Russia v. Ukraine: The Limits of International Law

Several of my esteemed colleagues and experts have analyzed various international law issues related to the escalating Russia-Ukraine conflict (for example, see here and here and here).  The purpose of this post is not to reiterate some of such excellent analyses already published but rather to focus on the limitations of international law in this type of a conflict situation, implicating a Great Power such as Russia.

First, this conflict clearly implicates use of force issues in international law.  It is abundantly clear that Russia has violated Article 2(4) of the United Nations’ Charter when it used military force against the territorial integrity and political independence of Ukraine.  The international law prohibition on the use of force is also part of customary law and a jus cogens norm; international law is more than unequivocal that this type of behavior by Russia is a flagrant violation of one of international law’s fundamental norms.  Yet, despite this, international law remains limited in its ability to respond to Russian actions because of the fact that collective decision-making regarding authorizations to use force against a sovereign nation is tied to the Security Council, where Great Powers, such as Russia, have veto power.  Thus, although international law provides a clear answer about Russia’s violations of international legal norms, international law lacks appropriate legal mechanisms through which such violations can be adequately addressed.  Scholars have already written about possible limitations to the use of the veto power within the Security Council; such changes and perhaps broader reforms of the Council are desperately needed in situations as this one, where a veto-wielding member is in clear violation of the Charter’s fundamental norms.  For now, the international law system remains blocked when attempting to address violations by a Great Power, which happens to have veto powers within the Security Council. 

It is important to acknowledge that international law does leave open the possibility of a defensive use of force by Ukraine, through self-defense, and of collective self-defense, where Ukraine could request the assistance of another state in order to fend off Russian troops.  It is also important to note that NATO countries could decide to use force against Russia in order to defend Ukraine.  Precedent already exists for this type of use of force by NATO countries, to intervene militarily on the territory of a non-member state.  In fact, in 1999, NATO countries launched a series of air strikes against the Federal Republic of Yugoslavia, in order to force then-President Slobodan Milosevic to halt committing abuses against Kosovar Albanians.  Yet, these potential uses of force remain unlikely and would not be equivalent to a United Nations Security Council-approved collective use of force against Russia.  Most states are unlikely to agree to use their military troops in Ukraine, under the paradigm of collective self-defense, as this would most certainly provoke an attack by Russia against those states and expose those states to serious military and political risks.  Moreover, a NATO-led use of force to defend a non-member state remains illegal under international law, so long as such use of force remains unauthorized by the Security Council.  Although many have defended the 1999 NATO air strikes against the FRY as legitimate or morally authorized, or on humanitarian grounds, these air strikes were illegal under international law.  It is unlikely, as of now, that NATO countries would be willing to launch a military operation, illegal under international law, against a Great Power like Russia.  Thus, the only plausible use of military force against Russia would be through a Security Council-authorized, collective military coalition, both legal under international law and more likely to succeed militarily against a mighty opponent as Russia.  Yet, as explained above, this is not going to happen because Russia has veto power within the Security Council. 

Second, this conflict also underscores the limitations of international law in terms of accountability.  In theory, political and military leaders who order the commission of atrocity crimes ought to be held accountable.  Article 8bis of the ICC Rome Statute defines an act of  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 of the United Nations.”  In this instance, it is clear that Russia’s President Putin has committed an act of aggression vis-à-vis Ukraine.  Yet, although the ICC can exercise jurisdiction over genocide, crimes against humanity, and war crimes in situations involving non-state parties (if the crimes are committed by a national of a state party on the territory of a non-state party), the jurisdictional regime over the crime of aggression is significantly more limited.  In fact, the ICC can only exercise jurisdiction over the crime of aggression in situations where both the victim and the aggressor state are members of the ICC; in this instance, because Russia is not a member, the court cannot exercise jurisdiction over the crime of aggression.  Thus, although it is certain that Putin has committed the act of aggression in Ukraine, it is almost equally certain that he will not face accountability at the ICC.  It is relevant to note here that the ICC can potentially exercise jurisdiction over the three other ICC crimes in Ukraine.  In fact, Ukraine accepted ICC jurisdiction over crimes allegedly committed there by Russian forces starting in 2013.  The ICC Office of the Prosecutor launched a preliminary investigation into Ukraine and concluded that reasonable basis existed to conclude that crimes against humanity and war crimes were indeed committed in Ukraine.  Thus, the ICC could continue to investigate and possibly prosecute those responsible for crimes against humanity and war crimes in Ukraine. However, as the current ICC Prosecutor, Karim Khan has confirmed, the ICC remains unable to investigate and prosecute the most important crime committed by Putin against Ukraine, aggression.

Third, the conflict also highlights the limited efficacy of the International Court of Justice (ICJ).  The ICJ is the primary judicial organ of the United Nations and a forum where states can in theory settle their disputes. Because the court’s jurisdiction is voluntary, states must either agree to litigate in the ICJ on an ad hoc basis or through a treaty’s dispute resolution clause.  In this case, Ukraine has sued Russia in the ICJ, basing jurisdiction on the Genocide Convention, to which both states are parties.  However, although the ICJ has jurisdiction over this dispute, the court’s reach is limited to genocidal offenses only (because jurisdiction is based on the Genocide Convention), and, most importantly, the court has no enforcement mechanisms.  Thus, although the ICJ could order Russia to cease using military force in Ukraine, the court has no direct ways to enforce its own judgment.  It is very likely that a Great Power such as Russia would simply ignore the ICJ’s judgment.  Thus, the power of the ICJ to contribute to the actual resolution of this conflict remains limited.

In sum, international law contains clear legal norms which condemn Russia’s invasion of Ukraine and which, on a theoretical level, impute state responsibility onto Russia and individual criminal responsibility on its leader, Vladimir Putin.  However, as this post discusses, international law remains limited in its ability to address the conflict.  Authorization for the use of force against Russia remains deadlocked in the veto-blocked Security Council; the crime of aggression’s restricted jurisdictional regime effectively shields Russian leaders from accountability at the ICC; the ICJ has no prospects of enforcing a judgment which would condemn Russia.  It may be argued that this relative inefficacy of international law is linked to the super-sovereign status of Great Powers, like Russia, which benefit from international law’s institutional design.  To illustrate this point, imagine a scenario where a non-super power, a state with an average size military and without a permanent seat on the Security Council, invaded a neighboring country.  In such a situation, the Security Council could act (assuming that this country was not directly allied with one of the Council’s five permanent members) and order collective force to be used against the aggressor state.  The country’s leaders could possibly face accountability in the ICC (there is a higher likelihood that a smaller, non-super power country would be a member of the ICC).  And a smaller, weaker state would be more likely to abide by an ICJ ruling.  International law, because of its general lack of enforcement mechanisms and because of its institutional design such as the veto power in the Security Council, contributes to an unequal order of states, where those with super-sovereign powers seem able to get away with breaches of fundamental norms with virtually no consequences. Russia, because of its status as a Great Power, has violated fundamental international law norms but may remain insulated from international law’s reach. 

Accountability for harms to children during armed conflict discussed at ILW panel

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

(Cross-posted from Diane Marie Amann)

Reflecting on the Australian Feminist Law Journal special issue, ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’

The nexus between war and technology has developed alongside the rapid expansion of military might and spending, evident in recent decades. Militaries have advanced their weapon systems and in theory saved civilian and military lives in the process. Weapons are now more accurate, theoretically cause less destruction to surrounding infrastructure, and require less time to deploy. Drones, for instance, can target ‘hostiles’ from miles away allowing the operator to never physically come in contact with the violence of war. Specialty ‘armour’ can better protect soldiers and make their job more efficient, by providing weight distribution. Therefore, soldiers (both men and women) will likely become less exhausted from carrying out common tasks and would therefore be allegedly clearer of mind when making key decisions on the battlefield. But, are these all welcome achievements? And, are individuals to accept these achievements at face value?

Alongside the development of these military technologies there has been a push from scholars to recognise that technology, war, and law are not the only sites of intersection. Gender, as a starting point for scholarship on war and technology, and as a tool to investigate the ways in which technology is used, understood, and imagined within military and legal structures and in war, offers an analysis that questions the pre-existing biases in international law and in feminist spaces. Using gender as a method for examination as well as feminist legal scholarship, expands the way military technologies are understood as influencing human lives both on and off the battlefield. This type of analysis disrupts the use of gender to justify and make palatable new military technologies. The Australian Feminist Law Journal’s special issue entitled ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’ (Volume 44, Issue 1, 2018) has tacked key issues and questions that emanate precisely from the link between the concepts of ‘gender, war, and technology’ which editors Jones, Kendall, and Otomo draw out through their own writing and various contributing author’s perspectives.

The following thoughts/questions, which developed while reading this issue, speak to the critiques waged within these articles, and from the developments this issue’s engagement with these topics have generated. As this contribution suggests, intersectional issues remain ever present within new technological advances, which begs the question who are the programmers? If the desire and use of technology to gain military advantage is coming from a place of primarily white, Western, heteronormative, masculine, and secure socio-economic status, then does the method of technological advancement and deployment become defined along similar identities? Does the use of such technology change command structures whereby the weapon becomes ‘in charge’? Continue reading

Mental Health as a Target: New Amnesty Report on South Sudan

It is trite to say that conflicts and health (care) are antithetical. In addition to the direct harm to health resulting from the violence, conflicts generally decrease the resources available for public health and often exacerbate discrimination in the enjoyment of the right to health. The relationships betwesudanen conflicts and mental health tend to be less visible than those related to physical health, but no less acute.

Earlier this month, Amnesty International published the report, Our hearts have gone dark’: The mental health impact of South Sudan’s conflict. In AI’s words, the report ‘documents the psychological impact of mass killings, rape, torture, abductions and even a case of forced cannibalism, on the survivors and witnesses of these crimes’. South Sudan is engaged in a non-international armed conflict between the South Sudan People’s Army under the control of the President and an armed opposition group. Based on interviews with 161 victims of and witnesses to human rights violations, as well as mental health professionals, government and UN officials, and representatives of non-governmental organizations, AI reveals a dire lack of mental health services across the country for people in need of support and care.

Despite the vast literature on the right to health in international human rights law (see, e.g. by  Katherine H. A. Footer and Leonard S. Rubenstein, by Amrei Müller or by Pierre Perrin), it is still rare that human rights organisations provide rights-based analyses on health in conflicts in general, and on mental health in particular. As far as Amnesty International is concerned, this is the organisation’s first report specifically addressing mental health. Hence, it is very encouraging that Amnesty International is focusing on these neglected aspects of the conflict in South Sudan.

In this post, I take the opportunity to review two conceptual aspects of the report that I find particularly interesting:

  1. Harm to mental health: more than a consequence of conflict

First, the title of the report suggests (at least at first sight) that harm to mental health is primarily an impact of the conflict but not a violation itself. Harm to mental health is undisputedly – and sadly – a far too widespread consequence of many abuses of the conflict. But in light of the qualitative research documented in the report, many instances of harm to mental health do not seem to constitute ‘just’ a consequence of the conflict, but the primary intention of perpetrators. The report, for instance, documents shocking cases of government soldiers allegedly forcing people to eat human flesh and to disembowel dead bodies in exchange for their life. In such horrific examples, the infliction of mental pain and suffering is the violation itself and not an impact of other abuses. Such abuses constitute international crimes in certain circumstances, such as war crimes, torture or crimes against humanity. In the text of the report itself, Amnesty International qualifies the commission and the failure to address these deliberate acts as a violation of the respect and protect the right of the South Sudanese population to the highest attainable standard of health (chapter 6, p. 49).

As discussed elsewhere in an article with Aoife Nolan, there is a tendency in the literature to analyse economic and social rights such as the right to health not as part and parcel of past violations but from the perspective of consequences of other abuses. In other words, when economic and social abuses are considered, they are sometimes not analysed on their own terms, but rather as a secondary consequence of civil and political rights violations. This underscores the tendency to view civil and political rights abuses as the forefront issues when discussing human rights and conflicts, with economic and social rights abuses constituting their context and consequences. Remnants of such an approach can still be found in Amnesty’s new report, e.g. where the NGO points out that

‘acts such as torture, sexual violence, and unlawful killing will often have a negative impact on the mental health of “victims” (…).  In addition to being serious violations of civil and political rights in and of themselves, such acts can, therefore, also constitute violations of the right to health.’ (Emphasis added).

While entirely correct, the section outlining the relationship between the violence and the right to mental health could have started much more strongly, e.g. by explaining how some of the documented acts deliberately target people’s mental well-being. Soldiers forcing someone to drink the blood of other victims trigger the State’s responsibility for a violation of the right to mental health independent of whether or not there are also violations of civil and political rights involved in such acts.

2. The right to mental health: not just a reparations issue

Second, and here I entirely agree with the legal framing, Amnesty does not exclusively frame the need to provide for mental health services from the angle of the right to reparations. While the link between mental health and reparations features prominently in the report (as this is often the case when economic or social rights are discussed in relation to violent conflicts), Amnesty International convincingly goes beyond this approach. The NGO appropriately frames the right to mental health care services as part of victims’ right to reparations as ‘an additional specific obligation’ – in addition to the primary obligation of refraining from and preventing acts that case psychological harm. This is important because an exclusive focus on mental health services as a form of reparations would seem legally unjustified given what I argued above.4623b1a7-76d3-4f79-9e7b-fc8f38ca7210

On a side note, Amnesty’s approach to emphasise that the state has a basic obligation to refrain from and prevent acts that harm mental health finds support in concluding observations of the UN Committee on Economic, Social and Cultural Rights. Although South Sudan is not (or not yet?) a state party to the UN Covenant on Economic, Social and Cultural Rights, it is interesting that mental health is one of the few substantive issues on which the Committee has made specific statements tailored to conflict situations (for other issues and more analysis, see my article in the Netherlands Quarterly of Human Rights). It did so for the first time in 1997 when examining the report from Iraq, urging the Iraqi authorities to submit ‘concrete and comprehensive information on measures taken or foreseen in order to address the psychological and emotional problems affecting children after years of armed conflict’. More recently, the Committee recommended to Nepal and Cambodia that a higher priority be accorded to mental health care in relation to persons affected by the conflict. In 2010, the Committee also recommended that Afghanistan, if necessary, seek international cooperation to address conflict-related traumatic disorders.

 

Photo credit: Amnesty International, Justin Lynch/AFP/Getty Images