine that almost all satellite data to assist Ukrainian military activities have been provided by foreign companies, the role of the law of neutrality is then briefly examined (15.5). As primary objective of LOAC is to minimize the loss of civilian life, injury to civilians and damage to civilian objects on land, LOAC today would not effectively address the most important challenge in armed conflict in space, namely the environmental damages in orbits through the creation of massive amounts of space debris, which could render all peaceful uses of outer space impossible. Therefore, a possible solution for this challenge will be addressed in conclusion (15.6).

3

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, entered into force 7 December 1978, 1125 UNTS 3 [AP I], Art. 52(2). 4 Badgett (2020). http://www.milsatmagazine.com/story.php?number=33063518. 5 Wiebel (2004), pp. 114–115.

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15.2 Existing International Law on the Military Uses of Outer Space 15.2.1 Restrictions on the Military Uses of Outer Space Under the PTBT and the Outer Space Treaty The international agreements directly regulating military uses of outer space are the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (PTBT)6 and the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty, or OST).7 The PTBT obligates States Parties not to carry out any nuclear weapon test explosion or any other nuclear explosion, in the atmosphere, under water, or in outer space (Art. I (1) (a)(b) & (2)). This treaty was successfully adopted because nuclear tests in outer space carried out by the US and the Union of Soviet Socialist Republics (USSR or the Soviet Union) generated electromagnetic pulse (EMP) radiation that disabled at least six satellites of the two countries and the United Kingdom (UK),8 and nuclear explosion detection systems had already been able to verify such tests by that time.9 Article IV of the Outer Space Treaty is the most important arms control provision in the conduct of space activities. It reads: States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.

The strictness of arms control is different between outer void space (the term made by Professor Bin Cheng to mean the area of outer space between celestial bodies)10 and on the Moon and other celestial bodies. While only stationing weapons of mass destruction (WMD) in any manner is prohibited in outer void space, the prevalent view is that any kinds of military activities are forbidden on celestial bodies.11 However, if the specifically prohibited actions on celestial bodies are definitive and 6

Opened for signature 14 August 1963, entered into force 10 October 1963, 480 UNTS 43. Opened for signature 27 January 1967, entered into force 10 October 1967, 610 UNTS 205. 8 Molts (2008), p. 119. 9 Jenks (1961), pp. 51–52, 305–308. 10 Cheng (1997), p. 529. 11 Hobe et al. (2009), pp. 81–85. 7

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“peaceful” is interpreted as “non-aggressive”, then residual military activities are permissible as far as those would not constitute a “threat or use of force” prohibited by Article 2(4) of the United Nations Charter (UN Charter).12 Although views differ if prohibited actions are exemplified or definitive, and if “peaceful” should be interpreted as “non-military” or “non-aggressive” on activities on celestial bodies,13 this would not have to be further studied in this chapter as the War in Ukraine does not and will not get military supports from celestial bodies. In outer void space, only orbiting around the Earth any objects carrying WMD or otherwise stationing such weapons is forbidden. In this regard, two points need to be clarified: the first is the definition of WMD, and the second is the precise meaning of “orbiting around the Earth” of such weapons. As for the first point, WMD is not defined in the OST or any other arms control treaties. WMD has been defined by the UN Commission for Conventional Armaments in 1948 as “atomic explosive weapons, radio-active material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics of comparable in destructive effect to those of the atomic bomb or other weapons mentioned above”,14 and this definition remains more authentic than other concepts of WMD discussed at the UN Disarmament Commission or the Conference on Disarmament (CD) to date. Despite the development of various types of advanced lethal conventional weapons, today, the term “WMD” is understood as simply referring to nuclear, biological and chemical weapons.15 As to the second point, for a WMD to be deemed to “place in orbit around the Earth”, the prevalent view is that at least one complete rotation of the Earth is needed.16 This excludes not only sub-orbital Intercontinental Ballistic Missiles (ICBMs) tipped with nuclear weapons but also Fractional Orbital Bombardment System (FOBS), another nuclear-weapons delivery system developed by the Soviet Union in the 1960s, which would circle around the Earth but deorbit before making an entire rotation.17 Although FOBS had been banned under some of the US-USSR/ Russia treaties, including the Treaty between the US and USSR on the Reduction and Limitation of Strategic Offensive Arms (START I) adopted in 1991 (Art. V (18) (c)), as START I expired in December 2009, there is currently no international treaty to prohibit FOBS. In October 2021, it was reported that China had successfully conducted a test of a FOBS-type vehicle on board a hypersonic glide vehicle (HGV),18 12

United Nations Charter, opened for signature 26 June 1945, entered into force 24 October 1945, TS No. 993. 13 Aoki (2017), pp. 202–203. 14 UN Commission for Conventional Armaments: Resolutions Adopted by the Commission at its 13th Meeting, 12 August 1948, and a 2nd Progress Report of the Commission, S/C.3/32/Rev.1, 18 August 1948. 15 Lyall and Larsen (2018), pp. 460–461. 16 Stares (1985), p. 99; Stein (1972), p. 264. 17 Ikeda (1971), pp. 135–139. 18 Sevastopulo and Hille (2021). https://www.ft.com/content/ba0a3cde-719b-4040-93cb-a486e1 f843fb.

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but no State accused China. Most probably, today, FOBS-type delivery vehicles which are potentially more effective than ICBMs are not prohibited by the OST. As the Outer Space Treaty does not refer to nuclear explosion tests, unless the prohibition of a nuclear explosion test in outer space has become a rule of customary international law, non-States Parties to the PTBT would not be prohibited from carrying out a nuclear explosion test. Among major non-States Parties to the PTBT, which include China, the Democratic People’s Republic of Korea (DPRK) and France, France probably could not conduct nuclear tests in outer space as France clearly stated several times vis-à-vis the international community in 1974 that it would move to the underground tests.19 Since the possibility and usefulness of biological and chemical weapons tests in outer space are highly doubtful as of today, their legality would not be considered here. The Outer Space Treaty does not refer to the use of WMD. The legality of the use of nuclear weapons would be assessed if such an action meets the criteria to the right of self-defense as reflected in Article 51 of the UN Charter.20

15.2.2 The Current Scope of Permissible Military Uses of Outer Space No new multilateral space arms control treaties have been made after the 1967 Outer Space Treaty. A series of proposals for more stringent space arms control treaties had been tabled at the CD from 1979 to 2014,21 but none of them went to the negotiation stage due to the consensus system taken by the CD. Among nine proposals submitted to the CD, the Italian (1979), Venezuelan (1988) and the Peruvian (1989) proposals aimed to amend Article IV of the Outer Space Treaty by strengthening the prohibition from only WMD to any kinds of weapons in outer space.22 Two Soviet proposals in 19

Nuclear Tests Case (Australia v. France) [1974] ICJ Rep. paras. 34–41. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep. paras. 96–97. 21 Italian proposal: Additional Proposal to the 1967 Outer Space Treaty with a View to Preventing Arms Race in Outer Space, CD/9 (26 March 1979); Soviet proposal: Draft Treaty on the Prohibition of the Stationing of Weapons of Any Kind in Outer Space, CD/274 (7 April 1982); Soviet proposal: Draft Treaty on the Prohibition of the Use of Force in Outer Space and from Space against the Earth, CD/476 (20 March 1984); Venezuelan proposal: Proposed Amendment to the Outer Space Treaty: CD/851, CD/OS/WP.24 (2 August 1988); Peruvian proposal: Proposal for Amendment of the Outer Space Treaty, CD/939, CD/OS/WP.37 (28 July 1989); Chinese Proposal: Treaty on the Prevention of the Weaponization of Outer Space, CD/1645 (6 June 2001); Russian/Chinese joint proposal: Treaty on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, CD/1679 (28 June 2002); Russian/Chinese joint proposal: Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects, CD/1839 (29 February 2008); and the Russian/Chinese joint proposal: Draft Treaty on Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, CD/1985 (12 June 2014). 22 CD/9 (Italy); CD/851, CD/OS/WP.24 (Venezuela); CD/939, CD/OS/WP.37 (Peru). 20

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the Cold War era (1982, 1984), the Chinese proposal (2001) and more recent Russia/ China joint proposals (2002, 2008, 2014) were tabled as an independent space arms control treaty.23 The common elements of these nine proposals were the prohibition of the deployment of any kinds of weapons in outer space as well as the use of weapons from space to Earth or in outer space.24 Some of them also banned to resort to the threat or use of force against objects placed in outer space from Earth.25 The 1972 Treaty between the US and the USSR on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty)26 was stricter than the OST as it prohibited conventional weapons deployed in outer space (Art. V (1)). However, as the ABM Treaty terminated in 2002,27 Article IV of the Outer Space Treaty has been the most stringent arms control provision relating to space activities for the last two decades. In conclusion, today, any military uses of outer void space are lawful as long as: i) they are not forbidden under the PTBT or OST; and ii) they do not amount to the threat or use of force in outer space. Thus, the operation of or reliance on various military satellites in peacetime or in times of armed conflict is lawful. In fact, it is estimated that about 75 percent of all satellites launched during the Cold War era are military satellites.28 Further, while destroying a satellite belonging to other States is a prohibited use of force under the UN Charter, there is no legally-binding rule prohibiting a destructive anti-satellite (ASAT) test against one’s own satellite. To date, the US (since1959, last test in 2008), USSR/Russia (since 1963, last test in 2021), China (2007) and India (2019) have conducted destructive ASAT tests.29

23

CD/274 (USSR); CD/476 (USSR); CD/1645 (China); CD/1679 (Russia/China); CD/1839 (Russia/China); and CD/1985 (Russia/China). 24 Italian proposal, Art. 1; Soviet proposal (1982), Arts. 1(1) & 3; Soviet proposal (1984), Arts. 1 & 2(1)(2); Venezuelan proposal (1988) and Peruvian proposal (1989) (no Articles numbers used); Chinese proposal (2001), Point III; Russia/China proposal (2002), Point III, Russia/China proposal (2008, 2014), Art. II. 25 Soviet proposal (1984) as well as Russia/China proposals (2002, 2008, 2014). 26 Signed 26 May 1972, entered into force 3 October 1972. 944 UNTS 13. 27 Terminated on 13 June 2002 in accordance with Art. XV (2) of the ABM Treaty. 28 See, e.g., Stockholm International Peace Research Institute (SIPRI), World Armaments and Disarmament: SIPRI Yearbook series from 1973 to 1990. 29 See, e.g., Weeden (2014), pp. 17, 21–27, 29–30; Modi N, 27 March 2019, https://twi tter.com/narendramodi/status/1110800868058660864; US Space Command, “Russian DirectAscent Anti-Satellite Missile Test Creates Significant, Long-Lasting Space Debris”, 15 November 2021, https://www.spacecom.mil/Newsroom/News/Article-Display/Article/2842957/ russian-direct-ascent-anti-satellite-missile-test-creates-significant-long-last/.

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15.3 Important Roles Played by Commercial Satellites in the War in Ukraine This section describes major examples of the military uses of privately-owned space assets during the first year of the War in Ukraine to consider its legal implications in the later sections.

15.3.1 Communication Satellites When the present War in Ukraine started on 24 February 2022, the Russian government and its private persons operated 167 satellites in total: 70 military satellites; 32 dual-use GLONASS navigation satellites; and 65 civilian and commercial satellites. In contrast, Ukraine operated only two small civilian satellites in low-Earth orbit (LEO) launched in June 2014 and January 2022 respectively.30 However, this huge difference in space capabilities has been largely offset by the extensive provision of space-based data to Ukraine from foreign States primarily through their private companies. One hour before the Russian invasion of the Ukraine on 24 February 2022, US Viasat’s communication satellite, KA-SAT received a cyber attack that rendered KASAT modems inoperable in Ukraine and neighboring European States and affected tens of thousands of users more than two weeks. A senior Ukrainian cybersecurity official admitted that this malicious cyber operation caused a huge loss in communications for the Ukrainian armed forces at the very beginning of the war.31 The malware used for that incident was later identified as AcidRain designed to wipe modems and routers, which could be made only by a State or State-backed organization.32 Ukrainian action to restore sufficient communication was quick. Ukrainian Deputy Prime Minister and Minister of Digital Transformation Mr. Mykhailo Fedorov tweeted in the morning of 26 February to ask Mr. Elon Musk, the CEO of the Space Exploration Technologies Corp. (SpaceX), “to provide Ukraine with Starlink stations”.33 Starlink is the name of SpaceX’s satellite constellation which uses a LEO of about 550 km to deliver high-speed, low-latency internet to users all over the world. Users receive communication services directly through Starlink terminals 30

See, e.g., Union of Concerned Scientists (UCS), UCS Satellite Database, https://www.ucsusa. org/resources/satellite-database. 31 See e.g., Viasat, “KA-SAT Network Attack Overview”, 30 March 2022, https://news.viasat. com/blog/corporate/ka-sat-network-cyber-attack-overview; Lyngaas S, “Ukraine Detains ‘Hacker’ Accused of Aiding Russian Troops amid Broader Struggle to Secure Communications”, 15 March 2022, https://edition.cnn.com/2022/03/15/europe/ukraine-detains-hacker/index.html/. 32 See, e.g., Guerrero-Saade and van Amerongen (2022). https://www.sentinelone.com/ labs/acidrain-a-modem-wiper-rains-down-on-europe/; https://www.reuters.com/world/europe/exc lusive-us-spy-agency-probes-sabotage-satellite-internet-during-russian-2022-03-11/. 33 Fedrov M, 26 February 2022, https://twitter.com/FedorovMykhailo/status/149754363329326 6944?lang=ja.

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without other ground-based facilities.34 At the time of Russian invasion of Ukraine, the number of Starlink satellites was more than 2,000.35 Traditionally, reliable satellite communication had been provided by a satellite placed in geostationary orbit (GEO) at the altitude of about 36,000 km, because such a satellite appears motionless from one point of the Earth as whose orbital period is equal to Earth’s rotational period, and that is convenient for stable and wide-coverage communications and broadcasting. In fact, KA-SAT was also a GEO satellite.36 In just over ten hours, Mr. Musk responded to Mr. Fedorov also via Twitter that “Starlink service is now active in Ukraine. More terminals en route,” and in the night of 28 February, Starlink terminals truly arrived in Kyiv, Ukraine. Then, highspeed internet communication by the Starlink constellation started working before the dawn of 1 March 2022.37 5,000 Starlink terminals had been provided to Ukraine by 5 April.38 Mr. Fedorov reported that there were around 150,000 active Starlink users in Ukraine on 2 May 2022.39 Starlink service was extremely useful both for basic communications and for the Ukrainian armed forces to employ in the battlefield, for example, to control unmanned combat aerial vehicles and receive vital intelligence reports.40 It was soon revealed that SpaceX was not the sole contributor of Starlink services. The US Agency for International Development (USAID) announced that it had paid for 1,330 terminals, and SpaceX took responsible for the remaining 3,670 terminals and provision of internet services.41 Due to conflicting information, the real contribution ratio of the USAID remains unclear, but what is clear is that the USAID paid for part of the Starlink communication services to Ukraine.42 It has also been confirmed that the governments of France, Poland, the UK and some private entities covered part of the Starlink terminals and delivery costs as well.43 The legal implications 34

SpaceX, “Starlink”, https://www.starlink.com/technology. Starlink Satellite Map, https://satellitemap.space/satellites.html. 36 Viasat, “Geostationary Satellites”, https://www.viasat.com/space-innovation/space-systems/geosatellites/; Viasat, “KA-SAT Satellite”, https://www.viasat.com/space-innovation/satellite-fleet/kasat/. 37 See, e.g., Berger (2022). https://spacenews.com/spacex-heeds-ukraines-starlink-sos/. 38 USAID, “USAID Safeguards Internet Access in Ukraine through Public–Private-Partnership with SpaceX”, 5 April 2022, https://www.usaid.gov/news-information/press-releases/apr-05-2022usaid-safeguards-internet-access-ukraine-through-public-private-partnership-spacex. 39 Rainbow (2022). https://spacenews.com/as-us-blames-russia-for-ka-sat-hack-starlink-sees-gro wing-threat/. 40 Roulette J, “SpaceX Curbed Ukarine’s Use of Starlink Internet for Drones- Company President”, 9 February 2023, https://finance.yahoo.com/news/spacex-curbed-ukraines-starlink-internet002037328.html. 41 Lima (2022). https://www.washingtonpost.com/politics/2022/04/08/us-quietly-paying-millionssend-starlink-terminals-ukraine-contrary-spacexs-claims/. 42 USAID, Supra note 38, Johnson (2022). https://biz.crast.net/spacex-was-paid-by-the-us-gov ernment-to-ship-some-starlink-terminals-to-ukraine-although-it-was-claimed-that-it-was-not/; Srivastava, et al. (2022). https://www.ft.com/content/9a7b922b-2435-4ac7-acdb-0ec9a6dc8397. 43 Lipscombe (2022). https://www.datacenterdynamics.com/en/news/ukrainian-forces-report-sta rlink-outages-in-areas-liberated-from-russian-control/; Marquardt and Lyngaas (2022). https://edi tion.cnn.com/2022/11/04/politics/spacex-ukraine-elon-musk-starlink-internet-outage/index.html. 35

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of both the governmental and private assistance to Ukraine during an international armed conflict (IAC) will be considered in the later sections of this chapter (15.4 and 15.5). On 10 May 2022, Australia, Canada, New Zealand, Ukraine, the UK and US as well as the European Union (EU) jointly and formally accused Russia of its cyberattacking KA-SAT communications.44 On the same day, SpaceX CEO Mr. Musk also stated that the increasing cyber attack from Russian hackers on Starlink systems was a challenge to the safe operation of the constellation. He had already expressed concerns in early March that allocating SpaceX’s resources to address malicious cyber operations to Starlink systems would cause slight delays for its other missions including the development of a new launch vehicle.45 SpaceX’s efforts to fight with hackers and the inherent technical difficulty to paralyze satellite constellation have enabled SpaceX to continuously operate Starlink systems as of May 2023. As at any one moment, 12–16 satellites are operating to cover, for example, Kyiv area. Destroying these targeted satellites poses already a technical challenge; if that could be done, there are yet more than 3,000 Starlink satellites operating in orbit, and another 12–16 satellites would cover the Kyiv area some minutes later. This is very different from cyber attacking one big GEO satellite such as KA-SAT.46 (The test of lawful destruction of Starlink satellites is referred to in 15.4.3.) Due to the continuing war and considerable burden on SpaceX, Mr. Musk has more than once suggested the termination of its assistance to Ukraine and requested the US Department of Defense (DoD) to share the burden since around October 2022. While details have not been disclosed, it is likely that DoD has been at least financially supporting continuous Starlink services in Ukraine.47 Other than the Starlnk constellation, it is reported that HughesNet and Iridium Satellite Communications, both US companies, are providing communication services to Ukraine,48 but Starlink has been the most important internet service provider.49

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US Secretary of State, Blinken A J, “Attribution of Russia’s Malicious Cyber Activity Against Ukraine”, 10 May 2022, https://www.state.gov/attribution-of-russias-malicious-cyber-activity-aga inst-ukraine/; Lakshmanan R, “E.U. Blames Russia for Cyberattack on KA-SAT Satellite Network Operated by Viasat”, 11 May 2023, https://thehackernews.com/2022/05/eu-blames-russia-for-cyb erattack-on-ka.html. 45 Rainbow (2022). 46 Ozawa (2023), p. 324. 47 Marquardt and Lyngaas (2022). 48 Ozawa (2023), pp. 322–323. 49 Schwaller (2022). https://www.dw.com/en/starlink-is-crucial-to-ukrainian-defense-heres-howit-works/a-63443808.

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15.3.2 Remote Sensing Satellites On 1 March 2022, Ukrainian Deputy Prime Minister and Minister of Digital Transformation Mr. Fedorov posted a letter on Twitter which requested remote sensing data to watch the movement of Russian troops.50 In response, Canadian space company MDA Ltd. released a statement on 8 March that the company had obtained a special authorization from the Canadian government to collect Synthetic Aperture Radar (SAR) satellite imagery over restricted areas in Ukraine on 4 March 2022.51 MDA has been famous for its all-weather SAR imageries from RADARSAT-2 and RADARSAT Constellation Mission (RCM) launched in 2007 and 2019 respectively. As SAR sensors can take images at night and through clouds, SAR images are highly useful to watch the movement of Russian troops at all times and in all weather conditions.52 MDA’s imageries have been first merged and analyzed with additional imagery collected by US commercial Earth observation companies to develop comprehensive near real-time intelligence reports, which are then sent to the Ukrainian government. This was not the first time Canada had provided SAR data to Ukraine. From 2015 to 2016, Canada provided RADARSAT-2 imageries of the eastern part of Ukraine to the Ukrainian government through MDA so that Ukraine could effectively deal with Russian-backed separatist forces.53 Finnish satellite imagery company ICEYE announced that it would provide the Ukrainian government with the full capabilities of one of ICEYE satellites through the contact with the Serhiy Prytula Charity Foundation, an organization established by a Ukrainian actor to provide drones, armored vehicles and humanitarian aid to the Ukrainian armed forces.54 The Defense Intelligence of Ukraine published a report in March 2023 describing the highly successful results of utilizing ICEYE data in targeting Russian military equipment.55 Mr. Fedorov asked eight commercial satellite companies in early March 2022 for satellite imageries, and it seemed all companies reacted positively. It is reported that the US government significantly increased its purchase of imagery and actively fostered connections between the US companies and Ukrainian intelligence analysts to enhance data provision to Ukraine. It is also reported that the US commercial Earth 50

Fedorov M, 1 March 2022, https://twitter.com/FedorovMykhailo/status/1498664494301650950. MDA, 8 March 2022, https://mda-en.investorroom.com/2022-03-08-MDA-TO-PROVIDE-SAT ELLITE-IMAGERY-FOR-INTERNATIONAL-EFFORTS-IN-UKRAINE. 52 Canadian Space Agency (CSA), https://www.asc-csa.gc.ca/eng/satellites/radarsat2/; CSA, https://www.asc-csa.gc.ca/eng/satellites/radarsat/what-is-rcm.asp. 53 Pugliese (2022). https://spacenews.com/canada-answers-ukraines-call-for-satellite-radar-imagery/. 54 ICEYE, 18 August 2022, https://www.iceye.com/press/press-releases/iceye-signs-contract-toprovide-government-of-ukraine-with-access-to-its-sar-satellite-constellation. 55 Defense Express, “ICEYE Makes a Difference: Ukrainian Intelligence Spotted and Destroyed Over 7000 Targets Thanks to the SAR Satellite”, 9 March 2023, https://en.defence-ua.com/news/ iceye_makes_a_difference_ukrainian_intelligence_spotted_and_destroyed_over_7000_targets_t hanks_to_the_sar_satellite-5999.html. 51

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observation companies have been providing SAR and optical imageries to Ukraine at the urging of the US NGA and NRO.56 In addition, public dissemination of satellite imagery has played an important role. It works as an effective countermeasure to Russian disinformation operations, evidence to document war crimes, and enhance global transparency on this war.57

15.4 LOAC Applicable in Military Space Activities 15.4.1 Applicability of the Additional Protocol I to Military Space Activities On 26 October 2022, at the First Committee of the UN General Assembly (UNGA), Deputy Head of the Delegation of the Russian Federation, Mr. Konstantin Vorontsov made a statement on “an extremely dangerous trend that goes beyond the harmless use of outer space technologies and has become apparent during the latest developments in Ukraine. Namely, the use by the United States and its allies of civilian, including commercial, infrastructure elements in outer space for military purposes” and warned that “these States do not realise that such actions in fact constitute indirect participation in military conflicts. Quasi-civilian infrastructure may become a legitimate target for retaliation” (emphasis added).58 This statement raised concerns59 about a possible ASAT operation by Russia and potential implications for the application of LOAC that may result. However, partly because no armed conflict has occurred in outer space to date, and partly because there is no treaty to directly cover armed conflict in outer space, whether, to what extent and how LOAC could apply to space armed conflict remains uncertain. Therefore, at least three points should be clarified before considering whether military actions Russia suggested in October 2022 could be lawfully carried out. In this subsection, the first two points will be considered and the third one will 56

Borowitz (2022). https://theconversation.com/war-in-ukraine-highlights-the-growing-strategicimportance-of-private-satellite-companies-especially-in-times-of-conflict-188425; Biesecker C, “Intelligence Community is Rapidly Delivering Commercial Satellite Imagery to Ukraine, NGA Official Says”, 26 April 2022, https://www.satellitetoday.com/government-military/2022/04/26/int elligence-community-is-rapidly-delivering-commercial-satellite-imagery-to-ukraine-nga-officialsays/. 57 Erwin S and D Werner, “Dark Clouds, Silver Linings: Five Ways War in Ukraine Is Transforming the Space Domain”, 23 December 2022, https://spacenews.com/dark-clouds-silver-liningsfive-ways-war-in-ukraine-is-transforming-the-space-domain/. 58 Russian Federation, Statement at the Thematic Discussion on Outer Space: Disarmament Aspects in the First Committee of the 77th Session of the UNGA, 26 October 2022, https://russian.ru/en/ news/261022_v; UNGA 77th Session, 22nd Meeting (PM), GA/DIS/3698 (26 October 2022), https:/ /press.un.org/en/2022/gadis3698.doc.htm. 59 See, e.g., RadioFreeEurope, 27 October 2022, https://www.rferl.org/a/russia-western-commer cial-satellites-legitimate-targets/32102888.html.

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be addressed in the next subsection (15.4.2). First, whether LOAC would apply to an armed conflict in outer space at all should be addressed. While there is no treaty to regulate space armed conflict, customary rules of LOAC have filled the gap whenever a new domain of battlefield or new weapon, means or methods of warfare has emerged, as can be the case with cyber operations.60 Indeed, customary rules of LOAC tend to regulate behavior of the belligerents irrespective of the place an attack takes place.61 Consequently, the prevalent view accepts general application of LOAC to military space activities,62 even though scholars disagree to what extent and on which part of LOAC is applicable to space activities once IAC occurs to, from, or within outer space. Second, it should be confirmed that both Russia and Ukraine are States Parties to at least one common LOAC treaty that provides conditions of objects to be attacked as “military objectives” and to be protected as “civilian objects”, and that such LOAC treaty could be applicable for armed conflict in outer space. Both Russia and Ukraine are States Parties to the 1907 Convention (IV) respecting the Laws and Customs of War on Land (Hague IV Convention)63 and the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I or AP I).64 It is understood that the Hague IV Convention does not apply to armed conflict in outer space as its provisions govern only land warfare.65 As for the Additional Protocol I, although the scope of the treaty application is set out as “any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land” and attacks of sea-to-land or air-to-land (Art. 49(3)), the International Committee of the Red Cross (ICRC) is of the view that the relevant provisions of the Protocol could be read as additional provisions to other treaties and rules of customary international law as long as they aim “at protecting civilians and civilian objects in air and sea warfare.”66 Thus, it may be the case that relevant provisions of the AP I may additionally apply in implementing international space law rules once a space warfare takes place, provided that such rules have the aspect aiming to protect civilians and civilian objects on land. Indeed, Prof. Michael Schmitt mentioned that “[n]o indication exists that the Protocol drafters intentionally excluded space from the land, air or sea phraseology”.67 As a result, the conclusion is that the Additional Protocol I is applicable to spacebased attacks against land targets and attacks against space-based objects from any

60

Schmitt (2013), pp. 75–256; Schmitt (2017), pp. 375–562. Kubo (2018), p. 22; Borgen (2022), p. 165. See also, Stephens (2018), pp. 75–93, esp. pp. 80–84. 62 See, e.g., Kubo (2018), pp. 1–38. 63 Opened for signature 18 October 1907, entered into force 26 January 1910, 36 Stat. 2277. 64 Supra note 3. 65 Schmitt (2006), p. 115. 66 International Committee of the Red Cross (ICRC) (1987), para. 1906. 67 Schmitt (2006), p. 115. 61

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place on Earth as long as such attacks would affect the civilian population, individual civilians and civilian objects on land.68

15.4.2 Conditions for Private Satellites to Become Military Objectives Then, the third point to be clarified is whether what-Russia-called “quasi-civilian infrastructure” could be military objectives that are subject to attack. Art. 52(2) of AP I reads: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

“Attacks” means “acts of violence against the adversary, whether in offence or in defense” (AP I, Art. 49(1)). Needless to say, although Article 52(2) of AP I only refers to objects, members of the armed forces are also military objectives with a few exceptions (AP I, Art. 43(2)). As for objects, whenever two elements are met, they become military objectives which are considered legitimate targets subject to attack. The two elements are: (i) an object provides an effective contribution to military action by its nature, location, purpose or use; and (ii) the total or partial destruction, capture or neutralization of that object offers a definite military advantage when the decision to launch the attack is made. No clarification of the meaning of “a definite military advantage” is given in Article 52(2). During the negotiation of AP I, the adjective “definite” was chosen over “distinct”, “direct”, “clear”, “immediate”, “obvious”, “specific” and “substantial”, but even the Rapporteur of the Working Group admitted the reasons for the choice of the term “definite” was unclear. However, there are some clues to determine the threshold of “definite”. It is pointed out that term “definite” in Article 52 (2) is similar to the expressions “concrete and direct military advantage anticipated” (AP I, Arts. 51(5)(b), 57(2)(a)(iii) and (b)) and “distinct and substantial military advantage” (terms of the drafting stage of AP I, Arts. 51(5)(b), 57(2)(a)(iii) and (b)). Further, it is suggested that mere “potential or indeterminate advantages” may not be interpreted “definite” advantages.69 Among four criteria for a thing to be a military objective, “nature” criterion refers to objects directly used by the armed forces, such as weapons, equipment, transports, fortifications and staff headquarters.70 Thus, military satellites operated by armed forces are military objectives by nature even if they also serve for civilian 68

Ibid. ICRC (1987), paras. 2019, 2024 & 2027. 70 ICRC (1987), para. 2020. 69

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purposes.71 The criterion of “location” is met when an object becomes effective to military action by virtue of the geographical location where it is situated, such as for instance a bridge or runway.72 Due to the location of outer space as the “ultimate high-ground”, this criterion may fit for all satellites in theory.73 However, destroying civilian satellites claiming that they make an effective contribution to military action and destroying them would offer a definite military advantage without the reliable intelligence is impermissible. The third criterion of “purpose” implies the current and actual threat assessed from an intended future use of an object.74 If it is clear from the reliable intelligence that an enemy has decided to convert its civilian satellites to military satellites, such satellites become military objectives by virtue of purpose.75 The “use” criterion is concerned with the present use.76 For instance, if the data of a commercial remote sensing satellite is used by an armed forces to target its adversary’s tanks and combatants, such a commercial satellite becomes a military objective by the actual use for the effective contribution to military missions, and thus destroying it would offer a definite military advantage. This criterion expressly fits for the cases in the War in Ukraine. Placed in context, commercial satellites used for the Ukrainian armed forces have been turned into military objectives.

15.4.3 Challenges to Conduct a Lawful ASAT Operation in the War in Ukraine It is confirmed in the preceding subsection that a commercial satellite would be a legitimate target for attack if conditions set forth in Article 52(2) of AP I are met. This subsection considers the actual possibilities of lawful attacks to those commercial satellites by Russia. Can Russia truly resort to ASAT operations against the Starlink constellation, satellites owned by MDA Ltd. and one of the ICEYE satellites which have been providing valuable space data to the Ukrainian armed forces? The communication services and imageries from commercial satellites mentioned above have made “an effective contribution to miliary action” of the Ukrainian armed forces. Reports on the usefulness of such satellites data by the relevant States, media and the armed forces of Ukraine would confirm that the destruction of such satellites would offer “a definite military advantage” to Russia. Thus, Russia could in principle resort to an ASAT attack. However, it should be noted that the requirement of Article 52(2) of AP I is “there must be a definite military advantage for every military objective that is attacked”.77 71

Kurosaki et al. (2021), p. 363. ICRC (1987), para. 2021; Kurosaki et al. (2021), p. 363. 73 Schmitt (2006), p. 117. 74 ICRC (1987), para. 2022. 75 Schmitt (2006), p. 116. 76 Kurosaki et al. (2021), p. 363. 77 ICRC (1987), para. 2028. 72

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This may pose an actual challenge when attacking multiple satellites, especially attacking the Starlink constellation satellites as this would require identifying the specific satellites that are effectively contributing to military action of the Ukrainian armed forces among thousands of satellites. The number of Starlink satellites in operation was already over 2,000 when the war began, and the total number of satellites have been constantly increasing over time.78 As at any one moment 12–16 Starlink satellites are providing data to a certain area,79 the attacker must identify the specific 12–16 satellites providing communication services to a specific battlefield among thousands of satellites and precisely attack those satellites. There may be a possibility that it is assessed that every and each satellite of the Starlink constellation equally makes an effective contribution in the battlefield in the long run, and attacking any of them could be interpreted lawful. In that case, however, there is another challenge for the attacker to meet. That is the principle of proportionality which is considered below. Once an attack on the confirmed military objective is planned or decided, the next step for an attacker is to take all feasible precautions in the choice of means and methods of attack to avoid and minimize incidental loss of civilian life, injury to civilians and damage to civilian objects in accordance with the principle of proportionality. In other words, the lawfulness of an attack is confirmed only when the collateral damage is within the permissible scope.80 An attack must not be launched if the expected incidental loss of civilian life, injury to civilians and damage to civilian objects in the terrestrial environment would be excessive in relation to the concrete and direct military advantage anticipated (AP I, Art. 57(2)(a)(ii)(iii)). Applied to the context of outer space, at first glance, the possibility of the excessive loss for the purposes of AP I may be remote, but it may not be so simple as it appears. Due to increasingly congested orbits, if a targeted satellite is destroyed, debris generated may collide with and destroy multiples of other civilian satellites which play a critical role for telemedicine, disaster management, or lifeline communications in remote areas on land. The consequence will be a cessation of data from such satellites, which may result in excessive loss of civilian life, injury to civilians and damage to civilian objects. The attacker cannot be expected to give effective advance warning (as required under Article 57 (2)(c)), for it is most difficult to calculate or anticipate the expected degree of collateral damage that may result from an attack against several of the Starlink satellites. The situation would not be so different with respect to an attack against a remote sensing satellite providing data to the Ukrainian armed forces. Thus, physically destroying satellites pursuant to provisions of AP I may be considerably difficult. This evaluation might lead to the idea that instead of a physical destruction, satellites should be functionally destroyed, degraded or disrupted, irreversibly or temporarily through cyber means, because such operations would not create space 78

Berry (2023). https://history-computer.com/how-many-satellites-does-musks-starlink-have-inorbit/. 79 Ozawa (2023), p. 324. 80 Kurosaki et al. (2021), p. 371.

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debris that may result in collisions with other satellites that are not the targets of the attack. However, there are at least two reasons that cannot be sufficiently supported. The first is that even absent the consequential collisions between debris from the targeted satellite(s) and other functional satellites in orbit, just the loss of the internet communications from the Starlink constellation, etc. might cause terrestrial loss of life, injury to civilians, and damage to civilian objects to the extent that it is considered as “excessive” under AP I. The second reason is that Article 52 (2) of AP I may not be able to applicable to ASAT attacks by cyber means, and as a result, the legal consequence of the ASAT would become uncertain. Military space activities somewhat overlap with malicious cyber operations, and both cyber and space operations share the uncertainty of the legal nature of “data” (including “signals”) as the target to be attacked is intangible. As “objects” and “objectives” are characterized by their physical tangibility and materiality, it is natural that many LOAC experts agree that “data” is not included in “objects” or “objectives” for the purposes of LOAC.81 However, the fundamental principle of LOAC is to distinguish between civilian “objects” and military “objectives” to protect the former from the attack. Without a clear distinction between the two, commercial satellites normally categorized as civilian objects might not be protected from the attack in the LOAC context, and the result might be the abuse of malicious cyber operations to commercial satellites.82 It has been reported that the Starlink constellation has been the target of malicious cyber operations from Russia.83 It may follow that an attacker is not targeting military objective, and that may cause a problem to the attacker. At the same time, attacking “data” or “signals” of the Starilnk satellites may not be the violation of API as the rule of the protection of a civilian object may not be applicable in the case of cyber operations84 should the Starlink satellites concerned still maintain the status of civilian objects. Legal consequences of cyber operations to the Starlink could therefore be uncertain. In conclusion, commercial satellites the data of which have been intensively used by the Ukrainian armed forces would qualify as military objectives, and could be attacked if collateral damages would not be excessive under AP I. However, ensuring collateral damages on the ground keeping within the permissible degree may be more difficult than it appears. In addition, using cyber operations for ASAT purposes as having been currently conducted, may make the application of API difficult as relevant satellites could be assessed neither military objectives nor civilian objects.

81

Shcmitt (2017), p. 437. Kurosaki et al. (2021), pp. 370–371; McCormack (2018), pp. 229–230; Schmitt (2017), pp. 435– 445. 83 See, e.g., Horton (2023). https://www.washingtonpost.com/national-security/2023/04/18/dis cord-leaks-starlink-ukraine/. 84 McCormack (2018), p. 230. 82

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15.4.4 The Continued Operability of Article IX of the OST to Restrict ASAT Operations Finally, whether the whole or part of the OST continues to operate during armed conflict will be considered as this might temper the issue of ASAT attack against commercial satellites to a certain degree. While some treaties explicitly provide peacetime and wartime application, the OST is silent about its applicability during armed conflict.85 The presumption would be in favor of the continued application of the OST, because the OST is a law-making treaty, and the OST declares, creates, or regulates a permanent regime. These characteristics of the OST correspond to two of the 12 conditions outlined by the UN International Law Commission (ILC) regarding the continued operation of a treaty during armed conflict.86 However, since the ILC concluded that LOAC supersedes in general other treaties made for the peacetime application, the application of the OST in its entirety is not suggested. Relating to this, some scholars are of the opinion that certain provisions of the OST, e.g. Article VI, which provides that States are internationally responsible for the space activities of their non-governmental entities, would not be applicable during armed conflict; and that even when some other provisions of the OST continue to be applicable, competing LOAC rules must be interpreted as harmoniously as possible.87 Considering the US Law of War Manual which specifically refers to Articles III (application of general international law), IV and IX of the OST,88 it may be interpreted that Article IX would continue to be applicable during armed conflict in addition to Article IV. Article IX of the OST sets forth the following obligations of States Parties in conducting space activities. States Parties must: (i) observe the principle of cooperation and mutual assistance; (ii) conduct all space activities with due regard to the corresponding interests of all other States Parties; (iii) avoid harmful contamination in outer space and adverse changes in the Earth environment through their space activities; and (iv) conduct appropriate international consultation prior to the start of any space activity if a State Party has reason to believe that a planned activity by it or its nationals would cause “potentially harmful interference” with activities of other States Parties. Article IX of the OST has not been able to stop destructive ASAT tests during peacetime, and appropriate prior international consultation may not be fully compatible with rules of LOAC. However, since LOAC does not intend to protect the environment of outer space as a domain, it is preferable that Article IX

85

Kurosaki et al. (2021) pp. 259–266; Stephens (2018), pp. 81–83. ILC (2011), Draft Articles on the Effects of Armed Conflicts on Treaties, Art. 7; Annex to Art. 7 (b) (c). A/66/10 (2011), Chapter VI, pp. 173–217; Stephens (2018), pp. 82–84. 87 See, e.g., Nasu-1 (2022), pp. 151–152. 88 Office of the General Counsel, US DoD, Law of War Manual (2016) [US Law of War Manual], pp. 941–945, https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of% 20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13172036-190. 86

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of the OST develop into an established rule of customary international law to protect unique space environment. In this regard, provisions in Article IX have already led to the awareness of the safe and sustainable use of space, that have resulted in the adoption of the 2007 Space Debris Mitigation Guidelines89 and 2019 Guidelines for the Long-term Sustainability of Outer Space Activities (LTS Guidelines)90 of the UN Committee on the Peaceful Uses of Outer Space (COPUOS). Likewise, several regional and national guidelines and a code of conduct to mitigate space debris have been adopted, on which national space activities have been based. It is expected these practices may result in new concrete rules and norms to make it difficult to resort to ASAT during IAC.

15.5 Law of Neutrality Irrelevant for Military Space Activities in the War in Ukraine While there has been a lot of controversy about the exact contents of the law of neutrality, consensus exists among scholars that there is certainly a place for this field of law in the contemporary international law.91 Indeed, the International Court of Justice (ICJ) finds that “the principle of neutrality, whatever its content,” is applicable to all IAC, subject to the relevant provisions of the UN Charter.92 This means that the law of neutrality as a matter of customary international law is applicable during armed conflict in outer space as modified by the UN Charter, which could deprive UN Member States of their traditional status of neutrality once the UN Security Council (UNSC) decides to take measures in the framework of collective security (Chapter VII of the UN Charter). In the present War in Ukraine, without a UN Security Council Resolution to condemn Russian aggression against Ukraine,93 which is a prerequisite to proceed with measures in collective security, States are arguably under the obligation of the law of neutrality.94 There is also a strong argument, however, that non-participation in IAC does not necessarily make a State a “neutral State” but make a “nonbelligerent” which is exempted from some of the obligations of a neutral State, including especially the “duty of abstention” that prohibits actively supporting a belligerent, either militarily or economically. This interpretation of neutrality is called “qualified neutrality”.95 89

A/62/20 (2007), Annex, pp. 47–50. A/74/20 (2019), Annex II, pp. 50–69, esp. pp. 59–66 (B. safety of space operations). 91 See, e.g., Upcher (2020), esp. pp. 213–215; Bothe (2020), pp. 602–633; Nasu-2 (2022) pp. 123– 139; Kurosaki et al. (2021), pp. 588–602. 92 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep. para. 89. 93 SC/14808, 25 February 2022, https://press.un.org/en/2022/sc14808.doc.htm. 94 Von Heinegg (2022), 1 March 2022, https://lieber.westpoint.edu/neutrality-in-the-war-againstukraine/. 95 See, e.g., Kurosaki et al. (2021), pp. 594–600. 90

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The primary sources on the law of neutrality are the Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V Convention)96 and the Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War (Hague XIII Convention),97 to which Russia, Ukraine and the US are States Parties. Some countries which have supplied Ukraine with satellite data and/or space systems equipment are not Parties to these two treaties, but operative provisions of the two treaties are confirmed as being reflective of customary international law rules of the nineteenth century.98 Today, the legal community is divided between advocates of the strict interpretation of neutrality law reflected in these two Conventions and supporters of the “qualified neutrality” approach.99 The strict interpretation of neutrality law requires a neutral State not to participate in any support of a belligerent to the detriment of its adversary (duty of abstention) and to maintain impartiality. In contrast, qualified neutrality approach releases a non-belligerent State from the duty of impartiality and duty of abstention. The US Law of War Manual takes the latter approach,100 basically based on the change of the status of a neutral State by Chapter VII of the UN Charter.101 Canada seems to take more traditional law of neutrality approach nuanced by the post-World War II development of international law.102 Whether a State providing satellites data, etc. to the Ukrainian armed forces on its own or through its nationals have done so in accordance with the two aforementioned treaties would mainly depend on the interpretation of Articles 7–8 of the of the Hague V Convention and Articles 6–7 of the Hague XIII Convention. In summary, Article 7 of the Hague V Convention and Articles 6–7 of the Hague XIII Convention provide that a neutral State itself must not export or transport arms, ammunition, or anything which could be of use to an army or fleet to a belligerent, but a neural State is not bound to prevent its private persons from exporting and transporting such articles to a belligerent. It does not mean, however, that a neutral State can indirectly support one belligerent through its private companies. The applicability of Article 8 of the Hague V Convention in the context of outer space is somewhat controversial: it provides that “[a] neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.” This provision implies the outbreak of a war does not require a neutral State to prevent the use of its telecommunication services by a belligerent if it already had an access to such telecommunication services before the war. Technical difficulty to cut the communication services to a certain actor resulted in the development of this 96

Opened for signature 18 October 1907, entered into force 26 January 2010, 36 Stat. 2310. Opened for signature 18 October 1907, entered into force 26 January 2010, 36 Stat. 2415. 98 Wani (2017), pp. 95–98. 99 Schmitt (2022). https://Lieber.westpoint.edu/us-offensive-cyber-operations-support-ukrine/. 100 US Law of War Manual (2016), 15.2.2. 101 Ibid., 15.2.3. 102 Canada, Joint Doctrine Manual, Canadian Law of Armed Conflict (2001), https://www.fichl.org/ fileadmin/_migrated/content_uploads/Canadian_LOAC_Manual_2001_English.pdf. Chapter 13. 97

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rule as customary international law, which was later set forth in Article 8 of the Hauge V Convention. Some scholars and ICRC are of the view that the nineteenth century technology referred to in Article 8 should be read in today’s terms as encompassing communication satellites, and that this could even expand to navigation satellites such as GPS and weather satellites due to the nature of the public utility of such signal/ data that are transmitted on a non-discriminatory basis to wide area of the world.103 Article 8 does not allow SpaceX or the US government freely to provide Starlink communication services to Ukraine as a belligerent’s use of the communication satellites is lawful only when it started before the outbreak of IAC. It is a non-neutral act to provide satellite communication services to a belligerent after the start of a war. Thus, to the extent that the Hague V and XIII treaties are concerned, it follows that the US has not observed the treaty contidtions. For remote sensing data, Article 8 of the Hague V Convention cannot be interpretated as being applicable, since taking and supplying imagery is always a selective and discriminatory act. Canada’s active involvement in supplying sensitive SAR remote sensing data to the Ukrainian armed forces through its national MDA would by implication make Canada violate the duty of abstention and duty of impartiality as reflected in Articles 7–8 of the Hague V Convention and Articles 6–7 of the Hague XIII Convention. However, it seems that the US takes the position that the duty of abstention is not imposed on a State outside IAC if one belligerent started that conflict through a breach of peace or an act of aggression.104 It was due to the Russian veto that the adoption of a UNSC resolution to condemn Russia’s act of aggression failed. This subsequently resulted in the holding of an emergency special session of the UNGA, which adopted Resolution A/RES/ES-11/1 demanding that Russia immediately cease its use of force against Ukraine (para. 3) and immediately, completely and unconditionally withdraw all its military forces from Ukraine (para. 4). This UNGA resolution was adopted with 141 in favor, 5 against (Russia, Belarus, DPRK, etc.) and 35 abstentions (China, India, etc.).105 Some scholars have assessed that Resolution A/RES/ES-11/1 reflects the international community’s predominant desire to condemn Russia, and as such, conceptually, a means to employ a quasi-collective security. Therefore, it is possible that even the advocates for the traditional neutrality law approach could take a somewhat nuanced approach on the duty of abstention.106 In conclusion, finding a categorical answer is difficult whether States which have been supporting Ukraine through space data have violated the law of neutrality. This argument may be corroborated by the lack of Russia’s retaliation against the States that may have violated the law of neutrality rules. In any case, it may not be productive to try to apply rules made more than a century ago to activities employed advanced technology and in a domain where the physical 103

ICRC (2002), the Law of Armed Conflict- Neutrality, Lesson 8, pp. 5–6, https://www.icrc.org/ en/doc/assets/files/other/law8_final.pdf; Willson (2001), pp. 193–195. 104 Schmitt (2022). https://Lieber.westpoint.edu/us-offensive-cyber-operations-support-ukrine/. 105 S/2022/160 (27 February 2022), A/RES/ES-11/1 (18 March 2022); htps: // digitallibrary.un.org/ record/3959039?In = en. 106 Von Heinegg (2022). https://lieber.westpoint.edu/neutrality-in-the-war-against-ukraine/.

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principles dictate a different result of an action from that on Earth. Further, while it is one of the most important obligations of a neutral State not to permit a belligerent to use its own territory (duty of prevention), as outer space is an area beyond national jurisdiction (OST, Art. 2), there are no such national territories to have to prevent the use by a belligerent.107 Consequentially, the law of neutrality would be of little relevance to address the challenges presented as a result of the War in Ukraine in applying LOAC.

15.6 Conclusion The scope of the permissible military uses of outer space will not have changed so easily even after the War in Ukraine. While FOBS could pose a serious military challenge in the future, the present biggest threat remans a possible ASAT operation. As described in 15.2.2, no effective rules on ASAT operations have been developed. Nor have any restrictions been made on the ASAT test against one’s own satellite. Since the outbreak of the War in Ukraine, however, certain developments have taken place. Following the announcement by the US Vice President Kamala Harris that the US would not conduct destructive, direct-ascent ASAT tests and that the US would seek to establish this as a new international rule in April 2022,108 the US proposed a draft resolution of this content in the First Committee of the UNGA, and the UNGA Resolution was adopted on 7 December 2022.109 This resolution calls upon UN Member States “to commit not to conduct direct-ascent anti-satellite missile tests” (para. 1) as “an urgent, initial measure aimed at preventing damage to the outer space environment” (para. 2). This resolution is limited in its value as this addresses only one of the various methods of ASAT tests, it is just recommendatory in nature, and it does not directly regulate States actions and behaviors in IAC. However, considering all ASAT tests conducted in the twenty-first century have been through a directascent ASAT missile, and considering that the generation of massive amounts of space debris as a result of ASAT tests presents the biggest issue in protecting space environment, this is an accomplishment to be celebrated. Further detailed rules to prevent potentially harmful interference with other States’ military space activities could be developed based on Article IX of the OST. In this regard, the Open-Ended Working Group (OEWG) discussions on reducing space threats through norms, rules and principles of responsible behaviours110 is a promising process.

107

Von Heinegg (2017), 526–547. US White House, “Fact Sheet: Vice President Harris Advances National Security Norms in Space”, 18 April 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/ 18/fact-sheet-vice-president-harris-advances-national-security-norms-in-space/. 109 A/C.1/77/L.62 (13 October 2022); A/77/383 (14 November 2022), pp. 2–3; A/RES/77/41 (12 December 2022). 110 A/RES/75/36 (16 December 2020). 108

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As has been presented, the customary international law of LOAC and relevant provisions of AP I are applicable to the War in Ukraine, and the transformation of commercial satellites into military objectives by virtue of their “use” under AP I makes them legitimate targets of attack during armed conflict to the extent that such an attack would not result in the excessive collateral damage on land. This presents the biggest flaw on LOAC applicable to outer space, which largely ignores collateral damage in outer space due to provisions of AP I that are made to minimize damages on land. Thus, restrictions on ASAT tests would be the first step to be followed by concrete rules on how to behave in avoiding harmful interferences with other States’ space activities based on Article IX of the OST. The global recognition that Article IX continues to operate in IAC is critical to restrict an attack against a military objective in outer space during armed conflict. In order to address harmful interferences with other States’ activities, there would also be a need to synthesize and coordinate principles of international space law and international cyber law. Although this article has touched upon some of the key issues on LOAC applicable to IAC to, from, or within outer space, an in-depth study on the War in Ukraine as the first commercial space war would be desirable for formulating rules for the safe and sustainable space activities.

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Ozawa, T. 2023. Starlink Eisei Wa Uchiotoseruka: Minkan Jinko-Eisei To Roshia Ukuraina Senso (Can Starlink be Shot Down? Private Satellites and War in Ukraine). CISTEC Journal 203: 320–329. Pugliese, D. 2022. Canada Answers Ukraine’s Call for Satellite Radar Imagery. https://spacenews. com/canada-answers-ukraines-call-for-satellite-radar-imagery/. Rainbow, J. 2022. As U.S. blames Russia for KA-SAT hack, Starlink sees growing threat. Space News. https://spacenews.com/as-us-blames-russia-for-ka-sat-hack-starlink-seesgrowing-threat/. Roulette J. 2023. SpaceX Curbed Ukarine’s Use of Starlink Internet for Drones— Company President. https://finance.yahoo.com/news/spacex-curbed-ukraines-starlink-internet002037328.html. Schmitt, M.N. 2006. International Law and Military Operations in Space. Max Planck UNYB 10: 89–125. Schmitt, M.N., ed. 2013. Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge, UK: Cambridge University Press. Schmitt, M.N., ed. 2017. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd ed. Cambridge, UK: Cambridge University Press. Schmitt, M.N. 2022. Ukraine Symposium- U.S. Offensive Cyber Operations in Support of Ukraine. https://Lieber.westpoint.edu/us-offensive-cyber-operations-support-ukrine/. Schwaller, F. 2022. Starlink Is Crucial to Ukraine - Here’s Why. https://www.dw.com/en/starlinkis-crucial-to-ukrainian-defense-heres-how-it-works/a-63443808. Sevastopulo, D.K., and K. Hille, 2021. China Tests New Space Capability with Hypersonic Missile. Financial Times. https://www.ft.com/content/ba0a3cde-719b-4040-93cb-a486e1f843fb. SpaceX. 2022. Starlink. https://www.starlink.com/technology. Srivastava, M., R. Olearchyk, F. Schwartz, and C. Miller. 2022. Ukrainian Forces Report Starlink Outages during Push against Russia. https://www.ft.com/content/9a7b922b-2435-4ac7-acdb0ec9a6dc8397. Stares, P. 1985. The Militarization of Space: U.S. Policy 1945–1984. Ithaca, New York: Cornell University Press. Stein, E. 1972. Legal Restraints in Modern Arms Control Agreements. American Journal of International Law 66: 255–264. Stephens, D. 2018. The International Legal Implications of Military Space Operations: Examining the Interplay between International Humanitarian Law and the Outer Space Legal Regime. International Law Studies 94: 75–101. Stockholm International Peace Institute (SIPRI), ed. World Armaments and Disarmament: SIPRI Yearbook series from 1973–1990. Oxford, UK: Oxford University Press. Tronchetti, F. 2015. Legal Aspects of the Military Uses of Outer Space. In Handbook of Space Law, ed. F. Dunk von der Dunk, and F. Tronchetti, 331–381. Cheltenham, UK: Edward Elgar. Union of Concerned Scientists (UCS). 2022. UCS Satellite Database. https://www.ucsusa.org/res ources/satellite-database. Upcher, J. 2020. Neutrality in Contemporary International Law. Oxford, UK: Oxford University Press. US AID. 2022. US AID Safeguards Internet Access in Ukraine through Public-Private-Partnership with SpaceX. https://www.usaid.gov/news-information/press-releases/apr-05-2022-usaid-saf eguards-internet-access-ukraine-through-public-private-partnership-spacex. US Space Command. 2021. Russian Direct-Ascent Anti-Satellite Missile Test Creates Significant, Long-Lasting Space Debris, US Space Command. https://www.spacecom.mil/Newsroom/ News/Article-Display/Article/2842957/russian-direct-ascent-anti-satellite-missile-test-createssignificant-long-last. Viasat. 2022a. Geostationary Satellites. https://www.viasat.com/space-innovation/space-systems/ geo-satellites/. Viasat. 2022b. KA-SAT Satellite. https://www.viasat.com/space-innovation/satellite-fleet/ka-sat/. Von Heinegg, W.H. 2017. “Neutrality and Outer Space”, International Law Studies 93: 526–547.

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Von Heinegg, W.H. 2022. Neutrality in the War against Ukraine. https://lieber.westpoint.edu/neu trality-in-the-war-against-ukraine/. Wani, K. 2017. Neutrality in International Law: From the Sixteenth Century to 1945. New York: Routledge. Weeden, B. 2014. Through a Glass, Darkly: Chinese, American, and Russian Anti-Satellite Testing in Space. https://swfound.org/media/167224/through_a_glass_darkly_march2014.pdf. Wiebel, L. 2004. Star Wars: US Tools of Space Supremacy. London: Pluto Press. Willson, D.L. 2001. An Army View of Neutrality in Space: Legal Options for Space Negation. Air Force Law Review 50: 175–195.

Setsuko Aoki is Professor of Law at Keio University Law School, Japan since April 2016. She specializes in public international law especially space law and arms control. She obtained Doctor of Civil Law (D.C.L.) from McGill University, Montreal, Canada in June 1993. She has B.C.L. (1983) and LL.M. (1985) from Faculty of Law and Graduate School of Law, Keio University, Japan. Her main English articles published since 2021 include: “Nationality of the Space Object as an Indispensable Device for the Exploitation of the Moon and Mars”, in P. J. Blount et al (eds.), Proceedings of the International Institute of Space Law 2021 (Eleven, 2022), pp. 67–78; “The Implications of the Registration of Space Objects in the 2020s: Possibility of the UK and Dutch Practice in Enhancing Registering Space Objects”, in Comitato Promotore (eds.), Liber Amicorum Sergio Marchisio, vol. II (Editoriale Scientifica, 2022), pp. 943–957; “The Use of Force and Planetary Defense”, in Irmgard Marboe (ed.), Legal Aspects of Planetary Defense (Brill/Nijhoff, 2021), pp. 209–225; and “State Responsibility Facing the Growing Diversity of Space Projects and Actors: The Case of Satellite Deployment from an International Space Station”, in Maritetta Benkö and Kai-Uwe Schrogl (eds.), Outer Space Future for Humankind (Eleven, 2021), pp. 393– 411.

Chapter 16

Unprivileged Belligerency in a Deterritorialized Cyber Battlefield? Some Lessons Learned from the Russia-Ukraine Conflict Masahiro Kurosaki

16.1 Introduction At the beginning of Russia’s invasion of Ukraine, commencing from February 24, 2022, media sensationalized the pundit’s alarming prediction that the invasion would involve a full-scale cyber war.1 Indeed, Russia had already demonstrated its highly sophisticated cyber capabilities during its military invasion into the Crimean Peninsula in 2014 and, thereafter, continued conducting cyberattacks targeting Ukraine’s critical infrastructure. It is thus understandable, to a certain degree, to argue that all of this suggests that Ukraine was on the verge of a cyber war with Russia.2 Nevertheless, the current conflict offers no indication of the occurrence of the first cyberwar.3 This does not imply that Russia has forborne its cyber-operations. Russia’s invasion was accompanied by waves of cyberattacks targeting Ukraine’s critical infrastructure; for example, a massive cyberattack on Viasat’s KA-SAT satellite network was conducted to disrupt Ukraine’s military command and control, which caused widespread communication outages across Europe. However, the losses and damages were too transient to have any serious impact on Ukraine’s military activities. Thereafter, Russia’s disruptive cyber operations were kept silent except for the low-intensity ones, like cyber espionage and the spread and proliferation of disinformation and misinformation. Various reasons have been attributed to this situation.

1

See, eg, Stokel-Walker (2022). See, eg, Landau (2022). 3 Lewis (2022). 2

M. Kurosaki (B) Department of International Relations, National Defense Academy of Japan, Yokosuka, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_16

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However, the most widely believed one is that Ukraine’s cyber defense has been proven to be highly effective in neutralizing those operations by Russia.4 Unsurprisingly, the tremendous support from outside the country played a significant role. By way of illustration, the US Cyber Command has conducted “hunt forward operations to identify network vulnerabilities” for Ukraine’s resilience5 and other NATO Allies have likewise been providing increasing assistance to Ukraine in an effort to strengthen its cyber capabilities as part of defense capacity building.6 Big tech giants and other IT companies were also actively involved. Offering comprehensive support to Ukraine in collaboration with Amazon Web Services, Microsoft announced that it helped the Ukrainian government finish transferring the most important data on premises to a cloud server outside Ukraine within ten weeks after the commencement of Russia’s invasion.7 The SpaceX satellite Internet service Starlink has significantly contributed to Ukrainian cyber resilience as well as military efforts at command and control.8 Alternatively, quite notably, Ukraine, on its own, has actively engaged in offensive cyber operations to counter Russia’s invasion. While seeking weapons from NATO countries, Ukrainian President Volodymyr Zelenskyy signed a decree on the general mobilization of the population and called for people worldwide to join Ukraine’s defense. Surprisingly, the IT Army of Ukraine, “a worldwide IT community united to resist the Russian invasion to Ukraine,”9 since its creation on February 26, 2022, continues to expand on a regular basis with the online remote participation of an increasing number of cyber volunteers globally. While physically staying in their own countries, millions of its members have conducted a wide range of cyber operations against Russia in accordance with instructions from Ukraine through its Telegram and other SNS channels.10 The primary activities include distributed denial-ofservice (DDoS) attacks to disrupt Russia’s information and communication systems by sending massive amount of data simultaneously, cyber espionage, and the defense of Ukrainian cyber infrastructure.11 However, such activities could alarmingly run afoul of the laws and regulations of each country, forbidding unauthorized access to computer networks, the creation, possession, use, and distribution of viruses, and so forth.12 4

See, eg, Landau (2022), Lewis (2022). See United States Senate (2022), p. 3. 6 See North Atlantic Treaty Organization (NATO) (2022). 7 See Microsoft (2022) p. 5. 8 See, eg, BBC (2022). 9 See the official website of IT Army of Ukraine: https://itarmy.com.ua/?lang=en. 10 See the dedicated channels of the IT Army of Ukraine: https://t.me/s/itarmyofukraine2022. 11 See Soesanto (2022), p. 4. 12 See also Soesanto (2022), pp. 15–19, Waterman (2023) (“it is not only hacktivists who clutter up cyberspace during time of conflict. Just as looters and marauders take advantage of the chaos of war in real life, so cybercriminals have sought to monetize the online chaos that accompanies digital conflict… Using the fog of war for profit, cyber criminals commit financially motivated crimes and just sign themselves as the IT Army or KillNet.”). 5

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Immunity from domestic prosecution, owing to armed conflicts, requires a combatant status under international law. As opposed to a nebulous relationship between Russia and pro-Russian hacktivist groups like Killnet, the Ukrainian government officially recognized its relationship with individuals and groups in the “worldwide IT community” and, as the very name “IT Army of Ukraine” eloquently symbolizes, characterizes them as its war capability against Russia. This forms one notable form of belligerency, owing to cyberspace, without geographical or temporal limits. Yet, as depicted by “a hybrid construct that is neither civilian nor military, neither public nor private, neither local nor international, and neither lawful nor unlawful,”13 their online virtual characters pose challenges to international laws based on territorial sovereignty. Under such circumstances, the Ukrainian government appears to carefully avoid asserting the international legal status of these cyber volunteers. It would, therefore, be significant to examine how they are treated legally and whether their existence leads to the reaffirmation of the existing rules or the development of new rules regarding the international law applicable to cyberspace. What can we learn about this from the ongoing Russia-Ukraine Conflict? In case of international armed conflicts, individuals who participate directly in hostilities without combatant status are not entitled to the privilege of immunity from prosecution for lawful conduct of hostilities as well as the privilege to be treated as the prisoners of war if they fall into the power of an adverse Party—they are often referred to as “unprivileged belligerents.” As discussed, experts have highly contested their status as a matter of international law. Therefore, the questions here are as follows: are these cyber volunteers working for the defense of Ukraine unprivileged belligerents? What are the legal consequences? Are there any differences in those consequences between the cyber domain and other domains? What kinds of responsibilities and obligations could be observed in their conduct? This chapter proceeds in three steps. First, it briefly examines the requirements of privileged belligerency and argues that every such cyber volunteer is most likely to become an unprivileged belligerent, whether or not they could be characterized as members of Ukraine’s armed forces, simply for reasons deriving from the distinct operational nature of their activities. Second, it clarifies the legal consequences of Ukraine’s unprivileged belligerency to be addressed by future State practices and highlights the necessity to reconsider whether and to what extent those consequences under the existing law may serve as a deterrent to unprivileged belligerency in the cyber context. Third, it explores the possible responsibilities and obligations of all States for the proper governance of unprivileged belligerency in cyberspace, while closely monitoring further developments in UN norms of responsible State behavior in cyberspace. Before proceeding, a caveat must be announced. Some have strongly opposed the application of the rules of international law in armed conflict, including, but not limited to, the law of armed conflict or international humanitarian law that governs the conduct of hostilities and the protection of victims of war between parties in an

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armed conflict. However, this chapter assumes that alongside the views expressed by a number of States, these rules are applicable to cyberspace.14

16.2 Probability of Ukraine’s Unprivileged Belligerency in Cyberspace 16.2.1 Is the IT Army of Ukraine the Armed Forces of Ukraine? Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 (API), to which both Russia and Ukraine are parties, stipulates that members of the armed forces of a State who are party to an armed conflict, and are no medical or religious personnel, are combatants who have the right to participate directly in hostilities (Article 43, paragraph 2). Therefore, for starters, it is necessary to examine whether Ukraine’s cyber volunteers from around the world are members of “the armed forces” of Ukraine in the sense of the API. As the API defines “the armed forces” as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates,” a group must be an armed organization under a command responsible to Ukraine for the conduct of its subordinates. It is generally understood that a group is “armed” if it is capable of conducting a cyberattack, namely a cyber operation that foreseeably results in particularly the damage or destruction of or loss of functionality of cyber infrastructure and other physical objects.15 A group is “organized” if it has an established command structure or a superior-subordinate relationship, with an internal disciplinary system that ensures compliance with international laws applicable to armed conflict.16 In addition, whether a group is under a command responsible to a belligerent state has traditionally been assessed based on whether it is regularly or temporarily commissioned or recognized by that State,17 but, in recent times, the broader aspect of “belonging” to a belligerent State is becoming more critical in the assessment. It requires a de facto relationship between an organized armed group and a belligerent State, which may be expressed through “tacit agreement or conclusive behavior that makes clear for which party the group is fighting”18 or other elements of “overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations.”19 14

See United Nations (2021). See, eg, Schmitt (2017), pp. 415–419 (Rule 92). 16 See, eg, Sandoz et al (1987), p. 512, para 1672, Schmitt (2017), p. 389, para 11. 17 See UK Ministry of Defence (2005), para 4.3.3. 18 ICRC (2009), p. 23. 19 Prosecutor v. Tadi´ c, IT-94-1-A, ICTY, Appeals Chamber, Judgment, July 15, 1999, para 145. 15

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Pointing out that EU and NATO member States “have so far failed to see the underlying organizational structure, operational conduct, and wider ecosystem that underpins the IT Army and Ukraine’s fight in the cyber and information domain,” the recent study reveals that the IT Army of Ukraine consists of the in-house team and other cyber volunteers.20 According to the study, “the IT Army’s in-house team likely maintains deep links to, or largely consists of, Ukrainian defense and intelligence services,” putatively as the 72nd Centre for Informational and Psychological Operations of the Armed Forces of Ukraine.21 If that were the case, the IT Army’s in-house team would be considered the armed forces in the sense of the API, and its members could qualify as combatants. However, they may lose their combatant status provided they fail “to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation, preparatory to an attack” (Article 44, paragraphs 2 and 3 API). While the distinction between combatants and the civilian population must be made in an identifiable manner for the adverse party to the conflict, the traditional view claims that wearing a uniform would suffice.22 However, in situations of remote cyberattacks, wearing a uniform on the site from which the attack is launched does not necessarily serve as an element for the enemy target located in a remote area to identify the attacker.23 Similarly, the experts’ view was negative as to whether it is possible to allow the target to recognize computer software and hardware to be used for cyberattacks as a means of warfare. If the existing combatants’ duty to distinguish themselves from the civilian population is thus applied, in case of cyber operations, the in-house team members would highly likely face difficulty in abiding by it, resulting in the loss of their combatant status. Presumably, as “modes of combat in cyberspace are different from those in traditional domains,” the Japanese government makes a careful observation that “how international humanitarian law regarding, for example, the scope of combatants applies to cyberspace should be further discussed.”24 Alternatively, most of Ukraine’s cyber volunteers, are believed to be ostensibly private individuals, many of whom are members of mutually independent hacktivist groups responding to the Ukrainian government’s call to resist Russia’s invasion. However, most of them are based on multiple repositories set up on online software development platforms, such as GitHub,25 suggesting that they do not necessarily form a group in a physical sense. Although the organizational requirement does not need the degree of a traditional disciplined unit, a purely virtual group would find 20

Soesanto (2022), p. 28. Soesanto (2022), pp. 23–24. 22 See Schmitt (2017), p. 405, para 11. 23 Schmitt (2017), p. 405, para 12. On the other hand, it may be meaningful to keep putting its own uniform on as it allows a combatant to justify the compliance with the prohibition on perfidious acts of feigning civilian or non-combatant status. See, eg, Maˇcák (2021), p. 420. See Schmitt (2017), p. 406, para 14. 24 Ministry of Foreign Affairs of Japan (2021), p. 50. 25 Soesanto (2022), p. 28. 21

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it difficult to define their nature, even if it were to meet the “armed” requirement.26 Further, when it comes to the requirement of being under a command responsible for a belligerent State, such a command relationship with the IT Army’s in-house team or other Ukrainian government organs is yet to be identified, despite the fact that they emphasize being part of the IT Army officially authorized by the Ukrainian government through its SNS channels. As each hacktivist group makes an independent decision on cyber activity at its own discretion,27 and despite the Ukrainian government’s repeated denial of such control over these groups as satisfying the overall control test under international law,28 it would be unreasonable to consider cyber volunteers as members of the armed forces of Ukraine to determine combatant status.

16.2.2 Territorial Limitation to the Levée En Masse Nevertheless, there is another possibility for Ukrainian cyber volunteers to qualify as combatants: the levée en masse. It is a temporary combatant status granted to local populations of a belligerent State, under exceptional and limited circumstances. The 1949 Third Geneva Convention relative to the Treatment of Prisoners of War defined participants in a levée en masse as “[i]nhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” (Article 4, paragraph A(6)). The requirements could be divided into the following: (1) the battlefield is in the unoccupied territory of a belligerent State, (2) the participants are inhabitants of that territory, (3) there is not sufficient time to organize into armed forces, (4) spontaneously taking up arms to resist the invading forces, (5) carrying arms openly, and (6) respect for international law applicable to armed conflict. In this manner, the levée en masse option allows cyber volunteers to become combatants on the condition that, as inhabitants, they have territorial ties to a non-occupied territory over which Ukraine keeps exercising its effective control,29 although they have no overall control relationship with the Ukrainian government. 26

See Schmitt (2017), pp. 389, 404–405. See, eg, Soesanto (2022), pp, 7–19. 28 See, eg, Miller (2022) (“Victor Zhora, the deputy chair of Ukraine’s State Service of Special Communications and Information Protection, a key Ukrainian cyber agency, stressed in an interview that the IT Army has no government connection, but also described the group as invaluable. … Ukraine doesn’t perform any offensive operations and does not coordinate the IT Army, but considering the level of destruction, the level of evil that Russia’s doing in Ukraine, we are grateful to all people that contribute to the weakening of our enemy,” Zhora said.”), New York Times (2022) (“We not only defend ourselves, but we are able to counterattack with the help of our cybervolunteers”). 29 It is generally understood that a territory is considered occupied when it is under the effective control of the hostile armed forces, in view of Article 42 of the Hague Convention on the Laws and Customs of War on Land of 1907 which sets out the following: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to 27

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The requirement of this physical link to an unoccupied national territory constitutes the biggest obstacle for cyber volunteers across the globe to become participants in a levée en masse because their strength lies in operating in cyberspace without geographical limitations.30 Whether a territory is occupied varies depending on the course of the war; care must be taken that, in this case, the status of participants in a levée en masse is limited only to persons who inhabit an unoccupied territory of Ukraine and resist Russian invading forces with no time to organize into the armed forces in the sense of international law. It goes without saying, but an additional obstacle of how to satisfy the distinction requirement by carrying arms openly in the cyber context continues to weigh them on, as in the above-mentioned case of members of the armed forces. Based on the limited facts available, it can be argued that Ukraine’s every cyber volunteer has a high risk of becoming an unprivileged belligerent. Indeed, only a few, if any, might be seen as members of the Ukrainian armed forces or as participants in the levée en masse as the case may be. However, they would still run the risk of losing their combatant status due to the non-performance of their duty to distinguish themselves from the civilian population in the course of their cyber operations, leading to the same unprivileged status as other volunteers.

16.3 Legal Consequences of Ukraine’s Unprivileged Belligerency in Cyberspace 16.3.1 A Status Intermediate Between Combatants and Civilians? What would the legal consequences for unprivileged belligerents look like under international law? As already mentioned, they are not entitled to the combatant privileges of prosecutorial immunity for the lawful conduct of hostilities and being treated as prisoners of war, save for a minimum standard of humane treatment guaranteed by customary law as enshrined in Common Article 3 of the 1949 Geneva Conventions and Article 75 of the API. However, experts have mixed reactions regarding other legal consequences. One controversial issue is whether unprivileged belligerents can be characterized as civilians. Although Ukraine’s cyber volunteers are deemed unprivileged belligerents, the widely accepted view is that they should be automatically classified as civilians, at least under the API, because they do not fall within the category of combatants—namely, members of the armed forces, or participants in the levée en masse. The protocol defines that “[a] civilian is any person who does not belong to the territory where such authority has been established and can be exercised.” See, eg, International Committee of the Red Cross (2012), p. 7, Ferraro (2012), pp. 136–139. 30 See also Buchan and Nicholas (2022).

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one of the categories of” combatants, namely “persons referred to in Article 4A (1), (2), (3) and 6) of the Third Convention and in Article 43 of this Protocol” (Article 50, paragraph 1). As the API also goes further to emphasize that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian,” it seems arguable that the protocol adopts the dichotomy of combatants and civilians. However, there is an ongoing debate over intermediate status or a third category for unprivileged belligerents, distinct from those of combatants and civilians.31 Those who claim the existence of the intermediate status highlight their illegal acts of violence under customary international law traditionally called “the laws and customs of war.” In this view, as international law prohibits the engagement of, or direct participation in, hostilities by persons without combatant status irrespective of the fact that they respect the relevant rules of the law, “any harm they cause is ipso facto a violation of the laws and customs of war,”32 which renders them war criminals distinct from lawful combatants and civilians on the international law plane. Given that some countries such as the United States espoused this view, Ukraine’s cyber volunteers are likely to be treated as such when captured by those countries.33 In contrast, the ICRC and a host of experts are stridently opposed to this view, limiting themselves to the argument that international law neither prohibits nor privileges direct participation in hostilities by such persons— civilians in their view.34

31

See generally Olson (2015), pp. 911–938. Some countries like the United States, as a noncontracting party to the API, have underlined that unprivileged belligerents should be classified as the persons distinct from combatants and civilians for their treatments as a matter of customary international law applicable to armed conflict. See, eg, United States Department of Defense (2016), para 4.3.1 (“Although seldom explicitly recognized as a class in law of war treaties, the category of unprivileged belligerent may be understood as an implicit consequence of creating the classes of lawful combatants and peaceful civilians. The concept of unprivileged belligerency, i.e., the set of legal liabilities associated with unprivileged belligerents, may be understood in opposition to the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivileged belligerents include lawful combatants who have forfeited the privileges of combatant status by engaging in spying or sabotage, and private persons who have forfeited one or more of the protections of civilian status by engaging in hostilities.”). See also Anderson (2007). On the flip side, a number of experts emphasize that there is no intermediate status under the law of armed conflict, which is also adopted by the ICTY which opined that “there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war, (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided article 4 requirements are satisfied.” Prosecutor v. Delalic, Case No. IT-96-21-T, Judgment, November 16, 1998, para 271. This is also the view shared by the ICRC. International Committee of the Red Cross (2007), p. 727. 32 Corn (2011), p. 289. 33 See, eg, Olson (2015), pp. 915–917. 34 See, eg, International Committee of the Red Cross (2009), pp. 83–85.

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16.3.2 Targetability and the Notion of Direct Participation in Hostilities This can affect the targetability of unprivileged belligerents. Civilians thus become legitimate military targets “unless and for such time as they take a direct part in hostilities” (Article 51, paragraph 3 API) in contradistinction to combatants who are permanently targetable for attack unless rendered hors de combat by sickness, wounds and so forth.35 Thus, in cases where a cyberattack is launched that could constitute not only a crime under the domestic law of a State but also a direct participation in hostilities for a State party in an international armed conflict, the attacker is subject to domestic prosecution in case of capture as well as the object of lawful attack by the adverse State who is party to the conflict, at least during the period of participation. This is the difference between a cyber operation as a mere crime under domestic law and as part of a direct participation in hostilities. This brings us to the issue of what kind of acts amount to direct participation in hostilities under international law. No legal definition for direct participation in hostilities has yet been established. However, international law experts have argued that for a specific act, carried out by individuals, to qualify as direct participation in hostilities, whether criminal under domestic law or not, the act must meet certain cumulative criteria. According to the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities, those criteria are divided into: (1) “The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm)”; (2) “there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation),” and “the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).”36 Whereas the US government makes clear that “the United States has not accepted significant parts of the ICRC’s interpretive guidance as accurately reflecting customary international law,”37 a number of experts are of the opinion that these criteria are also applicable to cyber operations carried out in the context of armed conflict.38 The threshold of harm differs between the case in which the act is directed at the military operations or military capacity of an adverse belligerent and the case in which it is not. Thus, the threshold is lower in the former case because only the likelihood of adverse effects reaches the threshold, even without any physical damage, whereas, the latter requires a higher threshold of death, injury, or destruction of persons or objects. It should also be noted that the threshold in question only 35

As for the temporal issue of the notion of “unless and for such time as,” see, eg, Boothby (2010), p. 742. 36 See International Committee of the Red Cross (2009), p. 16. 37 United States Department of Defense (2016), para 5.8.1.2. 38 See Schmitt (2017), pp. 428–432 (Rule 97).

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concerns the “likelihood” of adverse effects or physical damages—it does not go so far as to demand the actual occurrence of them. Although the “direct causation” criterion seems to get complicated when the harm in question is caused by collective acts of individuals, the criterion would be more easily met if each of them reaches the required threshold of harm independently.39 This is relevant to the case of a virtual group in cyberspace whose members do not necessarily form a group in a physical sense. Accordingly, various offensive cyber operations, including DDoS attacks, carried out separately by each individual at the request of the Ukrainian government, could well amount to direct participation in hostilities, at least when their single act, by itself, is likely to cause either any adverse effects on Russia’s military operations or military capacity or physical damage and loss of functionality of other targets, such as Russian non-military infrastructure.40 This might be part of the reason that Elon Musk warned that Starlink users in Ukraine’s territory could be military targets of Russia’s attack.41

16.3.3 Does the Existing Law Effectively Deter Unprivileged Belligerency in Cyberspace? No matter how divergent the views on the legal consequences are, the most important and pressing cyber issue unveiled by the Russia-Ukraine Conflict is whether and to what extent these legal consequences could serve to deter unprivileged belligerency in cyberspace. Ukraine’s cyber volunteers are reportedly causing sensitive data leaks and other egregious damage to States, their citizens, and humanitarian organizations in the name of resistance activity against Russia’s invasion.42 Notably, the conflict raises the concern that an extraordinary number of Ukraine’s cyber volunteers may be unaware of “the potential legal consequences and blowback from … interfering in an international armed conflict.”43 This is a serious challenge to international law—primarily because it would be reasonable to anticipate that, from now on, 39

See International Committee of the Red Cross (2009), pp. 41–64. For instance, the hacktivist group, “disBalancer” (https://disbalancer.com/) has been engaged in cyberattacks to help Ukraine liberate from Russia, using the DDoS tool called “Liberator,” and professes its relationship with the Ukrainian government, advertising that “We’re acting in coordination with the Ministry of Digital Transformation of Ukraine.” See, eg, Soesanto (2022), pp. 15–19. 41 See, eg, Jin (2022). 42 See, eg, Duguin and CyberPeace Institute (2022) (“The publication of large volumes of sensitive data has become part and parcel of the cyberthreat landscape during the conflict. Acting in the name of anti-war activism, collectives have conducted a significant number of hack-and-leak attacks which lead to sensitive customer and corporate data, including personal data, being made publicly available. These attacks raise significant questions relating to the protection of individuals, data protection, and the potential for malicious use of this data in the future.”). As for impacts of malicious cyber operations on humanitarian sectors, see also Marelli (2023). 43 Soesanto (2022), p. 16. 40

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an increasing number of unorganized civilian hackers who were not institutionally guaranteed to operate in accordance with international law would participate directly in hostilities as unprivileged belligerents, not just in the Russia-Ukraine Conflict but also in other ongoing and future situations of armed conflict globally.44 Such uncontrollable cyber participation can escalate armed conflict, causing unintended negative consequences for belligerents and others.45 Owing to this, some experts and States advocate the prohibition of international law on unprivileged belligerency, thereby limiting direct participation in hostilities to combatants who are required to have sufficient knowledge of the applicable rules of international law. Indeed, the non-prohibitive approach to unprivileged belligerency does not go so far as to contend that international law permits direct participation in hostilities by civilians against the background that they “were never meant to directly participate in hostilities on behalf of a party to a conflict.”46 Rather, the essence of the approach that international law neither prohibits nor privileges such participation seems to stress the point that international law implicitly discourages it by abstaining from granting combatant privileges; they are thus targetable during participation and, when captured, are offered no immunity from prosecution.47 Does this approach remain effective in deterring unprivileged belligerency in the cyber context? Consider a situation in which, for example, the respective volunteers take a direct part in Ukraine’s cyber hostilities from foreign countries, geographically distant from Russia and Ukraine. Unlike traditional warfare on a physical battlefield, it is highly unlikely that they will lose their lives, even if they become targets of Russia’s cyberattacks. It would also be inconceivable that Russia would conduct long-range conventional attacks on a countless number of cyber volunteers across the globe with drones, missiles, etc., at the risk of causing another conflict with States from any part of the world in which they were located, except for some extraordinary reason, such as high-profile military figures. Moreover, even if no combatant impunity was granted, they would not have been captured by Russia as long as they stayed in the third State. They might not even be indicted in those States for various reasons, including the lack of the ability of a State to investigate cybercrimes and the circumstances precluding the criminality of the act.48 Hence, it is doubtful that when applied in cyberspace, the non-prohibitive approach to the existing rules of international law effectively serves as a deterrent to unprivileged belligerency. This would also be the case with a prohibitive approach. It is uncertain whether any additional deterrence that improves the above problems is created in cyberspace by prohibiting unprivileged belligerency in international law. Furthermore, an alternative argument may opine that an outright ban on it as a general matter of law should be prudently averted, given the circumstances in which Ukrainian citizens 44

See Waterman (2023). See Conger and Satariano (2022). 46 International Committee of the Red Cross (2009), pp. 38–39. 47 See Maˇ cák (2021), p. 420. 48 See, eg, Radauskas (2023). 45

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have no choice but to take up arms against Russia’s invasion, out of consideration of an overwhelming difference in war potential between Russia and Ukraine. Therefore, it seems wise to carefully examine, in conjunction with the issue of the appropriateness of applicability to cyberspace of the existing rules on combatant status centered on the duty to distinguish from the civilian population, the extent to which a private person needs to be regulated to prevent their undisciplined participation in hostilities in cyberspace from spreading further across the globe.

16.4 State Responsibility and Obligations for Ukraine’s Unprivileged Belligerency in Cyberspace 16.4.1 Geneva Law The focus, in this regard, should lie on the responsibilities and obligations of the States concerned vis-à-vis Ukraine’s cyber operations by unprivileged belligerents. Given that all States must be involved and take responsibility for maintaining a rule-based international order in cyberspace, any breach of applicable rules of international law by both parties to an armed conflict must be addressed.49 As already discussed, if the in-house team members of the IT Army of Ukraine were characterized as combatants and, as such, were considered to have violated the duty to distinguish themselves from the civilian population, not only the loss of their combatant status but also the prosecution of war crimes would be triggered. Although it did not constitute the war crime of perfidy that fell under the jurisdiction of the International Criminal Court (ICC) unless killing or wounding individuals was involved (Article 8, paragraph 2(b)(xi) ICC Statute; Article 37, paragraph 1(c) API), the breach of the duty of distinction could subject them to criminal prosecution by the domestic courts of both Russia and Ukraine; for example, Article 438 of the Penal Code of Ukraine stipulates the crime of violation of the laws and customs of war.50 In this regard, Article 91 of the API states that a party to the conflict “shall be responsible for all acts committed by persons forming part of its armed forces,” including liability to pay compensation for their violations of the 1949 Geneva Conventions and the API itself, if the case demands. While some believe that this

49

Healey and Grinberg rightly observe this point: “Since Russia’s invasion of Ukraine, these cyber norms are being actively undermined—and not just by Russia. These “like-minded” states—many of them Western nations—that have mobilized to provide support to Ukraine in its plight against Russia should continue to do so and loudly call out Russian atrocities. But to ensure that these norms are globally respected, these States must not facilitate selective enforcement and ignore Ukrainian violations of this hard-negotiated diplomatic consensus.” See Healey and Grinberg (2022). 50 Prosecutor General’s Office of Ukraine, Crimes Committed During Full-Scale Invasion of the RF, https://www.gp.gov.ua/.

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provision concerns only State liability for compensation,51 others opine that it also covers State responsibility to prosecute the breaches of treaties committed by its armed forces.52 Should the latter view be adopted, Ukraine would not be relieved from its responsibility to prosecute the in-house members for their breaches, combined with its duty to prevent and suppress the breaches (Article 87 API), as long as they are members of its armed forces. More problematic would be acts of unprivileged belligerency inconsistent with applicable rules of international law and committed by an enormous number of Ukrainian cyber volunteers across the globe. Indeed, Ukraine officially called out those volunteers for assistance in resisting Russia’s invasion, despite the difficulty of probing whether they had taken a direct part in the hostilities pursuant to the applicable rules of international law in cyberspace. Furthermore, other States in which the volunteers have operated, as well as States of their nationality, seem to remain silent about or even acquiesce to their participation. Are these States not responsible for such unprivileged belligerency fraught with breaches of the rules of international law whatsoever? Although their conduct violated the applicable rules of international law in cyberspace, there would be considerable difficulty in attributing them to Ukraine. Yet, if the conduct is not attributable to Ukraine, the country remains obligated to ensure respect for the 1949 Geneva Conventions (Common Article 1) and the API (Article 1, paragraph 1) by its “armed forces, other persons and groups acting on” its behalf, and its “populations as a whole” in all circumstances as a contracting party to these treaties.53 This obligation subsumes the dissemination of treaties among the population and the suppression of breaches by private persons during both peacetime and armed conflict.54 Further, as it has also become understood to extend to non-State parties in an armed conflict, all States in which Ukraine’s cyber volunteers are located could have the same obligation to ensure respect for them.55

16.4.2 Neutrality Law It could further be argued from a different angle that certain obligations under international laws on neutrality—the law of neutrality—would serve as constraints on unprivileged belligerency in cyberspace. The applicability of the law has caused a long controversy around the doctrine of “benevolent” or “qualified” neutrality, or

51

See, eg, Bothe et al (2013), pp. 620–621. See, eg, Sandoz et al (1987), para 3651. 53 International Committee of the Red Cross (2016), p. 36, para 118. 54 International Committee of the Red Cross (2016), p. 46, para 151. 55 On the flip side, some experts argue that the obligation applies to the parties to an armed conflict alone. See, eg, Schmitt and Watts (2020). 52

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non-belligerency since the outlawry of war and the prohibition on the use of force,56 but if applicable in cyberspace as with other rules of international law in armed conflict,57 the following customary rules, stipulated in the 1907 Hague Convention V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (HCV), could come into play in the context of unprivileged belligerency. Yet, as the law of neutrality imposes obligations on belligerent and neutral States, volunteering by private persons is not per se prohibited by the law (Article 6 HCV), while the persons lose their neutral status, rendering them targetable for attack by the enemy State (Article 17 HCV). What matters here is the involvement of the belligerent and neutral States in forming the corps of combatants and recruiting them. Acts of forming a corps of combatants and operationalizing recruiting agencies in the territory of a neutral State to assist a belligerent State are prohibited under international law (Article 4 HCV). To this end, neutral States must not allow any of the acts to occur in their territory (Article 5, paragraph 1 HCV). This duty of prevention is interpreted as signifying a due diligence obligation of conduct, meaning that it is engaged only when the neutral State knows that its territory is being used for the conduct of hostilities by belligerent States.58 Thus, knowledge is a constitutive element of duty and must be either actual or constructive.59 According to Tallinn Manual 2.0, a neutral State has actual knowledge if its organs have detected a military operation by a belligerent State originating from its territory or if the aggrieved belligerent State has credibly informed the neutral State that the operation has been initiated from its territory. Constructive knowledge exists when the neutral State “should reasonably have known” of the operation mounted from its territory.60 It must be highlighted that the prohibition on acts of forming corps of combatants and operationalizing recruiting agencies, as well as the duty of prevention, are localized to the territory of a neutral State. Moreover, as the words “the fact of persons crossing the frontier” (Article 6 HCV) illustrates, these rules appear to presuppose the territorial transfer of persons from a neutral State to a belligerent State. Considering this in the cyber context, if Ukraine formed a virtual online group like the IT Army that participated directly in hostilities only in cyberspace, and when its members remained physically present in the territory of a neutral State, would it contravene the prohibition on forming corps of combatants in the neutral State? Alternatively, if Ukraine activated its online system on a cloud server to recruit persons physically located in the territory of a neutral State, would it engage in rules on the prohibition 56

See, eg, Schmitt (2023), Heintschel von Heinegg (2007), United States Department of Defense (2016), para 15.2.2 (“The United States has taken the position that certain duties of neutral States may be inapplicable under the doctrine of qualified neutrality.”). 57 As recent research that demonstrates the difficulty in applying the law as it is to cyberspace, see Neuman (2021). 58 Tallinn Manual 2.0 derives Rule 152 on neutral obligations from Article 5, para 1 of HCV. See Schmitt (2017), pp. 558–560. 59 Schmitt (2017), p. 559, para 5. 60 See footnote 59.

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of recruitment by Ukraine and the neutral State’s duty of prevention?61 After all, everything seems to come down to how cyberspace, or digital or online activity, is territorially characterized, or whether and to what extent the sui generis de-territorial or virtual character of cyberspace can be found as opposed to the physical realm.62 This is pertinent to the broader issue of the applicability of the principle of territorial sovereignty to cyberspace in general, which is now highly controversial in international law centered on the UN General Assembly, in which tremendous efforts have been devoted to developing norms of responsible State behavior in cyberspace.63 Thus, it may be expedient to delve into this issue of the territorial scope of neutrality law, along with the application of the sovereignty principle in cyberspace.

61

Tsagourias poses similar questions, stating as follows: “more critical issue is whether online recruitment on neutral servers but from sites controlled by Ukraine (for example by functionally controlling or exclusively managing the site) breaches Article 4 Hague Convention V. … Would Article 4 Hague Convention V apply if those recruited online remain physically within the neutral State? … If, however, one wants to look beyond the physical boundaries of the law and look at their digital version in the form of digital persona and digital territory as determined for example by IP addresses, it is possible to argue that Article 4 Hague Convention V does not apply because those recruited are digitally operating outside neutral territory.” See Tsagourias (2022). 62 This controversial issue remains highly debated and entangled with other related issues, such as the definition of cyberspace and loss of data location in cybercrime investigation. Highlighting the virtual character, the UK government defines cyberspace as “the interdependent network of information technology infrastructures that includes the Internet, telecommunications networks, computer systems, internet connected devices and embedded processors and controllers. It may also refer to the virtual world or domain as an experienced phenomenon, or abstract concept.” See United Nations (2021), p. 115 n. 272. In a similar vein, as a view that underlines the de-territorial character of cyberspace, see Council of Europe (2013), p. 9, para 298 (“While the principle of territoriality will remain predominant, in particular with respect to jurisdiction to enforce, the applicability of this principle in “cyberspace”—where data are moving between, are fragmented over, are dynamically composed from, or are mirrored on servers in multiple jurisdictions—is in doubt. It is not possible to apply the principle of territoriality if the location of data is uncertain.”). By contrast, see Akande et al. (2021) (“what we often call ‘cyberspace’ is nothing more than a set of information and communications technologies that enable individuals to exchange and process information more efficiently, such as the Internet and other networks. As much as software, code and data play a significant role in how these technologies operate, they are necessarily made up of physical components or hardware, such as cables, satellites, radio waves, computers and their millions of silicon circuits, as well as the individuals who build, control and use software, hardware and data. Likewise, even if these multifaceted physical components cross national borders to create an imaginary ‘global information space’, as encapsulated in terms such as ‘The Cloud’, ‘World Wide Web’, or ‘Virtual Reality’, these remain very much grounded in tangible physical infrastructure as well as human beings of flesh and bone that are located somewhere in the world.”). 63 To take a prominent example, UK has showed its hesitancy to recognize the principle as applicable to cyberspace as a legally-binding rule since a 2018 speech by then-Attorney General, Jeremy Wright. See UK Attorney General’s Office and The Rt Hon Sir Jeremy Wright KC MP (2018) (“Sovereignty is of course fundamental to the international rules-based system. But I am not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law.”).

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16.5 Conclusion Despite the fact that heightened geopolitical tensions brought about by the RussiaUkraine Conflict may spur a stalemate in the UN’s consensus-based efforts to advance international law and norms in cyberspace, the conflict has given rise to a number of challenging questions of international law applicable to cyberspace in armed conflict, notably regarding the extent to which the existing relevant rules of international law are applicable and at what point we need the development of new rules tailored to the unique features of cyberspace. With that in mind, aiming to offer some key takeaways from the conflict, this chapter attempts to explore: (1) whether and when Ukraine’s cyber volunteers could be deemed as engaging in unprivileged belligerency; (2) what the legal consequences would be in that case; and (3) what kind of responsibilities and obligations Ukraine and the third States would incur from those acts of unprivileged belligerency. The results were as follows: When applied in cyberspace, the existing rules of international law can grant combatant status to the in-house team of the IT Army of Ukraine and some local populations in Ukrainian territory as members of the armed forces and participants in the levée en masse respectively. Nevertheless, as there remains the controversial question of how to distinguish themselves from the civilian population in their cyber operations, even those categories of persons who have the potential to qualify as combatants would likely become unprivileged belligerents at this rate. Alternatively, Ukraine’s cyber volunteers from various parts of the world would be unable to become combatants and, as such, would be targetable as long as they took a direct part in hostilities and, when captured, would be subject to domestic prosecution for participation without being treated as prisoners of war. These legal consequences have so far been expected to serve as effective deterrents of unprivileged belligerency, in which people take a direct part in hostilities without combatant status, but it is open to doubt whether these consequences continue to work effectively in the cyber context. As a vast number of individual hacktivists from foreign countries join the IT Army of Ukraine, the risk of being targeted by a kinetic attack on life and body, as well as of being captured and prosecuted in the case of online remote participation in hostilities, appears to be overwhelmingly lower than in the case of physical participation in hostilities occurring in Ukraine. To make matters worse, many experts cast doubt on whether they operate pursuant to the applicable rules of international law even if participation per se is not against international law. This cannot be overlooked as it may undermine the international legal order, aggravating and escalating armed conflicts. It can be argued that responsibilities and obligations exist under international laws that deter and prevent unprivileged belligerency in cyberspace. Insofar as Ukraine’s cyber volunteers operate in violation of the applicable rules of international law, including the duty of distinction, they must be punished as war criminals, at least before domestic courts and tribunals. Moreover, not only the responsibility and obligation of Ukraine, which publicly called for and utilized cyber volunteers across the globe to conduct hostilities against Russia, but also those of other States in

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which these volunteers are physically present and fail to prevent their participation, need to be highlighted. One may derive these responsibilities and obligations to punish war crimes from the Geneva Law provisions on belligerent States’ responsibility for reparation and the obligation of all contracting State parties to ensure respect for humanitarian law. Furthermore, obligations prohibiting the formation of corps of combatants and recruitment in the territory of a neutral State could serve to constrain unprivileged belligerency in cyberspace on the condition that the territorial sovereignty principle applies to cyberspace. To ensure rule-based international order in cyberspace, international law must be respected globally. As part of this effort, in the context of unprivileged belligerency, Russia and Ukraine, as well as other countries, need to commit to their respective positions on the legal status of persons involved in hostilities in cyberspace, including members of the IT Army of Ukraine comprising in-house members and volunteers in and outside Ukraine, the bulk of which seem to be unprivileged belligerents, and on how to handle those persons who are physically located in their territory. Countries must ensure accountability for any conduct that violates international law in cyberspace, not to mention in situations of armed conflict.

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Soesanto, S. 2022. The IT Army of Ukraine: Structure, tasking, and ecosystem. cyberdefense report. Center for Security Studies (CSS). ETH Zürich. June 2022. https://css.ethz.ch/content/ dam/ethz/special-interest/gess/cis/center-for-securities-studies/pdfs/Cyber-Reports-2022-06IT-Army-of-Ukraine.pdf. Tsagourias, N. 2022. Cyber neutrality, cyber recruitment, and cyber assistance to Ukraine. Articles of War, April 19, 2022. https://lieber.westpoint.edu/cyber-neutrality-cyber-recruitment-cyberassistance-ukraine/. UK Attorney General’s Office and The Rt Hon Sir Jeremy Wright KC MP. 2018. Cyber and international law in the 21st century. Gov. UK. May 23, 2018. https://www.gov.uk/government/spe eches/cyber-and-international-law-in-the-21st-century/. UK Ministry of Defence. 2005. The Manual of the Law of Armed Conflict. Oxford University Press. United Nations. 2021. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by states, submitted by participating governmental experts in the Group of Governmental Experts on Advancing Responsible State Behavior in Cyberspace in the Context of International Security established pursuant to General Assembly resolution 73/266. UN Doc. A/76/136. July 13, 2021. https://ccdcoe.org/uploads/2018/10/UN_-Official-compendium-of-national-contribut ions-on-how-international-law-applies-to-use-of-ICT-by-States_A-76-136-EN.pdf. United States Department of Defense. 2016. Law of War Manual. June 2015 (Updated December 2016). https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War% 20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172 036-190. United States Senate. 2022. Posture Statement of General Paul M. Nakasone, Commander, United States Cyber Command, Before the 117th Congress Senate Committee on Armed Services. April 5, 2022. https://www.armed-services.senate.gov/imo/media/doc/5%20Apr%20SASC% 20CYBERCOM%20Posture%20Statement%20(GEN%20Nakasone)%20-%20FINAL.pdf. Stokel-Walker, C. 2022. Will Russia’s invasion of Ukraine trigger a massive cyberwar? New Scientist. February 23, 2022. https://www.newscientist.com/article/2309369-will-russias-invasionof-ukraine-trigger-a-massive-cyberwar/. Waterman, S. 2023. Ukraine’s volunteer cyber army could be blueprint for the world: Experts. Newsweek. February 21, 2023. https://www.newsweek.com/ukraine-war-cyber-army-attack-str ategy-warfare-1780970.

Masahiro Kurosaki is Professor of International Law and Director of the Study of Law, Security and Military Operations at the National Defense Academy (NDA) of Japan. He is also the Chair of the Study Group on International Law organized by the Operational Policy Division, Bureau of Defense Policy of the Ministry of Defense of Japan, sometimes represents the Japanese government in diplomatic negotiations on international human rights and humanitarian law as a legal adviser, and has been involved in the various expert groups established by the government. Since 2008 when he joined the International Relations Faculty of the NDA following his doctoral course at the University of Tokyo, he has held assistant and associate professorships at the NDA as well as visiting fellowships at Leiden Law School’s Grotius Centre for International Legal Studies and the United States Naval War College’s Stockton Center for International Law. He has published a range of articles and book chapters on the law of international security, the law of armed conflict, international criminal law, and Japanese security laws.

Part IV

International Criminal Law

Chapter 17

The Ukrainian Conflict and the Crime of Aggression Keiko Ko

17.1 Introduction The Russian invasion of Ukraine that began in February 2022 has been the subject of increasing international condemnation due to the numerous reports of war crimes committed by Russian forces. At the time of writing, on March 17, 2023, the PreTrial Chamber II of the International Criminal Court (ICC) issued warrants of arrest for Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova for war crimes under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. This was the first time that the ICC had issued an arrest warrant against the head of State of a permanent member of the United Nations (UN) Security Council, which proves the seriousness of the situation. Russia’s aggression is also an issue in the Ukrainian conflict. Due to Russia’s position on the UN Security Council, it is impossible for the body to condemn Russia. Nevertheless, the UN General Assembly held an emergency session on March 2, 2022, and clearly condemned Russian aggression, stating that it ‘deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter’ (A/RES/ES-11/1). If what Russia had done could be characterised as aggression, as the above resolution indicates, it may be desirable to hold President Putin and other leaders accountable by bringing them to justice for the crime of aggression, which is a concept of accountability for the individuals responsible for an aggression. However, to advance the claim, it may be necessary to begin by recognising a distinction between the desirable and the possible. This article examines the issue from the perspective of whether The author was an academic advisor to the Japanese delegation to the Special Working Group on the Crime of Aggression from 2007 to 2009. However, the views expressed in this article are personal. The author submitted her final accepted manuscript to the publisher on 25 May, 2023. K. Ko (B) Faculty of Law, Nanzan University, 18 Yamazatocho, Showa-ku, Nagoya 4668673, Aichi, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_17

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it is possible, rather than desirable, to bring the Russian leadership to justice for the crime of aggression.1 To this end, this article reviews the historical development of the crime of aggression, which has been anything but straightforward, and examines the issues of interpretation of the relevant articles and amendments to the Rome Statute of the International Criminal Court. The article then presents some of the practical problems associated with criminal proceedings for the crime of aggression by using the historical example of the International Military Tribunal for the Far East (Tokyo Tribunal). Although a trial of the perpetrators of aggression may be desirable, and indeed, there have been several proposals to this effect, it should be noted that, in addition to the discussion about the forum at which the trial should take place, it requires effort to resolve a number of issues related to establishing, on the basis of evidence, the criminal responsibility of individuals for the act of aggression. The following section begins by outlining the development of international law on the crime of aggression since the World War II (Sect. 17.2). It then describes the development of rules relating to the crime of aggression in the Rome Statute of the ICC and tries to articulate the outstanding legal questions of interpretation (Sect. 17.3). The experience of the Tokyo Tribunal is then presented to illustrate the problems that may arise in future trials for the crime of aggression in any form (Sect. 17.4), and the article concludes (Sect. 17.5).

17.2 Historical Development of International Criminal Jurisdiction over the Crime of Aggression 17.2.1 The Emergence of, and Criticism Towards, the Crime of Aggression The crime of aggression, formerly known as ‘crimes against peace’, is a crime under international law that holds a nation’s leaders responsible for starting an illegal war. After World War II, German and Japanese leaders were tried for this crime at the International Military Tribunals. While the International Military Tribunal at Nuremberg was established under an international agreement (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, which was signed by the UK, the US, France and the USSR on August 8, 1945), the International Military Tribunal for the Far East (IMTFE, the Tokyo Tribunal) was set up by a special proclamation by the Supreme Commander for the Allied Powers in Tokyo, on January 19, 1946. However, the two tribunals shared the same subject-matter jurisdictions, namely (1) crimes against peace, (2) war crimes and (3) crimes against humanity. 1

This distinction is inspired by the UN General Assembly’s resolution (260B (III), A/RES/3/260B) in 1948, which will be discussed in the section II, subsection 2.

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Article 6 of the Charter of the International Military Tribunal defines Crimes against peace as follows: …planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation. Agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

Article 5 of the Statute of the International Military Tribunal for the Far East defines Crimes against peace as follows: …the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The only major difference between the two is the insertion of the words ‘declared or undeclared’ in the Statute of the IMTFE. These two international criminal (or more correctly, military) tribunals that intended to hold the leaders criminally accountable had many difficulties and faced criticism among lawyers.2

17.2.2 Law-Making at the United Nations Against this criticism, the UN General Assembly adopted Resolution 95(1) in 1946, which affirmed the principles of international law recognised in the charter and in the judgment of the Nuremberg Tribunal, and subsequently, in November 1947, it requested for the International Law Commission (ILC), which had been established that year, to carry out the following: (1) formulate the principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgment of the tribunal and (2) prepare a draft code of offences against the peace and security of mankind (General Assembly resolution 177 (II)). Regarding the former, in 1950, the ILC submitted the ‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’ to the UN General Assembly. The crime against peace was included in Principle VI of this and recognised as a ‘crime under international law’ along with war crimes and crimes against humanity.3 Following a request to prepare a draft Code of Offences against the Peace and Security of Mankind in 1951, the ILC submitted a draft code to the UN General Assembly, together with a commentary. After receiving comments from governments, the draft was revised, and in 1954, the final draft was adopted by the ILC and sent to the UN General Assembly, which noted that the final draft had raised issues closely related to the question of the definition of aggression. In other words, work 2

May (2008), pp. 141–162; Cassese (2008), p. 322; Hafetz (2018), pp. 6–26.The recent research on the IMTFE has shown that there was criticism towards the crime against peace even among the judges of the IMTFE. See also Higurashi (2022), pp. 195–224. 3 Watts (1999), pp. 1657–1668.

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on a treaty for a draft code of offences against the peace and security of mankind was halted until agreement could be reached on a ‘definition of aggression’.4 In addition to considering a substantive law regarding these crimes under international law, the ILC also began discussions on an international institution (judicial body) to try international crimes under international law at the same time. The UN General Assembly, when it adopted the Convention on the Prevention and Punishment of the Crime of Genocide, also invited the ILC ‘to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions’ (9th December, 1948, 260B (III), A/ RES/3/260B). In response, the ILC, following examinations of the reports by two special rapporteurs (Emil Sandström and Ricardo J. Alfaro),5 while recognising that there were differences of opinions, voted for the desirability of such an organ and for the possibility of establishing it. It submitted to the UN General Assembly the conclusion that the establishment of an international criminal court was both desirable and possible.6 Nevertheless, in 1954, the UN General Assembly decided to postpone consideration of this issue until the debate on the definition of aggression had been settled.

17.2.3 Developments After the End of the Cold War In 1974, after almost 20 years of debate, the UN General Assembly finally adopted a definition of aggression (United Nations General Assembly Resolution 3314 (XXIX) (A/RES/29/3314)). The UN General Assembly Resolution on the Definition of Aggression contained a general definition of aggression (Article 1) and then listed the effects of the pre-emptive use of force (Article 2) as well as specific acts of aggression (Article 3).7 As we will see later, Article 3 was also incorporated into 4

Watts, Ibid., pp. 1669–1670. ‘Question of International Criminal Jurisdiction’, Report by Emil Sandström, Document A/CN.4/ 20, Yearbook of the International Law Commission, Vol. II, 1950, pp. 18–20; ‘Question of International Criminal Jurisdiction’, Report by Ricardo J. Alfaro, Document a/CN.4/15, Yearbook of the International Law Commission, Ibid., pp. 1–18. 6 ‘Report of the International Law Commission to the General Assembly’, Yearbook of the International Law Commission, Ibid., pp. 378–379. 7 In 1933, before World War II, the Convention on the Definition of Aggression was adopted. Article 2 defined ‘aggression’ as follows: ‘Accordingly, the aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be State which is the first to commit any of the following actions: (1) Declaration of war upon another State; (2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State; (3) Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; (4) Naval blockade of the coasts or ports of another State; (5) Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection.’. 5

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the definition of the crime of aggression in the Rome Statute (Article 8 bis, 2 (a)(g)). It is important to note, however, that this definition of aggression was adopted as a guideline for the Security Council to exercise its authority under Article 39 of the UN Charter; that is, for the Security Council to determine the existence of an act of aggression. It is not a guideline for holding those responsible for aggression criminally liable. As noted above, the ILC discussions on the draft Code of Offences against the Peace and Security of Mankind and the establishment of a judicial organ to try those offences had been suspended until the issue of the definition of aggression was settled. However, even after the definition of aggression had been adopted, the work of the ILC was not immediately resumed. It was only in 1993 that a draft Statute of the International Criminal Court was submitted by the ILC to the UN General Assembly. Subsequently, after receiving comments from various governments, the ILC submitted a final draft to the UN General Assembly in 1994 recommending that a diplomatic conference be convened to conclude a treaty establishing an international criminal court. The work that had been resumed by the ILC was largely motivated by the International Criminal Tribunal for the Former Yugoslavia, which had been established by the Security Council Resolution adopted under Chap. 7 of the UN Charter.8 Rather than immediately convening a diplomatic conference, the UN General Assembly established in 1995 an ad hoc committee and then a preparatory committee. The Diplomatic Conference then met in Rome, Italy, in 1998 and adopted the Statute of the International Criminal Court, commonly known as the Rome Statute. The Rome Statute establishes the four most important ‘core crimes’ of the international community, namely the crime of genocide, war crimes, crimes against humanity and the crime of aggression (Article 5 (a)-(d)). However, regarding the crime of aggression, the States were unable to agree by the end of the conference on a definition and the conditions under which the ICC would exercise jurisdiction. The Rome Statute therefore added a second paragraph to Article 5 stating that the ICC would not exercise jurisdiction over the crime of aggression until such an agreement could be reached. Article 5 (2) provided the following: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

As indicated in this provision, the amendment of the Rome Statute regarding the crime of aggression was to be made in accordance with Articles 121 and 123 of the Rome Statute. This provision subsequently became one of the major sources of interpretational problems.

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Ko (2011), pp. 509–528.

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17.3 The Crime of Aggression and the Rome Statute 17.3.1 Definition of the Crime of Aggression After the Rome Statute had been concluded, the definition of the crime of aggression and the conditions for the ICC to exercise jurisdiction were referred to the Special Working Group on the Crime of Aggression (SWGCA), which compiled a proposal in 2009. In 2010, a review conference to examine the proposals for amendments of the Rome Statute was held in Kampala, Uganda (Kampala Conference). There, following tough negotiations, a resolution containing amendments on the crime of aggression (Kampala amendments) was adopted by consensus. The amendments concerned Article 8 bis (Crime of Aggression (definition)), Article 15 bis (Exercise of Jurisdiction Over the Crime of Aggression (State referral, proprio motu) and Article 15 ter (Security Council referral). It also adopted an amendment to the ‘Elements of Crime’ and an ‘Understandings on the amendments of the ICC Rome Statute on the Crime of Aggression’ (Resolution RC/Res.6). The definition of the crime of aggression adopted in the Kampala amendments has three characteristics. First, the definition incorporates the definition of aggression from Article 3 (a)~(g) adopted by the UN General Assembly (Resolution 3314) as its Article 8 bis (2) (a)~(g). Second, the crime of aggression is characterised as a crime committed by a person in a leadership position of a State and includes a so-called ‘leadership clause’ in Article 8 bis (1) and also adds paragraph 3 bis to Article 25. Third, the crime of aggression presupposes an illegal act of aggression by a State (i.e. an act of aggression). It is important to note that the act of aggression is not a crime. In domestic criminal law, legal persons may be held criminally liable, and in international law, the concept of the international crimes of States was once proposed but is no longer supported.9 The crime of aggression is an individual crime, and the act of aggression by a State is only a prerequisite for it. Reflecting these characteristics, the definition is defined as follows: Article 8 bis Crime of Aggression 1. For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation, or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: 9

Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 12, Commentary to Article 12, paras 5–7.

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(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (d) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

17.3.2 Issues Related to the Exercise of Jurisdiction 17.3.2.1

Independence of the Court Versus Security Council Authority

The Kampala amendment on the crime of aggression was finally adopted more than 10 years after the adoption of the Rome Statute, in 1998. Why had it taken so long? There may be several factors, but two reasons deserve careful consideration to explain the protracted discussions. The first factor concerns how to evaluate the authority of the Security Council under the UN Charter regarding the determination of act of aggression. Article 39 of the UN Charter provides that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’ (emphasis added by the author). The question was whether the ICC should recognise and respect the competence of the Security Council to determine the existence of an act of aggression and not exercise its jurisdiction over the crime of aggression in the absence of such a determination by the Security Council. Alternatively, the ICC, as an institution independent of the UN and of the permanent members of the Security Council, should be able to make its own determination independent of any decisions by the Security Council. In the case of the Security Council making a determination of the act of aggression, this would seem less problematic. Indeed, the crucial scenario was whether the ICC should be allowed to exercise its jurisdiction in the absence of a Security Council

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decision, whether by veto or for other political reasons. States were divided on this issue from the outset.10 As mentioned earlier, the drafting of the amendments was led by the SWGCA, which adopted the so-called Princeton Process under the leadership of the Lichtenstein government. The Princeton Process was a series of negotiations held at the Liechtenstein Institute on Self-Determination, located at the Woodrow Wilson School of Government at Princeton University, for representatives of all governments, including those of non-States party and the NGOs. In addition to the formal SWGCA meetings at the Assembly of the State Parties in New York, inter-sessional meetings of the Princeton Process contributed to the conclusion of the work of SWGCA11 . Although the SWGCA officially concluded its work with the adoption of its report on February 13, 2009, it continued to meet informally, including with non-States party.12 As was explained earlier, the Kampala Amendment was adopted by consensus, and it was understood that this consensus also included the non-States party as observers. Then, as a result, the following article was adopted, as indicated above, not by vote but by consensus13 : Article 15 bis Exercise of Jurisdiction Over the Crime of aggression (State referral, proprio motu) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

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Kress and Leonie (2010), p. 1194. Barriga (2009), pp. 1–20. 12 Informal inter-sessional meeting on the crime of aggression, June 2009-ICC-ASP/8/INF.2, para. 5. 13 Consensus is usually understood as a method of decision-making whereby a decision is adopted as the general agreement of all members of an organisation or meeting based on consultation and negotiation, rather than by a formal vote. It is sometimes understood as a decision taken on the basis of this procedure, but the appropriate use of the term should be the reference to the procedure. See also Wolfrum (2012), pp. 673–678. Since no vote is taken, it differs from adoption by unanimous consent. There are two types of consensus procedure: either any formal objection prevents the decision from being adopted or, in the event of a failure of consensus, a fresh vote is held—the Rome Statute being the latter (Article 123). In some cases, therefore, the decision could have been put to a vote, but this option was never taken at the Kampala Conference, which consistently aimed for adoption by consensus (and also in NY when the activation resolution was adopted in 2017). Note that the United States has sent a government delegation to the Conference of the Parties as an observer since 2009 and also insisted that consensus be adopted at the review meeting. As for the other permanent members of the Security Council, Russia and China also participated in the Review Conference as observer states (the United Kingdom and France are parties). 11

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4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years. 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory. 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents. 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

Thus, the Kampala Amendment answered in the affirmative the long-debated question of whether the ICC could exercise jurisdiction over the crime of aggression in the absence of prior authorisation by the Security Council (Article 15 bis (8)). However, it was decided that the ICC could not exercise jurisdiction if a crime was committed by nationals of a non-State party or on the territory of that State (Article 15 bis (5)). This provision was criticised then, as it is now; however, taken together with the fact that three permanent members of the Security Council are not parties to the Rome Statute, it should be understood that this was a compromise between the views of the permanent members, who assert the authority of the Security Council over the determination of an act of aggression, and the position of the international community, which values the independence of the Court. Without this provision, arguably, it would not have been possible to adopt the provisions of the amendments.

17.3.2.2

Article 121 (4) Versus Article 121 (5)

A seemingly highly technical but legally significant problem was that Article 5(2) of the Rome Statute merely referred to ‘the provisions of Articles 121 and 123’ as to the effect of the amendment on the crime of aggression but does not specify whether this concerned paragraph 4 or paragraph 5 of Article 121. The question of which provision

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to amend is of life-and-death importance, since the effect of applying paragraph 5 will be very different from that of applying paragraph 4. Article 121(4) of the Rome Statute provides the following: Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

According to this provision, the consent (acceptance) of a certain majority shall make an amendment binding on all other States party, including those that have not given their express acceptance. On the other hand, the first sentence of Article 121, paragraph 5, provides the following: Any amendment to Articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. According to this provision, express acceptance by those States party is necessary for the amendment to become binding on them. In other words, the difference between paragraphs 4 and 5 is, particularly for the States party that may not accept the amendment, whether an amendment may become binding even when they do not accept the amendment.14 Because the legal implications of which provision of the Crime of Aggression Amendment would be adopted were so different, there was deep conflict among States on this issue, which was not resolved until the Kampala Conference. Further complicating matters was the fact that the crime of aggression was already listed in Article 5, paragraph 1, and was also provided for in Article 5, paragraph 2, leaving room for the view that it was not an ‘amendment’, as envisioned by Article 121, paragraph 5. From this perspective, it was sufficient to adopt the provisions on the definition and exercise of jurisdiction, and the stage of entry into force of the amendment was not necessary.15 Finally, at the Kampala Conference, after a series of negotiations16 , it was agreed that the amended provision “shall enter into force in accordance with Article 121, paragraph 5” (Resolution RC/Res.6, para. 1).17

14

This may seem contrary to the principle of pacta sunt servanda. However, while it may be binding without acceptance, the importance of State acceptance is maintained by the withdrawal provision. That is, when an amendment enters into force under Article 121 (4), a State party that has not accepted the amendment may withdraw from the Statute by giving notice within one year after the amendment enters into force (Article 121 (6)). In contrast, there is no such right of withdrawal for Article 121 (5), since acceptance is required for entry into force, and non-accepting states are not affected by the amendment. Schabas (2016), p. 1503. 15 Barriga (2009), p. 39. 16 For the negotiating process and the various proposals presented, see Kress and von Holtzendorff, Ibid., pp. 1179–1217. 17 At the Kampala Conference, an amendment to Article 8 (2)(e) was also adopted, and it was adopted in accordance with article 121 (5) (Resolution RC/Res. 5).

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17.3.3 The Scope of the ICC Jurisdiction over the Crime of Aggression There is another serious problem of interpretation arising from the Article 121(5). Article 121 is situated in the Final Clauses of the Rome Statute and stipulates rules for proposing the amendment, review conference and entry into force of the amendment. However, paragraph 5 of this article contains not only the conditions for the entry into force of the amendment (in the first sentence) but also the rules on the preconditions for the exercise of jurisdiction (in the second sentence).18 The second sentence of Article 121(5) provides the following: In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

This is not about the requirement for an amendment to enter into force but the precondition to the exercise of jurisdiction. Importantly, this differs from the ICC’s general rule on preconditions to the exercise of jurisdiction in Articles 12 and 13. The precondition for the exercise of jurisdiction is set forth in Article 12. First, ‘A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5’ (Article 12 (1)). This means that consent to become a party to the Rome Statute implies consent to the jurisdiction of the ICC with respect to those crimes. The second requirement is that the ICC may exercise jurisdiction if either the place where a crime was committed or the State of which the suspect is a national has consented to the ICC’s exercise of jurisdiction (if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft) (Article 12(2)). This provision effectively allows the ICC to exercise jurisdiction even if one of those States is a non-State party, as long as the other is a State party. In light of this general rule in Article 12, the rule in the second sentence of Article 121(5) (which requires both the place of the crime and the State of the nationality of the accused to have accepted the amended provision in order for the ICC to exercise jurisdiction) is significantly different. Moreover, reading Articles 12(2) and 121(5) together leads to a curious situation; while the ICC may exercise jurisdiction over a non-State party if either the place of the crime or the State of nationality of the suspect is a State party (under Article 12), the ICC may not exercise jurisdiction over a State party that has not accepted the amendments, even if the crimes are committed by its nationals or on its territory 18

It is difficult to know why this formulation was adopted at the Rome Conference. For the explanation regarding the first sentence, see Clark and Alexander (2022), pp. 2878–2881. Regarding the draft history, during the discussions in the ILC, the consent “to be bound by the treaty” establishing the ICC was conceptually distinguished from the consent “to the subject-matter jurisdiction” of the international court to be established by the treaty. In the draft Statute prepared by the ILC in 1994, only in relation to genocide was it proposed that the former consent should automatically imply the latter (automatic jurisdiction) and for other crimes, the State Parties should be given an opportunity to consent (Opt-In). However, eventually, at the Rome Conference, the automatic jurisdiction was introduced for all core crimes (Article 12(1)). Coracini (2008), pp. 700–702; Ko (2020), pp. 44–45.

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(under the second sentence of Article 121 (5)). The ICC can exercise jurisdiction over a non-State party but is prevented from doing so over a State party! The amendment finally adopted at the Kampala Conference attempted to solve this problem by denying the right to exercise jurisdiction in either case, providing that ‘In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’ (Article 15 bis (5)). And yet, there remained an interpretational problem regarding the State parties: One position argued, based on the wording of the second sentence of Article 121 (5) that the ICC could not exercise jurisdiction over a State party that had not accepted the amendments relating to the crime of aggression. (This understanding is called the ‘negative interpretation’ or ‘narrow view’.) On the other hand, it has been argued that Article 5(2) of the Rome Statute provides for the future creation of sui generis rules with respect to the crime of aggression and that the rule on the exercise of jurisdiction in the second sentence of Article 121 (5) does not apply, meaning that the rule for the exercise of jurisdiction in Article 12 applies to the States party (and the States that accept the jurisdiction of the ICC by their declarations), and argues that the ICC could exercise jurisdiction if either the country of nationality of the accused or the place where the crime was committed (in particular, the country that was the victim of the aggression) accepted the amendment. If the State party does not wish to accept the jurisdiction of the ICC, it should make a (opt-out) declaration as prescribed in Article 15 bis (4). (This position is called the ‘positive interpretation’ or ‘broad view’.)19

17.3.4 Activation of the Kampala Amendments 17.3.4.1

2017 Activation Decision

Although the amendments to the Rome Statutes (regarding definition of aggression and the conditions under which the ICC may exercise jurisdiction) were adopted in 2010, the ICC was not able to exercise jurisdiction over the crime of aggression at that time, and the amended provisions on the crime of aggression did not actually take effect (activated) until 17 July, 2018. This is because Article 15 bis (2) and (3) provided that the ICC may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States party and that the ICC shall exercise jurisdiction over the crime of aggression subject to a decision to be taken after January 1, 2017, by the same majority of States party as is required for the adoption of an amendment to the Statute. Understanding paragraph 3 also provided that regarding jurisdiction ratione 19

On the development of these two positions, see Kress and Holzendorfff, Ibid, p. 1194 ff. For ‘narrow view’ and ‘broader view’ discussions and the analysis of the activation resolution, Akande and Tzanakopoulos (2018) pp.939–959. See also, Brunnée (2020), pp. 343–345.

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temporis: It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. On June 26, 2016, Palestine accepted the Kampala amendments as the thirtieth State party to do so. From the 2010 Kampala Review Conference until 2017, the realisation of the decision for the activation of the jurisdiction over the crime of aggression was in jeopardy, since different countries had expressed different views on the conditions for the exercise of the ICC’s jurisdiction, as introduced in the previous section. In 2016, a new negotiation process was established to facilitate discussion of the activation, and the discussion continued until December 15, 2017, when the Assembly of States Parties finally adopted the resolution (Activation of the Jurisdiction of the Court over the Crime of Aggression, ICC-ASP/16/Res.5), which Stated, inter alia, the following (in paragraph 2): Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

Thus, the conflict of interpretation regarding Article 121(5) seemed largely resolved.20 However, even after the adoption of the resolution, it was pointed out that “The resolution thus takes a stand on the central jurisdictional question. Adherents of the narrow view surely had hoped that this would constitute the definitive answer to the question of who will be subject to ICC jurisdiction over the crime of aggression. However, the resolution contains one more operative paragraph: ‘3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court.’ This paragraph was inserted by the States taking the broad view, as a reminder that the question of who is subject to the Court’s jurisdiction is ultimately one for the Court to decide”.21 In other words, the positive interpretation/broad view tried to survive by emphasising that the jurisdictional issues could be decided by the judges of the ICC.

17.3.5 Russian Aggression, the ICC and the Alternatives And here we are. Neither Ukraine nor Russia is a State party to the Rome Statute of the ICC, although Ukraine issued declarations accepting the ICC’s jurisdiction 20 21

On negotiation process leading up to the adoption, see Mikami (2018), pp. 66–90. Akande and Tzanakopoulos, Ibid., p. 942.

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in 2014 and 2015. Since the outbreak of the conflict in Ukraine, the prosecutor has announced the opening of an investigation into the situation in Ukraine based on the referrals received. The ICC received referrals from nearly forty States parties, and the prosecutor formally opened an investigation in March 2022, one of the results of which was the issuance of an arrest warrant against President Putin and his official (Maria Alekseyevna Lvova-Belova), as mentioned at the beginning of this article. Notably, the ICC’s activities concerning the situation in Ukraine do not currently include the crime of aggression as a crime to be investigated.22 In fact, there is a general understanding that the ICC is precluded from exercising jurisdiction over the crime of aggression over non-State party. Therefore, other proposals have been made. In addition to proposals for a national Ukrainian court or one in a third country based on universal principle, there is a strong desire for an international court. Regarding the latter, the proposals can be broadly divided into three categories. The first is a proposal to amend the Rome Statute to enable a trial by the ICC. The second is a proposal to create a special tribunal, and the third is a proposal to create an internationalised (hybrid) tribunal based on Ukraine’s judicial system to prosecute the crime of aggression against Ukraine. Since many proposals are still under discussion, this article only articulates a few problems that require further consideration from the viewpoint of international law. Regarding the proposal to amend the Rome Statute, former ICC Prosecutor Luis Moreno Ocampo wrote, ‘A simple revision of Article 15 bis(5) will achieve such a goal by deleting five words: “by that State’s nationals or”’.23 In addition, the former president of the ICC, Judge Chile Eboe-Osuji, agreed that ‘It is that the Assembly of States Parties to the Rome Statute should remove the restriction in article 15bis(5) that precludes the Court from exercising jurisdiction when the crime of aggression is committed in the territory of a State party’.24 To remove it, however, the Rome Statute must be amended. As noted earlier, several articles relate to the amendment of the Rome Statute, and in this case, the amendment would be based on Article 121(4). Pursuant to this article, if seveneighths of the parties deposit a ratification, it would be binding on all parties, but as Kevin John Heller wrote, ‘It defies belief to think that 107 States parties would accept such a fundamental revision of the Court’s jurisdiction over aggression. After all, only 41 – barely 1/3 – have ratified the aggression amendments themselves in the 12 years since their adoption’.25 The second proposal argued that a special tribunal should be established regarding the crime of aggression. Several proposals have already been presented, most notably the Yale Club Roundtable proposal, which was presented in a letter sent to the UN General Assembly by the representatives of the governments of Latvia, Liechtenstein and Ukraine (letter dated August 12, 2022). 22

https://www.icc-cpi.int/situations/ukraine. Okampo (2023). 24 Eboe-Osuji (2023). 25 Heller (2022), p. 6. 23

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Regarding the third proposal, a hybrid court has been suggested based on an agreement between Ukraine and the Council of Europe26 and an internationalised tribunal based on Ukraine’s judicial system.27 It has been pointed out that it is prohibited to create a special court under the Constitution of Ukraine (Article 125) and that it could not overcome personal immunity under international law. Indeed, the issue of immunity is one of the most serious problems when considering trying the accused Russians. These proposals will be developed in more detail later. However, even if it were possible to reach an agreement and create an ad hoc tribunal, it would be necessary to transfer Russian leaders to where the court would be established to try them there unless the court granted a trial in absentia.28 However, heads of State, prime ministers and foreign ministers are granted inviolability and immunity from criminal jurisdiction under customary international law (immunity ratione personae). Even if a special tribunal were established, it would be difficult to take suspects of the crime of aggression into custody if they were to stay in Russia or a friendly country.29 Immunity under international law is granted for a position, so if the position is lost, immunity ceases. However, it would require a major political change to oust the current Russian leader from his position. Even if personal immunity is not granted, immunity remains for acts performed during official duties (immunity ratione materiae). While there is currently limited scope for planning acts of aggression to be recognised as an official duty, importantly, the issue of immunity under international law must be overcome to conduct international criminal trials.

17.4 The Historical Precedent There are many challenges to trying individuals for the crime of aggression in an international criminal jurisdiction, among them is the issue of immunity. In addition, as I have written at length elsewhere,30 there is the challenge posed by the dual structure of the crime of aggression. Since the trials at the Tokyo Tribunal provided a rare example of the problems of trying individuals for aggression in a criminal setting, it may be worthwhile to outline one of the problems that have arisen. The Crime of aggression is characterised by the fact that it requires an act of international illegality (aggression) by a State as a prerequisite for establishing the guilt of the accused. In fact, other core crimes, genocide, war crimes and crimes against humanity have in many cases known State involvement but do not require an 26

Heller, Ibid., pp. 17–19. G7 Japan 2023 Foreign Ministers’ Communiqué, April 18, 2023, Karuizawa, Nagano. 28 A trial in absentia is not permitted in the ICC (Article 63 (1) of the Rome Statute). 29 For example, extraordinary effort was needed to capture Charles Taylor, a former president of Liberia, to bring him to justice at the Special Court for Sierra Leone. See also Tejan-Cole (2009), pp. 205–232. 30 Ko (2013), pp. 81–101. 27

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act of the State as a prerequisite for the crime to have been committed. In contrast, the crime of aggression does require an act of the State as a prerequisite. As explained earlier, an act of aggression is not a crime, and this structure of the definition of the crime of aggression may also be inferred from the definitions in the Charter of the International Military Tribunal (Nuremberg Tribunal) and the Statute of the International Military Tribunal for the Far East, as cited earlier. If the ‘crime against peace’ was about holding individuals criminally responsible for the act of the State (war of aggression), then the task of the prosecution at the Tokyo Tribunal was be to prove (1) that what Japan had carried out was a war (act) of aggression and (2) that each of the defendants was criminally responsible for the act. On the other hand, from the perspective of the defence, there were two points to refute: (1) that Japan’s actions did not constitute a war of aggression and (2) that each of the defendants was not responsible for the act. This has been examined in previous studies in Japan on the Tokyo Trials as an issue of defence of State versus defence of individuals. Through historical studies, it is now known that from the beginning, there was a conflict between the ‘defence of State’ school, which believed that the defence should focus on defending Japan’s actions, and the ‘defence of individuals’ school, which believed that the defence should focus on defending individuals, and any unified approach was never taken. In the actual trial, defence counsel Kiyose presented the idea of the defence of State in his opening Statement, and in the individual phase, Tojo Hideki presented a full-frontal defence of the State, while the counsels of most of the other defendants presented individual defences.31 From a legal point of view, however, the defence of State was crucial, since all 28 defendants had been charged with Counts 1–17 (common plan or conspiracy of aggressive war, and plans and preparation for war against another country).32 In other words, if Japan’s actions as a State did not constitute a war (act) of aggression, there could, in theory, be no individual criminal responsibility for the defendants, and the meaning of ‘defence of State’ is obvious. As the circumstances of the Tokyo Tribunal show, although it is theoretically important to establish the illegality (or non-illegality) of State action itself for the establishment of individual criminal responsibility, there is a practical impossibility when both are tried in the same courtroom. If two or more people involved in a major policy make conflicting claims, it will be difficult to establish the facts of what 31

For the details of how the Japanese defendants and their lawyers responded, see Higurashi, Ibid., pp. 129–194. 32 There were fifty-five counts contained in the indictment, Count 1–5: common plan or conspiracy, Counts 6–17: plans and preparations for war against another country, Counts 18–26: initiation of war, Counts 27–36: waging of war, Counts 37–38: common plan or conspiracy on murder, Counts 39–43: murders during the attack on Pearl Harbor and at the start of the Pacific War, Count 44: murder on a wide scale on land and at sea, Counts 45–50: slaughter of inhabitants during the Nanjing Incident and other atrocities, Count 51–52: murder of inhabitants in the Soviet Union-affiliated territories, Count 53: conspiracy regarding violation of laws or customs of war, Count 54: execution of such a conspiracy, Count 55: omission of oversight responsibility, and failing to prevent violation of the laws of war. For the charges and indictments, see Higurashi, Ibid., pp. 99–106.

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exactly happened, and the basis for asserting the legitimacy of the State’s actions will be lost. Moreover, the problem of the structure manifests itself in another way. In the case of the Ukrainian conflict, as explained earlier, since the ICC does not have jurisdiction over the crime of aggression committed by Russian nationals, another tribunal could be established, and there are now some concrete proposals for this on the table. If such a special tribunal were established, and if it used the definition in the Kampala amendments, it might well be expected that the prosecutors would have to prove with evidence that (1) there had been an act of aggression and (2) the defendants were responsible for that act of aggression. In reality, it is highly unlikely that the judges would declare that there had been no act of aggression. In fact, if the international community were so divided as to whether the State act before us was an act of aggression or not, it would be difficult to establish an international tribunal at all. In such a case, one might be forced to question the validity of requiring an act of aggression in order to establish the crime of aggression of the accused. This is just one example. Conducting a fair criminal trial for the crime of aggression requires effort to clarify a number of issues related to establishing, on the basis of evidence, the criminal responsibility of individuals for the act of aggression.

17.5 Conclusion As this article has shown, it took a great deal of time and negotiation after World War II to reach an international agreement on the crime of aggression and the act of aggression on which it is premised. The interpretation of the Kampala Amendments of the Rome Statute on the crime of aggression was controversial, not only before but also after its entry into force. Russia is a non-State party, and by the express terms of the Kampala Amendment, the ICC cannot punish Russian crimes of aggression. In response, there have been calls for amendments to the Kampala Amendment’s provisions. The argument, itself, may be correct in theory, but given the continuing disagreement over the scope of the ICC’s exercise of jurisdiction even over states parties, it will not be easy to obtain international agreement for the ICC to exercise jurisdiction over crime of aggression committed by non-States Parties. By approaching the question from the perspective of possibility, this article has illustrated the difficulties surrounding the crime of aggression, both in theory and in practice. Significantly, however, desirability becomes law when it is backed by political will, and the political will of the international community will determine whether the Russian leaders may be tried for the crime of aggression in any jurisdiction.33

33

Antonio Cassese, who contributed to the development of international criminal jurisdictions, once pointed out the importance of political will in establishing the International Tribunal for the Former Yugoslavia. Cassese (2004), p. 5.

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References Akande, Dapo, and Antonios Tzanakopoulos. 2018. Treaty law and ICC Jurisdiction over the Crime of Aggression. European Journal of International Law 29 (3): 939–959. Barriga, Stefan. 2009. Against the Odds: The Results of the Special Working Group on the Crime of Aggression, Barriga, Stefan, Danspeckgruber, Wolfgang. In The Princeton Process on the Crime of Aggression, ed. Christian Wenaweser, 1–20. The Liechtenstein Institute on Self-Determination at Princeton University. Barriga, Stefan. 2012. Negotiating the Amendments on the Crime of Aggression. Crime of Aggression Library: The Travaux Préparatoires of the Crime of Aggression, ed. Stefan Barriga, and Claus Kreß, 39. Oxford University Press. Brunnée, Jutta. 2020. Treaty Amendments. The Oxford Guide to Treaties, 2nd ed., ed. Duncan B. Hollis, 343–345. Oxford University Press. Cassese, Antonio, 2004. The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality. in Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia, eds. P. R. R. Casare, A. Nollkaemper, and J. K. Kleffner, 5. Oxford University Press. Cassese, Antonio. 2008. International Criminal Law, 2nd ed., 322. Oxford University Press. Clark, Roger, S., and Alexander Heinze. 2022. Article 121. In Rome Statute of the International Criminal Court: Article-by-Article Commentary, 4th ed., ed. Kai Ambos, 2878–2881. Verlag C.H. Beck. Coracini, Astrid Reisinger. 2008. Amended Most Serious Crimes: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court? Leiden Joural of International Law 21: 700–702. Eboe-Osuji, Chile. 2023. Letter to the Editor: On So-Called Selectivity and a Tribunal for Aggression Against Ukraine. Just Security. https://www.justsecurity.org/85060/letter-to-editor-on-socalled-selectivity-and-a-tribunal-for-aggression-in-ukraine/ Hafetz, Jonathan. 2018. Punishing Atrocities Through a Fair Trial-International Criminal Law from Nuremberg to the Age of Global Terrorism, 6–26. Cambridge University Press. Heller, Kevin Jon. 2022. Options for Prosecuting Russian Aggression Against Ukraine: A Critical Analysis. Journal of Genocide Research 6. https://doi.org/10.1080/14623528.2022.2095094. Higurashi, Yoshinobu. 2022. The Tokyo Trial: War Criminals and Japan’s Postwar International Relations, 195–224. Japan Publishing Industry Foundation for Culture. Ko, Keiko. 2011. Kokusaikeijisaibansho Kitei (The Statute of the International Criminal Court). In Henkaku ki no Kokusaihou Iinkai (International Law Commission in a Period of Transformation), ed. Shinya Murase, and Koji Tsuruoka, 509–528. Tokyo: Shinzansha. Ko, Keiko. 2013. The Tokyo Judgment on Crimes against Peace and the Crime of Aggression. Beiträge aus dem Symposium Japan and Germany – 150 Years of Cooperation Dynamics of Traditional Research Societies in a Rapidly Changing World, ed. Universität zu Köln Japanisches Kulturinstitut Köln, 81–101. Iudicium. Ko, Keiko. 2020. Kaiseikitei no mijudakukoku no kokusaikeijisaibannsho (ICC) ni taisuru kyoryokugimu (The scope of obligation to cooperate with the ICC of the State Party that has not accepted the amendments). Kokusaihoukenkyu 8: 44–45. Kress, Claus, and Leonie Von Holtzendorff. 2010. The Kampala Compromise on the Crime of Aggression. Journal of International Criminal Justice 8: 1194. May, Larry. 2008. Aggression and Crimes against Peace, 141–162. Cambridge University Press. Mikami, Masahiro. 2018. Shinryaku Hanzai ni kansuru Kokusaikeijisaibannsho (ICC) no Kankatsukenkoshi no Kaishikettei: Keii, Igi, Mondaiten- (The Decision on Activation of the International Criminal Court over the Crime of Aggression: Background, Significance, Problems), Kokusaihou Gaikou Zasshi (The Journal of International Law and Diplomacy) 117 (3): 66–90. Okampo, Moreno. 2023. Ending Selective Justice for the International Crime of Aggression. Just Security. https://www.justsecurity.org/84949/ending-selective-justice-for-the-intern ational-crime-of-aggression/.

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Schabas, William A. 2016. The International Criminal Court: A Commentary on the Rome Statute, 2nd ed., 1503. Oxford University Press Tejan-Col, Abdul. 2009. A Big Man in a Small Cell: Charles Taylor and the Special Court for Sierra Leone. In Prosecuting Heads of State, ed. Ellen L. Lutz, and Caitlin Reiger, 205–232. Cambridge University Press. Watts, Arthur. 1999. The International Law Commission 1948–1998, vol. III, 1658–1668. Oxford University Press. Wolfrum, R., and J. Pichon. 2012. Consensus. The Max Planck Encyclopedia of Public International Law, vol. II, ed. R. Wolfrum, 673–678. Oxford University Press.

Keiko Ko is Professor of International Law at Nanzan University and Professor Emeritus at Mie University, Japan. She has been teaching and researching in the area of the public international law, and international criminal law and international human rights in particular, for more than twenty years. Professor Ko was a member of the Japanese delegation to the Assembly of the States Parties to the ICC (2007–2009) and served the UN Committee on the Elimination of Racial Discrimination (2018–2022). Professor Ko received her LLB and LLM degrees from Sophia University, Japan.

Chapter 18

Ukraine Situation and Its Relationship to the Principle of Complementarity Hitomi Takemura

18.1 Introduction Russia’s special military operation against Ukraine, which began in February 2022, raised not only the issue of jus ad bellum but also the issue of jus in bello and, in particular, the issue of the exercise of jurisdiction by States, the ICC, and proposed specially established tribunals over crime of aggression, war crimes, genocide, and crimes against humanity. The juxtaposition of multiple national and international jurisdictions that arose in the 2022 Ukraine conflict provides an important opportunity to re-examine the nature of the ICC’s complementarity principle. While preambular paragraph 10 and Article 1 of the Rome Statute express the principle of complementarity, i.e. that the jurisdiction of the ICC is complementary to national criminal jurisdictions, the actual development of the complementarity principle at the ICC will depend on how the ICC exercises its jurisdiction over the crimes under its jurisdiction and the ICC prosecutor’s prosecution strategy. Article 17 of the Statute suggests that a case becomes admissible in the ICC when the State has neither the intention nor the ability to investigate and prosecute. However, Article 17 has been interpreted in favour of the ICC as only admissible if the same person does not commit the same acts, and the supremacy of national jurisdiction over ICC jurisdiction is not self-evident. Alongside the narrow interpretation of positive complementarity by the ICC, to operate efficiently with scarce resources, the ICC Office of the Prosecutor has, since the time of the first Chief Prosecutor, adopted the principle of positive complementarity in its prosecutorial strategy to encourage States to actively exercise their jurisdiction ahead of the ICC. This paper first closely examines the relationship between Ukraine and the Statute of the ICC from the perspective of complementarity and then considers the impact of the Russian–Ukrainian conflict in 2022 on the principle of complementarity. As of the end of 2022, there has been a move by the international community to establish H. Takemura (B) Faculty of Law, Hitotsubashi University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_18

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a Special International Tribunal on Crimes of Aggression, and this paper examines how this court, national jurisdiction, and the ICC are related. Finally, this paper summarises the pros and cons of how the principle of complementarity works in the Ukrainian situation. Before considering the above issues, this paper briefly examines the issues of Ukraine’s constitution and how Ukraine, as a Non-State Party, began to interact with the ICC.

18.2 Ukraine and the Rome Statute 18.2.1 Ukraine’s Acceptance of ICC Jurisdiction Neither Ukraine nor Russia is a State Party to the Rome Statute. On 20 January 2000, Ukraine signed the Rome Statute, while Russia signed it on 13 September 2000, as well as bylaw № 361-rp ‘On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court’1 issued by the Russian President on 16 November 2016. Under the Rome Statute, the ICC may exercise its jurisdiction over the crimes committed in the territory of a Non-State Party, as in the Ukraine–Russia situation, only when the situation is referred to the ICC by the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations (Article 13 (b) of the Rome Statute), or when the Non-State Party accepts the exercise of jurisdiction by the Court with respect to the crime in question by a declaration lodged with the Registrar (Article 12(3) of the Rome Statute). Ukraine has twice lodged a declaration to accept the Court’s jurisdiction over alleged crimes occurring on its territory under the Rome Statute, pursuant to Article 12(3) of the Statute. On 9 April 2014, the government of Ukraine lodged a declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction of the Court over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014.2 The first declaration was obviously intended to cover the crime committed in relation to the Maidan protests and their aftermath.3 On 8 September 2015, Ukraine lodged a second declaration to the Registrar of the ICC accepting the exercise of jurisdiction of the ICC in relation to alleged crimes committed on its territory from 20 February 2014 onwards without a time limit and in an open-ended manner.4 The second declaration was meant to cover the aftermath of the occupation of Crimea and the outbreak of Russia’s military operations in eastern Ukraine.5 Of course, Ukraine accepted the jurisdiction of the ICC only for those crimes committed by the

1

Decree of the President of the Russian Federation (2016). Declaration by Ukraine lodged under article 12(3) of the Rome Statute (2014). 3 Marchuk and Wanigasuriya (2022). 4 Declaration by Ukraine lodged under Article 12(3) of the Rome Statute (2015). 5 Marchuk and Wanigasuriya (2022). 2

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Ianukovych regime and Russia.6 After the second declaration, the Donetsk lawyers in particular relied so heavily on the ICC that they sent 1.5 kg of documents to the ICC prosecutor’s office every month.7 In parallel, investigations and prosecutions related to the Maidan Revolution were conducted in Ukraine. The Office of the United Nations High Commissioner for Human Rights reported that the deaths of 80 individuals and 13 law enforcement officers were investigated by the Department for Special Investigations of the Office of the Prosecutor General.8 The same office reported that since June 2014, the Office of the Chief Military Prosecutor has been conducting investigations into alleged cases of killing, torture, and ill-treatment of Ukrainian soldiers and civilians by members of the armed groups of the ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’.9 Ukraine’s cursory cooperation with the ICC at the time may have resulted from external pressure from the European Union (EU). The relationship between the EU and Ukraine has been governed by ‘a regime of cooperation and partnership’ without integration of Ukraine into the EU.10 On 16 September 2014, the European Parliament and the Parliament of Ukraine ratified the Association Agreement.11 The Agreement finally entered into force on 1 September 2017. Its Article 8, titled ‘International Criminal Court’, states that ‘[t]he Parties shall cooperate in promoting peace and international justice by ratifying and implementing the Rome Statute of the International Criminal Court (ICC) of 1998 and its related instruments’. Nevertheless, Ukraine’s non-membership in the ICC may reflect Ukraine’s intention to use the ICC while maintaining a certain distance from it. It has been speculated that the above-mentioned Ukrainian investigation of crimes that occurred in the Donbas region in parallel with the ICC may have been intended to prevent ICC intervention in crimes committed by the Ukrainian military by demonstrating to the ICC Ukraine’s willingness and ability to conduct its own criminal investigation and prosecution.12 Moreover, parliamentary debates and public speeches by members of the government have shown that there appears to be a widespread belief that Ukraine can challenge the admissibility of ICC investigations and invoke the principle of complementarity under conditions of self-referral,13 although self-referral usually implies the deference of domestic jurisdiction to the ICC’s rather than competitive jurisdictional relationships between the domestic and ICC jurisdictions, as illustrated below in relation to the prosecutorial policy of so-called positive complementarity.

6

Matsuzato (2022), p. 63. Ibid. 8 The Office of the United Nations High Commissioner for Human Rights (2016), p. 9, para. 20. 9 Ibid., p. 13, para. 40. 10 Spiliopoulos (2014), p. 256. 11 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (2014), pp. 3–2137. 12 Lyubashenko (2019), p. 159. 13 Ibid. 7

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18.2.2 Constitutionality of the Rome Statute in Ukraine In 2001, the then Ukrainian President Leonid Kuchma consulted the Constitutional Court of Ukraine concerning the unconstitutionality of the Statute of the ICC.14 The President’s submission of the unconstitutionality of the Rome Statute enumerated the principle of complementarity, the provisions on immunities, surrender of nationals, and enforcement of prison sentences, and the constitutional provisions of the power of Ukraine’s prosecution office, the exercise of power by the Ukrainian people directly or through an elected agent, and the legislative competence of the Ukrainian parliament.15 Nonetheless, the Ministry of Foreign Affairs of Ukraine considered the Rome Statute constitutional at that time.16 While the Constitutional Court found many of those provisions to be constitutional, it also considered the complementarity principle of preambular paragraph 10 and Article 1 of the Rome Statute to be unconstitutional in light of the then Article 124 of the Constitution, which restricted judicial power to the Ukrainian courts and prohibited delegation of the judicial function.17 In 2016, the provision stating ‘Ukraine may recognise the jurisdiction of the International Criminal Court subject to the conditions determined by the Rome Statute of the International Criminal Court’ was added to Article 124 of the Constitution.18 Even though the amendment to Article 124 avoided the issue of the conflict between the ICC’s complementarity principle and the Ukrainian Constitution, another issue became evident: whether the international community could establish a special tribunal to try the crime of aggression following the Russian military invasion of Ukraine in 2022, since Article 125 of the Ukrainian Constitution prohibits the establishment of extraordinary and special courts.19 Nonetheless, it is claimed that ‘the consensus among legal jurists in Ukraine is that Article 125 sets up a prohibition on creating special and extraordinary courts within the system of courts in Ukraine and does not place a limit on international judicial institutions’.20 While the crime of aggression is one of the crimes over which the ICC may exercise jurisdiction, the jurisdictional conditions for the ICC over the crime of aggression are significantly different from those of the other crimes under Article 5 of the Rome Statute. The Rome Conference, which drafted the Rome Statute of the ICC, was not able to agree on the definition and the jurisdictional conditions of the crime of aggression in 1998. The Kampala Review Conference of the Rome Statute finally adopted the Kampala amendments of the Rome Statute, which set out the definition and the jurisdictional conditions of the crime of aggression. In accordance with the Rome Statute and the Kampala amendments, only a State Party to the 14

Marchuk (2016), p. 326. Ibid., pp. 326–327. 16 Ibid., p. 326. 17 The International Committee of the Red Cross (2010), p. 11; Komarov and Hathaway (2022). 18 Ibid. 19 Ibid. 20 Ibid. 15

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Rome Statute may ratify the Kampala amendments and accept the ICC’s jurisdiction over the crime of aggression in its own territory. Moreover, Article 15bis(5) of the Kampala amendment, which stipulates that ‘[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’, prevents the ICC from exercising its jurisdiction over the alleged Russian aggression. The ICC’s Chief Prosecutor was also quick to state on 25 February 2022 that the ICC has no jurisdiction over the crime of aggression.21

18.3 Positive Complementarity and the Ukraine Situation 18.3.1 Positive, Passive, and Radical Complementarity The situation of Ukraine was the first State Party referral by a majority group of States to the ICC.22 Actually, this was the second occasion of a situation of another State – in this case, a Non-State Party accepting the ICC jurisdiction – being referred to the Office of the Prosecutor by the coalition of States Parties. The first occasion was a Venezuelan situation referred to the ICC by Argentina, Canada, Chile, Colombia, Paraguay, and Peru.23 Since the Office of the Prosecutor of the ICC began operating, the ICC has concentrated on self-referred African cases as a result of the ICC’s Office of the Prosecutor’s positive complementarity prosecution strategy. While the drafters of the Rome Statute contemplated ‘a relationship of tension between national systems and the Court’ by providing the complementarity principle in the Statute, the Office of the Prosecutor has interpreted the principle of complementarity as positive complementarity, which is one of the key four principles governing the prosecutorial strategy of the Office of the Prosecutor in addition to focused investigations and prosecutions, addressing the interests of victims, and maximising the impact of the Office of the Prosecutor’s work.24 Accordingly, positive complementarity is a prosecutorial policy rather than a statutory requirement of the Rome Statute, although Article 93(10) stipulating the cooperation of the ICC with States, as opposed to the cooperation of States with the ICC, is referred to as a legal basis for positive complementarity.25 The Office of the Prosecutor defines positive complementarity as an approach by which ‘the Office will encourage genuine national proceedings where possible, including in situation countries, relying on its various networks of cooperation,

21

International Criminal Court News (2022a). International Criminal Court News (2022b). 23 Ortiz (2018). 24 The Office of the Prosecutor of the International Criminal Court (2010), p. 4, para. 15. 25 Ocampo (2011), p. 23. 22

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but without involving the Office directly in capacity building or financial or technical assistance’.26 Thus, whereas the original idea of complementarity, i.e. passive complementarity, was ‘a preference for, or deference to, domestic prosecutions over prosecutions conducted in international tribunals’,27 positive complementarity suggests a ‘friendly deference to the Court’ by one of the cooperative States Parties.28 Therefore, according to the concept of passive complementarity, if Ukraine is willing to proceed with domestic investigation of alleged crimes under the ICC’s jurisdiction, then the ICC defers its jurisdiction to the Ukrainian authorities. Unless investigation and prosecution in Ukraine are feasible, the ICC should have no more room to begin its own investigation into the situation in Ukraine. Thus, passive complementarity is the concept that ‘the ICC would step in to undertake its own prosecutions only where national governments fail to prosecute and where the ICC has jurisdiction’ and suggests that the ICC is merely a substitute for national jurisdiction.29 However, under positive complementarity, the cooperation between the ICC and Ukraine and the investigation and prosecution of crimes under ICC jurisdiction by Ukrainian authorities are evaluated positively as part of the function of complementarity. The practice of positive complementarity has resulted in a number of self-referrals by African States Parties and the investigations and prosecutions of rebel groups in these countries. The concerned States did not cooperate with the Office of the Prosecutor of the ICC and were not threatened by the investigations by the Office of the Prosecutor. Therefore, positive complementarity did not become an immediate threat to the States but rather made them more secure, in exchange for total cooperation with the ICC. As a result, even the United States, which remains a non-member of the ICC, ‘has actively supported “positive complementarity”’.30 As a result of the adoption of the principle of positive complementarity of the ICC by the ICC’s Office of the Prosecutor, the admissibility of cases is almost never contested when the State is self-referring, and the admissibility review is becoming a mere facade. For instance, when the ICC’s Office of the Prosecutor requested an arrest warrant for Mr. Lubanga Dyilo, the ICC’s first accused and first convicted war criminal, he was detained in Kinshasa, Congo and charged with several offences, including genocide and crimes against humanity.31 However, the Pre-Trial Chamber clarified that for a case arising from the investigation of a situation to be inadmissible before the ICC, national proceedings must encompass both the person and the conduct which is the subject of the case before the Court.32 The Office of the Prosecutor of the ICC tried to issue an arrest warrant for Mr. Lubanga on the charge of the war crimes of recruiting, conscripting, and enlisting child soldiers, instead of genocide or crimes

26

The Office of the Prosecutor of the International Criminal Court (2010), p. 5, para. 17. McHenry (2011), p. 157. 28 Schabas (2011), p. 164. 29 Burke-White (2008), p. 56. 30 McHenry (2011), p. 158. 31 The Prosecutor v. Thomas Lubanga Dyilo (2006), p. 22, para. 36. See De Vos (2020), p. 71. 32 Ibid (Lubanga) p. 23, para. 37. 27

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against humanity. The Chamber found that the case was admissible.33 Hence, in practice, ICC complementarity has been examined by the ICC as an admissibility test under Article 17 of the Rome Statute, which suggests that a case becomes admissible before the ICC when the state has neither the intention nor the ability to investigate and prosecute, and admissibility has been interpreted rather flexibly by the ICC. According to the Appeals Chamber of the ICC, no admissibility challenge may succeed unless the State takes investigative steps in relation to the same suspect the ICC is currently investigating.34 The admissibility test adopted by the jurisprudence of the ICC is now known as the ‘same person, same conduct’ test35 or the even less demanding ‘same person, substantially same conduct’ test.36 To break the cosy and dubious ties between the ICC and the parties to the conflict, radical complementarity – getting rid of the same person, same conduct test – has been advocated. Radical complementarity is the idea that as long as a State is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible, regardless of the conduct the State investigates or the prosecutorial strategy the State pursues.37 The radical approach to complementarity is considered by its proponents to be the best option for breaking through the complementarity crisis that has resulted in the workload increasing relative to the scarcity of resources. According to this understanding of the principle of complementarity, the Ukraine situation would be inadmissible because quite a few States, including Ukraine itself, are currently engaged in genuine efforts to bring suspects to justice, although partiality of the investigations may still be at issue. However, as the situation in Ukraine is an international armed conflict, which has produced large-scale perpetrators and victims, it seems undeniable that the ICC’s involvement in parallel with State investigation and prosecution may be justified with the principle of complementarity. Above all, the situation in Ukraine can be considered a case of positive complementarity that works well and is highly esteemed because no researcher or State has criticised the parallel between Ukraine, the rest of the world, and the ICC’s investigation and prosecution in the face of classical inter-State war casualties broadcasted by mass media or social networking service. The cooperative relationship and domestic empowerment that resulted from the prosecutorial policy of positive complementarity had so far been embodied only as soft means, such as ‘expert knowledge, expert-level meetings, organising trainings and seminars, or participation in investigative efforts with other actors (including Europol)’.38 The positive complementarity of the ICC’s Office of the Prosecutor would be a beneficial rather than harmful policy for States Parties if it were achieved through soft means and provided that the investigation

33

Ibid (Lubanga) p. 37, para. 75. The Prosecutor v. Francis Kirimi Muthaura et al. (2011), p. 15, para. 40. 35 The Prosecutor v. Germain Katanga (2007) p. 9, para. 20. 36 The Prosecutor v. Francis Kirimi Muthaura et al. (2011), pp. 3, 14, paras. 1, 39; the Office of the Prosecutor of the International Criminal Court (2016), p. 11, paras. 30–31. 37 Heller (2016), p. 640. 38 Wierczynska (2022), pp. 259–285, p. 267. 34

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and prosecution relied on the evidence submitted by States. Positive complementarity has apparently been maintained by the third and current Chief Prosecutor, Mr. Karim A. A. Khan, as a prosecutorial policy, because he referred to Colombia as ‘an example of positive complementarity in action’ when he decided to close a preliminary examination of the situation in Colombia and concluded a cooperation agreement with the Colombian government.39 Close cooperation with States based on positive complementarity facilitates the ICC’s functioning well in international politics40 while conveying the reliance of the ICC Prosecutor’s Office on evidence submitted by the government, which can be detrimental to impartiality.41 Although the merits and demerits of this positive complementarity are debated, its role in closing the impunity gap for core crimes should not be underestimated. Therefore, the issue of positive complementarity in the current situation in Ukraine is also an issue from the perspective of impartiality and the balance between politics and law.

18.3.2 First Arrest Warrants for the Ukrainian Situation by the ICC and Positive Complementarity Public attention has focused on what prosecution strategy the third ICC chief prosecutor will adopt with regard to the situation in Ukraine. On 17 March 2023, the Pre-Trial Chamber II of the ICC issued two arrest warrants in the context of the situation in Ukraine for Mr. Vladimir Vladimirovich Putin and Ms. Maria Alekseyevna Lvova-Belova.42 Although details of the decision to authorise the arrest warrants were unavailable as of the end of March 2023, the following information was obtained from the ICC’s website. The Pre-Trial Chamber II concluded, in accordance with the Prosecution’s applications of 22 February 2023, that there were reasonable grounds to believe that each suspect bears responsibility for the war crimes of unlawful deportation of population and unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children, under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute, respectively.43 With respect to President Putin, the Pre-Trial Chamber II considered that there are reasonable grounds to believe that he bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others, and/or through others (Article 25(3)(a) of the Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (Article 28(b) of 39

Press Release of the International Criminal Court (2021). Soares (2013), p. 337. 41 Ibid., p. 329. 42 Press Release of the International Criminal Court (2023a). 43 Ibid. 40

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the Statute).44 With respect to Ms. Lvova-Belova, the Chamber concluded that there are reasonable grounds to believe that she bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (Article 25(3)(a) of the Statute).45 The issuance of these historic arrest warrants will mark at least two new milestones. The first is that this is the first arrest warrant issued by the ICC against an individual who is a national of one of the permanent members of the UN Security Council. It is the third arrest warrant issued by the ICC against a Head of State, following those against Sudan’s Al Bashir and Libya’s Muammar Gaddafi.46 Arrest warrants issued against individuals belonging to one of the States of the Security Council’s five permanent members (P5) will be meaningful to countries in the Global South that have felt that the ICC unfairly targets the weak. At the same time, this is expected to mean no more Security Council referrals to the ICC for the foreseeable future.47 Second, this is the first case in which a civilian superior or political leader has been called to account for the crimes of his subordinates under Article 28(b) of the Statute.48 In terms of the ICC’s principle of complementarity, perhaps especially in light of the positive approach to complementarity which requires a coordinated approach to the prosecution of crimes,49 a two-tiered policy to combat impunity has been advanced by the Office of the Prosecutor of the ICC, most likely in coordination with the domestic authorities. This is characterised as ‘a two-tiered policy’ to fill the impunity gap.50 As a matter of principle, the ICC’s Office of the Prosecutor focuses on ‘the most responsible following the evidence that it can obtain from its independent investigations’.51 Then, national authorities are expected or encouraged to investigate and prosecute the lower perpetrators by the ICC’s Office of the Prosecutor.52 This is the downward approach of the prosecutorial policy by the ICC’s Office of the Prosecutor. Even though this is the principle, the Office of the Prosecutor openly announces that it might adopt an upward strategy if necessary.53 The building-upward prosecutorial strategy is to focus ‘on mid-level or notorious perpetrators first, with the aim of reaching the level of the most responsible persons at a later stage’.54 However, the Office is aware of the following possible repercussions of adopting this building-upward strategy: ‘It also risks creating a temporary misperception that the Office is targeting only low-level perpetrators, even though the goal 44

Ibid. Ibid. 46 Kersten (2023). 47 Ibid. 48 Vasiliev (2023). 49 Donlon (2011), p. 920. 50 The Office of the Prosecutor of the International Criminal Court (2003), p. 3. 51 The Office of the Prosecutor of the International Criminal Court (2019), p. 19, para. 24. 52 The Office of the Prosecutor of the International Criminal Court (2003), p. 3. 53 The Office of the Prosecutor of the International Criminal Court (2019), p. 9, para. 5(a). 54 Ibid., p. 19, para. 24. 45

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of the Office remains to prosecute the most responsible either directly or through a building upwards strategy’.55 Still, the Office considers the benefits to outweigh these concerns.56 In any case, with respect to the Ukrainian situation, ICC Chief Prosecutor Khan seems to have adopted a downward strategy whereby the principle of coordination in the best interests of litigation economies based on positive complementarity must be at work. While Ukraine is already investigating and prosecuting a Russian national for its recent war crimes, it is difficult to prosecute foreign Heads of State, as they are granted immunity under international law.57 Thus, as the first ICC prosecutor stated, the ICC needs to prevent an impunity gap against the Russian Head of State.58 Nevertheless, the ICC is only allowed to exercise limited jurisdiction over the crime of aggression for which it is responsible for starting the war, which forces it to investigate and prosecute other crimes in this case. Thus, it can be said that the ICC chief prosecutor had no other option but to prosecute Putin for war crimes, crimes against humanity, or genocide, but since genocide is difficult to prove, the first two could be the only candidates for a charge among the crimes under the ICC’s jurisdiction. The arrest warrant for President Putin will re-emphasise the significance of the ICC’s existence, as it will change the trajectory of positive complementarity to its original downward course. However, if, like former Sudanese President Al Bashir, he is not transferred to the ICC, it would be a double-edged sword that threatens the raison d’être of the ICC in the opposite direction.

18.4 Ukraine and Positive Complementarity 18.4.1 Investigation and Prosecution by Ukraine The three elements of positive complementarity – (i) encouraging genuine national proceedings where possible, (ii) relying on national and international networks, and (iii) participating in a system of international cooperation – are described in the Report of the Office of the Prosecutor on the activities performed during the first three years.59 Thus, the first question is whether the ICC’s Office of the Prosecutor encourages genuine investigation and prosecution of the Ukrainian situation by the States Parties. At the same time, there is a question as to whether Ukraine and other States Parties are conducting genuine investigations and prosecutions. For the ICC Chief Prosecutor to encourage States Parties to conduct genuine investigations and prosecutions, the Prosecutor is expected to encourage States Parties or States 55

Ibid., p. 20, para. 24. Ibid. 57 Ocampo (2023). 58 Ibid. 59 The Office of the Prosecutor (2006), pp. 22–23, para. 58. 56

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accepting the Court’s jurisdiction to enact effective legislation of the Rome Statute to give their authorities the necessary tools to end impunity.60 How then can their relationship to the situation in Ukraine and positive complementarity be assessed? It is not easy to deny the suspicion that self-referral to the ICC and acceptance of the ICC’s jurisdiction are related to the political intentions of the State making the referral and may undermine the ICC’s impartiality in the first place. Although the Ukrainian situation is a Non-State Party situation, as noted above, Ukraine made an open-ended declaration of acceptance of the jurisdiction of the ICC under Article 12(3) of the Statute, and based on that declaration, the other Parties referred the Ukrainian situation to the ICC. The States Parties that referred the situation in Ukraine to the ICC cited Article 13(a) of the Statute and Article 14(1).61 Under both provisions, a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed and request that the Prosecutor begin a preliminary examination of the situation.62 If there has been no referral of the situation by any State Party, the Prosecutor has to obtain authorisation from the Pre-Trial Chamber to initiate the investigation in accordance with Article 15(3) of the Rome Statute, and it will take much longer to decide to initiate the investigation. Because of the unprecedented referrals of more than forty States Parties, Chief Prosecutor Khan was able to immediately proceed with active investigations into the situation in Ukraine on 2 March 2022.63 Prior to this opening of the investigation of the Ukraine situation, the former Chief Prosecutor Fatou Bensouda concluded on 11 December 2020 that there was a reasonable basis to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court had been committed in the context of the situation in Ukraine, and she counted on the full support of the Ukrainian authorities.64 However, there had been no movement on the application for authorisation by the ICC Prosecutor’s Office to open an investigation until the start of Russia’s special military operation against Ukraine in February 2022. The Russian special military operation of February 2022 was started in this climate. Ukraine’s acceptance of ICC jurisdiction without ratifying the Rome Statute means that Ukraine maintains a certain degree of distance from the ICC. The following reasons have been speculated as to why Ukraine has not ratified the Rome 60

Hall (2009), p. 220. See also Donlon (2011), p. 939. Referral letter submitted in coordination with 38 States Parties (2022). 62 Article 13 (Exercise of Jurisdiction) of the Rome Statute (1998) stipulates: ‘The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14’. Article 14 of the Statute (referral of a situation by a State Party) provides that ‘(1) A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes’. 63 International Criminal Court News (2022b). 64 International Criminal Court News (2020). 61

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Statute. First, in recent years, States no longer feel a long-term interest in joining universal treaties and tend to avoid entering into multilateral treaties, and Ukraine is said to be a typical example of this trend.65 Second, it has been suggested that the reason Ukraine has not ratified the Rome Statute is that it is assessing the functioning of the ICC. While the first declaration of acceptance of jurisdiction by Ukraine was a time-constrained measure that spared no time to ratify the Statute, the second declaration was a standoff measure to observe and evaluate the functioning of the ICC.66 The third reason is that, depending on the position of the ICC’s adversaries, Ukraine’s failure to ratify the Rome Statute could make it easier to distance itself from the ICC by declaring Ukraine’s declaration of acceptance of jurisdiction unconstitutional because it was made before the constitutional amendments were made, or by withdrawing the declaration.67 After all, it is pointed out that ‘Ukraine uses the ICC as leverage in pursuit of its national security and military interests’ and Ukrainian ‘cooperation with the ICC without ratification of its constitutive instrument leaves more room for manoeuvre, and, for the time being, maximises the Ukrainian government’s control over prospective investigations and prosecutions in The Hague’.68 Ukraine’s legislation for the core crimes, i.e. crimes against humanity, war crimes, genocide, and aggression, has not been fully accomplished. Although bill № 2689, titled ‘On Amendments to Certain Legislative Acts on the Enforcement of International Criminal and Humanitarian Law’, was adopted by the Verkhovna Rada, Ukraine’s parliament, on 20 May 2021, it has never been signed into law by the President. Ukraine established the specialised ‘Department for Supervision in Criminal Proceedings of the Crimes Committed in Armed Conflict’ in October 2019, and the law further empowered the authority to investigate and prosecute the crimes in the armed conflict. Nonetheless, until the full-scale armed conflict between Russia and Ukraine beginning in 2022, only three verdicts had been delivered in 397 criminal proceedings under Article 438 of the Criminal Code of Ukraine (violations of the laws and customs of war).69 Under these circumstances, it has been pointed out that it would be in Ukraine’s best interest to fight against war crimes if the ICC’s Office of the Prosecutor were to take the lead in criminal investigations in Ukraine by initiating investigations of the situation in Ukraine ahead of Ukraine’s own.70 On 25 May 2022, the EU, the United States, and the United Kingdom announced the establishment of the Atrocity Crimes Advisory Group (ACA).71 This is ‘a mechanism aimed at ensuring efficient coordination of their respective support to accountability efforts on the ground’.72 It helps the Office of the Prosecutor General of Ukraine. The State Department of the United States provided $10 million by January 65

Masol (2022), p. 187. Ibid. 67 Ibid., pp. 187–189. 68 Ibid., p. 190. 69 Marchuk (2022), p. 789. 70 Wierczynska (2022), p. 273. 71 US Department of State (2022). 72 Ibid. 66

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2023 for the Office of the Prosecutor General of Ukraine to document, preserve, and analyse evidence of war crimes and other atrocities committed in Ukraine, with a view to criminal prosecutions,73 and the United Kingdom has funded a £2.5 million aid package, including training for over 90 Ukrainian judges, deployment of mobile justice teams to sites of potential war crimes, forensic evidence collection, and support from UK sexual violence in conflict experts.74 By 29 January 2023, 86 individuals had reportedly been indicted by the Ukrainian office of the Prosecutor General, and it is believed that the vast majority of those 86 suspects indicted were to be tried in absentia.75 The first Russian soldier convicted by a Ukrainian court of a war crime since the beginning of Russia’s Special Military Operations against Ukraine in February 2022 was Sgt. Vadim Shishimarin, a 21-yearold Russian. He was convicted by the Ukrainian authority of having killed an unarmed 62-year-old civilian riding on a bicycle in the Ukrainian village of Chupakhivka.76 He was sentenced to life in prison by the Solomyansky District Court.77 On 20 July 2022, the Kyiv Court of Appeals reduced his sentence to 15 years in prison.78 The reason given for the reduction in the sentence was that there were no aggravating circumstances in the form of conspiracy to commit murder or intent to commit a crime against an elderly person justifying a life sentence.79 The eventual commutation of the life sentence could be seen as a sign of fairness in Ukraine’s proceedings, which would be favourable to the ICC’s principle of complementarity. The second war crimes verdict for Russian soldiers was handed down on Alexander Bobikin and Alexander Ivanov, an artillery driver and a gunner, who had pleaded guilty to shelling a town in eastern Ukraine. The Kotelevska district court in central Ukraine sentenced the two to 11.5 years in prison for shelling a town in the country’s northeast during the war.80 They were junior to Shishimarin, and their unit’s rocket fire resulted in damaging or destroying several civilian buildings but did not cause any physical injuries to persons.81 However, it is not sufficiently clear which rule of international humanitarian law was violated, and questions have been raised about the fact that they were sentenced to 11.5 years in prison, close to the maximum penalty of 12 years, even though they had expressed remorse and had surrendered themselves.82 These three – Shishimarin, Bobikin and Ivanov – were charged with violating the rules of warfare under Part 1 of Article 438 of the Ukrainian Criminal Code, which prohibits ‘[c]ruel treatment of prisoners of war or civilians, deportation of civilian population for forced labor, pillage of national treasures on occupied territories, use of methods 73

Office of the Spokesperson of US Department of State (2023). Government of the UK (2023b). 75 Sly (2023). 76 See Vasiliev (2022). 77 Pietsch et al. (2022). 78 Bilefsky (2022). 79 Nuridzhanian (2022). 80 Hopkins (2022). 81 Jenks (2022b). 82 Ibid. 74

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of warfare prohibited by international instruments, or any other violations of rules of warfare recognised by international instruments consented to as binding by the Parliament of Ukraine, and also giving an order to commit any such actions’.83 However, which rule of warfare was violated by each of the three of them was not specified by the Attorney General’s Office of Ukraine.84 Thus, from the perspective of individual criminal responsibility under international criminal law, the opacity of the judgments of the Ukrainian prosecutors and courts casts a shadow over the legitimacy of Ukraine’s judiciary. In terms of complementarity with the ICC, Ukraine’s domestic criminal justice system is required to meet higher standards of human rights and transparency in trials than in the past.

18.4.2 Investigation and Prosecution by Russia The ICCs principle of complementarity is expected to encourage investigations and prosecutions in Ukraine and Russia, and optimistically, investigations of aggression crimes in Russia are expected. Of course, Russia is not a signatory to the ICC, so it is not surprising that it does not care about the ICC’s principle of complementarity. However, it is hard to deny that the ICC’s investigation of the situation in Ukraine will bring psychological pressure to bear on Russia that its citizens could be investigated and prosecuted by the ICC. One of the crimes expected to be investigated and prosecuted by Russia against its own citizens is the crime of ‘Planning, Preparing, Unleashing, or Waging on Aggressive War’, as defined in Article 353 of the Russian Criminal Code.85 Of course, it is difficult to imagine a move to prosecute Russian aggression in Russia under the current circumstances, but it is pointed out that it is not impossible, considering the 2001 arrest of Yugoslav President Milosevic, which was unimaginable in 1995.86

18.4.3 Investigation and Prosecution by Other States According to a statement by the President of the European Union Agency for Criminal Justice Cooperation (Eurojust), Mr. Ladislav Khamran, 21 countries are currently investigating Russian war crimes in Ukraine as of January 2023.87 Of the 21 countries, 14 are EU member countries, four are non-EU European countries, and the remaining three are the United States, Canada, and the United Kingdom.88 In March 2023, an 83

Jenks (2022a). Ibid.; see also Jenks (2022b). 85 Russian Penal Code No. 63-FZ (1996, amended 2022). 86 Kerr (2022). 87 Ukrgate (2023). 88 Ibid. 84

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international meeting of justice ministers from around the world, co-hosted by the UK Deputy Prime Minister and the Dutch Minister of Justice and Security, was held in London. The meeting was purported ‘to increase the global financial and practical support being offered to the ICC and coordinate efforts to ensure it has all it needs to carry out investigations and prosecute those responsible’.89 Germany began its investigation in Ukraine in early March 2022 and has been gathering evidence, mainly through interrogation of Ukrainian refugees. As of February 2023, it was still collecting evidence and had not identified any suspects.90 German prosecutors have indicated that prosecution is possible in Germany if the leaders of war crimes reside in Germany, but the prosecution of crimes of aggression also depends on whether the international community requires the establishment of a special tribunal.91 The question of the possibility of the exercise of jurisdiction by the third State over war crimes in Ukraine must rest with the presence of possible suspects in the third State because the four Geneva Conventions of 1949 – Articles 49, 50, 129 and 146 respectively – are interpreted by the International Committee of the Red Cross (ICRC) as providing for mandatory universal jurisdiction.92 To wit, the possibility of prosecution of war crimes on Ukrainian territory in third countries depends on the custody of suspects, which may depend on deserters from the Russian army and refugees from Ukraine who happen to enter third countries and on their involvement in the crimes.

18.5 Complementing the ICC’s Jurisdiction Over the Crime of Aggression 18.5.1 Special Tribunal for Ukraine and Complementarity When the Statute of the ICC was drafted in Rome, the drafters could not agree on the definition of the crime of aggression and the conditions for exercising jurisdiction. The 2010 Kampala amendments to the Statute allow the ICC to exercise jurisdiction only over crimes of aggression committed by a State Party unless the situation has been referred to by the Security Council. Article 15bis(5) stipulates that ‘[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’. Both the aggressor State and victim State must be States Parties to the Rome Statute. Moreover, technically speaking, Ukraine, as a Non-State Party to the Rome Statute, is not able to ratify the Kampala amendment of the Rome Statute. The 89

Government of the UK (2023a). Jungholt and Schuster (2023). 91 Ibid. 92 The International Committee of the Red Cross (2014), p. 1. 90

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remaining options are the prosecution of the crime of aggression by Ukraine, the prosecution of the crime of aggression by a country other than Ukraine, amendment of the ICC Statute, or the establishment of an ex post facto special court for the prosecution of the crime of aggression by Russia. The establishment of an ad hoc tribunal based on UNSC resolutions, such as the ICTY or ICTR, could be rejected by a veto because Russia is a party to the conflict this time.93 Therefore, the EU promoted the establishment of a special tribunal to investigate and prosecute crimes of aggression against Ukraine.94 The idea of a special tribunal was quickly endorsed by France.95 The UK96 and the researcher97 propose a hybrid tribunal which would enable domestic prosecution of the crime of aggression with the help of the international society, most likely as in the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC), even though the Ukrainian Constitution prohibits the establishment of extraordinary and special courts in Ukraine, as elaborated above.98 The premise is that the ICC’s complementarity principle is said to apply to the crime of aggression as clearly as it applies to other crimes under the ICC’s jurisdiction.99 The real question is whether the complementarity principle contemplates that the ICC’s jurisdiction is supplemented by the jurisdiction of international criminal tribunals other than national jurisdictions. The preambular paragraph 10 of the Rome Statute provides that ‘[e]mphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’. Article 1 of the Statute states that the ICC ‘shall be complementary to national criminal jurisdictions’. Therefore, it is natural that the ICC is only complementary to national criminal jurisdictions. From a different perspective, the question is whether the special tribunal for the crime of aggression or hybrid tribunal can be called a national jurisdiction under the Rome Statute that should be complemented by the ICC.100 If the proposed special tribunal only covers the subject matter jurisdiction of the crime of aggression, then it is considered to conform to the principle of complementarity because the ICC covers all the core crimes other than the crime of aggression in case of the situation of Ukraine.101 Ultimately, however, since the subject of the investigation is likely to be the same person, if the ICC and the special tribunal were to investigate and prosecute the same person for the same conduct, the issue of complementarity would loom.102 Whether the proposed special tribunal or the ICC

93

Ader (2023). Ibid. 95 Koshiw and Rankin (2022). 96 Government of the UK (2023b). 97 For such a proposal, see Johnson (2022). 98 Komarov and Hathaway (2022). See also Trahan (2023). 99 Wrange (2016), p. 705. 100 Ambos (2023). 101 Coracini (2022). 102 Ambos (2023). 94

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would have primacy could also be an issue.103 In any case, if a special court were to be established despite the existence of the permanent Court, the ICC, the issues of selective justice and exceptionalism would arise,104 in addition to the question of complementarity. Thus, rather than establishing a special tribunal for the crime of aggression, States may feel more legal legitimacy in the prosecution of suspects through the exercise of universal jurisdiction by third States, even though still debatable.105 The ICC’s issuance of an arrest warrant for Russian President Vladimir Putin in March 2023 for war crimes raises the question of whether a special court to try Putin could be created and still be able to take him into custody earlier than the ICC. Despite the selective justice criticisms and impracticality of President Putin’s detention, the only viable option to prosecute the crime of aggression against Ukraine seems to be a special tribunal, especially because amending the relevant provisions of the Rome Statute for enabling the ICC to prosecute the crime of aggression is unrealistic and would also amount to retroactive justice.106 The international community is at an important crossroads, whether to value the message that the crimes of aggression will not be tolerated or the coherence of the ICC system.

18.5.2 Universal Jurisdiction Over the Crime of Aggression by the Third State The debate on the legality under international law of the exercise of universal jurisdiction over crimes of aggression has not been uncontested. For instance, Dr. McDougall noted that ‘only a handful of States expressed the view that universal jurisdiction attaches to crimes against peace or the crime of aggression’.107 The fact that there is persistent resistance to the exercise of universal jurisdiction over crimes of aggression may be one of the reasons why the establishment of a special tribunal for crimes of aggression has been so loudly called for this time. So far, Poland, Latvia, and Lithuania have expressed their willingness to investigate and prosecute crimes of aggression through the exercise of universal jurisdiction.108 Article 117(1) of the Polish Criminal Code, Article 110 of the Lithuanian Criminal Code, and Sect. 72 of the Latvian Criminal Code prohibit the crime of aggression and make it punishable.109 Although Estonia, France, Germany, Norway, 103

Ibid. E.g. Salari and Hosseini (2023), p. 15. 105 For the opposite view, see Wrange (2016), p, 720, especially because he doubts the unanimous opinion juris with regard to exercise extensive extraterritorial jurisdiction over the crime of aggression. Professor Wrange wrote that ‘controversial cases can sometimes be dealt with in a more effective and legitimate manner in an international rather than domestic court’, ibid., p. 742. 106 McDougall (2023), pp. 11–12. 107 McDougall (2021), p. 384. 108 Hartig (2022). 109 Ibid. 104

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Slovakia, Spain, Sweden, and Switzerland have begun investigations into crimes in Ukraine, France, Norway, Slovakia, Sweden, and Switzerland have not criminalised an act of aggression in their domestic laws, so they cannot investigate and prosecute the crime of aggression, whether it occurred in their own country or another.110 Germany and Estonia have criminalised aggression under their domestic laws, but their jurisdiction over aggression against Ukraine is limited in scope.111 Germany is only allowed to exercise jurisdiction over the crime of aggression if it was committed by or against its own people. The question of whether Estonia is allowed to exercise universal jurisdiction in accordance with its domestic law is arguable and open to interpretation. In practice, it would be difficult to expect the exercise of universal jurisdiction with respect to the crime of aggression, both in terms of immunity ratione personae for Heads of State, Heads of Government, and ministers of foreign affairs, which exist in foreign criminal jurisdiction under international law, and in international political circumstances.112 Even if a case could be made, the difficulty of detaining the suspect in custody would be the same for a special court of aggression or for the exercise of universal jurisdiction by a third country. As for Ukraine, even if Ukraine has the right to try crimes of aggression based on territoriality, common sense raises doubts about whether Ukraine can independently and impartially try crimes of aggression during the ongoing armed conflict.113 Since crimes of aggression can only be committed by key players in the government or military leadership, it is difficult to expect crimes of aggression to be prosecuted in the State where the crime occurred, rather than in an international court, and can be regarded as a type of crime for which the principle of complementarity, particularly positive complementarity, does not work well.

18.6 Building National and International Networks 18.6.1 National Network In June 2022, during the third visit of the Chief Prosecutor of the ICC to Ukraine, he confirmed ‘the imminent opening of a field office of the International Criminal Court to further support the continued and increased presence of our personnel on the ground’.114 This is arguably ‘the ICC’s largest field office ever, creat[ing] an online portal to gather evidence’.115 It remains to be seen when the ICC office will 110

Ibid. Ibid. 112 According to Salari and Hosseini, courts limit themselves to low-level criminals. See Salari and Hosseini (2023), p. 23. 113 Schüller (2023). 114 International Criminal Court News (2022c). 115 Brody (2022). 111

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actually be established in Kyiv. The President of Ukraine said on 1 December 2022 that ‘the opening of the ICC field office in Ukraine is being prepared’.116 Finally, in March 2023, the Ukrainian Ministry of Foreign Affairs announced that the Ukrainian government had approved a draft agreement between the ICC and the Cabinet of Ministers of Ukraine to establish an office of the ICC Office in Kyiv.117 On 23 March 2023, the Prosecutor General of Ukraine, Kostin Andriy, and the Registrar of the ICC, Peter Lewis, signed a cooperation agreement on the establishment of an ICC country office in Ukraine.118 The Office in Ukraine will be the eighth country office of the ICC, along with those in Kinshasa and Bunia (the Democratic Republic of the Congo), Kampala (Uganda), Bangui (Central African Republic), Abidjan (Côte d’Ivoire), Tbilisi (Georgia), and Bamako (Mali).119 The country offices of the ICC are regarded by the ICC as ‘essential to develop and maintain cooperative relationships with key stakeholders in situation countries and to support the Court’s mandate and resulting activities in these countries’.120

18.6.2 System of International Cooperation Article 93(10) is the legal basis for positive complementarity, but it is unclear whether and what kind of cooperation is being provided by the ICC’s Office of the Prosecutor to any State. Article 93(10)(a) enables the Office of the Prosecutor to provide assistance to a State Party ‘conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State’. Moreover, the Statute enables the Office of Prosecutor to assist even to Non-States Parties under Article 93(10)(b), which stipulates that ‘[t]he Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute’. At least it is clear how many States have requested cooperation from the Office of the Prosecutor under Article 93(10). For instance, the Office of the Prosecutor received 38 requests from States for cooperation under Article 93 (10) of the Statute from 1 August 2018 to 31 July 2019.121 From 1 August 2019 to 31 July 2020, it received 30 requests.122 From 1 August 2020 to 31 July 2021, it received 28 requests.123 From 1 August 2021 to 31 July 2022, it received 22 requests.124 The cooperation of the ICC with the States is referred to as ‘reverse 116

President of Ukraine (2022). See also the Office of the Prosecutor (2022), p. 24. Ministry of Foreign Affairs of Ukraine (2023). 118 Press Release of the International Criminal Court (2023b). 119 Ibid. 120 Ibid. 121 UN Doc. A/74/32 (2019), p. 17, para. 79. 122 UN Doc. A/75/324 (2020), p. 17, para. 76. 123 UN Doc. A/76/293 (2021), p. 15, para. 78. 124 UN Doc. A/77/305 (2022), p. 16, para. 82. 117

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cooperation’.125 Therefore, it is quite possible that Ukraine will seek cooperation from the ICC based on Article 93(10)(b), even if the details will not be revealed. On 20 April 2022, the Verkhovna Rada of Ukraine passed Draft Law 7304, by which the ICC is allowed to work inside Ukraine and the procedures for cooperation between Ukraine and the ICC, pursuant to Part 9 of the Statute, are regulated. Ukraine’s domestic legislation would facilitate two-way cooperation between the ICC and Ukraine and would strengthen the complementary relationship between the ICC and Ukraine in the investigation and prosecution of core crimes. Regarding the situation in Ukraine, it is clear not only the trend of cooperation with the ICC from within Ukraine but also the very strong attitude of the United States and the European Union (EU) toward international criminal justice cooperation. For the EU, this development is unsurprising because the EU has been the staunchest supporter of the ICC, especially after the Council of the EU adopted Decision 2011/168/CFSP on the International Criminal Court and repealing Common Position 2003/444/CFSP in 2011.126 What is surprising is the cooperative attitude of the US on this matter. On 25 May 2022, the EU, the UK, and the US established the aforementioned ACA to support the efforts of the War Crimes Units of the Office of the Prosecutor General of Ukraine to document, preserve, and analyse evidence of war crimes and other crimes committed in Ukraine for any future prosecution.127 These efforts suggest that the US, as a Non-State Party of the Rome Statute, will take a cooperative stance toward the ICC, increasing the universality of the ICC and possibly extending the principle of complementarity beyond the ICC treaty framework. However, the US’s cooperative stance may not last long. The US Department of Defense is reportedly trying to prevent the Biden administration from submitting evidence gathered by US intelligence to the ICC.128 On behalf of the EU, a Joint Investigation Team (JIT) was set up by the national authorities of Lithuania, Poland, and Ukraine on 25 March 2022 with the support of Eurojust to collect evidence and investigate core international crimes committed in Ukraine. The ICC Office of the Prosecutor joined this JIT one month after its establishment, on 25 April 2022.129 Estonia, Latvia, and Slovakia joined the JIT on 30 May 2022, and Romania joined the JIT on 13 October 2022.130 The network of cooperation on investigations has also extended outside the EU framework. On 3 March 2023, the seven States participating in the JIT signed a Memorandum of Understanding (MoU) with the United States Department of Justice to enhance the coordination between the JIT partner countries and the US authorities in their respective investigations in connection with the situation of Ukraine.131 In addition, a centre was set up within the JIT in February 2023 with a particular focus on investigating 125

Gioia (2011), p. 807. Bekou and Mistry (2014). 127 US Department of State (2022); Eurojust Press Release (2022a). 128 Savage (2023). 129 Eurojust Press Release (2022b). 130 Eurojust Press Release (2022c). 131 Ibid. 126

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crimes of aggression. The centre was named the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA).132 The establishment of this centre could be seen as ‘a step towards a fully-fledged international aggression tribunal’.133 Thus, the coordination between Europe and the United States regarding the investigation of crimes under international law related to the situation in Ukraine means that the possibility of domestic or special court investigations and prosecutions of crimes under international law will increase, and the relationship with the ICC investigations and prosecutions will become an issue. If the principle of complementarity is emphasised, it follows that any domestic trials resulting from the collection of such evidence must complement rather than compete with the ICC’s investigations and prosecutions. In particular, if a special tribunal is created for the crime of aggression, as mentioned above, or if the case is litigated in Ukraine, the complementarity between these tribunals and the ICC, which has already issued an arrest warrant for the Russian president, must be problematic.

18.7 Conclusion This section summarises the positive and negative aspects of the complementarity principle that may have an impact on the Ukrainian conflict. A summary of the positive aspects of the complementarity principle for the Ukrainian conflict is first provided. First, the principle could develop dynamically beyond the boundaries of States Parties and Non-States Parties. It is striking that the United States understands the positive complementarity of the ICC and is making a concerted effort to investigate and prosecute war crimes within Ukraine, even if the US Department of Defense has a negative attitude towards this effort. Second, in the Ukrainian situation, the ICC has issued an arrest warrant for President Putin, which demonstrates the ICC’s strategy of prosecuting the big fish, and the investigation also demonstrates a kind of complementarity principle of prosecuting the small fish in domestic trials. Third, the generous cooperation of Ukraine with other countries in the investigation and prosecution of war crimes in Ukraine is an effective implementation of the ICC’s principle of complementarity and should be highly regarded. In light of how the situation in Ukraine has positively impacted the ICC’s principle of complementarity, the united support of Ukraine by the Western countries has expanded the possibility of the ICC’s complementarity to work. On the other hand, it remains to be seen whether we will see such unanimous cooperation between national judiciaries and the ICC in the event of aggression by other States in Asia, Africa, or the Middle East. This uncertainty may also be seen as a negative aspect of the ICC’s complementarity principle.

132 133

Eurojust Press Release (2023). Sluiter (2023).

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At first glance, there does not appear to be any negative impact of the Ukrainian conflict on the ICC’s principle of complementarity, and there is no criticism of the support being offered by various States, even Non-States Parties of the ICC, for the investigation of war crimes in Ukraine. However, if States do not provide similar support for the ICC’s non-Ukrainian cases, the ICC could be seen as a political tool of the Western powers, threatening its impartiality, independence, and legitimacy. In addition, the positive complementary relationship between the ICC and the State where the crime occurred, which is working too well, may raise questions about the fairness of the investigation and prosecution of both the ICC and Ukraine, and both the ICC and Ukraine need to demonstrate to the international community that their investigations and prosecutions are fair and impartial. Therefore, in this case, the ICC’s complementarity principle will be questioned again, and depending on its operation, expectations for the ICC may turn into disappointment. In any case, it is necessary to carefully watch the successful operation of the principle of complementarity in the Ukrainian situation and critically assess its global impact on the future operation of the ICC’s principle of complementarity.

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Russian Penal Code No. 63-FZ (1996, June 13, Amended 2022, December 29). Salari, A., and S.H. Hosseini. 2023. Russia’s Attack on Ukraine: A Review of the International Criminal Court’s Capacity to Examine the Crime of Aggression. Access to Justice in Eastern Europe 6 (1): 8–27. Savage, C. 2023. Pentagon Blocks Sharing Evidence of Possible Russian War Crimes with Hague Court. New York Times. Retrieved March 31, 2023, from https://www.nytimes.com/2023/03/08/ us/politics/pentagon-war-crimes-hague.html. Schabas, W.A. 2011. The Rise and Fall of Complementarity. In The International Criminal Court and Complementarity, ed. C. Stahn and M.M.E. Zeidy, 150–164. Cambridge: Cambridge University Press. Schüller, A. 2023. What Can(’t) International Criminal Justice Deliver for Ukraine? Verfassungsblog. Retrieved March 31, 2023, from https://verfassungsblog.de/justice-ukraine/. Sluiter, G. 2023. The Criminal Justice Response to the War in Ukraine One Year Later—The Arrest Warrant Against Putin from the ICC and the Discussion of a Special “Aggression Tribunal”. Rethinking SILC. Retrieved March 31, 2023, from https://rethinkingslic.org/blog/criminal-law/ 169-the-criminal-justice-response-to-the-war-in-ukraine-one-year-later-the-arrest-warrant-aga inst-putin-from-the-icc-and-the-discussion-of-a-special-aggression-tribunal. Sly, L. 2023. 66,000 War Crimes Have Been Reported in Ukraine: It Vows to Prosecute Them All. Washington Post. https://www.washingtonpost.com/world/2023/01/29/war-crimes-ukraine-pro secution/. Soares, P.P. 2013. Positive Complementarity and the Law Enforcement Network: Drawing Lessons from the Ad Hoc Tribunals’ Completion Strategy. Israel Law Review 46 (3): 319–338. Spiliopoulos, O. 2014. The EU-Ukraine Association Agreement as a Framework of Integration Between the Two Parties. Procedia Economics and Finance 9: 256–263. Trahan, J. 2023. Why a “Hybrid” Ukrainian Tribunal on the Crime of Aggression Is Not the Answer. Just Security. Retrieved March 31, 2023, from https://www.justsecurity.org/85019/why-hybridukrainian-tribunal-on-crime-of-aggression-is-not-the-answer/. The International Committee of the Red Cross. 2010. Advisory Service on International Humanitarian Law: Issues Raised Regarding the Rome Statute of the ICC by National Constitutional Courts, Supreme Courts and Councils of State. Retrieved March 31, 2023, from https://www. icrc.org/en/download/file/7779/issues-raised-regarding-rome-statute-icrc-01-2010-eng.pdf. The International Committee of the Red Cross. 2014. Legal Fact Sheet of Advisory Service on International Humanitarian Law: Universal Jurisdiction Over War Crimes. Retrieved March 31, 2023, from https://www.icrc.org/en/doc/assets/files/2014/universal-jurisdiction-icrc-eng.pdf. The Prosecutor v. Germain Katanga. 2007. Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga. Pre-Trial Chamber, ICC-01/04–01/07–4. The Prosecutor v. Francis Kirimi Muthaura et al. 2011. Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute. Appeals Chamber, ICC-01/09–02/11 OA. The Prosecutor v. Thomas Lubanga Dyilo. 2006. Annex I: Decision on the Prosecutor’s Application for a Warrant of Arrest: Article 58. ICC-01/04–01/06–1-Corr-Red. The Office of the Prosecutor of the International Criminal Court. 2003. Paper on Some Policy Issues Before the Office of the Prosecutor. Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/1FA7C4C6-DE5F-42B78B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf. The Office of the Prosecutor. 2006. Report on the Activities Performed During the First Three Years (June 2003–June 2006). Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/ default/files/NR/rdonlyres/D76A5D89-FB64-47A9-9821-725747378AB2/143680/OTP_3ye arreport20060914_English.pdf.

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The Office of the Prosecutor of the International Criminal Court. 2010. Prosecutorial Strategy: 2009–2012. Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/default/files/OTPPro secutorialStrategy20092013.pdf. The Office of the Prosecutor of the International Criminal Court. 2016. Policy Paper on Case Selection and Prioritization. Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/def ault/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf. The Office of the Prosecutor of the International Criminal Court. 2019. Strategic Plan: 2019–2021. Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/default/files/itemsDocuments/201 90726-strategic-plan-eng.pdf. The Office of the Prosecutor. 2022. Annual Report of the Office of the Prosecutor—2022. Retrieved March 31, 2023, from https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-05-annualreport-of-the-office-of-the-prosecutor.pdf. The Office of the United Nations High Commissioner for Human Rights. 2016. Accountability for Killings in Ukraine from January 2014 to May 2016. Retrieved March 31, 2023, https://www.ohchr.org/sites/default/files/Documents/Countries/UA/OHCHRThematicRe portUkraineJan2014-May2016_EN.pdf. The Office of the Prosecutor of the International Criminal Court, Strategic Plan 2019–2021. 2019. p. 19, para. 24. The Rome Statute of the International Criminal Court. 1998. UN Doc. A/CONF.183/9 of 17 July 1998. United Nations Treaty Series, 2187(38544). Ukrgate. 2023. 21 States Are Involved in the Investigation of Russia’s Crimes in Ukraine—Eurojust. Ukraine Gate. Retrieved March 31, 2023, from https://www.ukrgate.com/eng/?p=51372. UN Doc. A/74/324. 2019. UN Doc. A/75/324. 2020. UN Doc. A/76/293. 2021. UN Doc. A/77/305. 2022. US Department of State. 2022. The European Union, the United States, and the United Kingdom Establish the Atrocity Crimes Advisory Group (ACA) for Ukraine. Retrieved March 31, 2023, from https://www.state.gov/creation-of-atrocity-crimes-advisory-group-for-ukraine/. Vasiliev, S. 2022. Analysis: The Reckoning for War Crimes in Ukraine Has Begun: What Do the First Convictions of Russian Servicemen Hold for the Future? FP. Retrieved March 31, 2023, from https://foreignpolicy.com/2022/06/17/war-crimes-trials-ukraine-russian-soldiers-shishimarin/. Vasiliev, S. 2023. The International Criminal Court Goes All-in: What now? EJIL: Talk! Retrieved March 31, 2023, from https://www.ejiltalk.org/the-international-criminal-court-goesall-in-what-now/. Wrange, P. 2016. The Crime of Aggression, Domestic Prosecutions and Complementarity. In The Crime of Aggression: A Commentary, ed. C. Kreß, and S. Barriga, 704–751. Cambridge: Cambridge University Press. Wierczynska, K. 2022. International Prosecutors Acting Before National Courts? The Rome Statute System and the Ultimate Approach to Positive Complementarity. Chinese Journal of International Law 21 (2): 259–285.

Hitomi Takemura has been a professor of international law at the Graduate School of Law and the Graduate School of International and Public Policy (IPP) of Hitotsubashi University, Tokyo, Japan. She lectures international law in Japan since 2008 and specialises international criminal law. She earned an LL.M. in international law from Hitotsubashi University, an LL.M. in public international law and international criminal law from Leiden University, and a PhD in law from the Irish Centre for Human Rights at the National University of Ireland, Galway in 2008. Her publications in English include the Rohingya Crisis and the International Criminal Court (Springer, 2023) and International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Springer, 2008).

Chapter 19

Impact on the International Cooperation with the International Criminal Court Megumi Ochi

19.1 Introduction Since their inception, international criminal justice institutions have often been described as “giants without limbs” (Cassese 1998; Maogoto 2004). International criminal tribunals are often viewed as titanic entities with authority and legitimacy because of to their “international” status. Despite their normative strength, these organizations have limited practical power due to their restricted legal rights. International tribunals cannot deploy law enforcement personnel on the ground without the consent of the State. Instead, they have created legal obligations for the States to perform the job on their behalf. States should comply with the cooperation requests issued by international tribunals in accordance with the legal obligations outlined in the founding instruments of these tribunals, without expecting any practical gain. However, the international regime settings and powerful statements published during the first year of the Russian invasion of Ukraine suggest a significant shift in the traditional view of international cooperation in pursuing justice against serious crimes of concern to the international community as a whole. The International Criminal Court (ICC or the Court) is still at the centre, not as the highest fort of justice, but as a network hub of a variety of actors, including State Parties, international organizations, non-Member States and civil society. The information and evidence collection and sharing system is now open to more actors, allowing wider contributions to the actual realization of justice at different levels of enforcement. This article discusses the impact of the Ukraine conflict on international cooperation with the ICC, comparing the traditional and new features of cooperation in international criminal justice. The research is based on the information available at the end of March 2023. The first part illustrates that traditional perspectives on international criminal justice institutions and their cooperation have been based on the notions of obligation, centralization, and unilateralism. In comparison to the M. Ochi (B) Graduate School of International Relations, Ritsumeikan University, Kyoto, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_19

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three traditional features of international cooperation with international criminal justice institutions, the second part of this chapter examines the characteristics of the current cooperation regimes with the ICC regarding core crimes committed during the Russia-Ukraine War. It argues that these characteristics suggest that global justice initiatives are now establishing a voluntary, decentralized, and mutual cooperative regime. In conclusion, this chapter raises awareness of the challenges posed by this new regime.

19.2 Traditional Obligatory, Centralized, and Unilateral Features of the Cooperation with International Tribunals 19.2.1 Obligatory Investigations and prosecutions in international criminal justice always require international cooperation without exception. Core crimes are often committed on a large scale, both in terms of time and geography. The incidents are also characterized by the large number of perpetrators and victims involved. Frequently, perpetrators flee to other countries during or after committing a crime, or a significant number of victims seek refuge in other countries. Therefore, international cooperation is necessary to apprehend the main culprits of crimes and gather the witness testimonies. In addition to practical necessities, international criminal justice institutions typically have their own prosecutorial bureaus. However, their prosecutors are generally not authorized to use coercive force within any State.1 Therefore, the securing of suspects and seizure of evidence, which form the basis of criminal prosecution, cannot be achieved without the exercise of coercive power by domestic police and prosecutors, in principle. It is typically the local judicial authorities who initially encounter, arrest, or detain suspects of core crimes. Due to these practical and legal limitations, international criminal justice institutions have developed legal instruments that impose obligations on States to cooperate with them. The Statutes of the ad hoc tribunals established by the United Nations (UN) Security Council’s resolutions, namely the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), outline the general obligation of States to cooperate with respect to the investigation and prosecution of suspects.2 They also provide that the States shall comply, without undue delay, with any request for assistance or order issued by these

1

See, e.g., Prosecutor v. Blaški´c, Judgment on the Request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (IT-95-14-AR108bis). Appeals Chamber (29 October 1997), para 26. 2 ICTY Statute, Article 29(1), and ICTR Statute, Article 28(1).

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tribunals.3 In addition, the prosecutors of the ad hoc tribunals have the authority to question suspects, victims, and witnesses, collect evidence, and request assistance from the authorities of the State in question when conducting on-site investigations.4 The ICC is not an exception when it comes to the necessity of international cooperation in investigations. The ICC Statute imposes a treaty-based obligation on Member States to cooperate. The principle is that investigations must be conducted with the cooperation of States,5 and the ICC Prosecutor can only exercise enforcement power directly in exceptional cases where there is no national authority capable of fulfilling its mandate.6 The ICC Pre-Trial Chamber instructs the arrest of a suspect by issuing an arrest warrant at the request of the ICC Prosecutor. The State is responsible for executing the warrant as long as its judicial system is functioning properly.7 The collection and preservation of personal and physical evidence is also accomplished through the collaboration of States in accordance with the various provisions outlined in Part 9 of the Statute. States Parties have a general obligation to fully cooperate with the Court in investigations and prosecutions conducted by the ICC, except in cases where their security interests may be jeopardized. They must also ensure that their national legal processes are accessible for cooperation.8 If immediate implementation proves difficult, State Parties should promptly consult with the Court to resolve the situation.9 If a State Party fails to comply with a request for cooperation and prevents the Court from exercising its duties and powers, the Court may refer the matter to the Assembly of States Parties for further action. Furthermore, if the situation in question is referred to the ICC by the UN Security Council, the ICC may refer the matter to the Council.10 During the drafting process of rules governing cooperation between the ICC and States, there were differing views. Some emphasized the similarities with horizontal interstate cooperation, while others called for a new vertical relationship that differed significantly from interstate relations (1996). Eventually, unlike the vertical and coercive nature of the cooperation with the ad hoc international tribunals,11 the cooperation regime with the ICC was developed as an institution that differed in many respects from interstate cooperation, emphasizing the importance of dialogue and including provisions that took into account national sovereignty (Swart 2002), although it is still based on an obligatory cooperation system. 3

ICTY Statute, Article 29(2), and ICTR Statute, Article 28(2). ICTY Statute, Article 18(2), and ICTR Statute, Article 17(2). The above cited Blaski´c case of the ICTY confirmed that requests for cooperation from the ICTY are binding under Chapter VII and Article 25 of the UN Charter and Security Council Resolution 827, and that the ICTY had exceptional authority to issue orders to sovereign states. 5 ICC Statute, Article 99(4). 6 Ibid., Article 57(3)(d). 7 Ibid., Article 72. 8 Ibid., Article 86, 88. 9 Ibid., Article 97. 10 Ibid., Article 87(7). 11 For information on the duty to cooperate at the ICTY, please refer to sources such as (Furuya 1999). 4

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19.2.2 Centralized The field of international criminal justice has traditionally been centralized, with an international institution serving as the representative of the global community at its core. The actors involved in conducting investigations and prosecutions in the realm of international criminal justice differ from those in domestic criminal justice systems. Since the end of the First World War, the method used for investigating war crimes cases has been the establishment of multinational commissions of inquiry. These commissions are mandated to gather information about the harm caused and suspects involved, and to report on various matters related to the establishment of trial bodies. These commissions of inquiry, such as the United Nations War Crimes Commission that was established during the Second World War, served as substantive investigative bodies, collecting evidence and conducting other investigations for criminal trials before the international criminal tribunals (Cherif 2012). Criminal justice institutions that prosecute core crimes have established various investigative and prosecutorial entities in recent years. These international organizations for criminal justice have a Prosecutor’s Office that consists of personnel from multiple nations. This office collaborates with local investigative agencies to conduct investigations and gather evidence. Similar to its predecessors, the ICC has its own Office of the Prosecutor (OTP), which is currently led by the Chief Prosecutor, Karim A. A. Khan, and comprises 380 staff members (ICC n.d).12 The ICC Prosecutor must be independent, and their information must be kept confidential unless strict conditions for publication are met. Regulation 13 of the OTP Regulation states that “the Prosecutor shall ensure that the Office and its members maintain their full independence and do not seek or act on instructions from any external source.” Section 2 of the Regulation outlines the necessary guidelines to maintain the confidentiality and security of information and evidence collected by the ICC. The ICC’s investigation is designed to be independent and protected from external oversight and interference, which could hinder efforts to arrange horizontal collaboration with third parties. Most international criminal justice organizations have adopted the principle of prosecutorial unity, in which every individual prosecutor represents the entire “prosecution” of the respective international criminal justice institution.13 Furthermore, 12

The Prosecutor and Deputy Prosecutor are elected by the Assembly of State Parties for a nonrenewable term of nine years. The Executive Committee (ExCom) of the OTP, composed of the Prosecutor and the heads of the three divisions of the Office, provides strategic guidance and coordinates the activities of the OTP. ICC, Regulations of the Office of the Prosecution, Regulation 4. The ICC-OTP is comprised of three divisions: the Jurisdiction, Complementarity and Cooperation Division, the Investigation Division, and the Prosecution Division. Additionally, there are two support sections: the Services Section and the Legal Advisory Section. 13 The first chief prosecutors at the launch of the institution have been selected from core crime caseloads, including former members of the South African Truth and Reconciliation Commission and former prosecutors with domestic experience in large-scale organized crime prosecutions. See (Crane et al. 2018).

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the joint dissenting opinion attached to the Al-Bashir judgment of the ICC Appeals Chamber advocated the so-called surrogation of jurisdiction theory, which holds that States exercise ICC jurisdiction on behalf of the ICC.14 According to this theory, the execution of ICC arrest warrants and all investigative activities by judicial authorities of various States in response to requests for cooperation from the ICC are considered to be carried out under the authority and control of the ICC. If a global justice system were envisaged in which investigators worldwide operated under the control of the ICC prosecutor, then simultaneous investigations by the ICC prosecutor and national investigators would no longer be deemed parallel once agents from different countries began to act to fulfil requests for cooperation from the ICC.

19.2.3 Unilateral The international criminal justice system has been designed to be rather unilateral, which differs from the traditional horizontal inter-state system that was created for mutual cooperation between States. International criminal justice has the authority to request cooperation without any corresponding obligation to grant benefits for the sake of domestic criminal proceedings. Exceptional cases can be seen in the process of closing ad hoc tribunals. They implemented transfer-of-case systems and established new regulations to facilitate the sharing of information and evidence for domestic prosecutions during and after the operation of international tribunals. In its early days, the ICTY conducted trials exclusively. With the ICTY coming to a close, there is a growing expectation for domestic trials to take place in countries such as Serbia, Croatia, Bosnia and Herzegovina, and Kosovo. Since the quasi-international/domestic criminal justice system, with the help of international support, has reached a point where it can prosecute core crimes, the ICTY has begun referring cases to these courts.15

14

Prosecutor v. Al Bashir, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofma´nski and Bossa (ICC-02/05-01/09-397-Anx1-Corr) Appeals Chamber (17 May 2019), paras 441–445. See (Kawai 2021). 15 The system for transferring domestic cases from the ICTY was established as follows. First, the Rules of Procedure and Evidence of the ICTY were amended to include Rule 28, which allows the Secretariat to review an indictment filed by the prosecutor before it is confirmed by a judge. This review is conducted to determine whether the case involves the most senior leadership, with the aim of ensuring that future ICTY prosecutions are focused on the highest-ranking officials. In addition, ICTY Rule 11-2 has been amended to permit the ICTY to transfer case management to the state even after indictment but prior to the commencement of the trial. In 2005, the Referral Bench was established, and a mechanism was established to determine whether cases should be referred to the state. Whether or not to entrust someone with a responsibility, the seriousness of the crime they are accused of and the degree of responsibility of the defendant are taken into consideration (ICTY Rules of Procedure and Evidence, Procedural Rule 11-2(C)). In addition, it is imperative to ensure that the defendant receives a fair trial at the institution where they are held, and that the death penalty is neither imposed nor executed (Rule 11-2(B)).

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However, the case referral system cannot be considered a mutual arrangement for the following reasons. Firstly, ad hoc international tribunals select the criminal justice system to which their cases are delegated. Candidates for jurisdiction include the State where the crime was committed, the State where the suspect was arrested, or any State that has jurisdiction and is willing and prepared to take on the case.16 Without specifying the hierarchy between these options,17 in most cases, the responsibility for prosecution has been given to the States where the crime was committed.18 The examination criteria include the comparative strength of the connection between the State and the case.19 For example, in the Luki´c case, various factors were considered in determining appropriate referrals for the suspect who resided in Belgrade. Although judicial and economic considerations were at play, the proximity to the victim was also taken into account. As a result, the case was transferred to Bosnia and Herzegovina, where the crime was committed.20 Secondly, the ICTY operates mechanisms to monitor national criminal justice systems, including those that have a quasi-international status. An example is the system of dispatching observers to monitor domestic court proceedings for cases entrusted by the ICTY.21 The Prosecutor’s Office of the ICTY also engages in cooperative monitoring of transferred cases by receiving monthly reports from other international organizations located in Bosnia and Herzegovina, Serbia, and Croatia.22 Although the nature of case referrals to the former Yugoslavian States is unilateral, a system for sharing information has gradually been implemented. As an example of cooperation, the ICTY Rules of Procedure and Evidence were amended in 2007 to include Rule 75, which allows the judicial authorities of relevant States to access confidential documents and information stored by the ICTY. In addition, efforts are being made to utilize the experience and knowledge of the ICTY in domestic judicial institutions. Capacity-building initiatives, such as the development of manuals and

16

ICTY, Rules of Procedure and Evidence 11-2(A). ICTY, Prosecutor v. Zeljko Mejakic, et al. (IT-02-65-PT) Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11 bis (20 July 2005), para 40; ICTY, Prosecutor v. Gojko Jankovic (IT-96-23/2-AR11bis.2) Decision on Rule 11 bis Referral (15 November 2005), para 33. 18 Among the eight cases (thirteen suspects) commissioned so far, six have been transferred to the Bosnia War Crimes Court, located in Bosnia (Kawai 2021). One of the remaining cases was committed in Croatia and has been transferred to a court in Croatia. The final case, known as the Kovaˇcevi´c case, involved a crime committed in Croatia. However, due to the suspect’s mental health issues and the fact that he was receiving treatment in a Serbian facility, it was decided to transfer the case to Serbia. ICTY,Prosecutor v. Vladimir Kovaˇcevi´c (IT-01-42/2/1) Decision on Referral of Case Pursuant to Rule 11bis with Confidential and Partly Ex Parte Annexes (17 November 2006), para 24. 19 Zeljko Mejakic, ibid., paras 41–42. 20 ICTY, Prosecutor v. Milan Luki´ c and Sredoje Luki´c (IT-98-32/1-PT) Decision on Referral of Case Pursuant to Rule 11 bis (5 April 2007), paras 38–39. 21 ICTY, Rules of Procedure and Evidence 11-2(D)(iii). 22 Letter dated 13 May 2008 from the President of the International Tribunal for the Former Yugoslavia addressed to the President of the Security Council, UN Doc. S/2008/326 (14 May 2008), Annex II, para 43. 17

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staff exchanges, are being implemented in collaboration with other international organizations.23 Even with the complementarity principle in the ICC Statute, there is limited room for mutual cooperation. In vertical cooperation between the ICC and States, the ICC imposes unilateral obligations of cooperation without reciprocity on the States Parties.24 A new aspect of the ICC Statute is the provision for reverse cooperation from the ICC to State Parties. Article 93(10)(a) states that “The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.” This cooperation “shall” include “[t]he transmission of statements, documents or other types of evidence obtained in the course of an investigation, or a trial conducted by the Court” and “[t]he questioning of any person detained by order of the Court”.25 Moreover, the ICC Statute provides for granting a request for assistance from a non-member State.26

19.3 New Voluntary, Decentralized, and Mutual Cooperation for Investigating Crimes Under the Russia-Ukraine War 19.3.1 Voluntary Collective Referral Since 25 April 2014, the ICC Prosecutor has been conducting a preliminary examination of the situation in Ukraine following the events of 21 November 2013. Following Russia’s invasion of Ukraine on 24 February 2022, the ICC Prosecutor’s Office requested authorization from the Pre-Trial Chamber to initiate an investigation on 28 February. A distinctive feature of the ongoing investigation into the situation in Ukraine is that State Parties referred the situation while the ICC Prosecutor was waiting for authorization to conduct the investigation. On 2 March, thirty-nine States Parties (a joint reference of 38 States and Lithuania) referred the situation in Ukraine to the ICC (n.d). Later, on 6 March, North Macedonia declared its intention to join the joint referral. On 9 March, Japan made a separate referral. Montenegro joined the joint referral on 21 March and Chile joined on 1 April. On 7 March, the ICC

23

ICTY, Capacity Building, at http://www.icty.org/sections/Outreach/CapacityBuilding (accessed 28 January 2014). 24 The word ‘surrender’ is used for extradition from a state to the ICC, rather than ‘extradition’ as used between states: e.g.,(Sluiter 2003). On the use of different words, see (Ko 1998; Ko 1999). 25 ICC Statute, Article 93 (10)(b)(i). 26 Ibid., Article 93(10)(c).

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Prosecutor informed the Pre-Trial Chamber about the State Party’s referral report and the investigation that was opened on 2 March to the President.27 The largest collective referral ever made to the ICC sent a clear message that multiple Member States are willing to support and collaborate with the ICC’s investigation and prosecution efforts. The voluntary participation of States in the referral suggests that there will be active cooperation with the ICC’s proceedings in the future. Voluntary Financing The collective referral to the ICC is a unique indication of widespread support from States. Following referrals from multiple States, the ICC Prosecutor issued a Note Verbale on 7 March asking States for voluntary financial assistance. Several States declared special monetary contributions following the referrals. Twenty states, including the United States (US)—a non-member state—have publicly expressed their support (Goodman 2022). Although the ICC does not accept earmarked contributions, providing increased general financial support to the Court would facilitate the advancement of technological tools and equipment, enabling effective investigation into every situation (ICC 2022d). On 20 March 2023, a conference was held in London inviting justice ministers from more than forty States following the issuance of the arrest warrant against President Putin on 17 March 2023 (Government of UK 2023). At the conference, the United Kingdom (UK) announced the additional funding of £395,000, which brings the total UK support this year to £1 million, double the existing amount of extra funding provided to the ICC from the UK. Other States also made additional funding announcements, strengthening their largest monetary support ever. Contribution payment is a statutory form of cooperation. Parties’ contributions are subject to the agreed-upon rates and are essentially adjusted based on the rates set by the UN.28 Being two years in arrears in the payment of contributions to the ICC shall preclude the right to vote in the Assembly of State Parties, unless compelling circumstances dictate otherwise.29 On the other hand, voluntary contributions can be made as additional funds.30 According to this categorization, the monetary assistance provided after the investigation into the Ukraine situation was initiated is classified as a voluntary contribution. Various Forms of Voluntary Cooperation The multilateral declaration of support for the ICC and international criminal justice by various states is a significant achievement in the current global movement towards accountability in Ukraine. The ICC participated in the conclusion of the Political Declaration of the Ministerial Ukraine Accountability Conference (Political Declaration), which was adopted in The Hague on 14 July 2022. The declaration outlines

27

ICC-02/04-01/05-68, paras 4–5. See (Marchuk 2016). ICC Statute, Article 107. 29 Ibid., Article 102(8). 30 Ibid., Article 106. 28

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the direction of joint investigations into war crimes committed in Ukraine.31 In addition to Ukraine, the signatories of the declaration include forty-five countries. These countries include all European Union (EU) Member States, the US, the UK, Canada, Mexico, Australia, New Zealand, Colombia, and Nordic countries. The Political Declaration condemned Russia’s aggression and called for accountability for all international crimes committed in Ukraine, including war crimes and crimes against humanity. The declaration also called for cooperation with the ICC. A collective effort is intended to promote coordination and effective engagement.32 The content of this incorporates innovation by acknowledging the harmful effects of involving multiple countries in investigations, such as placing an excessive burden on witnesses and causing re-traumatization due to duplicate investigations.33 This is the first time that guidelines have been prepared for multilateral investigation cooperation in a specific situation. In practice, this has led to the creation of a “Dialogue Group on Accountability for Ukraine” aimed at promoting communication among national, European, and international bodies responsible for accountability and record-keeping efforts.34 For the first time, Ukraine hosted an international high-level conference on international criminal justice from 3–5 March 2023 in Lviv (n.d). The conference, titled “United for Justice” was supported by the Council of Europe and the US Agency for International Development (USAID). It received participants from key actors, including ICC Prosecutor Khan, US Attorney General Merrick B. Garland, and Roberta Metsola, President of the European Parliament.35 The creation of political will is a new aspect of international cooperation with the ICC regarding the situation in Ukraine. During the conference, Dutch Minister of Foreign Affairs, Wopke Hoekstra announced the launch of the Dialogue Group on Accountability for Ukraine (Government of Netherlands 2032). The Dialogue Group serves as a coordination mechanism and platform for discussing and aligning national and international accountability initiatives among States, international organizations, and civil society stakeholders. According to the Ukrainian Prosecutor General, the Dialogue Group aims to coordinate efforts in four areas: providing technical and expert assistance, collaborating with international organizations and partners involved in evidence collection, promoting comprehensive cooperation within national investigations, and working with NGOs (Ukrinform. 2023).

31

Political Declaration of the Ministerial Ukraine Accountability Conference, The Hague, 14 July 2022. 32 Ibid., paras 1–4. 33 Ibid., paras 16–17. 34 Ibid., para 25. 35 President of Ukraine: “The world needs a real embodiment of the rule of law to protect humanity from the source of all aggressions” at (President of Ukraine 2023); The United States Department of Justice, Attorney General Merrick B. Garland Delivers Remarks in Lviv, Ukraine, at (US Department of Justice 2023); Council of Europe: “No peace without justice and accountability”—Council of Europe took part in high-level international Lviv conference “United for Justice” at (Council of Europe 2023).

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The active effort to hold conferences on the situation in Ukraine under the auspices of the ICC and justice is a form of non-statutory, voluntary “cooperation” as outlined in the Recommendation for Cooperation. At the seventh Assembly of State Parties in 2007, the Recommendations on Cooperation were adopted as an annex to the Recommendations on the Plan of Action for achieving universality and full implementation of the Rome Statute of the ICC.36 In this document, the term “cooperation” is occasionally used interchangeably with “assistance” to refer to criminal justice cooperation, which can also be referred to as “cooperation” in a narrow sense. On the other hand, the Recommendations on Cooperation list sixty-six other diverse forms of “cooperation.” The forms of cooperation with the ICC indicated in the Recommendations on Cooperation include both statutory and non-statutory forms, and many of them lack provisions in the ICC Statute or other instruments. The Recommendations for Cooperation also highlight the significance of the ICC’s promotional activities in terms of communication, including information sharing and awareness, and capacity building through workshops and seminars. In terms of communication, there are certain types of information that are particularly relevant in specific situations. For example, during the preliminary examination stage, it is important to provide background information. Additionally, it can be helpful to provide an overview of the type of information that would be useful, and to evaluate any background information that may be valuable to the ICC. The treaty also promotes the facilitation of contact between States Parties interested in providing assistance and those willing to receive it. This includes designating contact information for relevant embassies and establishing contact information for the person in charge.37 Various methods have been developed and recommended to enhance awareness of the ICC and its operations. For example, contributing to the mainstreaming of the ICC and raising awareness about its role through high-level working visits to States Parties.38 More specifically, the Recommendations for Cooperation include a range of measures to ensure that relevant staff have the necessary knowledge of the ICC Statutes, such as the use of specific PowerPoint presentations.39 Legal counsel is encouraged to participate in outreach activities,40 and regional groups are to be utilized.41 High-level visitors to the ICC are expected to provide briefings,42 and the Parties are to promote the mainstreaming of the ICC in international organizations.43 36

Resolution ICC-ASP/6/Res.2, 14 December 2007, Annex I. See also, ICC-ASP/8/Res.2, ICCASP/9/Res.3, ICC-ASP/10/Res.2, ICC-ASP/11/Res.5, ICC-ASP/12/Res.3, ICC-ASP/13/Res.3, ICC-ASP/14/Res.3, ICC-ASP/15/Res.3, ICC-ASP/16/Res.2, ICC-ASP/17/Res.3, ICC-ASP-18/ Res.3, ICC-ASP-19/Res.2, ICC-ASP/20/Res.2. 37 Resolution ICC-ASP/6/Res.2, ibid., Recommendation 12, 13, 14, 6, 9, 25, 53. 38 Ibid., Recommendation 4, 10. 39 Ibid., Recommendation 43. 40 Ibid., Recommendation 44. 41 Ibid., Recommendation 50. 42 Ibid., Recommendation 55. 43 Ibid., Recommendation 61.

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Joint statements are to be published,44 and ICC-related working groups are to be established within regional organizations.45 Regional seminars and workshops are to be promoted to raise awareness among Parties, and political support is to be garnered.46 Cooperation and Support from Non-member States On 17 March 2023, the ICC issued two arrest warrants against Vladimir Vladimirovich Putin, the President of Russia, and Maria Alekseyevna Lvova-Belova, the Commissioner for Children’s Rights in the Office of the President of the Russian Federation. The warrants were issued for the alleged commission of war crimes, specifically the unlawful deportation and transfer of children from occupied areas of Ukraine to the Russian Federation. These acts are alleged to violate Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the ICC Statute (ICC 2023a). Not only ICC Member States reacted to the issuance of the arrest warrants. In addition to several European states that immediately stated they would enforce the warrant (van Hagen 2023), non-Member States, especially the US, expressed their support for the ICC’s activities (Haroun 2023). The US is becoming one of the most active collaborators, despite its history of opposing attitudes. Although the US was involved in drafting and signing the ICC Statute, the Bush administration launched a hostile campaign against the ICC by pressuring other States to sign bilateral agreements that would immunize US nationals from surrendering to the ICC. Conversely, when it comes to non-US nationals, US support has been critical. The surrender of the two ICC convicts, Bosco Ntaganda in 2013 and Dominic Ongwen in 2015, was made possible with the support of the US (Justiceinfo.net. 2013, 2015). The relationship between the ICC and the US was at its worst during the Trump administration. In 2019, President Trump issued an executive order to revoke the visa of the ICC Prosecutor. Later, the hostility of the US towards the ICC escalated, leading to the imposition of sanctions on ICC officials who were investigating US citizens for alleged crimes committed in Afghanistan (Human Rights watch 2020). However, the current Biden administration seems to have significantly changed its policy towards the ICC. The organization has publicly declared its support for global justice and the ICC and lifted visa restrictions in April 2021 (Blinken 2023). The Ambassador-at-Large for Global Justice, Beth van Schaak, frequently visits the ICC and Ukraine to express her country’s willingness to provide support for investigations into atrocities.47 While the Pentagon is still hesitant to provide practical support (Savage 2023), the moral and political support given by the US remains strong.

44

Ibid., Recommendation 62. Ibid., Recommendation 64. 46 Ibid., Recommendation 66. 47 E.g., “Remarks by U.S. Ambassador Beth Van Schaack on Strengthening the ICC,” at (van Shaack 2023). 45

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19.3.2 Decentralized Collective Investigation Regime Setup This time, the ICC is attempting to strengthen its investigative network by collaborating with other international organizations on investigative projects. On 25 April 2022, the ICC prosecutor announced that he would be joining the Joint Investigative Team (JIT) which was formed by Ukraine, Poland, and Lithuania, and is backed by Eurojust (ICC 2022c). The primary objective of this group was to increase Ukraine’s capacity in investigating core crimes, as the country lacks resources, knowledge, and experience in this area. Ukraine has been participating in European democratization support projects for some time (Nitsova et al. 2018). On 1 June, a JIT meeting was held in The Hague. The next day, it was announced that Estonia, Latvia, and Slovakia would be joining the JIT (Eurojust. 2022b). The six countries participating are referred to as “members,” while Eurojust and the ICC are referred to as “participants” (Eurojust n.d). This is the ICC’s first attempt to participate in this kind of investigative cooperation framework, but the focus is on whether the ICC has any additional powers. One of the features of the multinational joint investigation framework that is currently attracting attention is the utilization of a shared evidence database. The Eurojust JIT has revised its regulations to activate the evidence database and has broadened its authority to preserve, analyse, and store evidence pertaining to core crimes.48 Specifically, they were authorized to utilize automated management and storage facilities for the evidence they provided and could share information obtained through analysis with other investigative agencies. The database is primarily intended to receive evidence submitted by national authorities. Information collected by private entities, such as non-governmental and civil society organizations, is evaluated by national and international judicial authorities and stored for later use. On 23 February 2023, Eurojust announced the launch of the Core International Crimes Evidence Database (CICED) (Eurojust 2023). This is a tailor-made judicial database designed to securely preserve, store, and analyse evidence related to core international crimes (Eurojust. 2023). The main benefit of having a centralized database is to reveal the systemic actions that lead to individual offenses (Eurojust. 2023). After a monthly debate regarding potential mechanisms for prosecuting the crime of aggression, which the ICC cannot exercise jurisdiction over due to legal restrictions, European Commission President Ursula von der Leyen announced the launch of the International Centre for the Prosecution of the Crime of Aggression in Ukraine (ICPA) on 2 February 2023. The announcement was made during a joint news conference with Ukrainian President Zelenskyy in Kyiv (Farivar 2023). This institution will coordinate the collection of evidence to prosecute Russia for the crime of aggression and will be integrated into the JIT.

48

Regulation (EU) 2022/838 of the European Parliament and of the Council of 30 May 2022.

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While ICC Prosecutor Khan was opposed to the proposal of establishing a separate new tribunal on aggression, he recalled that the restriction on the ICC’s jurisdiction was imposed by the will of Member States and could be lifted through political engagement (Sterling 2022). This new institution will function as an information hub and storage until the day that the ICC or another special tribunal is ready to initiate criminal proceedings for this crime. Simultaneously with the ICC’s efforts to establish new regimes, there is also an unprecedented trend of forming groups, such as the Group of Friends of Accountability (GoF) created by Ukraine and five other nations, and the Atrocities Advisory Group (ACA) established by the EU, the US and the UK. Cooperation with Civil Society Against the backdrop of increased involvement of civil and private actors in investigations, the ICC-OTP collaborated with Eurojust and the EU Network for Investigation and Prosecution of Genocide, Crimes Against Humanity, and War Crimes (the “Genocide Network”) to develop guidelines for documenting international crimes against humanity and human rights violations for criminal accountability purposes. These guidelines, titled “Guidelines for Civil Society Organizations: Documenting International Crimes and Human Rights Violations for Criminal Accountability Purposes,” were released on 21 September 2022 (Eurojust 2022a). Recognizing that civil society organizations are crucial partners for national authorities and international accountability mechanisms in the collective pursuit of justice for international crimes, the aim of this publication is to assist these organizations in collecting and preserving information related to international crimes and human rights violations since this information may become admissible evidence in the ICC (Eurojust 2022a). The guidelines remind the relevant actors of important principles such as “do no harm,” “informed consent,” and “objectivity, impartiality, and independence” (Eurojust 2022a). The document also offers guidance on practical skills and techniques to prevent re-traumatization and duplication, while ensuring the protection of vulnerable individuals and the evidentiary value of testimonies (Eurojust 2022a). The latter half of the guidelines is dedicated to practical guidance on how to share evidence, including instructions on how to properly capture photos and videos, as well as how to package and preserve physical items (Eurojust 2022a). Additionally, brief instructions on the handling of digital and online information, physical injuries, and crime scenes are attached, along with templates and checklists to be used by civil society. The guidelines for civil society involvement indicate a genuine opportunity for collaboration between the ICC and civil society during the investigative stage. NGOs, human rights groups, and experts have primarily participated in ICC proceedings during the trial stage as amicus curiae or expert witnesses. The new aspect of the current situation is that NGOs are now involved at an earlier stage, whereas traditionally only public investigators had exclusive access. Not only well-known NGOs such as Human Rights Watch and Amnesty International, but also locally developed groups such as the Nobel Prize-winning Center for Civil Liberties (CCL) and the 5 AM Coalition are working to collect and record testimonies on site.

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Preparation for the Use of Digital Evidence and Open-Source Intelligence (OSINT) at the ICC A transition from analogue to digital sources for information sharing, along with a growing recognition that digital documentation requires a collaborative and multidisciplinary approach, has facilitated a shift from traditional on-foot information gathering to a more networked approach that incorporates documentation from individuals and organizations (Eurojust 2022). Cross-organizational and multidisciplinary collaboration occurs at various investigative stages, and it presents vulnerabilities that necessitate professional and technical safeguards (Koenig 2022). Eyewitnesses to the core crimes that occurred in various parts of Ukraine often recorded the scenes with their camera phones and posted them on social media. The internet is inundated with false information and narratives that purport to document criminal activity that never took place. This underscores the critical need for factchecking. The utilization of open-source intelligence (OSINT) has gained attention as a means of collecting information and evidence related to core crimes. This approach has proven to be effective in gathering crucial data for investigations. OSINT is a method of legally researching and comparing open-source materials. This involves analysing official materials, photos, and video data from various angles, including social media networks (SNSs). By utilizing OSINT methods, private organizations can also analyse the details and credibility of information. At the ICC, numerous instances of digital open source have been presented as evidence during court proceedings.49 However, with the vast amount of data being generated and shared, there is a need to explore frameworks for its effective utilization. For instance, the “Leiden Guidelines for Digitally Derived Evidence (DDE) in International Criminal Courts and Tribunals” project created the “Leiden DDE Database” that provides jurisprudence data and a manual for utilizing DDEs (Leiden 2022).

19.3.3 Mutual Moral Support Since initiating its investigation into the situation in Ukraine, the ICC Chief Prosecutor Khan has visited Ukraine four times: in March 2022 (Western Ukraine), April 2022 (Bucha), June 2022 (Kharkiv), and March 2023 (Lviv and Kyiv). On 16 May 2022, the ICC announced that it would dispatch forty-two investigators to Ukraine (ICC 2022a). This is the largest deployment in history, of which thirty staff members have already been temporarily assigned by the Netherlands (ICC 2022a). In June 2022, following the ICC Chief Prosecutor’s third visit to Ukraine, he announced the necessity of establishing an ICC liaison office in Ukraine, increasing the number of

49

See (Dubberley et al. 2020).

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investigative staff on the ground, and engaging with all parties in Ukraine. He emphasized the importance of deepening cooperation with the government to expedite the investigation (ICC 2022b). According to a press release from the Ministry of Foreign Affairs of Ukraine on 3 March 2023, the Ukrainian government has approved a draft agreement between the Cabinet of Ministers of Ukraine and the ICC on the establishment of an ICC office in Ukraine (Interfax-Ukraine 2023). Finally, on 23 March 2023, a cooperation agreement on the establishment of an ICC country office in Ukraine was signed by Andriy Kostin, the Prosecutor General of Ukraine, and Peter Lewis, the Registrar of the ICC (ICC 2023b). Ukrainian President Zelenskyy stated during a meeting with the ICC Prosecutor on 28 February 2023, “We have heard signals from you about your support and the importance of justice. It was important for us to hear this because it meant that we are not alone in our desire to achieve justice for Ukraine.” And he emphasized that “[w]ith your help, we will be able to restore justice for Europe and the world” (The kyiv independent 2023). The moral support provided by the ICC’s words and actions bolsters the national endeavour for accountability. Furthermore, this rhetoric places the Ukrainian pursuit of justice within the broader context of the global pursuit of justice. Allocation of Evidence and Cases The mutuality of the ICC’s cooperation regime will be evaluated based on the allocation of cases and evidence in practice. Reacting to the public announcement of the two ICC arrest warrants, the Ukrainian Prosecutor’s Office revealed that it had provided over forty volumes of materials, totalling more than 1000 pages, to the ICC Prosecution Office. The materials included electronic evidence and video interrogations of witnesses and victims, following the Berkeley protocols (Ukraine Prosecution Office 2023). The ICC’s proceedings will undoubtedly benefit Ukraine, which is a party to the ongoing international armed conflict and a victim of aggressive war. It is highly possible that Ukraine is also receiving investigative information through JIT or other multilateral groups. However, it is still undetermined how to share them during the prosecution stage. In cases of investigations within a single country, having multiple investigative agencies conducting duplicate investigations is not desirable from the perspective of judicial efficiency and effective prosecution. Disciplines based on norms, such as the principle of prosecutorial unity, have been developed and are rooted in many legal systems. However, it has become clear that these justifications are not valid in the context of international criminal justice, which is based on the principle of international cooperation. The movement to establish a comprehensive international cooperation system for this situation indicates that the international community is progressing towards creating a system that prioritizes the benefits of parallel investigations and necessary overlap and coordination. As the battle rages on, there is a high demand for speed. In particular, in areas occupied by Russia, which is not cooperative with international criminal justice, it may be challenging to collect and preserve evidence. Depending on the progress of the war, it may become impossible

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to access certain areas. Furthermore, since numerous witnesses have been displaced and sought refuge in other states, it is crucial to promptly document their testimonies with the help of various actors who are capable of doing so. At the time of writing, Ukrainian judicial authorities are conducting an investigation into several core crimes, including war crimes and crimes of aggression. While the Ukrainian criminal code does not have specific articles on crimes against humanity, it does have provisions regarding the violation of laws and customs of war,50 as well as planning, preparing for, starting, and waging an aggressive war.51 War crimes cases before the Ukrainian prosecution office number 72,668, while cases of aggression total sixty-seven (Ukraine Prosecution Office n.d). As of the end of March 2023, Ukrainian courts had convicted twenty-nine Russian servicemen on charges that include murder, destruction of civilian objects, torture, sexual harassment, and illegal detention.52 The academic evaluation of these domestic prosecutions and trials for war crimes was controversial.53 The July report from the Organization for Security and Co-operation in Europe (OSCE)’s Moscow Mechanisms Expert Mission (OSCE. 2022), and the September report from the UN Independent International Commission of Inquiry on Ukraine both highlighted problematic aspects of war crimes trials and the protection of human rights in Ukraine (OHCHR. 2022).

19.4 Conclusion The international cooperation between criminal justice agencies and the ICC for investigating and prosecuting core crimes allegedly committed during the RussiaUkraine War has several unprecedented features in terms of its speed and scale. There has never been a time when an international cooperative system was built so quickly and on such a large scale. The most significant change is the shift from a traditional, obligatory, centralized, and unilateral regime to an emerging, voluntary, decentralized, and mutual regime. The international collaborative system for criminal justice has just begun, and it has enormous potential to address this situation. The gravity of the core crimes, which may have been exacerbated by the fact that they are 50

Ukrainian Criminal Code, Article 438. Ibid., Article 438. 52 Ukraine War Crimes Trial Database (created by the author). https://alkaline-lantana-adf.not ion.site/Ukraine-War-Crimes-Trial-Database-66fada9c1e9f416185ac180562814e86 (accessed 30 March 2023). 53 In June, Kai Ambos wrote a blog post for the European Society of International Law, highlighting the uncertainty surrounding the trial (Ambos 2022). In August, Gaian Nurizanian published a blog post refuting Ambos’ claims and stating that measures were being taken to ensure a fair trial (Nuridzhanian 2022). Recognizing the issues that require further observation and analysis, the most recent and detailed research presented by Iryna Marchuk in November highlights both the problems of legal qualification by the Ukrainian judiciary due to the possible lack of familiarity with international humanitarian law and the prospects for the transitional justice movement in Ukraine that are advanced through domestic struggle for justice (Marchuk 2022). See also (Bardet 2022). 51

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committed during an ongoing aggressive war, has become the primary impetus behind the global movement to establish a new cooperation regime. Multiple individuals with a strong moral inner-motivation are currently working to document, preserve, store, and share information for future prosecution and punishment of those responsible for the atrocity that devastated the lives and land of the Ukrainian people. However, there is a risk that the pursuit of international solidarity and justice for Ukraine may fall into the same pattern of self-interested and selective investment by states in accountability initiatives, as noted by some experts (Vasiliev 2022). Therefore, the success of the Rome Statute system of international justice will be put to the test during this “Ukraine moment” (Vasiliev 2022). In addition to the anxieties about the future, there are numerous legal and practical challenges in this situation. The quality and quantity of information have increased significantly compared to past core crime cases. There are issues regarding the admissibility of evidence in court, such as the admissibility of digital open-source information and whether information analysed through OSINT can be used as direct evidence. In trials that take place during ongoing conflicts, there may be an increase in the number of cases where the witness has passed away, leaving only a recorded testimony available. It is also possible that internal witnesses within the Russian military may face threats or interference during future proceedings against higher-level officials. To address this issue, the use of pre-recorded statements by the ICC will become even more crucial. The use of evidence at the ICC was initially linked to the distance from the crime scene. However, with the recent adoption of video testimony, it is anticipated that measures to alleviate the strain on witnesses will persist. In addition, the current situation in which evidence collection is carried out by many different entities in a distributed manner raises concerns about investigative discipline, which varies from country to country. It also raises concerns about ensuring standards for witness protection and promptness. Moreover, with regards to the exclusion of unlawfully obtained evidence at the ICC, it is imperative to disseminate the procedures for gathering evidence that adhere to the ICC’s standards and ensure that all involved parties adhere to them. The inclusion of this awareness in the Political Declarations of forty-five countries suggests that the need for measures has been recognized.54 Parallel investigations may result in redundant prosecutions. Along with the ICC’s first cases on the deportation of children, the Ukrainian prosecution office has also reported that national criminal proceedings regarding the deportation of children are ongoing in Ukraine. The pre-trial investigation is being conducted by the Ukrainian Security Service (SBU).55 While both charges are related to war crimes, there is currently an overlap between the ICC’s prosecutions and those of Ukraine due to the Ukrainian prosecution’s opening of a case regarding the deportation or unlawful transfer of civilians. It is unclear whether this fact would impact the ICC’s decision on admissibility. Furthermore, if the ICC initiates prosecution of other individuals

54 55

The Political Declaration, para 12. Ibid.

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or crimes in the future, the two parties involved in the criminal justice process— Ukraine and the ICC—must carefully consult on who or what should be handled by which authority. Although the rules of Part 9 of the ICC Statute, which pertain to cooperation, will apply to Ukraine, even though it is not a party to the ICC Statute but has declared its acceptance of the Court’s jurisdiction,56 it is debatable whether this also extends to the jurisdiction and admissibility rules outlined in Part 2 of the Statute. Careful analysis is required to determine whether the content of the Ukrainian law on ICC cooperation fully adheres to the standards set forth by the ICC regulations. One of the biggest challenges is obtaining cooperation from Russia, which seems unlikely in the near future. The ICC prosecutor stated that he had repeatedly sent messages to the Russian government, but they had never responded to any of them. On 14 March 2023, Dmitry Peskov, spokesperson for Vladimir Putin, stated to journalists in Moscow, “We do not recognise this court; we do not recognise its jurisdiction” (Sauer 2023). Furthermore, several days after the ICC issued two arrest warrants, Russia’s Investigative Committee initiated legal action against the ICC Prosecutor and three judges who were involved in issuing the warrants (NHK 2023). Russia was involved in the drafting of the ICC Statute and signed it in 2000. However, Russia has never ratified it and withdrew its signature in 2016. This was in response to an ICC report on the situation in Crimea, which classified Russia’s occupation of Crimea as an illegal annexation. Another important point to remember is that all of these global collaborations depend on Ukraine’s cooperation. Despite numerous domestic and international requests, Ukraine has failed to ratify the ICC Statutes for several years. It has issued a “declaration of acceptance of jurisdiction” in accordance with Article 12(3) of the ICC Statute. The declaration was initially restricted to the timeframe of 21 November 2013 to 22 February 2014 (ICC 2023). Ukraine has expanded the scope of its acceptance of jurisdiction through various declarations. In its 2015 declaration, Ukraine accepted unrestricted jurisdiction from 20 February 2014, onward. It is important to recognize that Ukraine has the ultimate decision-making power in the international cooperation system that is currently being established. The significance of the international cooperation system as a whole will be influenced by Ukraine’s response as a nation when seeking responsibility for crimes committed by the Ukrainian side in the future. In addition, Ukraine is actively engaged in exchanging prisoners with Russia, even those who have been convicted of committing war crimes. This practice may undermine efforts to ensure accountability for core crimes (Court Reporter 2022, 2023a, 2023b). Ukraine’s willingness to cooperate with international criminal justice is closely tied to the state of the ongoing war. The progress of the fight against impunity for core crimes in Ukraine in the future will also depend on Ukraine’s determination and ability to deliver justice.

56

ICC Statute, Article 12(3).

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Kawai, K. 2021. Who enforces an arrest warrant of the international criminal court? Journal of International Criminal Justice 19: 543–564. https://doi.org/10.1093/jicj/mqab063. Ko, K. 1998. The legal nature of ‘extradition’ as international judicial cooperation (1): Towards the development of the surrender concept. Sophia Law Rev 42: 271–299. Ko, K. 1999. The legal nature of ‘extradition’ as international judicial cooperation (2, completed): Towards the development of the surrender concept. Sophia Law Rev 42: 329–370. Koenig, A. 2022. From ‘capture to courtroom.’ Journal of International Criminal Justice 20: 829– 842. https://doi.org/10.1093/jicj/mqac046. Leiden Guidelines on the Use of Digitally Derived Evidence. n.d. Leiden guidelines on the use of digitally derived evidence in international criminal courts and tribunals. In: Leiden Guidelines on the Use of Digitally Derived Evidence. https://leiden-guidelines.com/. Accessed 25 August 2022. Maogoto, J.N. 2004. A giant without limbs: The international criminal court’s state-centric cooperation regime. Univ Qld Law J 23: 102–133. Marchuk, I. 2016. Ukraine and the international criminal court: Implications of the ad hoc jurisdiction acceptance and beyond. Vanderbilt Law Rev 49: 323–370. Marchuk, I. 2022. Domestic accountability efforts in response to the Russia-Ukraine war. Journal of International Criminal Justice 20: 787–803. https://doi.org/10.1093/jicj/mqac051. NHK. 2023. Russia launches legal action against ICC prosecutor, judges. NHK. Nitsova, S., G. Pop-Eleches, and G. Robertson. 2018. Revolution and Reform in Ukraine: Evaluating Four Years of Reform. PONARS Eurasia. Nuridzhanian, G. 2022. Prosecuting war crimes: Are Ukrainian courts fit to do it? EJILTalk: Blog of the European Journal of International Law. https://www.ejiltalk.org/prosecuting-war-crimesare-ukrainian-courts-fit-to-do-it/. Accessed 14 Feb 2022. OHCHR. 2022. Report on the Human Rights situation in Ukraine. UN: High Commissioner for Human Rights. OSCE. 2022. Report of the OSCE Moscow Mechanism’s mission of experts entitled ‘Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine (1 April–25 June 2022). Organization for Security and Co-operation in Europe. President of Ukraine. 2023. The world needs a real embodiment of the rule of law to protect humanity from the source of all aggressions—The address of President Volodymyr Zelenskyy at the United for Justice conference in Lviv. President of Ukraine. https://www.president.gov.ua/en/news/svitpotrebuye-realnogo-vtilennya-verhovenstva-prava-yake-ub-81417. Accessed 20 March 2023. Sauer, P. 2023. Russia says it does not recognise Hague court amid reports of arrest warrants. The Guardian. Savage, C. 2023. Pentagon Blocks Sharing Evidence of Possible Russian War Crimes with Hague Court. N. Y. Times. Sluiter, G. 2003. The surrender of war criminals to the international criminal court. Loyola Los Angel Int Comp Law Rev 25: 605–652. Sterling, T. 2022. War crimes Prosecutor: ICC should prosecute aggression, can try heads of state. Reuters. Swart, B. 2002. International cooperation and judicial assistance-general problems. In The Rome Statute of the International Criminal Court: A Commentary, ed. A. Cassese, P. Gaeta, and J.R.W.D. Jones, 1589–1606. Oxford; New York: Oxford University Press. The Kyiv Independent. 2023. Zelensky meets with International Criminal Court prosector in Kyiv. Kyiv Independent. Ukrinform. 2023. Kostin: Dialogue group to provide international support for investigation into Russia’s crimes against Ukraine. National News Agency Ukraine—Ukrinform. Ukraine Prosecution Office. n.d. Statistic. Ukraine Prosecution Office. https://www.gp.gov.ua/ua/ posts/statistika. Accessed 20 March 2023.

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Ukraine Prosecution Office. 2023. Andriy Kostin: There is a warrant for Putin’s arrest! Ukraine Prosecution Office. https://www.gp.gov.ua/ua/posts/andrii-kostin-je-order-na-arest-putina. Accessed 20 March 2023. US Department of Justice. 2023. Attorney General Merrick B. Garland delivers remarks in Lviv, Ukraine. US Department of Justice. https://www.justice.gov/opa/speech/attorney-general-mer rick-b-garland-delivers-remarks-lviv-ukraine. Accessed 20 March 2023. van Hagen, I. 2023. A growing list of countries say they will arrest Putin if he goes there, enforcing an international warrant accusing him of war crimes. Business Insider. van Schaack, B. 2023. Digital press briefing with Dr. Beth Van Schaack, ambassador-at-large for global criminal justice. U. S. Department State. https://www.state.gov/digital-press-bri efing-with-dr-beth-van-schaack-ambassador-at-large-for-global-criminal-justice/. Accessed 20 March 2023. Vasiliev, S. 2022. Watershed moment or same old? Journal of International Criminal Justice 20: 893–909. https://doi.org/10.1093/jicj/mqac044.

Megumi Ochi is an Associate Professor at the Graduate School of International Relations at Ritsumeikan University in Japan. The author obtained a LL.M from Leiden University in the Netherlands, a Ph.D. in Law from Osaka University in Japan, and worked as an Assistant Professor at the Hakubi Center of Kyoto University. She is involved in numerous international criminal justice activities, including serving as a Senior Fellow of the Case Matrix Network (CMN) and as a member of the Young Penalists Committee of the International Association of Penal Law (AIDP). She has authored two books and numerous articles on international criminal law, covering topics such as the concept of international criminal procedure, general principles of international criminal law, the ne bis in idem principle, amnesty, extradition, and reparation.

Chapter 20

The Role of the UN Security Council in International Criminal Law Revisited Kuniko Ozaki

20.1 Introduction In its decision on the failure of Malawi to arrest and surrender Al Bashir, the Pre-Trial Chamber of the International Criminal Court (ICC) referred to ‘the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction’.1 The decision gives no further explanation of the basis of the jus nor its content. Supposing there is a jus puniendi of the international community, it is not clear who exercises this right. Is the ICC the sole legitimate body to exercise it? How about another apparent candidate, the UN Security Council (the SC), which created ad hoc tribunals preceding the ICC? Is there any meaning that the above-mentioned decision was in a case referred to the ICC by the SC under Chapter VII of the UN Charter? There had always been theoretical and practical tension between the power of the SC and that of international criminal tribunals. The drafters of the Rome Statute of the International Criminal Court (the Rome Statute) tried to transform this tension into a cooperative relationship through which international criminal justice could be effectively pursued. However, the ICC practice so far does not necessarily suggest that such efforts have been successful. The Russian invasion of Ukraine can be a fatal blow to such cooperation. If it continues to proclaim itself to be a bearer of the jus puniendi of the international community, the ICC must find an innovative way forward.

1

ICC-02/05-01/09-139-Corr, para. 46.

K. Ozaki (B) Faculty of Law, Chuo University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_20

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20.2 Development of International Criminal Law (ICL) and the SC 20.2.1 The SC and the Basic Requirements of ICL The broadest definition of ICL is a body of rules of law dealing with the punishment of individuals who have committed international crimes. There are three groups of international crimes: domestic crimes with transnational elements, transnational crimes of international concern (e.g. drug offences, terrorist offences and cybercrime, which are sometimes called ‘treaty-based international crimes’) and crimes against the basic values of the international community. In this chapter, ICL is defined as a body of rules of international law dealing with the third group of crimes, Crimes against the basic values of the international community are ‘the most serious crimes of concern to the international community as a whole’ as expressed in the Preamble of the Rome Statute. Typical examples are genocide, crimes against humanity, war crimes and aggression—often called the ‘core crimes’. Those crimes are punishable directly under international law regardless of whether the conduct constitutes a crime under domestic law and whether the crimes are committed internationally. ICL has long been regarded as an exceptional or peripherical area of international law, due to the combination of international law and criminal law. Those two fields of law have been viewed as most contrasting. International law regulates the horizontal relationship between sovereign States, and its rules are firmly based on the principle of pacta sunt servanda. They are basically value-free rules. In the field of crime prevention, responses to domestic crimes with transnational elements and transnational crimes of international concern are based on such a horizontal system. This system constitutes rules of distribution of criminal jurisdiction mainly based on the territoriality and nationality principles and rules on international cooperation (e.g. extradition and mutual legal assistance). Regarding the second category, various multilateral conventions, through harmonising the definition of crimes and broadening national jurisdictions, contribute to the creation of quasi-common interests of the international community, but the basic structure of those conventions maintains the framework of traditional international law. On the other hand, criminal law represents the vertical relationship between a State (which monopolises physical power) and an individual under its jurisdiction.2 It presupposes an exercise of enforcement power by the former over the latter. The purpose of criminal law is to protect the safety and value of the community rather than maintain a smooth horizontal relationship among its citizens. Key phrases here are the ‘value of the community’ and the ‘enforcement power’. For criminal law to be established in international society, there should first be a common value or common notion of justice, which should be protected through criminal justice, and then a centralised power to enforce justice. Because the current 2

Ambos (2013) pp. 299–301.

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international community maintains a horizontal structure among sovereign States, it is unsurprising that the SC has been expected to play a role in creating a criminal justice system in the international community. First, the SC is the only organ that, under Chapter VII of the UN Charter, has an enforcement power vis-à-vis sovereign States. The fact that the SC’s mandate is limited to maintaining international peace and security does not necessarily contradict the SC’s potential role to enforce justice. Indeed, historically, the concept of criminal justice came from the maintenance of the peace of the community through the punishment of those who harmed such peace, in contrast to the civil remedies for the harm inflicted on persons. Second, the SC’s composition may be suitable to reflect the common interests of the international community. For example, in the UN General Assembly (the GA), decisions are made according to the number of States supporting them, irrespective of the actual power or global/regional influence of each of those States. In contrast, the SC’s decisions are made by the most influential States, together with a few States representing each region/group, and thus may more directly reflect the real global trend. In this respect, the veto power of the permanent members (P5) works as an assurance that major powers can agree or disagree on the crucial points of global interests/value/justice. It is against this background that the SC has the potential to be a custodian of international criminal justice. There is, however, a fatal flaw in the SC to play this role. Equal (non-selective) application is an inherent requirement of any law. In addition, while the right to punish was based on the sovereign’s power in the early history of law, modern criminal law has developed various principles to restrict such power to minimise arbitrariness. Those principles include principles of legality, nullum crimen sine lege and due process. It is apparent that, as a highly political organisation, the SC is not most suitable to ensure such principles. Difficulty also arose regarding the ‘common value’. Compared to the early postWWII period, the international community is increasingly diversified. In addition, stakeholders in international justice have been broadened beyond the closed circle of major powers, now encompassing non-state entities such as civil society and the business community. One point to note here is that the SC’s legitimacy should be distinguished from the legitimacy of the international criminal tribunals it has created. Regarding the latter, Antonio Cassese, in the context of the Special Tribunal for Lebanon, argued that, in addition to the legality of their establishment, international criminal tribunals must satisfy legitimacy requirements. He categorised the requirements into ‘consent legitimacy’, meaning the existence of the approval of the constituency; ‘purposive legitimacy’, meaning the pursuit of the general goals broadly shared by the constituency; ‘universal value legitimacy’, meaning whether it is based on the values common to the international community; and ‘performance legitimacy’, meaning answerability, transparency and accountability.3 This argument is consistent with the findings of the International Criminal Tribunal for the former Yugoslavia (ICTY) that for an 3

Cassese (2012), pp. 491–501.

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international criminal tribunal ‘to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments’.4 Those are the requirements the international tribunals must satisfy to maintain their legitimacy as a judicial power. On the other hand, the SC, as the creator of those judicial organs, must satisfy the requirements for the exercise of general jus puniendi, including legislative and enforcement power.5

20.2.2 The SC and the History of ICL The relationship between the SC and international criminal justice can be best understood by reflecting on the post-WWII history of ICL. The Nuremberg and Tokyo Trials are generally viewed as the starting points of ICL. Both were created by the major Allies, direct predecessors of the P5. The 1943 Moscow Declaration, signed by the US, the UK and the then Soviet Union, declared that those responsible for the atrocities, massacres and executions would be sent back to the countries where their ‘abominable deeds’ were done so that they could be judged and punished. The centrepiece of these trials was the prosecution and punishment of the crime against peace. This newly created crime had a symbolic meaning for the post-WWII world order that the Allied powers had envisioned and tried to realise through the newly established SC. The creation of the concept of crimes against humanity was also an epoch-making event in the history of ICL, but its importance was mainly recognised in relation to an aggressive war. There have been criticisms of the Nuremberg and Tokyo Trials from the perspective of criminal law, but it was promised that ‘the principles underlying the Nuremberg Charter would be treated as international law: only thus would be the apparent selectivity and retrospectivity of Nuremberg be redeemed’.6 The promise was kept to the extent that, in its first session in 1946, the GA adopted a resolution titled ‘Affirmation of the Principles of International Law recognised by the Charter of the Nürnberg Tribunal’,7 and the International Law Commission (ILC) in 1950 submitted a report on the ‘Nuremberg Principles’.8 In 1948, the Genocide Convention was adopted. The Convention not only created the crime of genocide as the most serious form of crimes against humanity but suggested establishing an international tribunal. Adoption of the four Geneva Conventions of 1949 followed.

4

ICTY, Prosecutor v. Tadic, para. 45. Ozaki (2022), pp. 185–198. 6 Crawford (2019) p. 645. 7 UN. Doc. A/RES/1/95(1946). 8 ILC Yearbook (1950). 5

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During the Cold War, however, the SC remained inactive due to the political division among the P5. Application of ICL also remained rare except for a few national cases.9 The crucial development during this period was that of international human rights law. The concept of the international protection of human rights shares its origin with ICL in the sense that its early driving force was the shock caused by the massive human rights violation committed by Nazi Germany and the belief that protecting human rights is essential for the maintenance of peace.10 However, international human rights law soon took its own course with the activities of the UN and other relevant organisations and through the adoption of various human rights conventions. By the end of the twentieth century, protection of human rights became an independent value to be shared among the international community, separate from the maintenance of peace and security. Moreover, criminal law measures have gained an important place in protecting human rights as the strongest safeguard against their violation.11 This development took place outside the SC, except for a few cases, including apartheid. While the definition of aggression continued to be a subject of tense discussion in the UN, the focus of ICL shifted to preventing and punishing large-scale or systematic human rights violations or specific types of human rights violations, such as torture and forced disappearance. Another important effect of human rights law was that the requirement of a fair trial became an indispensable part of the procedural side of ICL. The situation in the SC changed drastically after the end of the Cold War. The P5 started to take concerted actions against atrocities committed during internal and regional conflicts. Those actions were based not only on the requirements of maintenance of peace and security but on the imminent need to protect civilians from gross violations of human rights and humanitarian law. The SC accepted the value of the victors of the Cold War, namely, the Western idea of democracy and respect for human rights. It looked as if the post-WWII idea of strong enforcement power to protect the common value of the international community had been revived. It is against this background that the SC established the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and thus exercised jus puniendi based on Chapter VII of the UN Charter. This exercise was not without legal controversy. The ICTY Appeals Chamber justified its establishment, stating that ‘The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia’.12 A similar controversy arose concerning terrorism and the power of the Special Tribunal for Lebanon.13 9

Werle (2014) pp. 13–14. Bantekas (2020) p. 14. 11 See Cryer (2022) pp. 545–546. 12 ICTY, Prosecutor v. Tadic, para. 38. 13 STL, The Prosecutor v. Ayyash et al., paras. 32–54. 10

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Assuming that the post-Cold-War SC became a custodian of the common value of the international community, concerns remain about its impartiality and nonselectivity to achieve legitimacy of its exercise of jus puniendi. These concerns accelerated the movement towards establishing the ICC. After the adoption of the Rome Statute, the SC continued to be involved in implementing international humanitarian and human rights law, mostly with regard to regional conflicts. The culmination of such involvement was the adoption of the concept of ‘the responsibility to protect’ by the GA and then by the SC in 2005. The concept refers to the core crimes and ethnic cleansing and argues for the responsibility of the territorial States, the international community and the SC. This concept clearly reflects the various principles of ICL. The special responsibility of the P5 has also been pointed out in this regard.14 It is generally viewed that the SC relied on this concept when it intervened in Libya in 2011. As part of the intervention, the SC referred the situation in Libya to the ICC.

20.2.3 The Post-Post-Cold War SC and ICL Up to 2022 The SC’s action in Libya was one of the turning points of its role in preventing core crimes. The intervention resulted in a regime change in Libya and antagonised two P5 members, Russia and China. Since then, the SC has failed to take effective action against atrocities, including those committed in Syria. The change of the trend within the SC also reflected the growing division among the wider international community on the value of human rights. The 1993 Vienna Declaration, adopted at the height of the post-Cold War euphoria, confirmed that while ‘the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’.15 However, political confrontation on human rights continues to intensify within and outside the UN. The schism is between the so-called Western countries and a considerable number of countries from the Global South. The latter is led by China, which also represents the camp in the SC, followed by Russia. A typical example outside the SC was a 2022 draft decision A/HRC/51/L.6 submitted to the UN Human Rights Council about human rights in the Xinjiang Uyghur Region in China. Although the draft decision was a procedural one based on the submission of a report by the UN High Commissioner for Human Rights, it was rejected by 19 votes to 17, with 11 abstentions. While all ‘Western’ States supported the draft, the other States either voted against it or abstained.16

14

Peters (2011) pp. 38–44. UN Doc. A/CONF.157/23, para. 5. 16 UN Doc. A/HRC/51/SR.40, pp. 7–12. 15

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Dubious human rights records of the other P5 members also surfaced. In addition to the violations during the armed conflicts in Chechnya and Crimea, large-scale human rights violations by the Russian government in its territory have been widely reported.17 Among the ‘Western’ permanent members, the US has been accused of systematically violating human rights in its counter-terrorism measures.18 The US also has been accused of committing war crimes in Afghanistan, and its sanction on the ICC caused serious repercussions in the international community.19 Indeed, terrorism and an upsurge of populism worsened human rights situations even in countries hitherto with more or less good human rights records. These violations have been scrutinised by the international community, including civil society, and brought about strong scepticism of all major powers. In the immediate aftermath of WWII and during the Cold War, such scepticism would not have affected the legitimacy of the SC because such legitimacy was based predominantly on the military supremacy of the P5.20 However, the post-Cold War acceptance of the universal value created an expectation of the solidarity of the SC based on such value. The post-Cold-War SC practices of intervening in the atrocities committed during internal/regional conflicts further raised the expectations of the SC as a guardian of ICL. The betrayal of those expectations after the 2010s disappointed many stakeholders of international human rights and humanitarian law. Thus, at the time of the Russian invasion of Ukraine in March 2022, the SC had already been losing not only its solidarity but also its moral legitimacy to exercise jus puniendi on behalf of the international community.

20.3 The ICC and the SC 20.3.1 The SC and the Rome Statute The ICC is an international criminal tribunal adjudicating core crimes. Therefore, it is a direct descendant of the Nuremberg/Tokyo Trials and ICTY/ICTR. At the same time, the ICC is the first universal criminal tribunal based on a multilateral treaty, and the jus puniendi of the ICC is based on the consent of the State Parties to the Rome Statute. Likewise, the Member States, by joining the Rome Statute, accept the values of the Statute. As such, the ICC rectifies the major shortcomings of the jus puniendi exercised by the SC but lacks the strong enforcement power of the SC. In addition, the Rome Statute fulfils the requirements of the principles of modern criminal law, including nullum crimen sine lege, and accurately reflects international human rights and humanitarian law as of the late 1990s in both substantive and procedural law. 17

See, for example, OSCE (2022). See, for example, Committee against Torture (2014), para. 14. 19 UN News (2020). 20 See an eloquent description of the SC and its changing role in Koskenniemi (1995) pp. 325–348. 18

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In other words, contrary to the SC, the ICC’s legitimacy comes from the horizontal State-to-State relationship of traditional international law. This character of the ICC is best represented by the principle of complementarity, which confirms the supremacy of national criminal justice over international justice. It is an open question whether this national criminal justice itself is a tool for realising international justice. In any case, the jus puniendi of the ICC derives from the jus puniendi of the Member States.21 The SC’s role in the Rome Statute is an important exception to this structure. The SC’s functions prescribed in the Statute represent a vertical relationship between the SC and all States, including non-Member States of the ICC. While the ICC accepts certain control by the SC, the SC, through its referral power, enlarges the ICC’s jurisdiction and provides ‘teeth’ to enforce the Statute. It should be noted that the principle of complementarity applies in the case of an SC referral.22 This combination comes from an effort to bridge the horizontal and vertical aspects of the ICL and, at the same time, strike the right balance between justice and politics. In other words, the national jus puniendi of the Member States and the international jus puniendi exercised by the SC are expected to complement each other.23 The precondition of such a relationship was the existence of the shared value of the international community as perceived at the time of the adoption of the Rome Statute in 1998. The substantive relationship between the ICC and the SC is apparent in the Preamble of the Rome Statute, which recognises that ‘such grave crimes threaten the peace, security and well-being of the world’. The SC’s ‘international judicial intervention’ and its role as a guardian of ICL had already been widely accepted at the earliest stage of negotiating the Rome Statute.24 The ILC’s 1994 Draft Statue ‘was geared towards State consent and Security Council control’,25 and the mechanism of the SC referral, for example, remained a matter of debate until the end of the Rome Statue.26 While the compromise reached at the Rome Conference was expected to serve a mutually beneficial relationship between the two bodies, the history of its implementation was not always a happy one, as will be briefly described in the following section. By March 2022, the SC’s involvement in the ICC has been mostly commented on negatively, emphasising the arbitrariness and selectivity.27

21

Akande (2003) pp. 625–640. ICC-01/11-01/11-354, para.20. See also, ICC-01/11-01/11-163, paras. 27–30. 23 Bergsmo (2000) pp. 109–112. 24 Ibid., pp. 93–95. 25 Ambos (2022) pp. 835–836. 26 Ibid., pp. 839–840. 27 Typical of those comments are, Moss (2012), Ali (2019) pp. 669–697. 22

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20.3.2 Referral, Deferral and the Crime of Aggression The main roles of the SC in the framework of the Rome Statute are referral (Article 13(b)), deferral (Article 16) and the provisions relating to the crime of aggression.

20.3.2.1

The SC Referral

Article 13(b) provides that the ICC may exercise its jurisdiction if the SC, acting under Chapter VII of the UN Charter, refers a situation in which one or more of the crimes under the jurisdiction of the ICC appears to have been committed. This includes situations in non-Member States, so that such referral gives ICC a quasi-universal jurisdiction. The implication of the SC referral goes beyond the scope of jurisdiction. The selection of law applicable to the referred cases is one example. The ICC strictly adheres to the rule of nullum crimen sine lege and of legality and applies the provisions of the Statute in accordance with Article 22. The Appeals Chamber in the Abd-AlRahman case acknowledged that as ‘Sudan was not a Party to the Statute, the crimes in the Statute were not directly applicable to Mr Abd-Al-Rahman at the relevant time’, looked ‘beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place’ and confirmed that in principle, ‘the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted’.28 Such application of customary international law by the ICC is reminiscent of the application of law by the ICTY/ICTR as representing the jus puniendi of the SC. To date, the SC has referred two situations to the ICC. One was the situation in Darfur, Sudan, in 2005 (SC resolution 1593), and the other was the situation in Libya in 2011 (SC resolution 1970). Neither State is a party to the Rome Statute. Resolutions 1593 and 1970 contain several contentious provisions that have been debated widely.29 First, those resolutions exempt nationals of the non-State Parties of the ICC (except for Sudan and Libya, respectively). The US insisted on this exemption, making it a condition not to veto resolution 1593.30 Second, those resolutions impose a legal duty to cooperate on the respective situation State but not on all UN Member States. Other non-Member States of the ICC are urged to cooperate but are under no legal obligation to cooperate with the ICC in its investigation and prosecution. Third, they disallow the UN to pay the cost incurred by the referral, contravening Article 115(b) of the Rome Statute. The first group of provisions introduce double selectivity to the referral. The SC referral is selective not only because of the selection of the situation but also because of the exclusion of certain categories of persons in the given situation. The second implies procedural arbitrariness by which certain States may or may not choose to 28

ICC-02/05-01/20 OA8, paras. 86–89. See also, Dias (2021). Trahan (2013) pp. 449–467. 30 Cryer (2006) p. 205. 29

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cooperate. Compared to ICY/ICTR practices, the SC referrals to date have been even more problematic from the viewpoints of impartiality and independence of the Court. Regarding the situation in Darfur, the ICC started its investigation after the referral, focusing on genocide, war crimes and crimes against humanity. There are six cases,31 of which one trial (Abd-Al-Rahman case) is ongoing. The Pre-Trial Chamber did not confirm the charges in another case. The suspects are still at large in the other four cases. Among those cases, an arrest warrant issued against the then sitting president of Sudan became a source of serious political and legal contentions. Non-cooperation by several Member States in executing the warrant and inaction by the SC was a serious blow to the legitimacy and effectiveness of the ICC. Together with the collapse of the cases against the then president and vice-president of Kenya, the Darfur referral fuelled criticisms by the African countries of the ICC as being selective, biased, politically motivated and colonialist. Those criticisms have been levelled not only at the ICC but also at its association with the SC. Regarding the situation in Libya, the ICC has been investigating crimes against humanity and war crimes. The arrest warrant against Muammar Gaddafi was withdrawn due to his death. One case was found inadmissible due to the principle of complementarity. Three suspects remain at large.32 As noted above, intervention in Libya became a turning point in the SC’s activities against atrocities. After Libya, there has been no SC referral to the ICC. Notably, in 2014, France submitted a draft resolution to refer the situation in Syria,33 but China and Russia vetoed the resolution.

20.3.2.2

The SC Deferral

Article 16 provides that the SC may defer an ICC investigation or prosecution for a renewable period of 12 months by a decision under Chapter VII of the UN Charter. Such a decision, so far, has been taken twice, in resolution 1422 in 2002 and its renewal resolution 1487 in 2003. Those resolutions requested the ICC not to commence or proceed with the investigation or prosecution of any case ‘involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operations’. The US requested the adoption of such a resolution to exclude the members of its armed forces from the ICC’s jurisdiction.34 Resolution 1487 was not renewed. Article 16 aims to balance peace and justice so that in the extreme situation where the quest for justice endangers international peace and security, the SC may, with the consent of all P5, intervene in the judicial process. It may be a legitimate balancing exercise in any given community at a time of emergency. It would not be easy,

31

ICC, Situation in Darfur, Sudan. ICC, Situation in Libya. 33 UN Doc. S/2014/348. 34 For the background and legal issues involving those resolutions, see Trahan (2013) pp. 438–447. 32

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however, to justify using Article 16 to give prior and comprehensive immunity for a certain group of personnel against the atrocity. To date, there have been several requests to the SC for deferral. One was a request from the African Union in 2008 to defer the case involving the then Sudanese president. Another was a request from Kenya in 2013 to defer the case involving the then president and vice-president of Kenya. The SC took no action for both requests. Neither the African Union nor Kenya was successful in demonstrating their cases, but those requests, in comparison with the resolutions 1422 and 1486, might have been more in line with the original intention behind Article 16.

20.3.2.3

The SC and the Crime of Aggression

Since the Nuremberg and Tokyo Trials, the crime of aggression has been regarded as a most serious international crime and thus has been included under the ICC’s jurisdiction. However, it was only when the amendments to the Rome Statute were adopted in the Kampala Review Conference in 2010 that the Member States agreed on the definition of the crime and the procedure to be taken in its investigation and prosecution. Naturally, during the Conference, the major point of contention was the SC’s role.35 The amended Rome Statute defines the crime of aggression (Article 8 bis) based on the GA resolution 3314 in 1974. The ICC does not have jurisdiction over the crime if it is committed by nationals of a non-State Party, even if the crime is committed on the territory of a Member State (Article 15 bis (5)). The Prosecutor, before investigation, must ascertain whether the SC has made a determination of an act of aggression committed by the State concerned. If not, the Prosecutor must get authorisation from the Pre-Trial Division to proceed with the investigation (Article 15 bis 6–8). Through these conditions specific to the crime of aggression, it is likely that the ICC is expected to adjudicate the crime only when there has been a regime change in the aggressor State and when, for whatever reasons, the State itself does not adjudicate the crime. This follows the Nuremberg/Tokyo tradition, amply showing the political nature of the crime, which can be distinguished from the human rights/ humanitarian-centred character of other crimes under the ICC’s jurisdiction.

35

Ambos (2022) pp. 689–670, 902–903.

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20.4 Ukraine, the ICC and the SC 20.4.1 The SC/P5 Responses to the 2022 Russian Invasion of Ukraine The Russo–Ukrainian conflict started in 2014. This section, however, concentrates on Russia’s overall invasion of Ukraine in February 2022. The invasion posed multiple serious international legal questions, including the alleged grave violation of international humanitarian law committed on the territory of Ukraine. Because Ukraine accepted the jurisdiction of the ICC in 2014, the ICC Prosecutor quickly manifested his intention to proceed with the proprio motu investigation. The subsequent referral by more than 40 Member States enabled the Prosecutor to start an investigation without permission of the Pre-Trial Chamber. On 17 March 2023, the Pre-Trial Chamber, upon the request of the Prosecutor, issued a warrant of arrest for President Putin for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to Russia, which constitute war crimes under Article 8 of the Rome Statute. In the SC, a draft resolution (S/2022/155) was submitted on 25 February 2022, accusing Russia of aggression against Ukraine in violation of Article 2(4) of the UN Charter. Russia vetoed the draft. China, India and the United Arab Emirates abstained, and all other members supported the draft. On 27 February, the SC adopted a resolution (S/RES/2623(2022)) calling for an emergency special session of the GA in accordance with GA resolution 377 (V), ‘A Uniting for Peace’. In the subsequent Special Session of the GA on 18 March, a resolution (ES-11/1) similar to the SC draft was adopted by a vote of 141 in favour, 5 against (including Russia) and 35 abstentions (including China). On 24 March, in the SC, Russia, together with three non-members of the SC (i.e. Belarus, North Korea and Syria), submitted a draft resolution (S/2022/231) calling for the protection of the civilians ‘in and around Ukraine’ and condemning violations of international humanitarian and human rights law, without any reference to the aggression nor the party responsible for those violations. Russia and China voted for the draft, but all other members abstained, so the draft was not adopted.36 On 28 March, the GA adopted ES-11/2 entitled ‘Humanitarian consequences of the aggression against Ukraine’ by a vote of 140 in favour, 5 against (including Russia) and 38 abstentions (including China). The resolution referred the Russian aggression and demanded an immediate cessation of Russia’s hostilities and of any attacks against civilians and civilian objects. On 8 April, the GA further adopted a resolution (ES-11/3) suspending Russian membership in the Human Rights Council by a vote of 93 in favour, 24 against (including China) and 58 abstentions. In the SC, a draft resolution (S/2022/720) was submitted on 30 September condemning the referenda in the occupied areas in Ukraine conducted by Russia and declaring them to have no validity and cannot form the basis for any alteration 36

For the background and voting explanations of the draft, see UN. Doc. S/PV.9002.

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of the status of these regions. Russia vetoed the draft. Brazil, China, Gabon and India abstained, and all other members supported. On 12 October, the GA adopted a resolution entitled ‘Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations’(ES-11/4) by a vote of 143 in favour, 5 against and 35 abstentions (including China). The resolution declared that annexation by Russia of Donetsk and other areas due to the ‘illegal so-called referendums’ had no validity under international law and did not form the basis for any alteration of the status of these regions. Resolution ES-11/5, adopted on 15 November, demanded Russia to make reparation for aggression and violations of international humanitarian and human rights law. The vote was 94 in favour, 13 against (including China) and 73 abstentions. On 2 November, Russia submitted a draft resolution (S/2022/821) to the SC. The draft asked for the establishment of a commission to investigate the claims against the US and Ukraine in the context of the alleged activities of biological laboratories in the territory of Ukraine. China supported the draft, while the remaining P5 members voted against it. The other members abstained. By the end of 2022, it was clear that the SC could not take any measures on the situation in Ukraine. Among the P5, China abstained from the draft resolution submitted by the ‘Western’ Member States and supported those submitted by Russia. Voting patterns in the GA have also become clear. States supporting Russia continue to be a minority. States belonging to the Global South have voted for the resolutions condemning Russia for violating the sovereignty and the integrity of Ukraine. However, with regard to human rights and humanitarian issues, the voting has been more divided. The P5’s reaction to the arrest warrant issued against President Putin is also divided. The UK and France supported the ICC, while Russia denounced any action by the ICC. US President Biden has been reported to state that the warrant is ‘justified’ and that ‘the question is – [the ICC is] not recognized internationally by us either. But I think it makes a very strong point’.37 On the other hand, the Chinese Foreign Ministry reportedly urged the ICC to take an ‘impartial stance’, respect the jurisdictional immunity of the head of state and ‘avoid politicization and double standards’.38

20.4.2 Impact on the SC as an Agent of Jus Puniendi Apart from the situation in Ukraine, the SC continues its activities as usual. One of the notable resolutions adopted ‘after Ukraine’ concerns the situation of Myanmar (S/ RES/2669, December 2022). The voting was 12 in favour, 0 against and 3 abstentions (Russia, India and China). The resolution, among others, urged the Myanmar military to release all arbitrarily detained prisoners.

37 38

The Guardian 2023. CNN (2023).

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As mentioned above, the political and moral basis of the SC as an agent of the jus puniendi of the international community had already been collapsing by February 2022. The invasion of Ukraine further worsened the situation.

20.4.2.1

Impact on the ‘Common Value’

Most of the reported atrocities were committed by the members of the Russian Army during the armed conflicts or in the occupied territory. International humanitarian law requires that members of the regular forces are educated and trained in the rules and customs of war as part of effective command and control. Article 47 of the 1949 Geneva Convention I obligates the States to ‘disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces’. Similar language is contained in Article 48 of Convention II, Article 127 of Convention III and Article 144 of Convention IV. Moreover, according to Article 82 of the 1977 Additional Protocol I, the Parties must keep legal advisers to advise military commanders on applying international humanitarian law so that appropriate instruction is given to the armed forces. Accordingly, well-established military forces ‘issue military manuals and other standard reference materials on international humanitarian law or, in some cases, integrate the law into their field manuals. […] In addition, States not only teach international humanitarian law as a subject of theoretical knowledge, but include it in regular practical training and exercises, in order to ensure that compliance with the rules of international humanitarian law becomes a reflex’.39 Russia is a party to all these conventions. Indeed, although there have been a considerable number of records of atrocities committed by the ‘Western’ regular forces in both Cold War and post-Cold War periods, most of the cases before the international criminal tribunals after Nuremberg/ Tokyo have related to irregular armed groups with or without backing from the governments. Systematic, intentional and large-scale atrocities by a regular force of a P5 member of the SC are unprecedented. They have shocked the international community. More serious is the strong possibility that the Russian government has intentionally conducted attacks against civilians to terrorise the population and weaken its resistance. Each of the P5, to date, has overlooked atrocities committed by their protégés or even secretly supported them. It is quite different, however, to intentionally commit atrocities themselves. Such behaviour amounts to the complete denial of the very basis of humanitarian law, whose purpose is to maintain a balance between military necessity and humanitarian considerations. Much attention has also been drawn to the position of another P5 member, China. China is (a) the major military and economic power confronting the US and its allies, 39

ICRC Commentary on Article 47 of the First Convention, para. 2775.

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(b) a typical authoritarian State that does not share the constitutional value with the ‘Western’ States and (c) a power with a strong influence on the Global South. China has always been sceptical about the jus puniendi of the international community. While the equally strong scepticism of the US comes from the protection of its own national interests, the Chinese attitude seems to be based not only on political consideration but also on ideological principle and, therefore, more consistent. In joining the unanimous adoption of SC resolution 827 in establishing the ICTY, China made it clear that it did not endorse the legal approach involved, emphasising that the international tribunal should be based on the consent of the relevant States rather than Chapter VII of the UN Charter.40 The following year, SC resolution 995 established the ICTR by a vote of 13 in favour, 1 against (Rwanda) and 1 abstention (China). China reiterated the same concern and stressed the need to get full cooperation of the Rwandan government.41 In 1998, China was one of seven States (together with the US, Libya and Israel) that voted against adopting the Rome Statute. China’s reasons can be grouped into three. One concerns the principle of (judicial) sovereignty of the States. China was against any jurisdiction of the ICC without the consent of the relevant States and the power of the ICC to judge whether the complementarity principle was satisfied. The second relates to domestic human rights. China was against the definition of war crimes including crimes committed in internal conflicts and against the notion of crimes against humanity without the link with armed conflicts so that the jus puniendi of the international community does not interfere with domestic human rights situations. The third is the supremacy of international peace and security and the political power of the SC over justice and the power of international tribunals.42 After the establishment of the ICC, China abstained, together with the US, from the referral of the situation of Darfur, stressing the importance of the Sudanese government’s consent.43 China joined the unanimous decision to refer the situation in Libya without reiterating its basic position.44 In contrast, China, together with Russia, supported the 2013 request for deferral of the Kenyan cases.45 While the flexible positions of the US and Russia depend on their political convenience, China’s position is consistent in sticking to the traditional horizontal international law and the judicial sovereignty of States. Its policy contravenes the notion of the jus puniendi of the international community. To date, China has been a minority in this respect. However, now that at least one more member of the P5 openly defies the ‘common value’ and China has established a leading position vis-à-vis Russia, the Chinese position will strengthen within the SC and deepen the fundamental schism of the common value within the SC.

40

UN. Doc. S/PV.3217, pp. 33–34. UN. Doc. S/PV.3453, p. 11. 42 Janatmakan and Sadeghi (2021) pp. 69–73. 43 UN. Doc. S/PV.5158, p. 5. 44 UN. Doc. S/PV.6491, p.4. 45 UN.Doc. S/PV.7060, pp.12–13. 41

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International Human Rights Law and Humanitarian Law

One point to note in analysing the schism in the SC is the relationship between international human rights law and humanitarian law. Humanitarian law is based on the natural humanitarian sentiments to minimise human suffering in times of war (without sacrificing military necessity) and can be traced back to the nineteenth century.46 The focus of humanitarian law is protection rather than individual rights or entitlements.47 Moreover, humanitarian law regulates the relationship between one Party to the international conflict and individuals belonging to the other Party; therefore, it has nothing to do with the right of individuals vis-à-vis their own governments. As such, the law is politically, culturally, and ideologically neutral and amenable to most authoritarian States. The 1949 Geneva Conventions enjoy almost universal adherence by 196 Member States (including the P5), and the 1977 Protocol I by 174 Member States. ICL plays an important role in implementing humanitarian law through the punishment of war crimes and related crimes committed during armed conflicts. Traditionally, humanitarian law and human rights law are regarded as distinct and exclusive, with the former applied in times of war and the latter in times of peace. However, as we saw above, during the Cold War, humanitarian law and ICL were influenced by international human rights law. Article 4 of the 1966 International Covenant on Civil and Political Rights (ICCPR) stipulates that in times of public emergency, a State cannot derogate from the duty to protect certain fundamental rights, and in case of derogation, such measures cannot involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Article 75 of the 1977 Additional Protocol I, on the other hand, stipulates the rules of protecting individuals in times of armed conflict in the power of a Party to the conflict. In drafting Article 75, the ICCPR was widely consulted, and it was stressed that this Article covers the situation where Article 4 may not.48 It is now generally accepted that human rights law applies to the conflict situation together with humanitarian law. In 2004, the Human Rights Committee of the ICCPR adopted General Comment 31, wherein it noted that the ICCPR applies in situations of armed conflict. The International Court of Justice, in its advisory opinions in the Legality of the Threat or Use of Nuclear Weapons case in 199649 and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case in 2004,50 referred to the relationship between human rights law and international humanitarian law, confirming that the former may apply in armed conflicts. The European Court of Human Rights (ECtHR) has applied the European Convention on Human Rights extensively to international and non-international conflicts, for example, in Cyprus, Iraq and Chechnya. Because the European Convention was 46

Cryer (2019) pp. 259–260. Bantekas (2020) p. 725. 48 ICRC Commentary on Article 75 of the Additional Protocol I. 49 ICJ Reports (1996), p.240. 50 ICJ Reports (2004), p.178. 47

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binding on Russia until 15 September 2022, there have been many applications against Russia, including those from the Ukrainian government, and the ECtHR issued interim measures against Russia.51 Moreover, removal of the nexus to the conflict in the definition of the crimes against humanity in the ICTY, ICTR and the Rome Statute makes the crimes applicable to a wide range of gross violations of human rights in times of peace. It is particularly important now that various human rights instruments and their implementing agencies are using criminal measures as an effective tool to protect human rights and emphasise a State’s duty to take such measures. Expansion of the definition of war crimes in the ICTR and the Rome Statute to non-international armed conflicts created another situation of conversion of international humanitarian law and human rights law. In this case, the violation of human rights in internal conflict may become punishable under ICL. As mentioned above, China is against those two changes in ICL. In addition to its strong adherence to traditional international law, such opposition represents China’s basic position not to allow interference in its domestic human rights situations. Jamatmakan and Sadeghi also pointed out more specific political reasons to avoid the risk of accusations of committing war crimes in Tibet or in future conflict in Taiwan.52 Such conversion of international human rights law, international humanitarian law and ICL will introduce a serious schism in the international protection of human rights, into hitherto more or less uncontroversial areas of humanitarian protection of the vulnerable in times of armed conflicts. Among the P5, China’s position will be strengthened now that post-Ukraine Russia will follow suit in all areas of international human rights and humanitarian law. This bloc, appealing for a denial of ‘Western’ ideas of human rights, may have strong inducing power over the States belonging to the Global South as well. On 7 March 2022, the UN Human Rights Council adopted resolution 49/1 entitled ‘Situation of human rights in Ukraine stemming from the Russian aggression’, calling upon Russia to end its human rights violations and abuses and violations of international humanitarian law in Ukraine. The resolution was adopted by a vote of 32 in favour, 2 against (Russia and Eritrea) and 13 abstentions (including China and India). On 4 April 2023, a similar resolution was adopted by a vote of 28 in favour, 2 against (China and Eritrea; Russia had already been expelled from the Council) and 17 abstentions.

51 52

ECtHR (2022). Jamatmakan (2021) p.70.

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20.4.3 Impact on the Relationship Between the SC and the ICC 20.4.3.1

Referral and Jurisdiction of the ICC Revisited

The ICC’s investigation in Ukraine has been conducted in close cooperation with the EU and other ‘Western’ States. The arrest warrant issued against President Putin infuriated Russia and further antagonised China. Considering the current division in the SC and the attitude of Russia and China towards the ICC, it is neither likely nor productive for the SC to make a new referral. The absence of the SC referrals may offer a good occasion to review the basis of the ICC’s jurisdiction. As stated earlier, the ICC exercises the jus puniendi entrusted by its Member States, and by the SC which again exercises the jus puniendi of the international community. In the post-post-Cold War world, the existence of the jus puniendi of the international community itself has become questionable. The same goes for the SC’s role as its custodian. Moreover, the Russian invasion of Ukraine and the reaction of the P5 destroyed the international community’s trust in the P5 and in the SC’s role in ICL. Other international organs, such as the GA or Human Rights Council, may substitute the role of the SC. Indeed, this is the idea of the Uniting for Peace resolution as mentioned above. However, none of them satisfies the two requirements to exercise jus puniendi (i.e. the enforcement power and the agreed common value). The ICC, therefore, must go back to the original basis of its jurisdiction, namely, the consent of the State Parties. As we have seen, such a basis is most legitimate in traditional international law. Moreover, the national jus puniendi of the Member States is absolute and complete compared to the rather precarious (and now dubious) existence of the jus puniendi of the international community. On the other hand, it must be carefully examined whether the ICC, without the SC, can be a truly effective international criminal tribunal. To date, cases from nine situations have been prosecuted at the ICC: two referred by the SC, five were self-referral and two situations based on the proprio motu investigation by the Prosecutor. Most proprio motu cases have been aborted or acquitted due to insufficient evidence. Cases that led to conviction are mostly self-referral. Eight additional situations are under investigation, most of which are proprio motu or non-self-referral. This record shows the inherent difficulty of international criminal tribunals operating based on the consent of States. Evidence required in criminal litigation is quite different from that of other international litigation of an essentially civil nature. It is almost impossible to gather evidence without effective cooperation from the State where the crime was committed. The same goes for the SC referral cases. For the cases referred to by the SC to be successfully investigated and prosecuted, the SC must use its Chapter VII power not only for referral but to get cooperation from the States concerned. This implicates a contradiction in the principle of complementarity as well. As Bergsmo rightly pointed out, it is unrealistic that the national criminal

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justice system that can execute the ICC’s requests for necessary evidence is unwilling or unable to genuinely investigate and prosecute the case in question.53 As a result, ICC procedure is often criticised for being used by the governments of State Parties to convict their opponents when they do not want to do it themselves for political reasons. Of course, contemporary technology may change the types of evidence and methodology of collecting such evidence. For example, the information to be used for substantiating the issue of an arrest warrant against President Putin for the transfer of children from the occupied area of Ukraine to Russia may have been gathered in such a way. Reliance on a specific State or a specific group of States may also impact the ICC’s legitimacy. Although based on the consent of Ukraine, the current close association with the overwhelmingly European criminal justice-related bodies, including human rights-related organs, may strengthen the ICC’s image as a ‘Westernised’ court. Indeed, the SC referral was unpopular among the States belonging to the Global South and separation of the ICC from the SC may contribute to the ICC’s perceived neutrality. At the same time, the ICC is required to navigate its way carefully to keep its judicial integrity in the decentralised world.

20.4.3.2

Deferral

The SC’s deferral power is logically easier to be exercised in the current international community. The purpose of Article 16 is to suspend a judicial process where it is necessary for the maintenance of international peace and security. It has nothing to do with the jus puniendi of the international community and is planned to be used politically. Article 16 is well constructed in the sense that it can be invoked for a real emergency on which all permanent members can agree. There is a possibility that Article 16 may be invoked in a future peace agreement between Russia and Ukraine. It is common for many peace treaties to have provisions on the responsibilities of the Parties and their nationals for the acts committed during conflicts, the status of POWs and reparation. Depending on the condition of the peace, Article 16 may be used to stop the ICC investigation and prosecution. However, even if the ICC’s investigation may be suspended and Ukraine agrees to stop its criminal procedure, it is doubtful whether the prosecution or trial in the third States may be suspended.

20.4.3.3

The Crime of Aggression with or Without the SC

The Russian invasion revealed the specific nature of the concept of the crime of aggression and the limits of the ICC’s jurisdiction over the crime. The crime of aggression derives from the traditional value of sovereignty and territorial integrity, a typical State-to-State issue. Aggression also is the central subject matter of the SC 53

Bergsmo (2000) pp. 97–98.

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that deals with international peace and security. In this sense, it is understandable that the ICC’s jurisdiction on this crime is strictly limited. On the other hand, the crime of aggression has been the pillar of the ICL since the Nuremberg and Tokyo Trials. If the international community does not respond to the commission of this crime, it will mean the denial of ICL in its original concept. There are various proposals to set up an alternative international criminal tribunal to adjudicate the Russian aggression. For example, the European Commission proposed two options for such a tribunal: ‘a special independent international tribunal based on a multilateral treaty, or a specialized court integrated in a national justice system with international judges’.54 Subsequently, Eurojust declared it would set up a new International Centre for the Prosecution of the Crime of Aggression against Ukraine in February 2023.55 Each option has a variety of different practical and legal obstacles56 , including immunity. However, in terms of jus puniendi, without the consent of the SC and /or Russia, both options rely on the consent of Ukraine as a territorial State. Approval or support from third States or the GA may facilitate the work of such tribunals practically or increase their legitimacy but cannot in itself provide any international court with jus puniendi.

20.5 The Way Forward The ICC must stand on its own feet. It must start from the beginning, which is the jus puniendi of sovereign States. However, this does not mean that ICL must return to the traditional decentralised system, reflecting decentralised powers and values. The scope and nature of the jus puniendi of a State is rapidly changing. The international community’s common values do not disappear completely, even when the SC or the P5 does not share those values. Instead, a considerable number of States are accepting those values and incorporating them into their national criminal justice systems. The notable examples are domestic legislation on core crimes and the exercise of universal jurisdiction on those crimes. Through those measures, an increasing number of States are investigating and prosecuting the core crimes which have nothing to do with the interests of their national communities. For example, recently, there have been prosecutions in the Netherlands of the core crimes committed by Syrian nationals in Syria.57 In Germany, a case was filed against senior Myanmar generals for genocide, war crimes and crimes against humanity.58 An investigation based on universal jurisdiction has similar difficulties regarding international cooperation. Moreover, in many States, such legislation puts certain 54

European Commission, Press Release on 30 November 2022. Eurojust, Press Release of on 23 February 2023. 56 Ambos (2023). 57 Verhagen (2023). 58 Pelliconi (2023). 55

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legal limitations on exercising universal jurisdiction, reflecting the lessons learnt from the Yerodia case and other political difficulties involving the 1993 Belgian Statute.59 Still, the existence of such a procedure may make those States agents of the jus puniendi of the international community. Some of those States are also cooperating with each other in their investigation. In the case of Ukraine, Eurojust operates the Core International Crimes Evidence Database, which not only assists prosecution in Ukraine and at ICC but prosecution before the national courts of the third States exercising universal jurisdiction. During the negotiation of the Rome Statute, Germany, together with some other States, argued that because States can exercise universal jurisdiction for core crimes, they could also, by ratifying the Statute, transfer this universal jurisdiction to the ICC.60 The proposal met with strong objections from other States. Although the German proposal was a logical one, it is also understandable to distinguish territorial/ personal jurisdiction and universal jurisdiction because the former represents the jus puniendi of the States while the latter represents the jus puniendi of the international community. In the case of Ukraine, it seems that the ICC’s mission may be complemented not by the SC but by the exercise of territorial jurisdiction by Ukraine supported by friendly States and regional organisations, and through the network of individual States that exercise the jus puniendi of the international community. If the SC’s inability to cope with atrocities continues, this might be a new model for effectively implementing ICL. The exercise of universal jurisdiction and regional cooperation may become another source of schism among the international community. Such a course of action may be seen as a new ideological colonialism and invite a strong political reaction from the States. Neutrality, impartiality, and fairness would be the key for this exercise to be successful. Moreover, the involvement of international and regional organisations might help legitimatise such a project. The investigation and prosecution of crimes committed in Ukraine suggest, in any way, a difficult future for ICL.

References All URLs were accessed as of 31 March 2023 unless specified otherwise. Akande, D. 2003. The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits. Journal of International Criminal Justice 1. Ali, N. 2019. Through a Glass Darkly: The ICC, the UNSC and the Quest for Justice in International Law. International Criminal Law Review 19. Ambos, K. 2013. Punishment without a Sovereign? The Ius Puniendi Issue of international Criminal Law. Oxford Journal of Legal Studies 33–42. Ambos, K. 2022. Rome Statute of the International Criminal Court, 4th ed. Beck Hart Nomos. Ambos, K. 2023. A Ukraine special tribunal with legitimacy problems? Verfassungsblog of 6 January 2023 https://verfassungsblog.de/a-ukraine-special-tribunal-with-legitimacy-problems/. 59 60

Cryer (2019) pp. 61–62. Kaul (1998) p. 369. See also, Bergsmo (2000) pp. 100–101.

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Bantekas, I., and L. Oette. 2020. International Human Rights Law and Practice, 3rd ed. Cambridge: Cambridge University Press. Bergsmo, M. 2000. Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council. Nordic Journal of International Law 69. Cassese, A. 2012. The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice. Leiden Journal of International Law 25. Committee against Torture. 2014. Concluding observations on the combined third to fifth periodic reports of the United States of America (CAT/C/USA/CO/3-5) of 19 December 2014. CNN. 2023. https://edition.cnn.com/europe/live-news/russia-ukraine-war-news-03-20-23/h_cd7c daa2e62be7938117ffd58cb45d45. Crawford, J. 2019. Brownlie’s Principles of Public International Law, 9th ed. Oxford University Press. Cryer, R. 2006. Sudan, Resolution 1593, and International Criminal Justice. Leiden Journal of International Law 19. Cryer, R., D. Robinson, and S. Vasiliev. 2019. An Introduction to International Criminal Law and Procedure, 4th ed. Cambridge University Press. Cryer, R. 2022. International Criminal Law. In International Human rights Law, ed. D. Moeckli et al. Oxford: Oxford University Press. Dias, T. 2021. The Principle of Legality in the ICC’s Appeals Judgment on AbdAl-Rahman’s Jurisdictional Challenge: A Follow-up on Merits and Shortcomings, EJIL:Talk! https://www.ejiltalk.org/the-principle-of-legality-in-the-iccs-appeals-judgment-onabd-al-rahmans-jurisdictional-challenge-a-follow-up-on-merits-and-shortcomings/. European Commission, Press Release on 30 November 2022, Ukraine: Commission presents options to make sure that Russia pays for its crimes. European Court of Human Rights. 2022. Press Release ECHR220 Inter-State case Ukraine v. Russia (X)_ receipt of completed application form and notification to respondent State (3).pdf. Eurojust, Press Release on 23 February 2023, https://www.eurojust.europa.eu/news/start-operat ions-core-international-crimes-evidence-database-and-new-international-centre. ICC, Situation in Darfur, Sudan, https://www.icc-cpi.int/darfur. ICC, Situation in Libya. https://www.icc-cpi.int/libya. ICC-02/05-01/09-139-Corr, dated 13 December 2011. ICC-01/11-01/11-354, dated 14 June 2013. ICC-01/11-01/11-163, dated 1 June 2013. ICC-02/05-01/20 OA8, dated 1 November 2021. ICJ Reports. 1996. ICJ Reports. 2004. ICRC Commentary on Article 75 of the Additional Protocol I. https://ihl-databases.icrc.org/en/ihltreaties/api-1977/article-75/commentary/1987. ICRC Commentary on Article 47 of the First Convention. IHL Treaties—Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field, 1949—Commentary of 2016 Article | Article 47—Dissemination of the Convention | Article 47 (icrc.org). ICTY, Prosecutor v. Tadic (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, dated 2 October 1995. ILC Yearbook 1950 II 374. Janatmakan, H., and M. Sadeghi. 2021. China’s Approach Regarding the International Criminal Court (ICC). Journal of International Criminal Law 2. Kaul, H. 1998. Special Note: The Struggle for the International Criminal Court’s Jurisdiction. European Journal of Crime, Criminal Law and Criminal Justice 6-4. Koskenniemi, M. 1995. The Police in the Temple, Order, Justice and the UN: A Dialectical View. European Journal of International Law 6.

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Moss, L. 2012. The UN Security Council and the International Criminal Court, Towards a More Principled Relationship, Friedrich-Ebert-Stiftung, Global Policy and Development, https://lib rary.fes.de/pdf-files/iez/08948.pdf. OSCE, Report on Russia’s Legal and Administrative Practice in light of its OSCE Human Dimension Commitments, dated 22 September 2022. Ozaki, K. 2022. “Kokusai Keijiho ni okeru Keibatsuken no Konkyo” (Basis of the jus puniendi in International Criminal Law) in Hogaku shinpo (New Law Study Report), 128-10. Pelliconi, A., and F. De Gregorio. 2023. New Universal Jurisdiction case Filed in Germany for Crimes Committed in Myanmar Before and After the Coup, EJIL:Talk!, https://www.ejiltalk. org/new-universal-jurisdiction-case-filed-in-germany-for-crimes-committed-in-myanmar-bef ore-and-after-the-coup-on-complementarity-effectiveness-and-new-hopes-for-old-crimes/. Peters, A. 2011. The Security Council’s Responsibility to Protect. International Organizations Law Review 8. STL, The Prosecutor v. Ayyash et al. 2012. Decision on the Defence Appeals against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”, 24 October 2012. Trahan, J. 2013. The Relationship between the International Criminal Court and the U.N. Security Council: parameters and Best Practices. Criminal Law Forum 24. The Guardian. 2023. https://www.theguardian.com/us-news/2023/mar/18/joe-biden-welcomes-iccarrest-warrant-vladimir-putin UN Doc. A/CONF.157/23. UN Doc. A/HRC/51/SR.40. UN. Doc, A/RES/1/95(1946). UN. Doc. S/2014/348. UN. Doc. S/PV.3217 UN. Doc. S/PV.3453. UN. Doc. S/PV.5158. UN. Doc S/PV.6491. UN. Doc S/PV.7060. UN. Doc. S/PV.9002. UN News. https://news.un.org/en/story/2020/09/1071572. Verhagen, G. 2023. Accountability in The Hague: Recent Developments in Dutch Core International Crimes Cases regarding the Syrian Civil War, EJIL:Talk!, https://www.ejiltalk.org/acc ountability-in-the-hague-recent-developments-in-dutch-core-international-crimes-cases-reg arding-the-syrian-civil-war/. Werle, G. 2014. Principles of International Criminal Law, 3rd ed. Oxford: Oxford University Press.

Kuniko Ozaki is Professor of international law at Chuo University, Faculty of Law. She served as a judge of International Criminal Court between 2010 and 2019. She was a Second Vice-President of the Court between 2015 and 2018. During her tenure, she sat on various cases including Bemba, Kenyatta (Presiding) and Ntaganda cases. Ozaki graduated from Tokyo University in 1978 and obtained an M. Phil. in International Relations at Oxford University in 1982. Afterwards, she worked in several positions for the Japanese Foreign Ministry and Justice Ministry. From 2006 to 2009, she worked for the United Nations Office on Drugs and Crime where she was Director for Treaty Affairs. She has also worked as a professor of international law at Tohoku University Graduate School of Law and at other universities and has written extensively on international criminal law, refugee law and law of human rights.

Chapter 21

Negotiating Peace and Justice: Norms on Amnesty and the International Criminal Court Yuuka Nakazawa

21.1 Introduction The Ukrainian conflict is one of the most pressing issues in the world today, with the ongoing war causing immense human suffering and political tensions. As the conflict continues, key questions arise on how best to hold those who have committed war crimes, crimes against humanity, crimes of genocide, and crimes of aggression accountable for their actions. The International Criminal Court (ICC) has been conducting an ongoing investigation into war crimes, crimes against humanity and genocide that may have occurred since 21 November 2013.1 The ICC Prosecutor commenced these investigations on 2 March 2022 after receiving referrals from 39 ICC State Parties for the situation in Ukraine. On 17 March 2023 the ICC issued an arrest warrant for Russian President Vladimir Putin, accusing him of being responsible for war crimes in Ukraine. The court alleges that Putin committed the ‘war crime’ of overseeing the unlawful abduction and deportation of children from Ukraine to Russia. Will issuance of this arrest warrant bring peace to Ukraine? Do the ICC interventions promote peace? The ICC has been said to ensure that the most serious crimes do not go unpunished, and to contribute to the fight against impunity and the establishment of the rule of law. The ICC can also contribute to capacity-building efforts by sharing its expertise in international criminal law, investigations, and witness protection. However, the ICC has been criticised for impeding peacebuilding in States in conflict. Critics argue that 1

ICC-OTP (2022) Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: ‘I have decided to proceed with opening an investigation’. https://www.icc-cpi.int/news/statementicc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening. Accessed 19 March 2023. Y. Nakazawa (B) Kanagawa University, 3-27-1 Rokkakubashi, Kanagawa-ku, Yokohama 221-8686, Kanagawa, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_21

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ICC investigations may undermine peace negotiations by making it more difficult for the parties involved to reach a settlement. For example, if the leaders or parties in a conflict fear prosecution, they may be less willing to engage in peace talks or make concessions.2 This has been recognised as a ‘peace versus justice’ issue. One possible tool for achieving peace in this context is the use of amnesty for war criminals as part of broader peace negotiations. However, the use of amnesty raises complex legal questions, particularly regarding the role of the ICC. To avoid these problems, certain accountability systems could be considered as alternatives to criminal prosecution by the ICC. Therefore, this paper discusses the use of amnesty in the Ukrainian conflict and issues of peace and justice, including the interests of justice.3 It also considers the instruments available to pursue accountability for the crimes committed in the conflict.

21.2 The Argument About the Relationship Between Peace and Justice The issue of ‘peace versus justice’ is a complex and often debated topic in the context of international criminal justice. This signifies the potential tension between the pursuit of peace and justice in conflict and post-conflict situations.

21.2.1 ‘No Peace Without Justice’ A widely held position is the idea of ‘no peace without justice’. Proponents of this stance argue that there can be no real peace without accountability for core crimes, such as war crimes, crimes against humanity, and genocide. Ending impunity is the main objective of international criminal justice and a necessary factor in establishing and maintaining peace. It is thought that breaking the cycle of impunity contributes to preventing the repetition of violations and to dismantling the structures that make violence possible.4

2

Sriram (2009) Conflict Mediation and the ICC: Challenges and Options for Pursuing Peace with Justice at the Regional Level. In: Ambos K, et al. (eds) Building a Future on Peace and Justice. Springer, Berlin, Heidelberg, p. 305. 3 This paper focuses on amnesty granted by peace agreements and thus does not deal with de facto amnesty; see Ochi (published online ahead of print 2023) Taking Illegal Amnesties Seriously: Threefold Approach to the Admissibility Test before the International Criminal Court. International Criminal Law Review, pp. 6–7. 4 Méndez and Kelley (2015) Peace Making, Justice and the ICC. In: De Vos C et al. (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions, Cambridge University Press, Cambridge, p. 481.

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Hence, according to this perspective, negotiations that sacrifice accountability for immediate peace create obstacles to redress for victims and communities, which is needed to create a fair and lasting resolution to violent tensions.5 There is also the view that international prosecution has a positive impact on peace negotiations. In the case of the former Yugoslavia, although there was strong criticism of the decision of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) to prosecute Bosnian Serb leaders Radovan Karadži´c and Ratko Mladi´c while peace negotiations were underway, many commentators believe that these indictments actually helped make the Dayton Agreement possible.6 Contributing to the success of the Dayton process was the fact that Slobodan Miloševi´c was in need of help from the international community in lifting the sanctions on Serbia.7 The Assistant Secretary of State of the United States Richard Holbrooke, who also led the peace process, excluded Karadži´c and Mladi´c from the negotiations on the grounds that they had been prosecuted. The exclusion of the obstructionist Karadži´c and Mladi´c from the negotiations allowed Miloševi´c to become the point of contact for the negotiations and was credited with facilitating the peace process.8 In some cases, certain actors must be excluded for any meaningful pace negotiation to take place.9 The role of international criminal prosecution in marginalising or stigmatising perpetrators may increase the possibility of concluding a peace agreement. However, if Miloševi´c had been indicted before the peace agreement was concluded, it is doubtful that the peace negotiations would have moved forward unless the mediator abandoned his policy of not talking to the indicted leaders.10

21.2.2 ‘Peace Versus Justice’ A persistent argument is that prosecution is detrimental to peace. Proponents of this view assert that seeking to prosecute key actors involved in a negotiated settlement is disruptive to the peace process and makes an agreement less likely.11 Some scholars maintain that achieving peace requires negotiating with the very people who are 5

Ibid. Meron (2011) The Role of the ICC: Accountability, Peace, and Justice. In: The Making of International Criminal Justice: The View from the Bench: Selected Speeches, Oxford University Press, Oxford, p. 157. 7 Neu (2012), Pursuing Justice in the Midst of War: The International Criminal Tribunal for the Former Yugoslavia. Negotiation and Conflict Management Research 5, pp. 87–92. 8 Ibid., pp. 87–92. 9 Kersten (2016) Peace and/or/with/versus Justice. In: Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, Oxford University Press, Oxford, p. 22. 10 Neu, supra note 7, p. 92. 11 Kersten, supra note 9, p. 28. 6

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responsible for international crimes, and that insisting on prosecuting those people can prolong conflict.12 Since ancient times, amnesty has been used as an incentive for peace negotiations when war crimes and other crimes are committed during conflicts. For those critical of prioritising justice, amnesty for those responsible for mass atrocities remains an essential tool for bringing warring parties to the negotiating table and providing them with the incentive to both agree to and implement a peace agreement.13 The positive objectives of amnesty can include: encouraging combatants to surrender and disarm; persuading authoritarian rulers to hand over power; building trust between warring factions; facilitating peace agreements; releasing political prisoners; encouraging exiles to return; providing an incentive to offenders to participate in truth recovery or reconciliation programmes.14 This has been a recognised practice in international law and, in order to facilitate the end of hostilities and peacebuilding, Additional Protocol II to the Geneva Conventions provides that the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict.15 However, under current international law, which aims to end ‘the culture of impunity’, negotiators may be arrested or prosecuted as perpetrators of core crimes. If the leaders of conflicting parties fear prosecution, they may be less willing to engage in peace negotiations or make concessions. In such cases, prosecution can generally be considered to impede or inhibit the possibility of ending conflict.16 Indeed, Vincent Otti, a senior official in the Lord’s Resistance Army (LRA), indicted by the ICC in 2005, stated that he would ‘only sign an agreement that brings peace, not one that leads me to the International Criminal Court’.17 In addition, when the ICC issued arrest warrants against five LRA commanders in 2005, it drew criticism that the arrest warrants contravened Uganda’s Amnesty Act, passed in 2000, which allows those who renounce violence to return to their communities without fear of possible prosecution.18 As such, there is criticism that the Amnesty Act is necessary for peace to be achieved, but the ICC’s arrest warrants make the Act inapplicable to those to whom it most needs to be applied.19 At first glance, such criticism seems to be a way of thinking that prioritises peace over the pursuit of justice. However, critics do not argue that justice can never be 12

Meron, supra note 6, p. 157. Kersten, supra note 9, p 29. 14 University of Ulster (2013) The Belfast Guidelines on Amnesty and Accountability, Guideline 4. 15 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 6(5). 16 See Krzan (2016) International Criminal Court Facing the Peace vs. Justice Dilemma, International Comparative Jurisprudence 2 (2). 17 Kersten, supra note 9, p. 29. 18 Clark (2011) Peace, Justice and the International Criminal Court: Limitations and Possibilities, Journal of International Criminal Justice, 9 (3), p. 541. 19 Ibid., p. 541. 13

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achieved, but believe that it is detrimental to pursue justice before or during attempts to establish peace.20

21.3 Transitional Justice and the Denial of Amnesty 21.3.1 Early Arguments on Transitional Justice It is worth referring to transitional justice as an issue relevant to the debate on peace versus justice. In the 1980s, dealing with past human rights violations became prominent in Latin America.21 For example, in the 1980s, States such as Chile and Argentina chose to grant amnesty to military officers rather than prosecute them on the grounds that amnesty would be more conducive to long-term peace and stability than criminal trials, which could cause new tensions and friction.22 In 1983, the military regime that had committed massive human rights violations in Argentina was ousted, and the new democratic government established the National Commission on the Disappeared (Comisión Nacional sobre la Desaparición de Personas, CONADEP) under the military regime. In 1990, Chile’s transition from a military to a democratic government led to the creation of the National Commission for Truth and Reconciliation (Comisión Nacional de Verdad y Reconciliación or the “Rettig Commission”), as in the case of Argentina. The rationale behind forming these truth commissions was the realisation that it would be politically difficult to bring those responsible for all human rights violations to justice. In Argentina, while the democratic government prosecuted some of those responsible for human rights violations, prosecution was limited to leaders of the military regime. In Chile, the amnesty law enacted under the military regime prevented the prosecution of people responsible for human rights violations. These practices of amnesty and truth commissions were inherited by South Africa’s efforts to deal with apartheid with the establishment of the Truth and Reconciliation Commission in 1995. This commission is notable because it made amnesty conditional on the perpetrators of human rights violations revealing the whole truth. This mechanism of using truth commissions and amnesty as an alternative to the pursuit of responsibility through criminal trials was particularly used during periods of regime transition and came to be known as ‘justice in times of transition’.23 Early arguments about transitional justice centred on how new democratic regimes would deal with old ones, especially how to balance the correction of violations committed by old regimes with the integration of perpetrators and victims.24 As 20

Kersten, supra note 9, p. 29. Arthur (2009) How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice, Human Rights Quarterly 31, p. 324. 22 Clark, supra note 18, p. 539. 23 Arthur, supra note 21, p. 329. 24 Ibid., p. 331. 21

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seen in the cases of Argentina and Chile, this was because it was recognised that maintaining and stabilising a democratic society was important for the new regime, and that prosecuting crimes of the old regime by a new and weak regime could destabilise society.25 However, the international community, faced with massive violations of human rights and humanitarian law in the former Yugoslavia, turned to the pursuit of responsibility through international criminal tribunals. In 1993, the ICTY was established to halt the ongoing widespread and flagrant violations of humanitarian law in the territory of the former Yugoslavia by making it clear that individual responsibility would be pursued.26 Following the genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was also established in 1994. It had the same objectives as the ICTY.27 Thereafter, as international human rights law and humanitarian law became common concerns of the international community, a common understanding emerged that impunity for those responsible for large-scale violations of human rights law or serious violations of humanitarian law should not be tolerated. The entrenchment of this perception through the practice of the ICTY/ICTR challenges the foundations of the transitional justice mechanism of diminishing individual responsibility. In other words, under international law, amnesty cannot be granted for certain crimes.

21.3.2 The United Nations Approach to Transitional Justice In 2010, ‘Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice’ was released to provide guidance to transitional justice processes and mechanisms. The Guidance Note states that ‘transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, truth-seeking, reparation programmes, institutional reform or an appropriate combination thereof’.28 It also states that ‘transitional justice should further seek to take account of the root causes of conflicts and the related violations of all rights, including civil, political, economic, social, and cultural rights’.29 Based on this understanding, the memorandum lists a set of Guiding Principles and Components of Transitional Justice, which include a variety of content on transitional justice.30 25

Huyse (1995) Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past. In: Kritz NJ (ed) Transitional Justice: How Emerging Democracies Reckon with Former Regimes 1, US Institute of Peace Press, Washington, DC, pp. 346–347. 26 UN Security Council Resolution 827 (1993), UN Doc. S/RES/827 (1993), Preamble. 27 UN Security Council Resolution 955 (1994), UN Doc. S/RES/955 (1994), Preamble. 28 UN Secretary-General (2010) Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice, p. 3. 29 Ibid. 30 Ibid., p. 2.

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Principle 1 of the Guiding Principles is: ‘Support and actively encourage compliance with international norms and standards by transitional justice processes and mechanisms’. According to the Guidance Note, to comply with these international legal obligations, transitional justice processes should seek to ensure that States investigate and prosecute gross violations of human rights and serious violations of international humanitarian law.31 Principle 2 is: ‘Take account of the political context when designing and implementing transitional justice processes and mechanisms’. While this principle focuses on peace and justice, the Guidance Note states that even in fragile post-conflict and transitional environments, the question for the United Nations (UN) is never whether to pursue accountability and justice, but rather when and how. Furthermore, it states that the UN cannot endorse provisions in peace agreements that preclude accountability for genocide, war crimes, crimes against humanity, and gross violations of human rights, and that the UN should seek to promote peace agreements that safeguard room for accountability and transitional justice measures in the post-conflict and transitional periods.32 Principle 8 is: ‘Encourage a comprehensive approach integrating an appropriate combination of transitional justice processes and mechanisms’. The guidance Note notes that effective transitional justice programmes utilize coherent and comprehensive approaches that integrate the full range of judicial and non-judicial processes and measures such as truth-seeking, prosecution initiatives, reparations programmes, institutional reform, or an appropriately conceived combination thereof. It also states that the UN should support national constituencies to ensure that various transitional justice mechanisms can positively complement each other in post-conflict and transitional environments.33 From these declarations, as well as in the UN’s understanding, it can be said that current transitional justice is aimed at reconciliation and the rebuilding of domestic organisations on the premise of criminal justice, and not at the relaxation of responsibility for the preservation of peace.

21.3.3 The Relationship Between Amnesty and Criminal Justice-Centred Transitional Justice One issue to consider is the relationship between the type of amnesty and the transitional justice mechanism. There are two kinds of amnesty: so-called ‘blanket amnesty’, which has no special conditions, and amnesty with some attached conditions. The conditions here refer to specific complementary measures to be taken to grant amnesty, including surrendering and disarming, applying within prescribed time limits, repenting and providing information on comrades, telling the truth, repairing the harm, participating in community-based justice mechanisms and 31

Ibid., pp. 3–4. Ibid., p. 4. 33 Ibid., p. 6. 32

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submitting to lustration and vetting procedures.34 While blanket amnesty tends to be criticised because it creates a risk that lies and denials will become institutionalised, corrupt the processes of institutional reform, and reinforce suspicion between the different parties involved in the transition, the conditional amnesty is supposed to contribute to transitional justice, particularly to reconciliation and forms of accountability other than prosecution.35 Recalling Principles 1, 2, and 8 of the Guidance Note of the Secretary-General, the UN rejects blanket amnesty for gross violations of human rights and serious violations of international humanitarian law. On the other hand, the Guidnace Note does not appear to deny the use of conditional amnesty (i.e. transitional justice), which contributes to forms of accountability other than prosecution, such as truth commissions.36 In this regard, Bell states that the new law of transitional justice has derived from an attempt to apply the normative constraints of human rights and humanitarian law to peace agreement amnesty.37 And she defines the new law of transitional justice as follows: (1) Blanket amnesty that covers serious international crimes is not permitted. (2) Amnesty is required to facilitate the release, demilitarisation, and demobilisation of conflict-related prisoners and detainees. (3) The normative commitment to accountability should be married with the goal of sustaining the ceasefire and developing the constitutional commitments at the heart of the peace agreement. This can be achieved by creative design based around the following mechanisms: (a) Quasi-legal mechanisms which deliver forms of accountability other than criminal law processes with prosecution, such as Truth Commissions; (b) A bifurcated approach whereby international criminal processes for the most serious offenders, coupled with creatively designed local mechanisms, including forms of amnesty for those further down the chain of responsibility, aim at a range of goals such as accountability, demobilisation and reconciliation. (4) Should any party evidence lack of commitment to the peace agreement, and in particular return to violence, any compromise on criminal justice is voidable and reversible through the use of international criminal justice.38

Such an analysis contrasts with the sceptical view of criminal trials in early arguments for transitional justice in terms of their inclusion in transitional justice mechanisms, while accepting a certain amnesty or impunity for achieving a peace agreement. The concept of transitional justice, which emerged through the avoidance of

34

Ochi, supra note 3, pp. 7–8. Ibid. 36 UN Secretary-General, supra note 28, pp. 3–6. 37 Bell (2008) The New Law of Transitional Justice. In: On the Law of Peace: Peace Agreements and the Lex Pacificatoria, Oxford University Press, Oxford, p. 239. 38 Ibid., p. 240. 35

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criminal trials, seeks to fulfil its significance by placing criminal trials at the centre and has indeed been recognised as such by the UN.

21.4 The Practice of Peace Agreements This section examines how amnesty has been handled in peace agreements. In African peace agreements, amnesty has been used to end conflicts.

21.4.1 Sierra Leone Broad amnesty was part of the Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, signed at Abidjan on 30 November 1996 (Abidjan Peace Agreement). The Abidjan Peace Agreement provides that to consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the Revolutionary United Front (RUF) in respect of anything done by them in pursuit of their objectives as members of that organization up to the time of the signing of this Agreement.39 The Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, signed at Lomé, on 7 July 1999 (Lomé Peace Agreement) stipulates that in order to bring lasting peace to Sierra Leone, the government shall take appropriate legal measures to grant absolute and free pardon to Corporal Foday Sankoh.40 Lomé Peace Agreement also provides that the government shall grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them.41 In addition, to consolidate the peace and promote the cause of national reconciliation, the government e shall ensure that no official or judicial action is taken against any combatants in respect of anything done by them in pursuit of their objectives as members of their organisations.42 Such a provision was intended to help gain the agreement of the RUF in peace negotiations between the government of Sierra Leone and the RUF by eliminating the possibility of prosecution against the RUF’s members.43 On the other hand, the UN Secretary-General made it clear that the UN would not recognise amnesty 39 Bell, supra note 37, pp. 241–242; Article 14 of the Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (Abidjan, 30 November 1996). 40 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé, 7 July 1999), Article 9 (1). 41 Ibid., Article 9 (2). 42 Ibid., Article 9 (3). 43 Truth and Reconciliation Commission, Sierra Leone (2004) Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission 1. GPL Press, Accra, Ghana, p. 29.

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for genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.44 However, even after the signing of the Lomé Agreement, the RUF refused to disarm and confronted the United Nations Mission in Sierra Leone (UNAMSIL), and combat resumed in May 2000. Following the subsequent capture of Sankoh, the President of Sierra Leone, Ahmad Tejan Kabbah, noting that the establishment of a strong court would be necessary to bring and maintain peace and security in Sierra Leone and the West African subregion, and that the importance of bringing RUF personnel to justice, requested the Security Council to establish a special court to prosecute members of the RUF.45 In response to this request, in August 2000, the Security Council adopted Resolution 1315, authorising the Secretary-General to negotiate the creation of a special court.46 According to Security Council Resolution 1315, the UN holds the understanding that the amnesty provisions of the Lomé Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, or other serious violations of international humanitarian law. The resolution also recognised that a credible system of justice and accountability for the very serious crimes committed in Sierra Leone would end impunity and contribute to the process of national reconciliation and to the restoration and maintenance of peace, as well as the negative impact of the security situation on the administration of justice in Sierra Leone and the pressing need for international cooperation to assist in strengthening the judicial system of the State.47 Article 10 of the Statute of the Special Court for Sierra Leone (SCSL) provides the following: ‘An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2–4 of the present Statute shall not be a bar to prosecution’.48 In the Kallon and Kamara cases, the SCSL held that the Lomé Agreement did not exclude its jurisdiction.49 The SCSL considered the Lomé amnesty to be ‘contrary to the direction in which customary international law is developing’ and ‘contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity’.50 44

Meron, supra note 6, p. 158; UN Secretary-General, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone (4 October 2000), UN Doc. S/2000/915, para 22–23. 45 UN Security Council, Annex to the Letter Dated 9 August (2000) from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786 Annex. 46 UN Security Council Resolution 1315 (2000), UN Doc. S/RES/1315 (2000). 47 Ibid., preamble. 48 Statute of the Special Court for Sierra Leone, Article 10. 49 Prosecutor v. Morris Kallon and Brima Bazzy Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E) (13 March 2004); See Cassese (2004) The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty. Journal of International Criminal Justice 2 (4). 50 Prosecutor v. Morris Kallon and Brima Bazzy Kamara, supra note 49, para 84.

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The SCSL limits personal jurisdiction to ‘those most responsible’.51 This limitation is the result of a compromise with the position of the international community, particularly the UN, that while the Lomé Agreement provides for amnesty, it should not be granted for serious crimes such as genocide. Indeed, the SCSL prosecuted only former Liberian President Charles Taylor and twelve others, which meant that the pursuit of international criminal responsibility during Sierra Leone’s transition was extremely limited. When President Taylor left Liberia in August 2003 to attend peace talks in Accra, Ghana, the Special Court for Sierra Leone Prosecutor unsealed an indictment against him and requested that the Ghanaian authorities arrest him. However, the Ghanaian authorities did not comply with this request, and Taylor returned to Liberia. Taylor’s unexpected departure from peace talks is said to have prolonged the conflict in Liberia. It was alleged that in return for relinquishing power, Taylor had been promised asylum in Nigeria. The offer of asylum was conditional on Taylor halting his political activities in Liberia and refraining from further interference in Liberian politics.52 It is not possible to claim that the indictment alone forced Taylor out of office; although international tribunals cannot compel political actors to enforce their edicts, the existence of indictments may nevertheless influence public opinion and political thinking in ways that make amnesty deals less attractive.53 Consequently, international prosecution may have facilitated regime change.

21.4.2 Uganda Concerning the ICC investigation, Uganda’s amnesty law was once controversial. In Uganda, the LRA launched an armed insurgency against the national government in the mid-1980s. Despite frequent peace negotiations, the conflict did not end. With the purpose of ending the conflict, in January 2000, the Ugandan Parliament passed the Amnesty Act. Section 3 of the Act states the following: 3. (1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26th day of January, 1986 engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by: (a) actual participation in combat; (b) collaborating with the perpetrators of the war or armed rebellion; (c) committing any other crime in the furtherance of the war or armed rebellion; or (d) assisting or aiding the conduct or prosecution of the war or armed rebellion.

51

Statute of the Special Court for Sierra Leone, Article 1, para 1. Unger and Wierda (2009) Pursuing Justice in Ongoing Conflict: A Discussion of Current Practice. In: Ambos K et al. (eds) Building a Future on Peace and Justice. Springer, Berlin, Heidelberg, p. 268. 53 Ibid. 52

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(2) A person referred to under subsection (1) shall not be prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion.54

In Uganda, between 26,000 and 30,000 rebels, including senior LRA commanders, reportedly surrendered under the Disarmament, Demobilization and Reintegration (DDR) process facilitated by amnesty.55 While amnesty was being utilised in Uganda, in 2003, the government referred its situation to the ICC, and on 29 July 2004, the ICC’s Office of the Prosecutor (OTP) announced that it would open an investigation into the situation of Uganda. In 2005, the ICC issued arrest warrants for five LRA fighters: Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen. Proponents of the ICC’s intervention maintained that the ICC would marginalise the LRA by stripping it of its external support. This isolation left the LRA with no option but to enter into peace negotiations.56 Critics, however, argued that the ICC would undermine any potential talks by removing incentives for Kony and his command to sign and follow through with any negotiated peace agreement.57 The Amnesty Act was then amended in 2006 and Section 2A read as follows: ‘Notwithstanding the provisions of Section 2 of the Act, a person shall not be eligible for the grant of amnesty if he or she is declared not eligible by the Minister [of Internal Affairs] by the statutory instrument made with the approval of Parliament’.58 However, in 2010, despite the Minister of Internal Affairs asking the Parliament to exclude four LRA fighters—Kony, Ongwen, Odhiambo, and Thomas Kwoyelo— under the amendment, this motion was defeated in Parliament due to apparent procedural irregularities and insufficient information.59 Meanwhile, Kwoyelo, a mid-level LRA member, was captured by the Uganda People’s Defence Force (UPDF) in March 2009 in the Democratic Republic of the Congo (DRC). In June 2009, he was charged before the national courts of Uganda with violations of the Geneva Conventions Act of 1964, which domesticated and criminalised ‘grave breaches’ of the Geneva Conventions.60 The Constitutional Court ruled that Kwoyelo should be granted amnesty under the Amnesty Act of 2000. However, the Supreme Court excluded ‘grave breaches’ of the Geneva Conventions 54

Section 3 of The Amnesty Act (2000), Uganda. Bradfield (2017) Reshaping Amnesty in Uganda: The Case of Thomas Kwoyelo. Journal of International Criminal Justice 15 (4), p. 830; Clark (2021) The International Criminal Court’s Impact on Peacebuilding in Africa. In: McNamee T and Muyangwa M (eds) The State of Peacebuilding in Africa, Palgrave Macmillan, Cham, p. 238. 56 Kersten (2016) The ICC and the Road to Juba. In: Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, Oxford University Press, Oxford, p. 65; See Kersten (2016) The ICC, Juba, and the Kwoyelo Trial. In: Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, Oxford University Press, Oxford. 57 Ibid. 58 Bradfield, supra note 55, p. 836. 59 Ibid. 60 Ibid., p 837. 55

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from the realm of the Amnesty Act.61 This is an example where a State accepted the denial of amnesty as an obligation under international law and denied the granting of amnesty in domestic criminal proceedings. Thus, a State may act on the basis of the possibility of judicial intervention by an international criminal tribunal to prosecute violations of humanitarian law and human rights.

21.4.3 Democratic Republic of the Congo In the DRC, there has also been controversy over the possibility of amnesty. Although the 2006 elections ended the conflict in the DRC, rebel groups—particularly the Congrès national pour la défense du peuple (CNDP)—continued to threaten peace in the eastern part of the country. Despite the agreement, signed on 23 January 2008 between the armed groups of North and South Kivu and the Government of the DRC (the Goma Peace Agreement), violence continued between the CNDP, the Forces Armées de la république démocratique du Congo (FARDC), and militias throughout 2008; in January 2009, the DRC and Rwanda reached a political and military settlement, which led to the dissolution of the CNDP.62 The Goma Peace Agreement stipulated that the government would submit a draft amnesty law for acts of war and insurrection, covering the period from June 2003 to the date of promulgation of the law, not including war crimes, crimes against humanity, or genocide.63 Amnesty in the DRC was granted by temporary executive order in 2003 as per the 2002 Global and All-Inclusive Agreement, which covered acts of war, political breaches of the law, and crimes of opinion for the period of 2 August 1998 to 4 April 2003 but excluded genocide, war crimes, and crimes against humanity from its scope. In 2005, the Interim Parliament passed a law granting amnesty for the same offences enumerated in the previous order, but expanding the time period to cover acts committed between 20 August 1996 and 20 June 2003. Subsequently, in response to the Goma Agreement, the DRC passed a new amnesty law in 2009, which was applied to actions committed in the eastern regions of North and South Kivu from June 2003 to the date of signing.64 The ICC is said to have indirectly influenced the Goma Agreement. The CNDP pressed hard for a blanket amnesty that would include genocide, war crimes, and crimes against humanity, arguing that the 2005 amnesty law was too restrictive. At the time of the Goma talks, however, rumours of the ICC arrest warrant against 61

Ibid., pp. 839–844. See ICTJ (2009) Amnesty Must Not Equal Impunity. https://www.ictj.org/sites/default/files/ ICTJ-DRC-Amnesty-Facts-2009-English.pdf. Accessed 9 July 2023. 63 «Actes d’engagement» signés par des groupes armés du Nord-Kivu et du Sud-Kivu et le Gouvernement de la RDC le 23 janvier 2008, Article 4(1). 64 See ICTJ, supra note 62. 62

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deputy leader of the CNDP, Bosco Ntaganda abounded in Goma and reinforced the stringent opposition of the European Union (EU) and UN to amnesty for international crimes.65 Thereafter, violence flared up in the DRC, and the Kampala peace talks were held between the DRC’s government and the rebel group M23 (made up of former CNDP members) throughout 2013, following the occupation of Goma by M23 in November 2012. Here, the ICC had an important impact. Although the rebel leaders urged for a blanket amnesty that would cover international crimes as well as favourable reintegration into the Congolese army, the parties refused to sign a joint agreement.66 As a result of these talks, an amnesty law was passed in January 2014 that included ‘insurrectional acts’ but not genocide, war crimes, or crimes against humanity.67 What has been derived from the practice is that international law permits— and perhaps even requires—post-settlement amnesty,68 but blanket amnesty for international crimes is not usually permissible.

21.5 The Interests of Justice, Peace and Amnesty Under the Rome Statute 21.5.1 Article 53 of the Rome Statute and Peace The ICC recognises the tension between peace and justice. For example, Article 53 of the Rome Statute contains a provision to balance the pursuit of peace and justice. According to the policy paper on the interests of justice released by the OTP in 2007, Article 53(1) of the Statute addresses the initiation of an investigation. If the Prosecutor is satisfied that there is a reasonable basis to believe that the case is within the court’s jurisdiction and is (or would be) admissible under Article 17, he/she must determine whether, taking into account the gravity of the crime and the interests of the victims, there are substantial reasons to believe that an investigation would not serve the interests of justice.69 Article 53(2) addresses the initiation of prosecution and indicates that upon investigation, the Prosecutor may conclude that there is not sufficient basis to proceed because it is not in the interests of justice, taking into account all the circumstances,

65

Clark, supra note 55, pp. 246–247. Ibid., p. 247. 67 Ibid., p. 247; Kahombo (2015) Comment—the Congolese Legal System and the Fight against Impunity for the Most Serious International Crimes. In: Krieger H (ed) Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, Cambridge University Press, Cambridge, p. 255. 68 Bell, supra note 37, p. 243. 69 ICC-OTP (2007) Policy Paper on the Interests of Justice, p. 2. 66

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including the gravity of the crime, the interests of victims, the age or infirmity of the alleged perpetrators, and their role in the alleged crime.70 Therefore, the interests of justice test are a potential countervailing consideration that might produce a reason not to proceed, even where jurisdiction and admissibility tests are satisfied. The OTP shall proceed with the investigation unless there are specific circumstances that provide substantial reasons to believe that it is not in the interests of justice to do so at that time.71 However, the OTP is discouraged from including issues related to peace and security in its consideration of the interests of justice, despite acknowledging that investigations conducted in the situations of the DRC, Uganda, and Darfur all required consideration of the question of the interests of justice prior to proceeding with an application for arrest warrants or summons.72 The OTP, referring to attempts to resolve the conflict between the government of Uganda and the LRA, stated that this situation demonstrates the exceptional nature of the provision on the interests of justice, as well as the difference between this concept and the interests of peace.73 The OTP cites the Peace Process as a factor to be taken into account for interests of justice, but it states that ‘[t]he concept of the interests of justice established in the Statute, while necessarily broader than criminal justice in a narrow sense, must be interpreted in accordance with the objects and purposes of the Statute. Hence, it should not be conceived of so broadly as to embrace all issues related to peace and security’.74 The broader matter of international peace and security is not the OTP’s responsibility; it falls within the mandates of other institutions.75 In this regard, Article 16 recognises the role of the UN Security Council in deferring to actions taken by the ICC where the UN Security Council considers it necessary to maintain international peace and security. The OTP states that this provision does not displace the obligation of the Prosecutor to consider the interests of justice under Article 53, and in doing so, the Prosecutor will consider all relevant factors, but as indicated above, the broader matter of international peace and security is not the responsibility of the Prosecutor, which falls within the mandate of other institutions.76 In addition, the Policy Paper on Preliminary Examinations (November 2013) states that in light of the OTP’s mandate and the object and purpose of the Statute, there is a strong presumption that investigations and prosecutions will be in the interests

70

Ibid., p. 2. Ibid., pp. 2–3. 72 Ibid., pp. 4 and 8; Varaki (2017) Revisiting the ‘Interests of Justice’ Policy Paper. Journal of International Criminal Justice 15 (3), pp. 463–464. 73 ICC-OTP, supra note 69, p. 4. 74 Ibid., p 8. 75 Ocampo (2022) The Office of the Prosecutor Policy on ‘Interest of Justice’. In: War and Justice in the twenty-first century: A Case Study on the International Criminal Court and its Interaction with the War on Terror, Oxford University Press, Oxford, p. 191. 76 ICC-OTP, supra note 69, pp. 8–9. 71

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of justice, and therefore, a decision not to proceed on the grounds of the interests of justice would be highly exceptional.77 As such, the OTP separates considerations of peace from the interests of justice: If an ICC investigation undermines peace or security, the matter is to be passed to the Security Council. Indeed, such an understanding is reasonable based on the relationship between the ICC and the Security Council. In addition, the Security Council, as a political body, is better suited to making such a determination than the ICC, since deciding whether prosecution needs to be deferred to ensure peace is primarily a political assessment.78 The corollary is that the OTP will not, in principle, prioritise peace and security issues and give impunity to those responsible for core crimes unless the Security Council defers to an investigation. Consequently, in the absence of Security Council action, there remains the risk that ICC investigations and prosecutions could have an undue impact on the peace and security of the countries under investigation.

21.5.2 Amnesty and Articles 17 and 53 of the Rome Statute The Rome Statute has no provisions for amnesty; however, granting amnesty may raise the issue of admissibility under Article 17. Pursuant to Article 17, a case is admissible where no investigation is carried out by the State having jurisdiction over the case or, if it is carried out, the State decides not to prosecute the person concerned due to the State’s unwillingness or inability to prosecute genuinely. Therefore, when unconditional amnesty is granted, the ICC may find the case acceptable, contrary to a peace agreement or national legislation granting amnesty, as there is no state prosecution or intention to prosecute. In this regard, the OTP holds that the absence of national proceedings is sufficient to make the case admissible, the question of unwillingness or inability does not arise, and the OTP does not need to consider the other factors set outlined in Article 17.79 The OTP further states that ‘inactivity in relation to a particular case may result from numerous factors, including…the existence of laws that serve as a bar to domestic proceedings, such as amnesties, immunities or statutes of limitation; … or other, more general issues related to the lack of political will or judicial capacity’.80 As discussed above, if granting amnesty does not result in prosecution, the case is considered admissible. However, because the interests of justice under article 53(1)(c) provide a potentially countervailing consideration that may give a reason not to proceed,81 the interests of justice can be considered even if the two elements of

77

ICC-OTP (2013) Policy Paper on Preliminary Examinations, para 71. Meron, supra note 6, p. 165. 79 ICC-OTP, supra note 77, para 47. 80 Ibid., 48. 81 Ibid., para 67. 78

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admissibility are satisfied. The issue of amnesty can thus be a factor in considering the interests of justice. However, what about amnesty with some conditions attached (i.e. amnesty with other judicial mechanisms attached), rather than unconditional amnesty? Regarding the relationship between the interests of justice and other justice mechanisms, the OTP declares the following: In relation to other forms of justice decided at the local level, the Office of the Prosecutor reiterates the need to integrate different approaches. All approaches can be complementary. The Office notes the development of theory and practice in designing comprehensive strategies to combat impunity…As such, it fully endorses the complementary role that can be played by domestic prosecutions, truth-seeking, reparations programs, institutional reform, and traditional justice mechanisms in the pursuit of a broader justice. The Office notes the valuable role such measures may play in dealing with large number of offenders and in addressing the impunity gap.82

This indicates that the OTP does not reject the application of alternative forms of justice.83 Hence, if amnesty is granted in line with the transitional justice mechanism, it is likely that the ICC’s exercise of jurisdiction over the relevant case will not serve the interests of justice.84 Yet it can be said that, by defining them as ‘complementary’, the policy paper does not really consider the other mechanisms as alternatives to criminal justice.85

21.6 Ukraine This section considers the instruments of accountability available in the Ukrainian conflict in practice. At the Group of Twenty (G20) meeting in Indonesia in November 2022, the president of Ukraine, Volodymyr Zelensky, called upon the G20 leaders to adopt the 10-point peace plan he proposed and to end the war ‘justly and on the basis of the UN Charter and international law’.86 The plan included radiation and nuclear safety, food security, energy security, the release of all prisoners and deportees, restoration of Ukraine’s territorial integrity, the withdrawal of Russian troops, the cessation of hostilities, justice, the prevention of ecocide, the prevention of escalation of conflict, and confirmation of the end of the war. The following points are relevant to criminal justice in this context: ‘4. release of all prisoners and deportees, including war prisoners and children deported to Russia; and…7. justice,

82

ICC-OTP, supra note 69, pp. 7–8. Varaki, supra note 72, p. 464. 84 See Ochi, supra note 3, pp. 14–17. 85 Varaki, supra note 72, p. 465. 86 Widianto et al. (2022) Zelensky Urges G20 to Adopt Ukraine’s Plan to Restore Peace. Reuters, November 15, 2022. https://www.reuters.com/world/we-will-have-fight-longer-liberate-ukrainianland-says-zelenskiy-2022-11-15/. Accessed 15 March 2023. 83

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including the establishment of a special tribunal to prosecute Russian war crimes’.87 In response, the President of the European Commission, Ursula von der Leyen, stated that the EU would try to set up a specialised court backed by the UN to investigate and prosecute possible war crimes committed by Russia in Ukraine.88 In January 2023, the European Parliament called for member States to cooperate in the creation of a special international tribunal to try crimes of aggression by Russia against Ukraine.89 The situation of Ukraine is currently under investigation by the ICC. Ukraine is not a party to the Rome Statute, but has accepted the ICC’s exercise of jurisdiction through the declaration under Article 12. Russia is also not a State party to the Rome Statute and has not declared acceptance of jurisdiction. Under these conditions, the ICC can investigate and prosecute war crimes, crimes against humanity and the crime of genocide committed in the territory of Ukraine, or by Ukrainian nationals. However, in accordance with Article 15 bis (5) of the Statute, the ICC cannot exercise jurisdiction over the crime of aggression committed by Russian nationals. For these reasons, Ukraine is seeking to create a special tribunal to prosecute Russian military and political leaders who have allegedly initiated war. On the other hand, some positions support the creation of an internationalised tribunal based in the Ukrainian judicial system (hybrid tribunal) to prosecute the crime of aggression against Ukraine.90 On this basis, the possible consequences of the proposed settlement on peace and justice in Ukraine should be examined.

21.6.1 The Special Tribunal Established with the Support of the International Community As noted earlier, the first option is the establishment of an international special tribunal with the support of the international community, including the UN. If a special tribunal were created with jurisdiction only over the crime of aggression, it would not affect the ICC’s exercise of jurisdiction. Even if a hypothetical special tribunal were to prosecute the crime of aggression, the ICC would still be able to exercise jurisdiction over other core crimes under the principle of complementarity unless there were genuine prosecution by Ukraine or Russia. Moreover, since the ICC cannot exercise jurisdiction over the crime of aggression, there is no conflict of subject matter jurisdiction between this special tribunal and the ICC, and the issue of Ne Bis In Idem will not arise, even after the accused has been sentenced by the ICC 87

Kelly (2022) Explainer: What Is Zelensky’s 10-Point Peace Plan? Reuters, December 28, 2022. https://www.reuters.com/world/europe/what-is-zelenskiys-10-point-peace-plan-202212-28/. Accessed 15 March 2023. 88 Meijer et al. (2022) EU Seeks Tribunal to Probe Possible Russian War Crimes in Ukraine. Reuters, November 30, 2022. https://www.reuters.com/world/europe/eu-seeks-set-up-russian-warcrimes-tribunal-von-der-leyen-2022-11-30/. Accessed 15 March 2023. 89 European Parliament Resolution of 19 January 2023 on the Establishment of a Tribunal on the Crime of Aggression against Ukraine (2022/3017(RSP)), P9_TA(2023)0015, para 3–4. 90 Meijer et al., supra note 88; G7 Japan (2023) Foreign Ministers’ Communiqué, 18 April 2023.

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or the special tribunal. Based on the interpretation of admissibility under Article 17 of the Rome Statute, a case is deemed admissible if the same person has not been tried in the same case.91 In contrast, what if the special tribunal were to include core crimes committed in Ukraine in its jurisdiction and prosecute them? In this case, the jurisdiction of the hypothetical special tribunal and the ICC would overlap, and thus, jurisdiction would be adjusted. Although no provision in the Rome Statute directly provides for complementarity with other international or hybrid criminal tribunals, in light of the object and purpose, the principle of complementarity would prevent the ICC from finding a case admissible when the same person is tried in the same case before other international courts. The second option is to establish a hybrid criminal court within Ukraine’s domestic judicial system. In this case, under the Criminal Code of Ukraine, the hybrid court would be able to exercise jurisdiction over core crimes, including the crime of aggression. In this case, under the Criminal Code of Ukraine, the hybrid tribunal would be able to exercise jurisdiction over core crimes, including the crime of aggression. If the tribunal conducted prosecutions, the principle of complementarity would still prevent the ICC from finding a case against the same person admissible in the same case. However, as the domestic court cannot deny the head of state immunity, the hybrid tribunal would not be able to prosecute President Putin as long as it is part of Ukraine’s domestic criminal justice system. It would need to be established through an international agreement, such as a treaty concluded between the UN and Ukraine to prosecute President Putin.

21.6.2 Utilization of Amnesty Another possibility is that amnesty can be used as part of peace negotiations. Amnesty may be brought into peace negotiations as Ukraine has demanded the release of all prisoners and deportees, including war prisoners deported to Russia. If peace negotiations result in the release of Ukrainian war criminals detained in Russia, Ukraine will also be required to release Russian war criminals as a reciprocal condition. In such cases, legal amnesty can be granted where appropriate. As previously mentioned, the practice to date suggests that granting unconditional amnesty is not allowed under international law. In particular, amnesty for core crimes is not acceptable.92 Therefore, even if a blanket amnesty were granted by a peace agreement in the future, such an amnesty would be denied in prosecution by the ICC. This would also be the case of prosecution by a hypothetical special tribunal. However, in the present circumstance, even if amnesty is denied, this does not change the fact that the ICC cannot prosecute for the crime of aggression. 91

See Rastan (2017) What is ‘Substantially the Same Conduct’? Unpacking the ICC’s ‘First Limb’ Complementarity Jurisprudence. Journal of International Criminal Justice 15 (1). 92 Bell, supra note 37, p. 243.

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On the other hand, conditional amnesty may be acceptable if it is granted in combination with a form of a transitional justice mechanism—a quasi-legal mechanism that delivers forms of accountability other than criminal law processes with prosecution, such as truth commissions.93 In this case, the ICC’s decision not to exercise jurisdiction would be based on the interest of justice, but from the discussion above and the OTP’s view, amnesty for core crimes is not acceptable at the ICC, even if it is due to the functioning of the transitional justice mechanism created by the peace agreement. Only non-core crimes can be granted amnesty through transitional justice mechanisms.94 Although the OTP does not exclude the transitional justice mechanism from considering interests of justice in its policy paper, in practical terms, as long as the ICC’s subject matter jurisdiction is limited to core crimes, amnesty in combination with the transitional justice mechanism cannot directly be a matter of interest of justice for the ICC. In this regard, if Ukraine and Russia were to grant amnesty through a peace agreement, and the basis of that peace agreement were to be lost because of the denial of amnesty before the ICC, there would be room for an issue concerning the interests of justice of the ICC. However, according to the OTP’s perspective, as already discussed, the Security Council is generally responsible for postponing investigations when such peace and security issues arise. Therefore, even if the peace agreement were to grant any sort of amnesty, and the denial of that amnesty were detrimental to peace, it would be very unlikely that the Prosecutor would determine there would be no reasonable basis to proceed as the prosecution would not serve the interests of justice. It would be the same in the special tribunal proposed by Ukraine that amnesty would not be granted for core crimes as long as it was an international tribunal. Nevertheless, as the special tribunal is still only at the proposal stage, it is unclear what the norms on amnesty and the relationship with the Security Council will be in the tribunal.

21.7 Conclusion The international community has expressed a policy of the inadmissibility of impunity and the denial of amnesty. On the other hand, domestic societies in transition have shown the usefulness of granting amnesty in response to truth-telling. The reference here is to the transitional justice mechanism in Sierra Leone as an example of the use of criminal prosecution in tandem with other transitional justice mechanisms. As noted earlier, the Lomé Agreement limited the pursuit of responsibility through criminal trials in line with its emphasis on maintaining peace, but at the same time, the government of Sierra Leone and the RUF recognised the importance of upholding, promoting, and protecting the human rights of every Sierra 93 94

Ibid. Ochi, supra note 3, p. 13.

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Leonean, as well as of enforcing humanitarian law, and established the Truth and Reconciliation Commission.95 Given this, a conflict between peace and criminal justice in Sierra Leone existed in the Lomé Agreement. However, the pursuit of responsibility was achieved by creating a division of labour between the SCSL (which oversees the criminal prosecution of those most responsible for serious crimes) and the Truth and Reconciliation Commission (which allows alternative means for the perpetrators of other crimes). While the concept of traditional individual responsibility has involved a dualistic view of responsibility as punishment and non-punishment, from the perspective of the practices of domestic societies in transition, there appears to be a concept of the discharge of responsibility through truth-telling, which is different from the traditional view. This choice is not merely one of peace or justice. Rather, what may be (and is often) agreed upon in peace processes is a range of measures, including and between, the two extremes on the continuum from widespread prosecution to blanket amnesty. Examples include limited prosecution, limited or conditional amnesty, vetting or lustration, reform of the judicial or security sector, reform of the constitution, reparations, and truth commissions.96 Hence, international criminal justice and transitional justice mechanisms can fulfil their functions by complementing each other. The OTP has so far stated that it focuses on the prosecution of leaders who bear the most responsibility for crimes, and from that standpoint, the division of labour between ICC prosecution and transitional justice mechanisms is important. However, the OTP appears to lack the means to adequately evaluate quasi-legal mechanisms such as transitional justice mechanisms, including conditional amnesty. The OTP also states that the interests of justice provision should not be considered a conflict management tool requiring the Prosecutor to assume the role of a mediator in political negotiations, which would run contrary to the explicit judicial functions of the Office and the Court as a whole.97 In practice, however, naming the leader of a State in conflict as an international criminal means isolating that person from the international community, and thus ICC prosecution cannot be separated from its political consequences. Furthermore, the situation of Ukraine is in the midst of an international armed conflict and cooperation from only one party may pose more danger to the ICC’s impartiality than ever before. In light of the above, it may be time to rethink the ICC’s consideration of the interests of justice and the issue of peace and justice.

95

Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, supra note 40, introductory paragraph of part 5. 96 Sriram, supra note 2, p. 304. 97 ICC-OTP, supra note 77, para 69.

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References Arthur, P. 2009. How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly 31: 321–367. Bell, C. 2008. The New Law of Transitional Justice. In: On the Law of Peace: Peace Agreements and the Lex Pacificatoria. Oxford: Oxford University Press. Bradfield, P. 2017. Reshaping Amnesty in Uganda: The Case of Thomas Kwoyelo. Journal of International Criminal Justice 15 (4): 827–855. Cassese, A. 2004. The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty. Journal of International Criminal Justice 2 (4): 1130–1140. Clark, J.N. 2011. Peace, Justice and the International Criminal Court: Limitations and Possibilities. Journal of International Criminal Justice 9 (3): 521–545. Clark, P. 2021. The International Criminal Court’s Impact on Peacebuilding in Africa. In The State of Peacebuilding in Africa, ed. T. McNamee, and M. Muyangwa, 235–256. Cham: Palgrave Macmillan. G7 Japan. 2023. Foreign Ministers’ Communiqué, 18 April 2023. Huyse, L. 1995. Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past. In Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 1, ed. N.J. Kritz, 337–349. Washington, DC: US Institute of Peace Press. ICC-OTP. 2007. Policy Paper on the Interests of Justice. ICC-OTP. 2013. Policy Paper on Preliminary Examinations. ICC-OTP. 2022. Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: ‘I have decided to proceed with opening an investigation’. https://www.icc-cpi.int/news/statementicc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening. Accessed 19 March 2023. ICTJ. 2009. Amnesty Must Not Equal Impunity (Factsheet). Kahombo, B. 2015. Comment—The Congolese Legal System and the Fight against Impunity for the Most Serious International Crimes. In Inducing Compliance with International Humanitarian Law: Lessons from the African Great Lakes Region, ed. H. Krieger, 247–260. Cambridge: Cambridge University Press. Kelly, L. 2022. Explainer: What Is Zelensky’s 10-Point Peace Plan? Reuters, December 28, 2022. https://www.reuters.com/world/europe/what-is-zelenskiys-10-point-peace-plan-2022-12-28/. Accessed 15 March 2023. Kersten, M. 2016. Peace and/or/with/versus Justice. In Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, 19–36. Oxford: Oxford University Press. Kersten, M. 2016. The ICC and the Road to Juba. In Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, 64–91. Oxford: Oxford University Press. Kersten, M. 2016. The ICC, Juba, and the Kwoyelo Trial. In Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, 92–114. Oxford: Oxford University Press. Krzan, B. 2016. International Criminal Court Facing the Peace vs. Justice Dilemma. International Comparative Jurisprudence 2 (2): 81–88. Meijer, B., et al. 2022. EU Seeks Tribunal to Probe Possible Russian War Crimes in Ukraine. Reuters, November 30, 2022. https://www.reuters.com/world/europe/eu-seeks-set-up-russianwar-crimes-tribunal-von-der-leyen-2022-11-30/. Accessed 15 March 2023. Méndez, J.E., and J. Kelley. 2015. Peace Making, Justice and the ICC. In Contested Justice: The Politics and Practice of International Criminal Court Interventions, ed. C. De Vos, et al., 479– 495. Cambridge: Cambridge University Press. Meron, T. 2011. The Role of the ICC: Accountability, Peace, and Justice. In The Making of International Criminal Justice: The View from the Bench: Selected Speeches. Oxford: Oxford University Press.

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Neu, J. 2012. Pursuing Justice in the Midst of War: The International Criminal Tribunal for the Former Yugoslavia. Negotiation and Conflict Management Research 5: 387–413. Ocampo, L.M. 2022. The Office of the Prosecutor Policy on ‘Interest of Justice’. In: War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror, Oxford University Press, Oxford. Ochi, M. published online ahead of print 2023. Taking Illegal Amnesties Seriously: Threefold Approach to the Admissibility Test before the International Criminal Court. International Criminal Law Review. https://doi.org/10.1163/15718123-bja10150. Rastan, R. 2017. What is ‘Substantially the Same Conduct’? Unpacking the ICC’s ‘First Limb’ Complementarity Jurisprudence. Journal of International Criminal Justice 15 (1): 1–29. Sriram, C.L. 2009. Conflict Mediation and the ICC: Challenges and Options for Pursuing Peace with Justice at the Regional Level. In Building a Future on Peace and Justice, ed. K. Ambos, et al., 303–319. Berlin, Heidelberg: Springer. Truth and Reconciliation Commission, Sierra Leone. 2004. Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission 1. Accra, Ghana: GPL Press. University of Ulster. 2013. The Belfast Guidelines on Amnesty and Accountability. UN Secretary-General. 2010. Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice. UN Secretary-General. 2000. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone (4 October 2000), UN Doc. S/2000/915. UN Security Council. 2000. Annex to the Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786 Annex. Unger, T., and M. Wierda. 2009. Pursuing Justice in Ongoing Conflict: A Discussion of Current Practice. In Building a Future on Peace and Justice, ed. K. Ambos, et al., 263–302. Berlin, Heidelberg: Springer. Varaki, M. 2017. Revisiting the ‘Interests of Justice’ Policy Paper. Journal of International Criminal Justice 15 (3): 455–470. https://doi.org/10.1093/jicj/mqx036. Widianto, S., et al. 2022. Zelensky Urges G20 to Adopt Ukraine’s Plan to Restore Peace. Reuters, November 15, 2022. https://www.reuters.com/world/we-will-have-fight-longer-liberate-ukrain ian-land-says-zelenskiy-2022-11-15/. Accessed 15 March 2023.

Yuuka Nakazawa is a part-time lecturer at Kanagawa University, where she teaches International Law and International Organisations Law. She specialises in international criminal law and transitional justice. She has published “Positive Complementarity in the International Criminal Court”, Waseda Daigaku Daigakuin hoken ronshu: The Graduate School law review 150 (2014), “International Criminal Trials in Transitional Justice (1): Focusing on the Hybrid Tribunals”, Waseda Daigaku Daigakuin Hoken Ronshu: The Graduate School law review 157 (2016), “International Criminal Trials in Transitional Justice (2): Focusing on the Hybrid Tribunals”, Waseda Daigaku Daigakuin Hoken Ronshu: The Graduate School law review 158 (2016), and “Changing Strategies of Prosecution by the International Criminal Court: Between Collision and Cooperation”, Waseda Law Journal 73 (2) (2018) in Japanese Language.

Chapter 22

International Law Responses in Ukraine: Robust But Not Universal—The Asian Deficit in International Criminal Justice Raul C. Pangalangan

The legal responses to Russia’s actions against Ukraine have been quick and unequivocal, demonstrating that States can mobilize international law institutions to respond to global crises. The issue of universality arose at The Hague, however, when States filed Interventions at the International Court of Justice (ICJ) in order to participate in Ukraine’s claim against Russia, and State referrals at the International Criminal Court (ICC) fast-tracked the investigation of the situation in Ukraine. Asian States were scarcely present in these solidarity measures before these courts, highlighting once again the longstanding problem of the reluctance of Asian States to engage with international law. In this paper, I take the larger theme of “Asia’s Ambivalence”1 to international Law and explore it within the context of the global response to the Ukraine conflict. I recognize Dean Simon Chesterman’s pioneering essay Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures, and note the many historical reasons for that ambivalence to international law in general. In this paper, I focus on Asian States’ averseness to international courts in particular and suggest that, on top of the historical, there may be cultural or “anthropological”2 reasons that predispose Asian States to shy away from court-dispensed justice. If judicialization 1

Simon Chesterman, Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures, 27 Eur. J.I nt. L. 945–978 (2016) [hereinafter, S. Chesterman, Asia’s Ambivalence]. 2 Antony Anghie, Asia in the History and Theory of International Law, in simon chesterman, hisashi owada, and ben saul (eds.), international law in asia and the pacific (Oxford 2019), at 69. Former Judge, International Criminal Court (The Hague). The author wrote this essay while he was a Senior Fellow at the Berlin Potsdam Research Group “International Rule of Law - Rise or Decline?” (Spring 2022) and also a Bellagio Center Fellow of the Rockefeller Foundation (November 2022). R. C. Pangalangan (B) College of Law, University of the Philippines, Diliman, 1101 Quezon City, Philippines © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_22

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has not taken root domestically in many Asian States, how much more can we expect it to resonate in their international relations? I look at the jurisdictional constraints at both the ICJ and ICC, and then inquire into the thin Asian participation in the effort support Ukraine’s case at both courts.

22.1 International Law Responses in the Political Bodies at the U.N. The international law responses to Russia’s military operations against Ukraine have been impressively robust, more specifically, in their speed, the institutional constraints they had to hurdle, and their legal content. [T]he test of a legal principle is not just whether it is violated, but what response meets that violation. And here we have seen a response much more robust than many expected when this war began. Normally moribund international legal institutions have suddenly sprung to life in response to the illegal invasion.3 [emphases added]

These responses have not deterred the hostilities, but they have had a strong normative impact and showed the potential of global institutions in affirming these norms. The strong international response has unequivocally reaffirmed the prohibition on international use of force and the forceful acquisition of territory. …. …. Far from meeting predictions of the international order’s demise, we argue that the extraordinary response to the war reaffirmed and reinvigorated many of its most important elements.4 [emphases added]

22.1.1 U.N. Security Council On 21 February 2022, Russian President Vladimir Putin signed presidential decrees recognizing the independence of two separatist regions in eastern Ukraine, the so-called Donetsk and Luhansk People’s Republics.5 The same decrees directed 3

Oona Hathaway, How Russia’s Invasion of Ukraine Tested the International Legal Order, brookings, Apr. 3, 2023, available at https://www.brookings.edu/on-the-record/how-russias-invasion-ofukraine-tested-the-international-legal-order/. 4 Elena Chachko and Katerina Linos, International Law After Ukraine: Introduction to the Symposium, 116 am. j. int’l l. unbound 124 (2022), at https://www.cambridge.org/core/services/ aop-cambridge-core/content/view/71EF9DF1080B63279D684104BB213791/S23987723220001 86a.pdf/international-law-after-ukraine-introduction-to-the-symposium.pdf. 5 Anton Troianovski, Valerie Hopkins & Steven Erlanger, Putin Orders Forces to RussiaBacked Ukraine Regions and Hints at Wider Military Aims, n.y. times (Feb. 21, 2022),

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the Russian Defense Ministry to deploy troops in those regions to carry out “peacekeeping functions.”6 That same day, the Security Council held a late-night emergency meeting, in which the United Nations political affairs chief declared that Russia’s decision to recognize the independence of the Donetsk and Luhansk regions constituted a violation of Ukraine’s territorial integrity and sovereignty.7 Two days later, on 23 February, the Security Council held another emergency meeting, this time to exhort Moscow to pull back its troops from eastern Ukraine.8 About an hour into the meeting, Putin announced in a televised speech9 that he was launching a “special military operation” to “demilitarize” Ukraine, which began on 24 February.10 On 25 February, the U.N. Security Council considered a draft resolution condemning in the strongest terms Russia’s military offensive and declaring that Russia’s actions amounted to a violation of the U.N. Charter, Article 2, paragraph 4, on the non-use of force.11 The draft resolution received the favorable vote of eleven members but was ultimately vetoed by Russia, exercising its prerogative on nonprocedural matters decided by the U.N. Security Council.12 China, India, and the United Arab Emirates abstained from the vote.13 On 27 February, the U.N. Security Council passed a resolution14 calling for an emergency special session of the U.N. General Assembly to discuss how to respond to Russia’s aggression in Ukraine. Eleven members voted in favor, while Russia voted against. China, India, and the United Arab Emirates abstained. Since the resolution was procedural, it could not be vetoed by any of the permanent members of the https://www.nytimes.com/2022/02/21/world/europe/putin-ukraine-russia.html. See Vladimir Putin, Address by the President of the Russian Federation (Feb. 21, 2022), http://en.kremlin.ru/events/pre sident/transcripts/Statements/67828. 6 Id. 7 Press Release, Security Council, Conflict in Ukraine Must Be Averted ‘at All Costs’, Political Affairs Chief Tells Security Council as Delegates Reject Moscow’s Recognition of Donetsk, Luhansk, U.N. Press Release SC/14798 (Feb. 21, 2022), https://press.un.org/en/2022/sc14798.doc. htm. 8 Press Release, Security Council, Russian Federation Announces ‘Special Military Operation’ in Ukraine as Security Council Meets in Eleventh-Hour Effort to Avoid Full-Scale Conflict, U.N. Press Release SC/14803 (Feb. 23, 2022), https://press.un.org/en/2022/sc14803.doc.htm. 9 Vladimir Putin, Address by the President of the Russian Federation (Feb. 24, 2022), http://en.kre mlin.ru/events/president/news/67843. 10 David Leonhardt, War in Ukraine, n.y. times (Feb. 24, 2022), https://www.nytimes.com/2022/ 02/24/briefing/ukraine-russia-invasion-putin.html. 11 Press Release, Security Council, Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian Federation Wields Veto, U.N. Press Release SC/14808 (Feb. 25, 2022), https://press.un.org/en/2022/sc14808.doc.htm. 12 Id.. See U.N. Charter, Article 27, paragraph 3 (“Decisions of the Security Council on [nonprocedural matters] shall be made with the affirmative votes of nine members including the concurring votes of the permanent members ….”). 13 Id. 14 S.C. Res. 2623 (Feb. 27, 2022), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/271/ 32/PDF/N2227132.pdf?OpenElement.

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Security Council. It was the first time since 1982 that the Security Council called for an emergency special session of the General Assembly.15

22.1.2 The U.N. General Assembly On the day of the invasion, the U.N. Secretary-General issued a Statement in which he said that the “use of force by one country against another is [a] repudiation of the principles that every country has committed to uphold.”16 He called the Russian military offensive “wrong,” “unacceptable,” and “against the [U.N.] Charter.”17 He appealed to President Putin to stop the military operation and pull back Russian troops from Ukraine.18 The next day, the U.N. Secretary-General appointed a U.N. Crisis Coordinator for Ukraine.19 On 28 February, the General Assembly heeded the Security Council’s call and convened a special emergency session on the Russian invasion of Ukraine. The session was called in accordance with the 1950 General Assembly resolution known as the “Uniting for Peace” resolution which sets out the procedure by which the General Assembly can consider matters of international security when the Security Council is unable to act due to a lack of unanimity among its five permanent members, specifically in 1950, when the Council was unable to act on the Korean crisis due to the Russian veto.20 It took the General Assembly only two days to adopt on March 2 a resolution “[d]eplor[ing] in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter.”21 It “demand[ed] that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any 15

Press Release, Security Council, Security Council Calls Emergency Special Session of General Assembly on Ukraine Crisis, Adopting Resolution 2623 (2022) by 11 Votes in Favour, 1 Against, 3 Abstentions, U.N. Press Release SC/14809 (Feb. 27, 2022), https://press.un.org/en/2022/sc14809. doc.htm. 16 Press Release, Secretary-General, Secretary-General, in Statement on Ukraine, Calls Russian Federation’s Military Offensive ‘Wrong, against Charter, Unacceptable, But Not Irreversible,’ U.N. Press Release SG/SM/21158 (Feb. 24, 2022), https://press.un.org/en/2022/sgsm21158.doc.htm. 17 Id. 18 Id. 19 Press Release, Secretary-General, Secretary-General Appoints Amin Awad of Sudan United Nations Crisis Coordinator for Ukraine, U.N. Press Release SG/A/2102 (Feb. 25, 2022), https:// press.un.org/en/2022/sga2102.doc.htm. 20 Press Release, General Assembly, United Nations Stands with People of Ukraine, SecretaryGeneral Tells General Assembly, Stressing ‘Enough is Enough’, Fighting Must Stop, as Emergency Session Gets Under Way, U.N. Press Release GA/12404 (Feb. 28, 2022), https://press.un.org/en/ 2022/ga12404.doc.htm; see Michael Ramsden, Uniting for Peace: The Emergency Special Session on Ukraine, harv. int’l l.j., https://harvardilj.org/2022/04/uniting-for-peace-the-emergency-spe cial-session-on-ukraine/#_ftn1 (last visited May 1, 2023). 21 G.A. Res. ES-11/1, at 3 (Mar. 2, 2022), https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N22/293/36/PDF/N2229336.pdf?OpenElement.

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further unlawful threat or use of force against any Member State[.]”22 One hundred and forty-one States voted in favor of the resolution, five voted against, and thirty-five abstained.23 Of the five States that voted against, two (or 40%) were from Asia.24 Of the thirty-five abstentions, thirteen (or 37%) came from Asia, significantly as compared to Africa’s seventeen (49%).25 The General Assembly later passed a resolution26 demanding civilian protection and humanitarian access in Ukraine, and two weeks later, it adopted another resolution27 resolving to suspend the rights of Russia as a member of the Human Rights Council. On 23 February 2023, mere hours before the conflict entered its second year, the General Assembly resumed the special emergency session and passed a resolution “reiterat[ing] its demand that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine”.28

22.2 Responses at the International Courts 22.2.1 The International Court of Justice If we go by the more familiar glacial pace of international adjudication, Ukraine’s case at the ICJ has moved at “lightning speed”.29 On 26 February, two days after the invasion, Ukraine filed an application with the International Court of Justice instituting proceedings against Russia concerning “the interpretation, application and fulfillment of the 1948 Convention on the Prevention and Punishment of the Crime 22

Id. Press Release, General Assembly, General Assembly Overwhelmingly Adopts Resolution Demanding Russian Federation Immediately End Illegal Use of Force in Ukraine, Withdraw All Troops, U.N. Press Release GA/12407 (Mar. 2, 2022), https://press.un.org/en/2022/ga12407.doc. htm. 24 The negative votes from the Asia-Pacific were those of North Korea and Syria. 25 The abstentions from the Asia-Pacific were those of Bangladesh, China, India, Iran, Iraq, Kazakhstan, Kyrgyzstan, Laos, Mongolia, Pakistan, Sri Lanka, Tajikistan, and Vietnam. 26 G.A. Res. ES-11/2 (Mar. 24, 2022), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/ 301/67/PDF/N2230167.pdf?OpenElement. 27 G.A. Res. ES-11/3 (Apr. 7, 2022), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/312/ 47/PDF/N2231247.pdf?OpenElement. 28 G.A. Res. ES-11/6, at 2 (Feb. 23, 2023), https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N23/063/07/PDF/N2306307.pdf?OpenElement. 29 Oona Hathaway, International Law Goes to War in Ukraine, foreign affairs, Mar. 15, 2022, available at https://www.foreignaffairs.com/articles/ukraine/2022-03-15/international-lawgoes-war-ukraine?check_logged_in=1&utm_medium=promo_email&utm_source=lo_flows& utm_campaign=registered_user_welcome&utm_term=email_1&utm_content=20230524 (“Not to be outdone, the usually slow-to-act International Court of Justice has also begun proceedings at lightning speed.”). 23

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of Genocide.”30 Ukraine requested the Court to declare that “no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine.”31 It also prayed for the grant of provisional measures, including the immediate suspension of Russia’s military operations in Ukraine.32 Two weeks later, on 16 March, the ICJ issued an order granting provisional measures in favor of Ukraine.33 It ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine,” and it urged “[b]oth Parties [to] refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”34 At a more general level, it must be noted that Ukraine’s case at the ICJ is rather unusual. Ukraine, having founded the Court’s jurisdiction on the compromissory clause of the Genocide Convention, has filed suit, not for the Court to declare that Russia is committing genocide, but rather to ask the Court to affirm that Ukraine is not committing genocide.35 The relief sought by Ukraine is shaped by the jurisdictional basis by which the Court is seized in this case. In other words, whereas the political bodies of the U.N. can more candidly call out Russia for breaches of the U.N. Charter, the Article 2.4 proscription against the use of force has not been placed before the ICJ since the ICJ has jurisdiction only over States that have voluntarily submitted to it, whether in a case-specific compromis, a submission to the Court’s compulsory jurisdiction, or –as in Ukraine v. Russia—a compromissory clause in a treaty.36 On this point, the ICJ is similarly situated as the ICC, infra, in that the basis of its jurisdiction actually limits the substantive matters that it can decide. But more specifically on the question of universality and the lack of Asian participation, thirty-three States have filed Interventions37 in the case, to enable them 30

Press Release, International Court of Justice, Ukraine Institutes Proceedings Against the Russian Federation and Requests the Court to Indicate Provisional Measures, I.C.J. Press Release 2022/ 4 (Feb. 27, 2022), https://www.icj-cij.org/public/files/case-related/182/182-20220227-PRE-01-00EN.pdf. 31 Application of Ukraine, Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), at 16 (Feb. 26, 2022), https://www.icj-cij. org/sites/default/files/case-related/182/182-20220227-APP-01-00-EN.pdf. 32 Id. 33 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Order on Ukraine’s Request for the Indication of Provisional Measures (Mar. 16, 2022), https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00EN.pdf. 34 Id. at 3. 35 Deepak Raju, Ukraine v. Russia: A “Reverse Compliance” Case on Genocide, Eur. J. In’tl L. Blog, Mar. 15, 2022, at https://www.ejiltalk.org/ukraine-v-russia-a-reverse-compliance-case-ongenocide/; see also Marko Milanovic, Ukraine Files ICJ Case Against Russia, Eur. J. Int’l L. Blog, Feb. 27, 2022, at https://www.ejiltalk.org/ukraine-files-icj-claim-against-russia/. 36 Statute of the International Court of Justice, Article 36. 37 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide – Interventions, int’l ct. of just., https://www.icj-cij.org/case/182/intervention (last visited Mar. 27, 2023).

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to participate in the proceedings. Below is their geographical distribution: Western European and Other States, 2238 ; Eastern European States, 10; Asia-Pacific States, 1; African States: 0; and Latin American and Caribbean States, 0. These Interventions are meaningful. Interventions are allowed under the ICJ Statute only in two instances. The first is when a State “has an interest of a legal nature which may be affected by the decision in the case”39 , and the Court has the discretion to allow or disallow the intervention.40 The second is when a State is a party to a convention, and the construction of that convention is an issue in a case before the Court.41 All State-parties to that convention who are not parties to the case are so notified42 and shall have the right to intervene in the proceedings.43 If a State

38

The twenty-two Western European and Other States that have filed interventions are New Zealand, the United Kingdom, Germany, the United States, Sweden, France, Italy, Denmark, Ireland, Finland, Spain, Australia, Portugal, Austria, Luxembourg, Greece, Malta, Norway, Belgium, Canada, the Netherlands, and Liechtenstein. 39 Statute of the International Court of Justice art. 62, June 26, 1945, 33 U.S.T.S. 993. 40 Id. art. 62(2). The intervention allowed under Art. 62 has been called “discretionary intervention.” C.M. Chinkin, Third-Party Intervention Before the International Court of Justice, 80 am. j. int’l l. 495, 496 (1986). Art. 81(2) of the Rules of Court of the International Court of Justice enumerates what must be set out in the application for permission to intervene: a) the interest of a legal nature which the State applying to intervene considers may be affected by the decision in that case; b) the precise object of the intervention; and c) any basis of jurisdiction which is claimed to exist as between the State applying to intervene and parties to the case. Rules of Court of the International Court of Justice art. 81(2), https://www.icj-cij.org/rules. 41 Id. art. 63. 42 While the Statute provides that only States so notified have the right to intervene in the proceedings, the Rules of Court provide that a State that considers itself a party to the relevant convention may file a declaration even if it has not received a notification from the Registrar. Rules of Court of the International Court of Justice, supra note 3, art. 82(3). 43 Statute of the International Court of Justice, supra note 1, art. 63(2). The intervention allowed under Art. 63 has been called “intervention as of right.” Chinkin, supra note 3. It should be noted, however, that in an Order issued by the Court on a declaration of intervention filed by New Zealand in Whaling in the Antarctic, the Court had the occasion to clarify: “[T]he fact that intervention under Article 63 of the Statute is of right is not sufficient for the submission of a ‘declaration’ to that end to confer ipso facto on the declarant State the status of intervener; [. . .] such right to intervene exists only when the declaration concerned falls within the provisions of Article 63 [. . .] and the conditions set forth in Article 82 of the Rules of Court are met[.]” Whaling in the Antarctic (Austl. v. Japan), Order on the Declaration of Intervention of New Zealand, https://www.icj-cij.org/sites/default/files/ case-related/148/148-20130206-ORD-01-00-EN.pdf. In other words, while an intervention under Article 63 does not require that the declarant have a legal interest in the outcome of the controversy, the Court must ascertain whether the requirements set out in Article 63 of the Statute and Article 82 of the Rules of Court have been met. Art. 82(2) of the Rules of Court provides that a declaration of intervention filed under Article 63 of the Statute must: (a) set out the particulars of the basis on which the declarant State considers itself a party to the convention; (b) identify the particular provisions of the convention the construction of which it considers to be in question; (c) include a Statement of the construction of those provisions for which it contends; and d) contain a list of supporting documents, which shall be attached. Rules of Court of the International Court of Justice, supra note 3, art. 82(2).

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so notified exercises the right to intervene, the construction given in the judgment shall be binding upon it.44 The Court has so far adopted a narrow and strict interpretation of allowable third-party interventions and rejected a majority of applications and declarations of intervention.45 In Ukraine v. Russia,46 the dispute involves the interpretation of the Genocide Convention. All of the thirty-three Intervenor States are States Parties to the Genocide Convention,47 and having been duly notified by the Registrar about the proceedings, all have chosen to avail of their right to intervene under Article 63 of the Statute.48 The Intervenor States, except for four States, have also accepted the ICJ’s compulsory jurisdiction under its Statute, Article 36(2). The Court has yet to issue an order formally allowing or disallowing any of the thirty-three States to intervene.49 If the Court issues an order allowing the declarant States to intervene in the case, those States will be bound by the construction that the Court will adopt in its judgment, pursuant to Article 63(2) of the Statute. The Interventions may be seen as expressions of solidarity with Ukraine at the ICJ, constituting normative Statements to make common cause with Ukraine with whom they thus share, by analogy to Article 62 interventions, “an interest of a legal nature.” More than that, willfully impleading oneself is itself meaningful because the Intervenor State thus voluntarily becomes a litigant in that case and is bound thereby via res judicata. The almost total absence of Intervenors from the Asia-Pacific States, Africa, and Latin American and Caribbean States is thus significant. The single Asian Intervention was by Cyprus,50 whose participation may be explained by its membership in 44

Statute of the International Court of Justice, supra note 1, art. 63(2). See Atul Alexander, Russia-Ukraine Dispute and Third Party Intervention in ICJ: What to Expect?, berkeley j. int’l l. website, Oct. 24, 2022, https://www.berkeleyjournalofinternatio nallaw.com/post/russia-ukraine-dispute-and-third-party-intervention-in-icj-what-to-expect; Atul Alexander & Shouvik Kumar Guha, Critical Analysis on Third-Party Intervention Before the International Court of Justice, indon. j. nt’l & comp. l. (forthcoming). 46 Application of Ukraine, Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), (Feb. 26, 2022), https://www.icj-cij.org/sites/ default/files/case-related/182/182-20220227-APP-01-00-EN.pdf. 47 Convention on the Prevention and Punishment of the Crime of Genocide, u.n. treaty collection, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter= 4&clang=_en (last visited Apr. 19, 2023). 48 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide – Interventions, nt’l ct. of just., https://www.icj-cij.org/case/182/intervention (last visited Mar. 27, 2023). 49 For a discussion of the procedural challenges that the Court faces as a result of the number of declarations of intervention filed in Ukraine v. Russia, see Juliette McIntyre, Less a Wave Than a Tsunami: Procedural Implications for the ICJ of the Article 63 Interventions in Ukraine v. Russia, volkerrechtsblog: int’l l. & int’l legal thought, Nov. 10, 2022, https://voelkerrecht sblog.org/less-a-wave-than-a-tsunami/. 50 Declaration of Intervention of Cyprus, Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), (Dec. 13, 2022), https://www. icj-cij.org/sites/default/files/case-related/182/182-20221209-WRI-01-00-EN.pdf. 45

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the European Union and its cultural and geographical proximity to Europe.51 On the other hand, it bears noting that no State from the African Group or the Latin American and Caribbean Group has joined as Intervenor States, even though States from both of these regional groups are more likely to participate in international dispute settlement than are Asia-Pacific States.

22.3 The International Criminal Court At the International Criminal Court, the “gears of the international criminal justice system also started turning quickly”.52 Just like at the ICJ, it has been constrained by jurisdictional constraints and, again, there has been scant Asian participation in the legal moves to jumpstart the investigation through State referrals rather than the proprio motu powers of the Prosecutor. To start with, Asia is the least represented region among the States-parties to the Rome Statute. On 28 February 2022, the same day that the U.N. General Assembly convened its special emergency session on the Russian invasion, the ICC Prosecutor announced that he would seek authorization from the Pre-Trial Chamber to open an investigation into the situation in Ukraine.53 This decision, he said, was based on the conclusions of the preliminary examination conducted by the Office of the Prosecutor from 2014 to 2020.54 Prosecutor Karim A.A. Khan Stated that “there is reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination of the Office.”55 Note that neither Ukraine nor Russia are signatories to the Rome Statute. At this stage, the Prosecutor founds his jurisdiction on Ukraine’s ad hoc submissions to ICC jurisdiction under the Rome Statute, Article 12, paragraph 3.56 At the ICC, there are 51

See Yiannis Papadakis, Locating the Cyprus Problem: Ethnic Conflict and the Politics of Space, 15 macalester int’l 81 (2005). 52 Oona Hathaway, International Law Goes to War in Ukraine, supra n. 28. 53 I.C.C. Prosecutor, Statement of I.C.C. Prosecutor, Karim A.A. Khan Q.C., on the Situation in Ukraine: “I have decided to proceed with opening an investigation” (Feb. 28, 2022), https://www.icc-cpi.int/news/Statement-icc-prosecutor-karim-aa-khan-qc-situation-ukr aine-i-have-decided-proceed-opening. 54 Id. See I.C.C. Prosecutor, Statement of the Prosecutor, Fatou Bensouda, on the Conclusion of the Preliminary Examination in the Situation in Ukraine (Dec. 11, 2020), https://www.icc-cpi.int/news/ Statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-ukraine. 55 I.C.C. Prosecutor, supra note 29. 56 Declaration of 9 February 2014, “made for an indeterminate duration” and for “acts committed on the territory of Ukraine within the period 21 November 2013 – 22 February 2014” (https://www.icccpi.int/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf); Declaration of 8 September 2015, “for an indefinite duration” and for “acts committed on the territory of Ukraine since 20 February 2014” (https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_0 8092015.pdf#search=ukraine)(Declaration of 8 September 2015).

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three ways to trigger the Court’s jurisdiction, namely, a referral by a State Party,57 by the U.N. Security Council,58 or by the Prosecutor acting proprio motu.59 The proceedings move faster under the first two trigger mechanism, that is to say, via a referral by a State-party or by the U.N. Security Council, which directly commence the investigation. However, if the Prosecutor acts motu proprio, he must first seek permission from the Court.60 Since Ukraine is not a State-party to the Rome Statute and was not in a position to “refer” a case to the ICC, and given that no referral by the U.N. Security Council was forthcoming due to the Russian veto, in this case, the Prosecutor acted proprio motu and sought prior permission.61 At the same time that he made that announcement, he also expressly invited Statesparties to streamline the process by making a State referral. “An alternative route set out in the Statute that could further expedite matters would be for an ICC State Party to refer the situation to my Office, which would allow us to actively and immediately proceed with the Office’s independent and objective investigations.”62 Within the next few days, forty-three States-parties responded and made State referrals of the Situation in Ukraine, effectively taking the case out of the proprio motu procedural regime and skipping the Pre-Trial Chamber proceedings altogether.63 Significantly, it was not legally necessary for all these States to make the referral since it only takes one State referral to trigger an ICC investigation. In other words, the only explanation for the forty-three State referrals is as acts of solidarity with Ukraine. These forty-three States are geographically distributed as follows: Western European and Others Group, 2364 ; Eastern European States, 1565 ; Asia-Pacific States, 2; African States, 0; Latin American and Caribbean States, 3.66 The two Asian referrals came from Cyprus67 and Japan.68 Cyprus had earlier likewise joined the Intervenors 57

Rome Statute of the International Criminal Court art. 13(a), July 17, 1998, 2187 U.N.T.S. 3. Id. art. 13(b). 59 Id. art. 13(c) & 15. 60 Id., art. 15. 61 Id. art. 15(3). 62 Situation in Ukraine, ICC-01/22, Statement of the Prosecutor, https://www.icc-cpi.int/news/ Statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening [emphases added]. 63 Situation in Ukraine, int’l crim. ct., https://www.icc-cpi.int/situations/ukraine (last visited Mar. 27, 2023). 64 These Western European and Other States are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, New Zealand, Norway, the Netherlands, Portugal, Spain, Sweden, Switzerland, and the United Kingdom. 65 These Eastern European States are Lithuania, Albania, Bulgaria, Croatia, the Czech Republic, Estonia, Georgia, Hungary, Latvia, Poland, Romania, Slovakia, Slovenia, North Macedonia, and Montenegro. 66 These Latin American and Caribbean States are Colombia, Costa Rica, and Chile. 67 Referral of Cyprus and 37 Other States, Situation in Ukraine, (Mar. 2, 2022), https://www.icccpi.int/sites/default/files/2022-04/Article-14-letter.pdf. 68 Referral of Japan, Situation in Ukraine, (Mar. 11, 2022), https://www.icc-cpi.int/sites/default/ files/2022-04/JAPAN_referral.pdf. 58

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at the ICJ. The addition of Japan is of course weighty, given its political and economic position both within the region and internationally and, more specifically, as one of strongest supporters of the ICC. But even if Japan’s move is not merely one more vote in support of Ukraine, the Asian presence amongst the State referrals is low. Together, the Western European and Other States and Eastern European States constitute 88% of the total number of State referrals, even though these two groups comprise, respectively, only 20% and 15% of the ICC State-Parties.69 No African State has made a referral. The pattern is parallel to that of the ICJ Interventions. They both show a low level of engagement not just by Asia-Pacific States but likewise by the African and the Latin American and Caribbean groups. On 17 March 2023, the Court’s Pre-Trial Chamber II issued warrants of arrest against two individuals: Vladimir Vladimirovich Putin, President of the Russian Federation; and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation.70 The Pre-Trial Chamber found that there were reasonable grounds to believe that Mr. Putin and Ms. Lvova-Belova bear individual criminal responsibility for the war crimes of unlawful deportation of children and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation.71

22.4 Asia’s thin Presence in “Solidarity” Moves at the ICJ and ICC Simon Chesterman has identified several historical factors that contribute to Asia’s “under-participation and under-representation in international law and institutions”.72 The first is that the former colonies in Asia did not have the chance to participate in the making of the treaties, structures and forms that define modern international law.73 Second, the sad history of unequal treaties imposed upon the declining Chinese empire, starting with the end of the First Opium War in 1842, has fostered the notion that “international law was primarily an instrument of political power”.74 Third, the post-WWII trials in Asia against Japanese war criminals have “left a legacy of suspicion” that “international criminal law was a tool for selective

69

States Parties to the Rome Statute, int’l crim. ct., https://asp.icc-cpi.int/States-parties (last visited Mar. 27, 2023). 70 Press Release, International Criminal Court, Situation in Ukraine: I.C.C. Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vla dimir-vladimirovich-putin-and. 71 Id. 72 S. Chesterman, Asia’s Ambivalence, supra n. 2 at 946. 73 Id. 74 Id.

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engagement with domestic political processes, pursuing some ends, such as the stabilization of post-conflict Japan, while effacing others, such as the ongoing liberation struggles in much of the region”.75 At the same time, as noted by Antony Anghie, the erstwhile colonies in Asia have had to grapple with the tension between the colonizers’ use of International Law to legitimize their power and, on the other hand, their own aspiration to join the club of “civilized States”, and stand shoulder-to-shoulder with them as sovereign equals.76 He describes the dilemma thus: On the whole, the nineteenth century for Asian states was a time of bewilderment and disorientation caused by ruthless European expansion and their inability to resist it. A crucial feature of this expansion was that international law became emphatically unilateral and Eurocentric, and provided Asian states with very few meaningful rights …. International law enabled Western states to consolidate and present what had been accomplished through war and coercion in the guise of proper and sacrosanct legal relations. …. The urgent project for Asian states towards the end of the nineteenth century, then, was to qualify as sovereign, ‘civilized’ nations once more.77

Accordingly, in the post-WWII legal order, the newly independent Asian States have actually embraced that system amongst themselves, even as they tried to adapt that Western system of law to their circumstance as disadvantaged States.78 Thus a schizoid attitude to international law, at once rejecting it as an instrument of the powerful while using it as an instrument against them. In addition to these historical reasons at the international plane, since the last quarter of the twentieth century, there has been serious scholarship on the “judicialization of disputes in Asia”79 in domestic jurisdictions, referring to the “longstanding alleged aversion to formal dispute resolution mechanisms in Asia.”80 The erstwhile dominant model in East and Southeast Asia had been the “developmental State, an image of State-led economic growth in which bureaucratic supermen used vast grants of discretion to pick economic winners and losers”. Toward the mid1990s, that bureaucratic disretion was giving way to a liberal regulatory model.81 The shift toward court adjudication has been driven by “rule of law” initiatives to 75

Id. at 955. See also david cohen and yuma totani, the tokyo war crimes tribunal: law, history, and jurisprudence (Cambridge 2018); and yuki tanaka, tim mccormack and gerry simpson, beyond victor’s justice? the tokyo war crimes trial revisited (Martinus Nijhoff 2011). 76 Antony Anghie, Asia in the History and Theory of International Law in simon chesterman, hisashi owada, and ben saul (eds.), international law in asia and the pacific (Oxford 2019), at 68 [hereinafter, A. Anghie, Asia in the History and Theory of International Law]. 77 A. Anghie, Asia in the History and Theory of International Law, supra n. 74, at 78-79. 78 A. Anghie, Asia in the History and Theory of International Law, supra n. 74, at 79. 79 Andrew Harding and Pip Nicholson, New Courts in Asia: Law, development and judicialization, in andrew harding and penelope (pip) nicholson (eds.), new courts in asia (Routledge 2010), at 2. 80 Harding and Nicholson, supra n. 33. 81 tom ginsburg and albert h.y. chen (eds.), administrative law and governance in asia: comparative perspectives 2 (Routledge, 2009).

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ensure legal certainty that is indispensable to market economics, democratization and good governance.82 The said “aversion to formal dispute resolution” that was seen in domestic Asian jurisdiction was actually earlier noted already in the 1964 seminal work on international war crimes trials by a political philosopher, who noted that the trials at the International Military Tribunal for the Far East, more commonly known as the Tokyo War Crimes Tribunal, may not have had as much impact as Nuremberg because the notion of court-dispensed justice was not too familiar to the accused or their national community. At Tokyo there were, however, problems which did not arise at Nuremberg. [I]t is doubtful whether a trial as a legal drama could have had any great political effect in a non-European country so lacking in legalistic traditions.83 What could a trial teach the Japanese? What political traditions could it restore? None. The “situational ethics” of the Japanese are inherently unlegalistic. … To see the deep roots that legalism and trials have in Western culture one need think only of the part which legal imagery plays in literature, in metaphor, and in religious discourse of every kind. The court of love, the court of conscience, the trial of wits, the court of honor, Judgment Day—how much these phrases tell us about ourselves!84

The idiom of the 1960s may need to be adjusted to suit the 21st century reader, who may contest it with more recent studies, but the point is that cultural critiques of war crimes trials began way back in the aftermath of the war, where imposing legalistic traditions itself was actually the subtler part of the “victors’ justice” argument. The general view was that [the Tokyo trial] was a bit of a bore, but that the conquerors were behaving as one would expect conquerors to behave [against] the defeated leaders now on trial. There was no great sympathy for the latter, and no interest in the legalistic gymnastics of the former…. Nevertheless, it would be quite erroneous to say that the Tokyo Trial was an outrage—it was merely a complete dud.85

More recent works characterize the Japanese response to the Tokyo Trials as one of “passivity and apathy”,86 due both to the gap in attitudes to legalism as well as the procedural and substantive shortcomings of the trials themselves.

82

Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs 95 (1998); katharina pistor, philip wellons and jeffrey sachs, the role of law and legal institutions in asian economic development (1960- 1995) (Oxford 1999). 83 i. shklar, legalism: laws, morals and olitical trials 179 (1964) [shklar, legalism]. 84 shklar, legalism, supra n. 81. 85 shklar, legalism supra n. 181. 86 madoka futamura, war crimes tribunals and transitional justice: the tokyo trial and the nuremberg legacy 11 (Routledge 2008). See also david cohen and yuma totani, the tokyo war crimes tribunal: law, history, and jurisprudence (Cambridge 2018); neil boister and robert cryer, the tokyo international military tribunal: a reappraisal (Oxford 2008); yuki tanaka, tim mccormack and gerry simpson, beyond victor’s justice? the tokyo war crimes trial revisited (Martinus Nijhoff 2011).

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22.5 Concluding Thoughts What is at stake in Ukraine are the foundational norms of the post-WWII international legal order, namely, the non-use of force pronounced in the U.N. Charter and the principle of humanity in armed conflict preserved in international humanitarian law. International bodies have gone to great lengths to condemn the invasion and, at the two main international courts at The Hague, States have taken legal steps to affirm their fealty to these norms. However, the underwhelming presence of Asian States among those who filed Interventions at the ICJ and who made State referrals at the ICC shows the lack of universality among those States that have stepped forward in solidarity with Ukraine’s cause. Their absence at this critical moment for the international legal order, an order whose benefits Asia continues to harvest and enjoy,87 bespeaks an opportunistic attitude to law and its relation to national interest. Except for Japan and Cyprus, it seems that Asian States prefer to stand safely on the sidelines unless it is their own ox that is being gored. Every State is surely entitled to pursue its own national interest but one function of law is precisely to link self-interest with the communal good or, in international law, to make it felt that national interest is best pursued in a global order hedged in by rules which can be enforced through institutions and courts. This calls on the wisdom of the age-old social contract, long consecrated in domestic jurisdictions, and now writ large on the global stage. It is now tested severely in the first open, virtually unabashed flouting of the post-WWII legal order, and Asia’s virtual absence detracts from the full moral power of universality. Acknowledgement The author acknowledges the valuable assistance of Joseph Sebastian Javier (J.D., 2023, University of the Philippines) in the research for this paper.

Raul C. Pangalangan is a former Judge at the International Criminal Court at The Hague. He is currently Professor of Law at the University of the Philippines where he served as Law Dean from 1999–2005. He has lectured at The Hague Academy of International Law, where he had earlier served as Director of Studies. He has held visiting appointments at Harvard, Melbourne and Hong Kong Universities. He currently chairs the International Labour Organisation’s Commission of Inquiry on Myanmar. He received his LL.M. (1986) and S.J.D. (1990) from Harvard University and his Diploma from The Hague Academy of International Law (1987).

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S. Chesterman, supra n. 2, at 945.

Chapter 23

Impact on Domestic Criminal Law—German Experiences with Universal Jurisdiction and Immunity Philipp Osten and Takashi Kubota

23.1 Introduction The Russian invasion of Ukraine, which commenced on 24 February 2022, has revealed serious human rights violations primarily on the part of (but not limited to) Russian soldiers and other actors. The International Criminal Court (ICC) has been swift to respond to these acts since the outbreak of war. On 28 February 2022, several days after the start of the invasion, ICC Prosecutor Karim Khan announced that investigative proceedings would get underway as soon as possible.1 Furthermore, on 1 March, it was announced that Lithuania had referred the situation in Ukraine to the ICC, and the following day, 2 March, it was declared that 38 countries, including the UK, France and Germany, had jointly made a referral.2 On 9 March, Japan additionally referred the situation to the ICC—the first time in its history it had made such a submission.3 Since then, the ICC has continued to investigate core crimes in Ukraine, organising joint investigation teams not only with Ukraine but also, in particular, European countries and the European Union (EU).4 A year later, on 17 March 2023, the ICC issued arrest warrants against President Putin and the 1 International Criminal Court (2022), Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: ‘I have decided to proceed with opening an investigation’. 2 International Criminal Court (2022), Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation. 3 Ministry of Foreign Affairs of Japan (2022), Referral of the Situation in Ukraine to the International Criminal Court. 4 Eurojust (2023), Eurojust and the war in Ukraine.

P. Osten Faculty of Law, Keio University, Tokyo, Japan T. Kubota (B) Faculty of Law, Teikyo University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 S. Furuya et al. (eds.), Global Impact of the Ukraine Conflict, https://doi.org/10.1007/978-981-99-4374-6_23

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Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Maria Lvova-Belova, on the grounds that the removal of children by Russia could be deemed unlawful population transfer under Article 8(a)(vii) of the ICC Statute and unlawful deportation under Article 8(b)(viii) of the ICC Statute and therefore constitute a war crime.5 These arrest warrants focus on the removal of children, in lieu of various other core crimes allegedly committed in Ukraine. It also remains doubtful whether they will lead to the actual arrest and extradition of either individual in the foreseeable future. Nevertheless, the impact of the obligations of 123 States Parties to extradite both suspects to the ICC is significant. The prosecution and punishment of core crimes by the ICC itself can be regarded as a form of direct enforcement of international criminal law. Prosecution of core crimes is not, however, carried out solely by the ICC, as the ICC Statute, in its Preamble, Articles 1 and 17, provides for the principle of complementarity, which implies that first and foremost States, not the ICC, should exercise jurisdiction over core crimes. Thus, such indirect enforcement of international criminal law by States represents ‘the backbone of the international criminal justice system’.6 As such, many of the core crimes committed during the Russian invasion of Ukraine will most likely be prosecuted in Ukraine as the State of the commission of these crimes (based on the principle of territoriality), and in fact, nearly 20 convictions have already been handed down.7 This would be logical in terms of the ease of gathering evidence and the high intensity of public feeling of the local population towards punishment. Another form of indirect enforcement of international criminal law is prosecution based on universal jurisdiction (or similar principles) by third States that do not have a ‘genuine link’ to the offence. For instance, in the case of core crimes in Ukraine, third States such as France, Germany, Poland and Canada are additionally investigating these crimes. This chapter analyses specific legal challenges arising from the Russian invasion of Ukraine from the perspective of the latter form of indirect enforcement, i.e. prosecution by third States based on the principle of universality. After outlining the general legal framework pertaining to the principle of complementarity and the domestic implementation of core crimes (23.2), the German legislation, as an example for a comprehensive implementation model, will be examined (23.3), followed by a specific case recently adjudicated in Germany where functional immunity of foreign soldiers was discussed, as this issue could also be controversial with respect to the prosecution of core crimes committed in Ukraine (23.4). Finally, after reviewing the German judiciary’s response to core crimes in the Ukraine conflict to date (23.5), the possible impact of the recent invasion on domestic criminal law in third States such as Germany and Japan will be briefly outlined (23.6).

5

International Criminal Court (2023), Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova. 6 See Werle and Jessberger (2020), mn. 463. 7 See Ochi (2023), Core Crimes under Russia–Ukraine War.

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23.2 Principle of Complementarity and Implementation of Core Crimes While the Rome Statute of the ICC obliges States Parties to cooperate fully with the ICC, such as by arresting and extraditing the suspects and providing evidence (Part 9 of the Rome Statute), it does not explicitly oblige them to prosecute core crimes. Similarly, there is no obligation to implement, i.e. criminalise, core crimes in domestic legislation. Nonetheless, in light of the principle of complementarity and the limited human and financial resources of the ICC, domestic criminal justice has a key role to play. Many ICC States Parties, including Germany, have therefore on the occasion of their ratification of the ICC Statute enacted legislation on core crimes. Conversely, there are some countries, such as Japan, that have not introduced national substantive laws for the core crimes stipulated in the ICC Statute, on the grounds that existing criminal laws are sufficient to punish such offences (non-incorporation, ordinary crime approach or so-called ‘zero solution’).8

23.3 Implementation of Core Crimes in Germany Germany enacted the Völkerstrafgesetzbuch, its Code of Crimes Against International Law (CCAIL),9 when it ratified the ICC Statute in December 2000 (enacted almost simultaneously with the ICC Statute, which came into force in July 2002). The CCAIL is a national set of laws exclusively relating to the substantive law of the Rome Statute; its two-fold structure resembles the Strafgesetzbuch, the German Criminal Code (GCC), i.e., it consists of a General and a Special Part. When Germany acceded to the Genocide Convention in the mid-1950s, it defined the crime of genocide according to former Section 220a of the GCC. However, it did not have sui generis provisions for crimes against humanity, war crimes or the crime of aggression (although Section 80 GCC on the preparation of wars of aggression and Section 80a GCC on incitement of wars of aggression were stipulated after the Second World War). The ‘Statement of Reasons’ submitted to Parliament for consideration of the draft CCAIL10 lists four objectives for the legislation: (i) ‘to comprehend the specific wrong of crimes under international law more adequately than is currently possible through general criminal law’; (ii) ‘to promote legal clarity and convenience of practical application through codification in one unified act’; (iii) ‘to ensure that Germany is always in a position to prosecute crimes subject to the jurisdiction of the 8

See Werle and Jessberger (2020), mn. 471 et seq. Code of Crimes against International Law (CCAIL) of 26 June 2002 (Federal Law Gazette I, p. 2254), as last amended by Article 1 of the Act of 22 December 2016 (Federal Law Gazette I, p. 3150). 10 See Deutscher Bundestag (2002), p. 12. 9

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ICC by itself, in view of the complementary nature of the ICC’s jurisdiction’ and (iv) ‘to promote international humanitarian law and contribute to its dissemination through the enactment of relevant national legislation’.

23.3.1 Special Part As regards core crimes, the existing provisions for the crime of genocide were transferred to Section 6 of the CCAIL, while crimes against humanity were covered in Section 7 and war crimes in Sections 8 to 12. Following the 2017 amendments to the Rome Statute, Section 13 on the crime of aggression was later added. By doing so, Germany incorporated the core crimes stipulated in the ICC Statute into domestic law, in accordance with general principles applying to criminal legislation, namely the principle of legality (nulla poena sine lege) and the principle of culpability (nulla poena sine culpa). To this end, some modifications were applied to the definitions of the crimes (so-called ‘modified incorporation’ approach).11 Thus, Germany achieved the implementation of core crimes while ensuring consistency with the existing criminal law system. For example, the apartheid typology of crimes against humanity (Article 7(1)(j) and (2)(h) of the Rome Statute) was set out in Section 7(5) of the CCAIL as an aggravating typology for other types of conduct for the same set of crimes. Furthermore, the manner in which Article 8 of the Rome Statute defines war crimes is distinctive. The German CCAIL, like the Rome Statute, adopted the differentiation between so-called Geneva law and Hague law in terms of protected interests, but it did not adopt the distinction regarding the type of armed conflicts, i.e. the distinction between international and non-international armed conflicts. Subsequently, the CCAIL defines several categories of war crimes by differentiating between the object of the crime, the protected legal interests and the mode of conduct, etc. (including those acts stipulated in Additional Protocol I and Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict). Thus, the war crimes as stipulated in Article 8 of the Rome Statute are regrouped into the following categories: war crimes against persons (Section 8), war crimes against property and other rights (Section 9), war crimes against humanitarian operations and emblems (Section 10), war crimes consisting in the use of prohibited methods of warfare (Section 11) and war crimes consisting in employment of prohibited means of warfare (Section 12).12 As evident from this approach, Germany did not merely ‘copy’ the content of the ICC Statute (adopted in 1998) but devised its own provisions on war crimes to reflect subsequent developments in international humanitarian law—namely treaties other than the ICC Statute—and notably developments in customary international law (as recognised in the case law of ad hoc tribunals etc.).

11 12

See Werle and Jessberger (2020), mn. 474. See Ambos (2022), mn. 17–19.

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23.3.2 General Part With regard to general principles of criminal law, only those principles that apply specifically to core crimes were codified in the CCAIL, while for other general principles, such as those pertaining to intent and complicity, the general provisions of the GCC apply, as set out in Section 2 CCAIL (‘Application of the general law’). The rationale behind this, according to the ‘Statement of Reasons’ in the CCAIL,13 is that, as far as general provisions are concerned, there are no fundamental differences between the GCC and the Rome Statute that require exhaustive legislative measures. Specifically, Section 1 CCAIL provides for universal jurisdiction (Weltrechtsprinzip), Section 3 CCAIL for the defence of superior orders (cf. Article 33 ICC Statute), Section 4 CCAIL for the doctrine of superior liability (cf. Article 28 ICC Statute), and Section 5 CCAIL for the non-applicability of statute of limitations to core crimes (cf. Article 29 ICC Statute).

23.3.2.1

Universal Jurisdiction and the Representation Principle

The basis for Germany’s extraterritorial jurisdiction regarding core crimes—and thus for its prosecution of core crimes committed in Ukraine—is stipulated in Section 1 CCAIL (‘Scope of application’), which provides the following: Section 1 of the CCAIL This Act shall apply to all criminal offences against international law designated under this Act, to offences pursuant to sections 6 to 12 even when the offence was committed abroad and bears no relation to Germany. For offences pursuant to section 13 that were committed abroad, this Act shall apply independently of the law of the place where the act was committed if the perpetrator is German or if the offence is directed against the Federal Republic of Germany.

Thus, the first sentence of Section 1 of the CCAIL allows for the application of universal jurisdiction with respect to the prescribed offences of the CCAIL (i.e. the crime of genocide, crimes against humanity and war crimes). Such universal jurisdiction does, however, not apply to the crime of aggression; in the case of this crime, the scope of German jurisdiction is narrowed down as designated and limited to cases with a specific link to Germany. Other provisions also allowing for the extraterritorial application of criminal law for criminal acts without a ‘genuine link’ to Germany are included in Section 7(2) no. 2 of the GCC on the so-called ‘representation principle’, which provides as follows: Section 7 of the GCC (1) [omitted]

13

See Deutscher Bundestag (2002), p. 14.

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(2) German criminal law applies to other offences committed abroad if the act is a criminal offence at the place of its commission or if that place is not subject to any criminal law jurisdiction and if the offender 1. [omitted] 2. was a foreign national at the time of the offence, was found to be staying in Germany and, although extradition legislation would permit extradition for such an offence, is not extradited because no request for extradition is made within a reasonable period, is rejected or the extradition is not feasible.

Thus, also in this case, it is possible to apply German criminal law, including the offences stipulated in the GCC and CCAIL, without a ‘genuine link’ to Germany. In other words, the representation principle also constitutes a valid basis for jurisdiction for core crimes in case the offender is present in Germany.14

23.3.2.2

Procedural Restriction of Universal Jurisdiction

As a provision closely related to Section 1 of the CCAIL on universal jurisdiction, Section 153f was introduced into the German Code of Criminal Procedure (Strafprozeßordnung). In general, German criminal procedure law is based on the principle of mandatory prosecution (Section 152(2) of the German Code of Criminal Procedure); thus, there was concern that, at least theoretically, core crimes committed throughout the world falling under the CCAIL’s scope of application would be subject to mandatory prosecution in Germany without limitation. As a consequence, a procedural law limitation was added to the German Code of Criminal Procedure (Section 153f). According to this provision, prosecutors are granted discretionary power to prosecute (or not) under certain conditions if the offences prescribed by the CCAIL are committed outside Germany. In this way, a balance is struck with the broad scope of (universal) jurisdiction regarding core crimes designated in the CCAIL. It should be noted, however, that the German Code of Criminal Procedure already had, prior to the implementation of the ICC, a general provision (Section 153c) granting prosecutors a broad scope of discretion when prosecuting extraterritorial crimes in general (i.e., subject to their (sole) discretion). In contrast to that article, the novel Section 153f places certain limitations on the prosecutor’s discretion to prosecute, considering the graveness of the crimes. Namely, first, as a prerequisite for the exercise of discretion, it is necessary, in principle, that the suspect is not (or not suspected of) being resident in Germany (Section 153f(1) sentence 1). Exceptionally, no prosecution may be brought against a non-German national who is suspected of having committed a criminal offence against a non-German national outside Germany, even if he/she is present in Germany, if extradition to a foreign State or an international court is possible and contemplated (Section 153f(2) sentence 2). In other words, the prosecutor is obliged to prosecute for acts that have 14

See Satzger (2017), § 4 mn. 40 et seq.

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no connection with Germany providing the suspect is located in Germany and as long as extradition to their country of origin is not contemplated. Second, with regard to cases of extraterritorial core crimes committed by German nationals, irrespective of their location, the prosecutor may only exercise discretion when the crime has been prosecuted by an international court, such as the ICC, or by the criminal justice authorities of the country where the crime took place or from where the victim originates (Section 153f(1) sentence 2).15

23.4 Functional Immunity for Core Crimes Before Domestic Courts? In Germany, by the end of 2021, more than 200 investigations (including so-called Strukturermittlungsverfahren, i.e. ‘structural investigations’ without reference to specific suspects; see below 23.5) had taken place, more than half of which were conducted after 2017. At the heart of these were cases concerning core crimes committed in the Middle East, particularly in Syria and Iraq.16 In the following section, we present a case from Afghanistan where the issue of immunity, which is similarly relevant when prosecuting for core crimes committed by Russian military personnel in Ukraine, was the decisive issue in a judgment in which convictions were handed down in Germany.

23.4.1 Facts and Procedural History In this case, the accused, a lieutenant (Lomri Baridman) of the Afghan National Army (the government armed forces that existed at the time of the offences, prior to the re-seizure of power by the insurgent Taliban in August 2021), abused three prisoners of war (POWs) and other individuals (hereinafter referred to as ‘the first act’) and humiliated the body of a Taliban commander (hereinafter referred to as ‘the second act’). It was also established as a common fact that at the time of the offences, there was a ‘war in the form of a non-international armed conflict that ha[d] been ongoing since late 2001’ in Afghanistan between national forces supported by international troops and the Taliban and other non-government armed groups.17 In late 2013 or early 2014, as a lieutenant of the Afghan National Army, the accused learned that three POWs had been taken to the brig where he worked. The 15

Schmitt (2023), mn. 1. For an overview of cases in which German jurisdiction for the prosecution of these core crimes was based on the principle of universality see for example Osten and Kubota (2017), pp. 1 et seq. 16 Werle and Jeßberger (2022), mn. 63. 17 BGH, NJW 2021, 1326, para. 10. An English translation of the judgment is available at: https:// www.eurojust.europa.eu/sites/default/files/assets/21.01.28._de_federal_court_decision.pdf.

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previous day, an incident had occurred in the vicinity of the brig in which rebels had shot dead a National Army soldier. In collusion with his deputy commander, the accused interrogated the prisoners to obtain information from them regarding a certain Taliban mastermind and his weapons cache, issuing threats and inflicting mild to moderate assaults.18 The accused attacked victim 1, who was leaning against the wall of the room, by pulling his hair, striking him on the head four times in succession and slamming him against a board wall.19 The accused additionally pulled the hair of POW victim 2 for approximately 30 seconds, forcing the same person to confess. The accused and his second-in-command slapped POW victim 3 across the face. Unlike victim 1 and victim 2, victim 3, in response to the abuse, made statements about Taliban members and revealed the location of weapons. Moreover, in the first quarter of 2014, after a firefight, the accused discovered the body of a high-ranking Taliban commander he was searching for. The accused was ordered by his superior to deliver the body to a butscher’s, who then ordered him to take the body away in a military vehicle. The accused eventually drove the vehicle to a 3 m high barrier and, after wrapping a looped rope around the neck of the body, lifted it and ordered that it be secured to the bars, which he himself assisted with. The accused then declared, in a filmed speech, that they had ‘brought [the body] with them and hung it up here as if it were the body of a donkey and that if they caught those who attacked their people, they would kill them. It was important for the accused and those under his command that, by hanging the bodies on the protective wall, they could present the dead as a trophy to degrade him, which would continue beyond their deaths, and to promote themselves by claiming, with no basis in fact, that they had killed Taliban leaders themselves.20

23.4.2 Munich Higher Regional Court (OLG München), Judgment of 26 July 2019 After having committed these offences, the accused left Afghanistan and entered Germany via several countries as a refugee in 2015, which led to his arrest and prosecution in 2018 on the charges outlined above. In its judgment of 26 July 2019,21 the Munich Higher Regional Court (OLG München), the court of first instance in this case, sentenced the defendant on three counts of grievous bodily harm for the first act (Section 224 of the GCC). Of these, the assault against victim 3 was also deemed to constitute a crime of coercion (Section 240(1)) and his actions against victim 1 and victim 2 as crimes of attempted coercion (Section 240(3)), while for the second act, he was found guilty of war crimes against persons by insulting treatment, etc. (Section 8(1) no. 9 of CCAIL) and was 18

BGH, NJW 2021, 1326, para. 3. BGH, NJW 2021, 1326, para. 4. 20 BGH, NJW 2021, 1326, para. 9. 21 OLG München, Urt. v. 26.7.2019 - 8 St 5/19 (= BeckRS 2019, 52,732). 19

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handed down a joint sentence (Gesamtstrafe) of imprisonment (suspended) of two years. The Federal Prosecutor’s Office also sought to try the accused for a war crime against persons by torture and other means (Section 8(1)(iii) CCAIL) for the first act; however, the judgment rejected this, on grounds that the constitutive requirements had not been met.22 In response, the accused and the Federal Prosecutor’s Office each appealed.23

23.4.3 Federal Court of Justice (Bundesgerichtshof), Judgment of 28 January 2021 With regard to the appeal by the Federal Prosecutor’s Office, the judgment of the Federal Court of Justice (Bundesgerichtshof , hereinafter: BGH), Germany’s highest criminal court, partially modified and partially reversed the original judgment as follows. Namely, the BGH found the accused guilty of war crimes against persons by torture and other means (alongside with other GCC offences) for the first act, and for the second act, he was found guilty of war crimes against persons by gravely humiliating or degrading treatment. Furthermore, it upheld the findings based on the facts for these points but reversed the sentence handed down for the first act (the case was thus remitted to another criminal division of the Munich Higher Regional Court). The appeal filed by the Federal Prosecutor’s Office on the other points, as well as the appeal filed by the accused, were dismissed. Most noteworthy in this judgment is the fact that, ex officio, the BGH also considered possible impediments to the prosecution based on so-called functional immunity or immunity ratione materiae. In conclusion, the BGH held that procedural barriers pertaining to immunity could not be found and that, under customary international law, (ex-) military officials of a foreign State such as the accused would not be exempt from German criminal jurisdiction with respect to war crimes.24 In the present case, immunity was not initially disputed. Nevertheless, the BGH stated from the outset of its judgment that ‘German jurisdiction is a general procedural requirement; its existence and the limits on it are to be examined and taken into consideration ex officio as legal questions at every stage of the proceedings’,25 and it decided to indicate its judgment on this issue in great detail. Furthermore, in conclusion, ‘[i]n accordance with the general rules of international law [customary international law], the criminal punishment for the war crimes of torture and gravely humiliating or degrading treatment and for general criminal offences committed at the same time, such as grievous bodily harm and coercion, through a domestic court

22

OLG München, BeckRS 2019, 52,732, paras. 116–128. BGH, NJW 2021, 1326, para. 1. 24 BGH, NJW 2021, 1326, para. 11. 25 BGH, NJW 2021, 1326, para. 12. 23

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is not to be ruled out because the acts have been carried out by a foreign lowerranking official in performance of their sovereign activities abroad to the detriment of non-domestic persons.26 The crucial issue here in the view of the BGH was thus the type or the scope of crimes for which immunity could possibly exist. In this regard, the BGH notes that under customary international law, criminal prosecution is permissible for ‘war crimes or certain other offences concerning the international community as a whole’.27 Such ‘other offences concerning the international community as a whole’ here are considered to be those that affect the common interests of the international community, i.e. those most serious offences that violate international legal interests (core crimes, as described at the beginning of this chapter).28 This is evident in the fact that in the reasons given for sentencing, reference is made not only to war crimes but also to genocide, crimes against humanity and crimes against peace (now ‘crime of aggression’).29 In contrast, the BGH is not so bold as to clarify its position on the question about the extent to which functional immunity would prevent prosecution solely for general offences.30 The second point of relevance is the scope of the bearers of immunity—in other words, the ‘personal scope’ of foreign State officials for whom immunity is denied. In concreto, the issue is whether the denial of immunity is limited to holders of ‘subordinate’ official positions, such as the accused in this case, or not. In this regard, the judgment mainly discusses the material exemptions for acts committed by holders of ‘lower-ranking’ official positions, such as the accused in question, in their formal capacity. Crucially, the reasons stated for the judgment are that ‘at least foreign lower-ranking officials could be criminally prosecuted through national courts for war crimes or certain other offences concerning the international community as a whole’.31 The term ‘at least’ ( jedenfalls) is understood to imply that the personal scope of immunity to be denied is not necessarily limited to lower-level government officials (i.e., it may also extend to higher-level officials, etc.). Taken together, it appears that the judgment can be interpreted in three ways:32 First, subordinate government officials (and others) do not benefit from any functional immunity from foreign criminal jurisdiction under customary international law (regardless of the type of crime). Second, under customary international law, acts committed by officials of subordinate status in their formal capacity are, in principle, subject to matters of immunity, but exceptions to (i.e. denials of) such immunity may apply to criminal prosecutions for core crimes. Third, in principle, immunity ratione materiae is granted to all holders of official positions as long as they commit acts

26

BGH, NJW 2021, 1326, para. 13. BGH, NJW 2021, 1326, para. 35 (and 23). 28 See Kreß (2021), p. 1335. 29 BGH, NJW 2021, 1326, paras. 18, 21, and 24–34. See also Jeßberger/Epik (2022), p. 14. 30 BGH, NJW 2021, 1326, para. 48. 31 BGH, NJW 2021, 1326, para. 35. 32 See Kreß (2021), p. 1335. 27

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in their formal capacity, but no immunity is granted whatsoever (regardless of their position) for core crimes. Although the BGH has not expressed its explicit views on these ‘interpretations’ in its judgment, the Federal Prosecutor’s Office appears to support the third of the above perspectives.33 According to this interpretation, not only lower- but also formerly high-ranking officials—in particular heads of State or government (who have lost, by virtue of their resignation from office, personal immunity, which under customary international law would normally apply in prosecutions of core crimes by States) and foreign ministers (together also referred to as ‘troika’), other ministers of State, officers, etc.—can also be prosecuted by the domestic criminal justice of a foreign State. In other words, the scope for the (indirect) enforcement of international criminal law by States would be extended decisively. It should be noted that German jurisdiction in the above case was not (primarily) based on the principle of universality (i.e., universal jurisdiction as stipulated in Section 1 CCAIL). Rather, jurisdiction was eventually established solely on the basis of the representation principle stipulated in Section 7(2) no. 2 GCC. The Munich Higher Regional Court had cited Section 1 CCAIL as the basis for the prosecution and punishment of the war crimes in question and Section 7(2) no. 2 GCC for the ordinary crimes, including injury, while the BGH applied Section 7 (2) no. 2 GCC for both types. This, however, should not detract from the nature of the war crimes as crimes under international law and should therefore not be considered as indicative of or affecting the determination of functional immunity.

23.5 Reactions of the German Judiciary to Core Crimes Allegedly Committed in the Ukraine Conflict On 8 March 2022, shortly after the joint referral of the situation in Ukraine to the ICC by Germany and 37 other States (on 2 March 2022), the German Federal Public Prosecutor General announced that the Office of the Federal Prosecutor had formally initiated investigations on Russian war crimes and other core crimes allegedly being committed in the course of the armed conflict in Ukraine.34 These so-called ‘structural investigations’ (Strukturermittlungsverfahren) initiated by the Federal Prosecutor’s Office serve as preliminary investigative proceedings in order to broadly gather information and secure potential evidentiary material related to a specific conflict situation or region (in which core crimes are suspected to have been committed on a wide scale), in order to identify possible perpetrators and prepare for possible criminal

33

See Kreß et al. (2021), pp. 697 et seq. See Generalbundesanwalt, Mitteilung vom 8. März 2022, at Internationales Forschungs- und Dokumentationszentrum (2022).

34

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proceedings against individual suspects in the future. Thus, the investigations at this stage do not necessarily have to be conducted against specific suspects.35 In the past, similar structural investigations had already been conducted by the Federal Prosecutor’s Office over many years concerning core crimes committed in Syria and Iraq, which eventually culminated into a multitude of proceedings against specific suspects at (and convictions by) German courts.36 As in the case of these precursors, the on-going structural investigations concerning Ukraine rely to some degree on evidence collected through interviews of fugitives who fled to Germany and other countries from conflict regions, serving as potential witnesses of core crimes committed there. In addition, the Federal Prosecutor’s Office is collecting and evaluating generally available visual and other physical evidence, as well as information received from intelligence sources. As in the case of Syria and Iraq, it is expected that such general investigations may extend over many years, before specific proceedings against identified individuals can eventually be initiated.37 To strengthen the investigative capacities of the Federal Prosecutor’s Office, staff was increased, and additional public prosecutors were allocated to two sections (working units) newly created within the Office specifically focusing on Ukraine-related investigations.38 In the course of these investigations, the Federal Prosecutor’s Office is cooperating closely with the Office of the Prosecutor of the ICC and the judicial authorities of other third States conducting investigations concerning the Ukraine. In practice, this means that evidence collected by German authorities may be shared with the ICC (and other countries) and eventually also be utilised for future criminal proceedings at the ICC (or in other national proceedings). Thus, such structural investigations essentially serve a twofold purpose: the preparation of proceedings at a national level as well as the support of the prosecution of core crimes at an international level. As explained at the outset of this chapter, German jurisdiction for core crimes allegedly committed in Ukraine is primarily based on the principle of universality as stipulated in Section 1 CCAIL. Based on this provision, a number of criminal complaints against specific suspects have reportedly been filed with the Federal Public Prosecutor General. These suspects include high-ranking members of the Russian military, and also Russian President Putin.39 However, with regard to the latter, it is expected that German judicial authorities will refrain from initiating formal proceedings against Putin due to his (personal) immunity as acting head-of-state on grounds that this immunity bars criminal proceedings against him at a national level (and possibly also in the case of some internationalised or hybrid tribunals) while in 35

In response to an enquiry submitted by members of the German parliament (Bundestag), the German Government confirmed that the on-going structural investigations had not yet led to investigations against specific individuals. Deutscher Bundestag (2022), p. 4; see also Bundesministerium der Justiz (2023). 36 See above 23.3. 37 See Bundesministerium der Justiz (2023). 38 See Sehl (2022). 39 See the reports on the criminal complaints filed by inter alia a former German federal minister of justice (Sabine Leutheusser-Schnarrenberger) and a former federal interior minister (Gerhart Baum) at Beck-Aktuell (2022).

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office.40 Thus, the afore-mentioned recent decision of the BGH negating (functional) immunity for war crimes (committed by a lower-ranking Afghan army officer) will most probably not enfold a precedential effect in the case of Putin. It will, however, certainly serve as an important precedent for the prosecution of the numerous war crimes allegedly committed by Russian soldiers. In this regard, it is interesting to note that the German government has recently announced its support for internationalised efforts to establish a special (international or hybrid) tribunal to prosecute and punish the crime of aggression allegedly committed against the Ukraine, as this crime at present does not fall under the jurisdiction of the ICC.41 However, the issue of immunity of Putin (and other members of the troika) still remains to be resolved even in case such special tribunal will actually be established.42

23.6 Outlook—Impact of the Ukraine Conflict on Domestic Criminal Law In light of the Russian invasion of Ukraine and the alleged core crimes committed there in the course of the conflict, this chapter examined possible responses to such crimes based on domestic criminal law, using Germany’s legislation on core crimes and subsequent national prosecutions of such crimes in Germany as an example. Based on the German experiences to date, the current situation in Ukraine does not necessarily require any immediate reforms in the domestic criminal law systems of third countries which are equipped with adequate legislation pertaining to core crimes. Nonetheless, the future impact on the practice of prosecution for core crimes in third countries, particularly in (but not limited to) European nations, may be significant. This said, the impact on countries without such a legislative framework, such as Japan, might be different. As indicated above, Japan lacks provisions on core crimes and a corresponding provision on genuine universal jurisdiction (or even on the representation principle), owing to the government’s view that core crimes are punishable under existing criminal law (as ordinary offences) and that there is no practical need

40

See Beck-Aktuell (2022). See also the recent lecture delivered by German foreign minister Annalena Baerbock at the Hague Academy of International Law on 16 January 2023, at Auswärtiges Amt (2023). 41 See Karuizawa Declaration of the G-7 Foreign ministers of 18 April 2023, at Federal Foreign Office (2023). 42 In her lecture delivered recently at the Hague Academy of International Law on 16 January 2023 (at Auswärtiges Amt (2023)), German foreign minister Annalena Baerbock indicated that even a special tribunal would not be able to prosecute members of the Russian ‘troika’ (without, however, elaborating on the legal reasoning for such assumption).

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to establish core crime-specific penal provisions.43 In this regard, only very few of the war crimes that constitute grave breaches under international humanitarian law can be punished in Japan if committed by foreigners abroad (such as in the case of the Ukraine war). Japan’s extraterritorial jurisdiction in such cases can be established based on Article 4-2 of the Japanese Penal Code (which requires a treaty-based obligation to prosecute and punish, which can in this case be derived from the aut dedere aut judicare obligation imposed on States Parties by the Geneva Conventions and Additional Protocol I). For all other core crimes, due to the lack of treaty-based obligations to prosecute and punish (Japan has not acceded to the Genocide Convention), the extraterritorial application of the Penal Code is not possible (unless a Japanese national is involved). Therefore, no preliminary (or full) investigations can be carried out by the relevant Japanese judicial authorities into core crimes other than war crimes committed in Ukraine. In other words, Japan is presently not able to effectively participate in and contribute to the global network for the prosecution of core crimes. Nevertheless, Russia’s invasion of Ukraine may possibly prompt Japan to reconsider its domestic criminal law in this regard.

References Ambos, K. 2022. Vor §§ 8 ff. VStGB. In Münchener Kommentar Strafgesetzbuch Nebenstrafrecht III Völkerstrafgesetzbuch, 4th ed, ed. Erb, V., Schäfer, J., 1424–1472. München: C. H. Beck. Auswärtiges Amt. 2023. “Strengthening International Law in Times of Crisis”—Rede von Außenministerin Annalena Baerbock in Den Haag. https://www.auswaertiges-amt.de/de/newsroom/ strengthening-international-law-in-times-of-crisis/2573384. Beck-Aktuell. 2022. Ermittlungen zu möglichen Kriegsverbrechen in der Ukraine. https://rsw.beck. de/aktuell/daily/meldung/detail/ermittlungen-zu-moeglichen-kriegsverbrechen-in-der-ukraine. Bundesministerium der Justiz. 2023. Eckpunkte des Bundesministeriums der Justiz zur Fortentwicklung des Völkerstrafrechts (23 February 2023). https://www.bmj.de/SharedDocs/Downlo ads/DE/News/PM/230223_Eckpunkte_VStGB.html?nn=6705022. Deutscher Bundestag. 2002. BT-Drs. 14/8524. https://dserver.bundestag.de/btd/14/085/1408524. pdf. Deutscher Bundestag. 2022. BT-Drucks. 20/2855. https://dserver.bundestag.de/btd/20/028/200 2855.pdf. Eurojust. 2023. Eurojust and the war in Ukraine. https://www.eurojust.europa.eu/eurojust-and-thewar-in-ukraine. Federal Foreign Office. 2023. G7 Japan 2023 Foreign Ministers’ Meeting Communiqué of 18 April 2023. https://www.auswaertiges-amt.de/en/newsroom/news/g7-japan-2023/2593360. International Criminal Court (ICC). 2022. Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situationukraine-i-have-decided-proceed-opening. International Criminal Court (ICC). 2022. Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening 43

See Osten (2022), pp. 267–268; Takayama (2008), pp. 384 et seq. Under different future geopolitical circumstances, Japan may perhaps prefer to assume a more active role in the field of international criminal justice—but may be unable to do so due to the existing legislative deficits.

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of an Investigation. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qcsituation-ukraine-receipt-referrals-39-states. International Criminal Court (ICC). 2023. Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova. https://www. icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimiro vich-putin-and. Internationales Forschungs- und Dokumentationszentrum. 2022. Generalbundesanwalt leitet Strukturermittlungsverfahren wegen des Verdachts russischer Kriegsverbrechen in der Ukraine ein. https://www.uni-marburg.de/de/icwc/aktuelles/nachrichten/generalbundesanwalt-leitetstrukturermittlungsverfahren-wegen-des-verdachts-russischer-kriegsverbrechen-in-der-ukrain e-ein. Jeßberger, F., and A. Epik. 2022. Immunität für Völkerrechtsverbrechen vor staatlichen Gerichten— zugleich Besprechung BGH, Urt. v. 28. Januar 2021 – 3 StR 564/19. JR 2022(1): 10–16. Kreß, C. 2021. Anmerkung zu BGH, Urteil vom 28. Januar 2021, NJW 2021: pp. 1335 et seq. Kreß, C., P. Frank, and C. Barthe. 2021. Functional Immunity of the Foreign State Officials Before National Courts: A Legal Opinion by Germany’s Federal Public Prosecutor General. JICJ 19: pp. 697 et seq. Ministry of Foreign Affairs of Japan. 2022. Referral of the Situation in Ukraine to the International Criminal Court. https://www.mofa.go.jp/press/release/press3e_000333.html. Ochi, M. 2023. Core Crimes under Russia-Ukraine War. https://editor.wix.com/html/editor/web/ renderer/edit/5be6a050-c322-4db8-b14b-49d7cec06dbe?metaSiteId=7bbd7a27-a3ca-435ca59f-01350f833fff. Osten, P., and T. Kubota. 2017. The German Code of Crimes Against International Law: Outcome, Current Developments and Perspectives [in Japanese]. Journal of law, politics, and sociology (Keio University) 90(4): 1–36. Osten, P. 2022. Verbrechen gegen die Menschlichkeit und Japan—Vom Tokioter Prozess zu den Draft Articles. In Strafrecht und Systemunrecht. Festschrift für Gerhard Werle zum 70. Geburtstag, ed. F. Jeßberger, M. Vormbaum, and B. Burghardt, 267–268. Tübingen: Mohr Siebeck. Satzger, H. 2017. International and European Criminal Law, 2nd ed. München: C. H. Beck. Schmitt, B. 2023. § 153f StPO. In Strafprozessordnung: StPO, 66th ed, ed. Meyer-Goßner, L., Schmitt, and B. München: C. H. Beck. Sehl, M. 2022. Verstärkung für den Generalbundesanwalt. https://www.lto.de/recht/justiz/j/genera lbundesanwalt-ukraine-krieg-russland-kriegsverbrechen-ermittlungen-bka-eurojust-istgh/. Takayama, K. 2008. Participation in the ICC and the National Criminal Law in Japan. JYIL 51: 384–408. Werle, G., and F. Jessberger. 2020. Principles of International Criminal Law. Oxford: Oxford University Press. Werle, G., and F. Jeßberger. 2022. Einleitung VStGB. In Münchener Kommentar Strafgesetzbuch Nebenstrafrecht III Völkerstrafgesetzbuch, 4th ed, ed. Erb, V., Schäfer, J., 1171–1204. München: C. H. Beck.

Philipp Osten is Professor of Criminal Law and International Criminal Law at the Faculty of Law of Keio University, Tokyo. He has published extensively in Japanese, English and German on various issues pertaining to substantive international and national criminal law, such as the notion of core crimes in the Rome Statute of the International Criminal Court (ICC) and their implementation in national legislations, as well as on modes of liability in international and national criminal law. He has also published two books on the International Military Tribunal for the Far

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East (Tokyo Tribunal). His recent publications in English include the co-edited book The Tokyo Tribunal: Perspectives on Law, History and Memory (TOAEP, 2020) and ‘Indirect Co-Perpetration and the Control Theory: A Japanese Perspective’ (20 Journal of International Criminal Justice, 2022, pp. 677–697). Takashi Kubota is Assistant Professor at the Faculty of Law of Teikyo University, Tokyo. He specialises in Criminal Law and International Criminal Law. His main work is on the national legislation for and prosecution of core crimes in German-speaking countries and Japan.