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The UN’s Achilles Heel Mires International Action to Halt Aggression and Atrocities in Ukraine

Russia’s unlawful invasion of Ukraine has led the international community to respond with unprecedented speed and intensity. Reactions to this European conflict are in stark contrast with the lack of effective international action to halt ongoing atrocities in Myanmar, Afghanistan, China, and other places. The crisis in Ukraine has also brought to the foreground the limitations of international law and mechanisms to halt aggression and atrocity crimes.

This article summarizes recent attempts within United Nations (UN) bodies to halt the war and atrocities in Ukraine. Also considered are actions in the International Court of Justice (ICJ) and the International Criminal Court (ICC), as well as suggestions for an ad hoc criminal tribunal for the crime of aggression. The article concludes with a discussion of the Achilles heel of the UN Security Council (SC) – the veto power held by its five permanent members (P5), Russia, the United States (US), China, the United Kingdom (UK), and France.

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Background and sources of the conflict in Ukraine

For weeks before the invasion of Ukraine on 24 February 2022, Russian President Vladimir Putin amassed troops along Ukraine’s border. Prior to Russia’s invasion, the UN Secretary-General António Guterres made repeated appeals for peace.

On the evening of 23 February (New York time), the Security Council commenced an emergency meeting where Mr. Guterres pleaded, “President Putin, stop your troops from attacking Ukraine. Give peace a chance. Too many people have already died.” Russia did not even wait until the end of the meeting before invading Ukraine.

Political analysts have spilled much ink trying to explain the war. Some emphasize Mr. Putin’s personal background and ambition to restore Russian control over some regions of the former Soviet empire. A few have reminded analysts not to overlook the role of religion in Mr. Putin’s calculus, citing support he has received from Russian Orthodox Church leaders (and right-wing church leaders in the US). Many experts have noted that decades of NATO expansion in the region put Mr. Putin on the defensive. Some highlight US hypocrisy in pushing for UN action and Russian accountability in the ICC for atrocities in the face of decades of US impunity for aggression in Iraq, alleged war crimes in Afghanistan, and a history of undercutting and threatening the ICC. Some analysts point out Russia’s expectation of continued impunity after relative inaction of the international community after the 2014 invasion of Crimea.

Understanding the sources of the conflict is essential to its resolution, but this article has it focus on international law and UN mechanisms currently being engaged in attempts to halt the war in Ukraine and to seek accountability of perpetrators of atrocity crimes. Russia has no lawful excuse for aggression, war crimes, crimes against humanity, or other violations of fundamental principles of international law, including the UN Charter.

There has also been emphasis on massive humanitarian efforts to protect and assist the millions of civilians fleeing attacks on their neighbourhoods, health care facilities, and schools.

International bodies and human rights organizations in Ukraine have been documenting massacres, organized sexual violence, and sieges that deprive blockaded captives of basic necessities, including food, water, and medical care. Investigations by human rights groups and the UN had already begun in 2014 after the movement of Russian troops into Crimea and the Donbas region.

The UN Security Council: Russia’s veto power

So far in 2022, the Security Council has held over a dozen meetings related to Russia’s aggression against Ukraine. On 25 February, Russia vetoed a draft resolution that would have ordered Russia’s immediate withdrawal of all its military forces from Ukraine. Two days later, on 27 February, several Security Council members invoked the “Uniting for Peace” procedure, calling for an Emergency Special Session of the General Assembly (GA). This resolution succeeded, as no veto is available for procedural matters. The Uniting for Peace procedure was created in 1950 for use when a veto has stymied substantive Security Council action and has been used only 11 times in the UN’s history.

The General Assembly demands that Russia remove its troops from Ukraine

In accordance with the Uniting for Peace resolution, the General Assembly held an emergency special session on 2 March 2022 and adopted a strong resolution deploring Russia’s aggression and demanding a halt to its illegal use of force and withdrawal of its troops. The vote was 141 to five, with 25 abstentions. Russia voted against the resolution along with Belarus, Eritrea, North Korea, and Syria.

However, the General Assembly has no jurisdiction to issue binding orders – it cannot order embargos or sanctions, make a binding referral to the ICC, or order a no-fly zone. Only the Security Council can do those things, so Russia’s veto power makes those measures impossible. In any case, NATO leadership has so far viewed a no-fly zone as too risky, because of the potential to escalate the war into other parts of Europe. Even so, there are NATO military build-ups in the region, including deployment of Canadian and US troops to Central and Eastern Europe. It is important to emphasize that the UN Charter makes it internationally unlawful for any country to use force against another country without a UN Security Council resolution, other than in self-defence against an actual or imminent attack.

UN Human Rights Council establishes Commission of Inquiry

At the time of the invasion, the UN Human Rights Council (HRC) was about to convene its regular spring session starting 28 February. The HRC schedule was quickly changed to accommodate an urgent debate on the situation in Ukraine on 3-4 March. The result was a strong resolution to establish an independent Commission of Inquiry. The Commission will assist in the collection and preservation of documents and evidence for use in investigations conducted by other bodies, including the ICC, discussed below.

The HRC is composed of 47 States elected by the GA for three-year terms. Countries with exceptionally poor human rights records are routinely elected to the HRC, including Russia and China in 2020. Election of States known to be engaged in gross and systematic human rights violations defies the GA requirement that all members of the HRC “uphold the highest standards of human rights.”

Russia was one of two Human Rights Council members to vote against the resolution to create a commission of inquiry (the other was Eritrea). By the end of March, the President of the HRC had already appointed three highly-qualified Commissioners. On 12 May 2022, the HRC held a Special Session on Ukraine, affirming its March 2022 resolution and, among other things, adding a call for a halt to State-sponsored disinformation and war propaganda that has fuelled the conflict. China and Eritrea voted against the 12 May resolution.

To illustrate the comparative speed of the HRC’s actions, the HRC has still not heeded calls for a Commission of Inquiry in the face of the unlawful armed takeover of Afghanistan by the Taliban in August 2021 and its widespread violations. Instead, in September 2021, the HRC resolved to appoint a Special Rapporteur to monitor and assess the human rights situation in Afghanistan. It took until April of this year to appoint him.

The General Assembly suspends Russia from the UN Human Rights Council

During the rest of the HRC session throughout March, several countries and non-governmental organizations called for Russia’s suspension from the Council. Led by the US, on 7 April, the General Assembly adopted a resolution to do so with 93 votes in favour. Russia and China were among 24 countries to vote against it. There were 58 abstentions.

The suspension of a member of the HRC is almost unprecedented. The only other instance was Libya’s temporary suspension from the HRC from March to November 2011. There has never been any political will to suspend other members that are equally deserving of removal.

International Court of Justice: Provisional measures after two weeks

On 27 February, three days after the invasion, Ukraine instituted proceedings against Russia in the International Court of Justice (ICJ). The ICJ was established by the UN Charter in 1945 to address disputes between States and to give advisory opinions on questions referred by specific UN bodies, including the Security Council and General Assembly. The ICJ is not a criminal court and has no jurisdiction over individuals.

Ukraine asked the ICJ to declare that Russia “cannot lawfully take any action … in or against Ukraine … on the basis of its false claims of genocide in…Ukraine.” On 16 March 2022, in just over two weeks, the ICJ issued provisional measures requiring Russia to halt its military actions in Ukraine. Russia rejected the judgment. The ICJ judgment is binding at international law, but enforcement is the province of the SC and is certain to be vetoed by Russia.

European Court of Human Rights: Interim urgent measures to halt attacks on civilians

Russia has also disregarded a binding urgent interim order granted by the European Court of Human Rights (ECtHR) on 1 March 2022 requiring Russia to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles, schools, and hospitals. Russia was expelled from the European Council on 16 March 2022 but remains subject to the jurisdiction of the ECtHR until 16 September 2022.

International Criminal Court: Investigation commenced within three days of invasion

Dramatically rapid action has also been taken by the ICC Prosecutor, Karim Khan, who announced on 28 February – just three days after the invasion – his intention to investigate war crimes and crimes against humanity in Ukraine. The Prosecutor launched the investigation with unprecedented speed on 2 March 2022 after 43 States Parties to the ICC, including Canada, referred the case.

The ICC has jurisdiction to investigate and prosecute individuals on charges of genocide, war crimes, crimes against humanity, and in certain circumstances, the crime of aggression. The ICC has jurisdiction only over situations in countries that are States Parties to the Rome Statute of the ICC. While neither Russia nor Ukraine have ratified the Rome Statute, in Ukraine has issued declarations that give the ICC jurisdiction over crimes committed in Ukrainian territory since 21 November 2013.

Prosecutions by individual countries: National and universal jurisdiction

Ukraine’s Prosecutor General is using Ukrainian national law to investigate more than ten thousand suspected Russian war crimes. In addition, more than a dozen other European countries have commenced criminal investigations using the international law principle of universal jurisdiction by which atrocity crimes may be tried by any State no matter where the crimes were committed.

A Joint Investigation Team (JIT) supported by the European Union Agency for Criminal Justice Cooperation (Eurojust) was initiated on 25 March 2022 to help coordinate resources of Ukraine, Lithuania, and Poland to investigate crimes in Ukraine. On 25 April 2022, the ICC Prosecutor announced his office’s first ever cooperation with a JIT.

Accountability for the crime of aggression: An ad hoc tribunal?

The ICC Prosecutor’s jurisdiction does not extend to prosecution of Russian perpetrators of the crime of aggression against Ukraine. While an amendment to the Rome Statute, which came into force in 2018, opens up the possibility for prosecution of aggression, neither Russia nor Ukraine have ratified the amendment. Russia’s veto power effectively precludes referral by the Security Council to the ICC as well as an ad hoc tribunal such as the ones the SC created for the former Yugoslavia in 1993 and Rwanda in 1994.

To circumvent Russia’s ability to quash these potential remedies, a number of international law scholars and practitioners have proposed other types of ad hoc tribunals to address the crime of aggression. One proposal is for a Nuremburg-style tribunal set up by cooperating countries. Another proposal is for an ad hoc tribunal negotiated between the UN and the government of Ukraine along the lines used for the criminal tribunal in Sierra Leone.

“Unfit for purpose”: Reform the Security Council

The invasion of Ukraine has brought to the foreground the disturbing fact that the veto power of the P5 renders the Security Council “unfit for purpose” even in the face of naked aggression by a country that has threatened to use its nuclear arsenal. This problem is not new. Ample illustrations are provided by the ineffectiveness of the Security Council to halt the wars in Syria and Yemen and the atrocities taking place in Myanmar, Afghanistan, China, Ethiopia, and now Ukraine. On 4 April, Ukrainian President Volodymyr Zelenskyy pointedly told the Security Council that Russia was turning “the right of veto….into a right to kill.”

It is popular to suggest abolishing the veto or removing particular P5 members from the Security Council. However, these solutions require amendment of the UN Charter, which requires two-thirds of the members of the UN, including all P5 members. The veto power of the P5 rules out the viability of these ideas.

Over the past two decades, voluntary initiatives have been undertaken to try to curtail abuse of the veto. They have been ineffective.

However, Russia’s invasion of Ukraine led 83 States, led by Liechtenstein, to try again. On 26 April 2022, the General Assembly adopted a resolution that provides for an automatic GA debate within 10 days of any Security Council veto. The resolution was co-sponsored by P5 members Britain, France and the UK. Since it was a procedural resolution, no veto was available. It remains to be seen whether this new mechanism will deter the use of the veto. While the General Assembly cannot overturn any veto, the new mechanism offers opportunities for UN members to scrutinize and debate each use of the veto and to debate further Security Council reforms.

The Ukraine crisis has drawn attention to a 2018 proposal by New York University Professor Jennifer Trahan that the General Assembly seek an advisory opinion from the ICJ on existing international law constraints on the use of the veto. Prof. Trahan points out that the UN Charter requires all UN members to act in good faith to uphold the Charter’s “purposes and principles.” Thus, she says, it is a fundamental violation of the Charter for P5 States to use the veto to thwart the SC’s primary purpose of international peace and security. She also argues that use of the veto in the face of atrocity crimes violates international law obligations owed by all States to prevent and ensure accountability for atrocity crimes wherever they may occur. Former Canadian cabinet minister Lloyd Axworthy and former Canadian ambassador to the UN Allan Rock support this proposal, saying that an ICJ advisory opinion, while not binding, would have “enormous moral force.”

The role of the UN Secretary-General: The “Reluctant Peacemaker”

Secretary-General Guterres has been referred to as a “reluctant peacemaker.” His repeated urging of peace negotiations for Ukraine echoes the general calls he has made for “global cooperation” throughout his mandate. Many believe he must do more.

On 19 April 2022 more than 200 former senior UN officials wrote to Mr. Guterres urging him to raise his personal profile in mediating the conflict. The next day, 20 April, it was reported that he had written to the Russian and Ukrainian presidents to request urgent meetings to discuss measures to end the war. Mr. Guterres met with President Putin in Moscow on 26 April and with President Zelenskyy in Kyiv on 28 April 2022. On 11 May Mr. Guterres said he did not expect peace talks any time soon.

The UN Charter allows the Secretary-General to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” The abuse of the veto is such a matter, as it has resulted in Security Council dysfunction that has aggravated global insecurity in Europe and in regions currently affected by human rights and humanitarian crisis in Myanmar, Afghanistan, China, Syria, Yemen, Ethiopia, and elsewhere.

Former Secretaries-General Boutrous Boutrous-Ghali and Kofi Annan made specific proposals for Security Council reform. It is incumbent on Mr. Guterres to take robust leadership for reforms at a time when the legitimacy of the Security Council is seriously in question.

Civil society: Jurists must advocate for the rule of law as a “buckle to keep us together”

The inability of the UN system to halt aggression and atrocities makes it incumbent on civil society, particularly jurists, to advocate internationally and with their own governments – including the Canadian government – for urgent action to prevent and ensure accountability for grave violations of international law, particularly aggression and atrocity crimes wherever they may occur. As ICC Prosecutor Karim Khan recently said, the crisis in Ukraine has brought with it “a dawning realization” that “the law is more relevant now than ever,” and that the rule of law is a “buckle to keep us together… not only to stop us drifting further apart, but to prevent us colliding with more brutality against one another.”

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