DON FRANZEN: Dr. Ellis, you are the head of the International Bar Association, and a leading expert in the field of international law. You’ve recently opined in The Times of London on the subject of Russia’s violation of international law by its invasion of Ukraine. To get our bearings on this subject, can you summarize what issues under international law does the Russian invasion involve?
MARK ELLIS: There are two. One is to be seen and one we have already seen. The one that we have already seen is the crime of aggression through Russia’s violation of Ukraine’s territory. This act violates one of the most sacred principles of international law — the territorial integrity and political independence of states which must be respected. International law is absolutely, without question, unyielding on this issue. It means that a state is prohibited from the use or threat of force against another state, regardless of the gravity or aims. Under international law, there are only two primary exceptions to this prohibition. The first is if the state is acting in self-defense. So, if Russia was acting against attacks initiated by Ukraine, then it’s permissible for Russia to respond to those attacks in self-defense. But that is not the situation we are witnessing. The other exception is when the UN Security Council, authorizes the use of force. The Security Council has not done so. Thus, Russia’s military intervention into Ukraine is a direct and egregious violation of one of the most sacred principles of international law.
You mentioned there was a second principle that hasn’t actually come to pass yet. What would that be?
The second principle deals with international legal principles involving the actions that take place during a conflict. The laws of armed conflict, as established primarily through the Geneva Conventions, require parties to a conflict to abide by certain rules. So, whereas the first principle deals with the violation of the territorial integrity of Ukraine, the second principle focuses on the parties’ obligations to adhere to international humanitarian law. This includes the absolute prohibition against targeting civilians or indiscriminately shelling areas with civilians. You cannot target hospitals. You cannot use weapons like cluster bombs that cause unnecessary suffering. You cannot forcefully displace people. All of these acts are war crimes, and all of these acts are occurring in Ukraine by Russian military forces. All of it is happening now in the theater of battle, and so the international community, and particularly the International Criminal Court, will be focused on those acts as this war continues to escalate. It is part of a two-sided coin of international law that relates to what is happening now in Ukraine.
Speaking of the International Criminal Court, does it have jurisdiction over the events in Ukraine, and can it hold Russia accountable for them?
Yes and no. Russia’s crime of aggression against Ukraine cannot be heard by the court because of statutory limitations. However, crimes now occurring in the conflict do come under the court’s jurisdiction. The International Criminal Court is constituted by nations that have become state parties to the Rome Statute, which is the statute of court. So, by acceding to the Rome Statute, states accept the jurisdiction of the court. However, states that do not become state parties can still fall under the court’s jurisdiction. Russia is not a state party to the Rome Statute and, therefore, on the face of it, is outside the court’s jurisdiction. But, Ukraine, back in 2014, accepted the ICC’s jurisdiction. Under the Rome Statute, Ukraine was able to, in essence, ask the court to look into any crimes that come under the Rome Statute and, thus, under the court’s jurisdiction, that occurred in Ukraine from 2014, and that continues today. So, it’s an open-ended request. Because of that, even though Ukraine is not, in essence, a full state party, the court can still exercise its jurisdiction over crimes committed in Ukraine. That would cover crimes that were committed or are being committed by Russia, even though Russia is not a state party. The distinction doesn’t matter, because the crimes and acts are being committed on the territory of a country, Ukraine, that has accepted the jurisdiction of the court, and, therefore, the court is able to investigate what’s occurring in Ukraine. And I might add, the court looks at crimes that are committed by either party. That’s why the prosecutor has now announced that he’s proceeding with an investigation. He said that he thinks there’s a reasonable basis to believe that alleged war crimes and crimes against humanity were being committed in Ukraine. Mind you, that was a couple of weeks ago, and certainly evidence of these crimes has now multiplied.
Does the jurisdiction of the International Criminal Court extend just to nation states or to the leaders of nation states? And if so, would Mr. Putin perhaps ultimately be a defendant?
This is interesting because the court’s jurisdiction is over individuals. The court doesn’t focus specifically on the state in its jurisdiction, even though the state might be actively engaged in the crimes that are occurring. The court’s focus is on individuals. The court looks at individuals that are committing crimes that are under the court’s jurisdiction. So, the question is, “How far can that go up in the pecking order of authority?” And this moves into something called command responsibility. Command responsibility allows the court to look at those individuals, either in a military position or in a civilian position who have effective control over the acts occurring in the conflict. In this case, the conflict is in Ukraine. And if it’s decided that Mr. Putin, has effective control over the acts, that he is the one overseeing the decisions of the miliary intervention and operations, which I believe is unquestionable based on the evidence, then Mr. Putin could be held accountable under the concept of command responsibility. He knew, or should have known that crimes were being committed and he did nothing to stop them nor punish those who committed the crimes. So, in essence, someone like Mr Putin can be prosecuted for the crimes that are being committed in Ukraine, even though he’s not the one who’s directly committing the crimes.
As a practical matter, what does being held accountable mean? He’s in Moscow, in a country with nuclear weapons, so what can the International Criminal Court do other than issue a decision? And then will that decision essentially be a dead letter?
This is the biggest challenge for any international court, and particularly for the International Criminal Court, as the world’s permanent criminal court. The court doesn’t have a police force. It doesn’t have any power to arrest. It requires cooperation from nation states and, in certain circumstances, the Security Council to support its decisions, its request for arrest warrants, and demands of the court to transfer indicted war criminals to The Hague. So there’s a point here that the court can do only so much. The prosecutor has started the investigation. If the process continues to move forward towards the point of an indictment, bringing Mr. Putin, or any other Russia military or civilian leader, to justice becomes a challenge. The court has faced this challenge before. Sudanese President Al-Bashir is a great example. The court did what it was supposed to do – it indicted Mr. Al-Bashir — and then it was left to the international community — individual states, and the Security Council — to make sure that Al-Bashir was apprehended and transferred. It didn’t happen. It also shows how difficult it is when you’re talking about an indictee from a country that is not a state party. So that is a very challenging, and some would say, an impossible hill to climb. Even if Mr. Putin were to be indicted, how do you get him to The Hague? Someone of the stature of Mr. Putin would undoubtedly see himself as untouchable, at least in the short term. But this is what I always say about this topic: for the types of crimes we are witnessing in Ukraine, there’s no statute of limitations and there’s no impunity, regardless of who you are. So in the short term, perpetrators may very well avoid the court’s jurisdiction. But international justice plays the long game and because the political atmosphere often times changes, people like Mr. Putin may not be in The Hague in a year or two years, but he could find himself in The Hague eventually. Just as President Milosevic from Serbia and Radovan Karadžić from Bosnia found themselves in The Hague, and Charles Taylor from Liberia to the Special Court for Sierra Leone. There is history for international courts eventually obtaining custody of the individual, and that’s what you have to hope for.
I think that’s a great observation — that although we’re just being assaulted by daily, horrific news, that there will be a historical perspective, with the eyes of future historians revisiting the events of these weeks.
That’s very important because people need to understand that international justice is the foundation of our accountability for mankind’s most heinous crimes. But international justice does not work without political will. Political will is the most important component of justice and there must exist political will within the international community to ensure that Mr. Putin is brought to justice. This may work through the International Criminal Court; it may work through the concept of universal jurisdiction, which involves many states. But ultimately for justice to work in the long run and for accountability to succeed and impunity rejected, the international community has to engage in a very robust manor. Together, international justice and political will can lead to success.
With news of daily outrages in this invasion, what are some of the broader issues beyond what we’re seeing every day for the future of international relations and indeed civilized humanity? And do you see possibly and eventually a positive outcome in terms of how nation states relate to each other in the future?
Considering how nation states relate to each other, in particular what’s happening now in Ukraine, one would have to be fairly pessimistic. This conflict is completely unwinding and, in many cases, destroying the international order that emerged after World War II, and certainly after the Cold War. We’re seeing weaknesses now emerging in the structure of international relations. The universality of human right, territorial protections, liberalism, economic integration, the fortification of democracy are all under threat. However, if there is a positive aspect of this crisis, it is the attention being paid to the ideas of justice and accountability and of international law. Even though Russia is violating the most sacred principles of international law, those actions seem to be galvanizing many other countries who now understand the importance of protecting the principles of international law. They understand that these principles are under threat. The principles have certainly been weakened over the past decade with the rise of populism and the rise of nationalism. However, I think there is a revelation now, an awareness of the important role international law plays. A greater appreciation and acceptance of the importance of these international principles will hopefully lead us to protect them.
Don Franzen the legal affairs editor for Los Angeles Review of Books.