The legal battle between Russia and the world - opinion

The clash between Putin’s Russia and the institutions of the international community is sending out significant shock waves to the existing world order.

 ICC PROSECUTOR Karim Khan announced his intent to formally ask the court for approval for an investigation that will include alleged crimes occurring in the conflict. (photo credit: LUISA GONZALEZ/REUTERS)
ICC PROSECUTOR Karim Khan announced his intent to formally ask the court for approval for an investigation that will include alleged crimes occurring in the conflict.
(photo credit: LUISA GONZALEZ/REUTERS)

The Russian invasion of Ukraine is not only a violation of peace and stability in Eastern Europe, it is also a blatant violation of basic principles of international law, as developed since the end of World War II. Though these principles have not always been fully or evenly enforced by international legal bodies, they have served as the basis for the long peace that has existed in large portions of the globe for most of this period, characterized by relatively high levels of political, economic, and military stability.

This world order is now under serious threat. Russia has already committed a number of violations of international law, chief among them is an act of aggression involving the sending of military forces into the sovereign territory of another state, without its consent.

Based on the experience gathered in previous events, such as the Russian-Georgian conflict (2008), the Russian annexation of Crimea (2014), Russia’s involvement in the civil conflict in the Donbass region (mainly between 2014 and 2015) and maritime incidents between the naval forces of Russia and Ukraine in the Black Sea (2018), Russia’s current actions will very likely lead to a long list of legal proceedings being brought against it before various international forums.

While these proceedings tend to be drawn-out affairs lasting many years, they can be expected to increase the international pressure on Russia and reinforce its reputation as a rogue state that engages in serial and serious violations of international law.

Though Russia does not accept the judicial authority of the International Court of Justice (ICJ) in the Hague, it has been the subject of ICJ proceedings brought by Ukraine for several years now, on the basis of treaties that grant specific judicial authority to the ICJ in connection with allegations of racial discrimination against Ukrainian citizens in the Crimea and allegations of funding terror organizations in the Donbass region of international conflicts.

 RUSSIAN PRESIDENT Vladimir Putin delivers a special address Thursday on Russian state TV, authorizing a military operation in Ukraine’s Donbass region.  (credit: REUTERS TV) RUSSIAN PRESIDENT Vladimir Putin delivers a special address Thursday on Russian state TV, authorizing a military operation in Ukraine’s Donbass region. (credit: REUTERS TV)

Furthermore, Ukraine has already instituted proceedings against Russia at the ICJ in connection with the present crisis, charging it with falsely invoking the Genocide Convention to justify its intervention in Ukraine. In the future, Ukraine may also seek a resolution from the UN General Assembly asking the ICJ for an advisory opinion on specific legal issues, such as the legality of Russia’s recognition of the breakaway regions in eastern Ukraine (as Serbia sought to do in 2008 in response to international recognition of the independence of Kosovo).

Another court expected to discuss the actions of the Russian military in Ukraine is the European Court of Human Rights (ECHR) in Strasbourg, which last year ruled that Russia had committed a series of human rights violations in the course of its invasion of Georgia, and that it should pay compensation to Georgia. To date, the ECHR has received some 8,000 complaints from Ukrainian residents of Donbass and Crimea detailing Russian human rights violations, as well as nine complaints from Ukraine about Russian military actions against Ukraine.

These complaints include the maritime incident in the Black Sea about three years ago, a counter-complaint from Russia about the treatment of Russian citizens in Ukrainian territory, and a complaint against Russia from the Netherlands regarding its role in shooting down Malaysian Air Flight MH17 over Donbass in 2014,resulting in the deaths of all 298 people onboard, of whom 193 were Dutch citizens.

Given the relative ease of access to the Strasbourg court, it is hardly surprising that Ukraine has already been able to submit a new case against Russia to the court concerning human rights violations that occurred in the recent conflict. In relation to this, the Court has already issued interim measures of protection ordering Russia to refrain from targeting civilians and civilian objects and to ensure the safety of medical facilities, personnel and vehicles. There is little doubt that thousands and thousands of Ukrainians will further pursue individual claims against Russia at the ECHR in the near future.

Lastly, the International Criminal Court (ICC) is also likely to find itself heavily involved in the new conflict. Ukraine is not a member state of the Rome Statute that established the ICC, but it did invite the court to investigate crimes carried out on its territory after 2014.

IN FACT, for several years the ICC has been investigating allegations of war crimes and crimes against humanity during the civil conflict in Ukrainian territories and in the territories of the Crimean Peninsula. Fatou Bensouda, the previous ICC prosecutor, indicated over a year ago her intention to open a criminal investigation against those involved in these alleged crimes, and called on Russia and Ukraine to cooperate with the investigation.

Her successor, Karim Khan, has already announced his intent to formally ask the court for approval for the investigation and that the investigation will also include alleged crimes occurring in the recent conflict. This investigation may eventually lead to indictments against senior Russian officials, including Putin himself.

Note that because Russia is not a member state of the ICC, its leaders cannot be tried before the court for the offense of invading Ukraine (the crime of aggression), but only for other crimes they may commit on Ukrainian soil. However, there is already some discussion in international circles of establishing a new ad hoc international court for trying the Russian leadership for the crime of aggression.

In summary, the Russian president’s recent actions against Ukraine constitute, not only a huge military, diplomatic and economic gamble, but also a major legal gamble that may lead to a slew of legal proceedings against Russia and even against Putin himself.

Based on past experience, the outcomes of these proceedings are likely to have severe legal implications for Russia: While most court decisions against Russia may not be implemented in practice, due to the weakness of international enforcement mechanisms, they will have a considerable impact on the country’s international status and image. As well, it will impact Russia’s ability to engage in international and economic relations.

The willingness to take such major legal risks may indicate the great importance Putin attaches to Russia’s national interests, which he feels are at stake in Ukraine, and the extent to which he is prepared to break away from international legal institutions and the economic and political structures they underpin, such as the Council of Europe.

The clash between Putin’s Russia and the institutions of the international community is sending out significant shock waves to the existing world order. If international structures are not able to effectively resist such pressures, the victims of the war in Eastern Europe will not only include Ukraine and its citizens, but also global peace and the world order.

The writer is a senior fellow at the Israel Democracy Institute and a member of the Hebrew University Faculty of Law.