Posted on March 13
For more than two weeks, we have been watching, in disbelief, the images of the war in Ukraine. We then ask ourselves: Where is the law? Where is the justice ? Despite the escalation of hostilities, the light of international justice is on the horizon, in the distance.
A few days after the start of the conflict, two international courts located in The Hague were seized: the International Court of Justice (ICJ) and the International Criminal Court (ICC). A third court, regional this one and located in Strasbourg, the European Court of Human Rights, was also seized. What are the fields of competence of these courses? Can they have an impact on the conflict in order to put an end to hostilities? Let’s see them one by one.
International Court of Justice
Two days after the start of the Russian offensive, Ukraine filed a petition with the ICJ. The principal judicial organ of the United Nations, this court began its activities in 1946 in order to resolve disputes between States in accordance with international law. The judgments of the ICJ are binding on the parties to the dispute and cannot be appealed. Although an important forum for the peaceful resolution of international disputes, the ICJ has no jurisdiction to try allegations of criminal acts committed by individuals or individual criminal responsibility.
Ukraine’s claim is based on the Convention on the Prevention and Punishment of the Crime of Genocide. But beware: Ukraine alleges in particular that Russia “falsely asserted that acts of genocide had been committed in the Ukrainian oblasts of Luhansk and Donetsk”. In other words, Ukraine maintains that a false allegation of genocide should not be used to justify an armed attack on its territory.
In introducing its application to the ICJ, Ukraine asked the Court for provisional measures, i.e. measures in the event of an emergency, in particular to order Russia to “immediately suspend the military operations begun on February 24, 2022”. Following the March 7 public hearings, in which Russia did not participate (it submitted a written response), the Court began its deliberations on provisional measures.
Should the Court order the measures requested by Ukraine, these will be binding, although no traditional enforcement mechanism, such as international police, can enforce compliance with ICJ orders.
International Penal Court
On the other side of The Hague, the ICC has separate jurisdiction from the ICJ. It does not seek to establish the responsibility of States (Russia or Ukraine), but to determine whether individuals have committed international crimes, in this case war crimes or crimes against humanity. Russia and Ukraine are not States Parties to the Rome Statute, which constitutes the ICC. However, Ukraine has made declarations, pursuant to Article 12(3) of the Rome Statute, where it recognizes the jurisdiction of the Court on an ad hoc basis for crimes committed on its territory. Consequently, following the start of the Russian invasion, ICC prosecutor Karim AA Khan said he was opening an investigation in relation to Ukraine, a statement supported by 40 member states, including Canada.
Proceedings before the ICC, aimed at establishing the guilt of those accused of international crimes, can be lengthy. It is therefore too early to designate war criminals on either side.
Moreover, like the ICJ, the ICC does not have police forces at its disposal and must rely on the cooperation of the Member States in order, in particular, to make arrests, which will not be easy in the case of Russia, which is not a State party to the Court.
European court of human rights
Finally, in Strasbourg, Ukraine seized the European Court of Human Rights, created by the member states of the Council of Europe in 1959 to ensure respect for the European Convention on Human Rights (ECHR) . The Court recently ordered interim measures requiring Russia to “refrain from any military attack against civilians and civilian objects, including places of residence, emergency vehicles and other civilian buildings in need of protection such as schools and hospitals, and to immediately provide security for medical establishments, personnel and emergency vehicles in the territory attacked or besieged by Russian soldiers”.
These are emergency measures, applicable when there is an imminent risk of irreparable damage. In addition, the Court asked Russia to inform it of the measures taken to comply with the Convention while alerting the Committee of Ministers of the Council of Europe. It should also be noted that, following the invasion of Ukraine, the Committee of Ministers of the Council of Europe had decided, by a majority vote, to suspend Russia’s representation rights, and that on March 10, 2022, the Russian news agency announced their withdrawal from all Council of Europe bodies, including the ECHR.
What consequences for the war?
Difficult to say in the short term, because seizing international courts and launching these procedures does not imply the immediate cessation of hostilities. On the other hand, these procedures, mobilized very quickly from the first attacks, add to the international pressure on Russia. They aim to summon international justice in a situation of violation of the rules of international law, and will contribute to assigning, at the appropriate time, the various responsibilities for the illegal acts committed during the war.
* Miriam Cohen previously worked at the International Court of Justice and the International Criminal Court in The Hague.
Closer than you think
Canada played a central role in the establishment of the International Criminal Court, including drafting the final proposal before the Rome Statute was adopted in 1998. Since then, Canadian leadership in support of the ICC has grown steadily. It is notably the first country to pass legislation implementing the Rome Statute in 2000, and two Canadian judges have served on the ICC.