The Human Impact of Defiance of International Law
Credit: International Court of Justice, Peace Palace, The Hague, Netherlands
Introduction
The world is aghast at the atrocities Russia is committing on the territory of Ukraine, an independent Member State of the United Nations (UN). How effective will the World Court be in holding Russia to account for its international law breaches? This article discusses the question of enforceability of rulings issued by the International Court of Justice (ICJ), the UN’s principal judicial organ seated at the Peace Palace in The Hague and popularly known as the World Court. It also addresses various facets of the human impact when sovereign states defy international law and advocates for greater enforceability of international law and justice among nations.
In answering the question of the human impact of defiance of international law, one must distinguish between directhuman impact, which those on the receiving end of defiant states’ conduct experience by suffering injury as a consequence of international law wrongdoing, and indirect human impact, which is felt by citizens paying the price for states acting in defiance of international law and facing consequent proceedings addressing their wrongs.
Yet, there is an additional human impact that is less readily ascertainable, namely, the impact of defiant behavior by leaders of one country on leaders of other countries and on their citizens, assuming “leadership-by-example” applies in this context. What is the “social” impact within the community of nations of defiant and unlawful behavior? What incentive is there for states who are members of the General Assembly of the UN to act in compliance with international law when “elite” members of the UN Security Council act with impunity and openly defy international law? And what incentive do ordinary citizens have to comply with international law if their leaders adhere to defiant behavior? Defiance of international law by state leaders threatens the rules-based international order and risks marginalizing international institutions such as the ICJ. Growing distrust in international order and institutions leads to a broader moral dilapidation in the citizenry — including seemingly remote impacts such as discouraging students from pursuing studies in disciplines like peace studies, international relations, and international law, because they perceive this arena as a broken system devoid of effectiveness and enforceability.
Can the World Court Protect Russia’s Victims?
On February 26, 2022, in response to Russia’s February 24, 2022, invasion, Ukraine submitted an Application instituting proceedings against the Russian Federation before the ICJ. As the basis of jurisdiction, Ukraine is relying on the compromissory clause of Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. That clause provides for ICJ jurisdiction over inter-state disputes relating to the interpretation, application, or fulfilment of the Genocide Convention, one of the world’s most widely ratified instruments aimed at preventing and punishing the “crime of crimes.”
In its Application, Ukraine disputes Russia’s allegation that Ukraine has committed genocide against Russian minorities in the Luhansk and Donetsk regions of Ukraine. Ukraine also asserts that nothing in the Genocide Convention authorizes the Russian Federation to use force against Ukraine as a means of fulfilling Russia’s obligation under Article I of the Convention to prevent and punish genocide. Genocide requires proof of a specific intent to destroy in whole or in part a national, ethnic, racial, or religious group either by killing its members or by other means. It is actionable through a state-to-state proceeding, such as the one instituted by Ukraine before the ICJ, or through a criminal proceeding targeting one or more individuals before the International Criminal Court (ICC), another international tribunal seated in The Hague that is sometimes confused with the World Court. The ICC Prosecutor is currently investigating war-related crimes in Ukraine that potentially fall within the ICC’s jurisdiction.
Together with the Application, Ukraine submitted a request for the indication of provisional measures, asking the ICJ to order the Russian Federation to immediately halt its invasion of Ukraine. Both countries were invited by ICJ President Joan Donoghue (USA) to participate in hearings at the Peace Palace on March 7-8, 2022, but the Russian Federation declined to take part in the oral proceedings. Only Ukraine made oral observations before the ICJ. On March 16, 2022, the ICJ issued an Order indicating certain provisional measures aimed at protecting the rights at issue in the Ukraine-Russia case pending their adjudication by the ICJ. In its Order, the ICJ, by 13 votes to two, held that “[t]he Russian Federation shall immediately suspend the military operation that it commenced on 24 February 2022 in the territory of Ukraine.” ICJ Vice-President Kirill Gevorgian (Russian Federation) and Judge Xue Hanqin (People’s Republic of China) voted against the Order.
In the immediate aftermath of the March ruling, the Russian Federation was dismissive of the ICJ. Kremlin spokesman Dmitry Peskov was quoted as saying: “No, we will not be able to take this decision into account.”
Violating an ICJ Order on provisional measures in and of itself can result in a finding of state responsibility by the ICJ, as was confirmed by the Court’s judgment of June 27, 2001, rendered in the LaGrand Case between Germany and the United States. This is important, because state responsibility triggers an obligation to make full reparation for the injury caused by the proven internationally wrongful act. Under international law, compensation covers any financially assessable damage, whether material or moral. In paragraph 84 of its Order of March 16, 2022, the ICJ reaffirmed that its Orders on provisional measures have binding effect “and thus create international legal obligations for any party to whom the provisional measures are addressed.”
The events since March 16, 2022, have demonstrated, and independent news reports and satellite images have confirmed, that the Russian Federation has not acted in compliance with the ICJ Order and may have committed war crimes (i.e., serious breaches of the laws and customs applicable in armed conflicts), crimes against humanity (i.e., acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack), and, possibly, genocide on the territory of Ukraine in the aftermath of the Order. The unprovoked invasion itself may qualify as a crime of aggression.
The civilian suffering on the territory of Ukraine reflects the most direct human impact of Russia’s defiance of international law. Ukraine’s government has established special websites for victims and witnesses to upload their evidence of Russian breaches of international law in support of international proceedings, including the ICJ case. The civilian suffering is, however, not limited to the victims of the war in Ukraine — it also includes the Russian population through the crippling effects of economic sanctions targeting the leadership of the Russian Federation. People on both sides of the border are paying the price for “Putin’s war.”
Other Examples from the World Court
The Russian Federation is not the only member of the UN Security Council to have acted in defiance of international law, and of the World Court, in recent times. It must be noted, however, that the examples that follow did not involve issues of genocide. Around the turn of the century, Paraguay, Germany, and Mexico applied to the ICJ to stop the United States from executing their nationals who had been sentenced to death for capital crimes (murder) by US courts without having received post-arrest consular assistance as required by the 1963 Vienna Convention on Consular Relations, to which the US is a party. They all obtained injunctive relief from the ICJ. Their nationals were executed by US authorities notwithstanding the ICJ’s Orders to halt the executions.
Another example is the recent case concerning Maritime Delimitation in the Indian Ocean between Somalia and Kenya, delimitating the maritime boundary between the two neighbors. As a state party to the UN Charter and the ICJ Statute, Kenya has accepted that ICJ judgments are final and binding. Kenya was also recently elected as a non-permanent member of the UN Security Council by its fellow UN Member States. After the ICJ issued its judgment, largely in Somalia’s favor, on October 12, 2021, Kenya’s president and other high-ranking officials made public statements asserting that Kenya will not accept the ICJ’s ruling. This case with Somalia was the first-ever ICJ case that Kenya faced and yet Kenya was dismissive of the ICJ, defiantly boycotting the final hearings in the seven-year-long case with Somalia and rejecting the outcome of the case. Also, both Kenya and Guatemala are the only countries to have opted out of the crime of aggression clause under the “Kampala” amendments to the Rome Statute establishing the ICC.
Meanwhile, Kenya’s neighbor Uganda faces a $325 million reparation ruling stemming from the ICJ case brought by the Democratic Republic of the Congo (DRC) against Uganda. The case arose out of Uganda’s armed activities on the Congo’s territory, including Uganda’s occupation of the Ituri district, following unlawful incursions by Uganda between 1998 and 2003. It is too early to tell whether Uganda will adopt a similarly defiant attitude vis-à-vis the February 9, 2022, ruling or whether Uganda will pay the DRC what it owes under international law in accordance with the ICJ’s judgment.
The ICJ lacks coercive powers, and the only recourse is to the Security Council under Article 94(2) of the UN Charter. The Security Council has never taken coercive measures under this provision, in part due to the veto-wielding power of the five permanent members of that body.
Interestingly, the ICJ shifted the burden of proof on damages to persons in its reparation ruling in the DRC/Uganda case, holding that it was for Uganda to establish that a given personal injury in the occupied Ituri district was not caused by its failure to meet its obligations as occupying Power. This ruling may serve as a warning to the Russian Federation in its armed activities on the territory of Ukraine.
Other Proceedings Addressing Individual Injury
The ICJ proceeding under the Genocide Convention is one of many proceedings that Ukraine or Ukrainian nationals have instituted before international courts and tribunals since Russia’s invasion of the Crimea in 2014, as part of what might be termed a “lawfare” campaign. For example, Ukraine has brought proceedings against the Russian Federation before the European Court of Human Rights in Strasbourg. Furthermore, another case alleging Russian violations of the International Convention on the Elimination of All Forms of Racial Discrimination in relation to Russia’s invasion of the Crimea has been pending before the ICJ since 2017. Ukrainian investors in the energy, banking, and real estate sectors have commenced at least 10 known arbitration cases against the Russian Federation pursuant to an existing bilateral investment treaty (BIT) between Ukraine and the Russian Federation, claiming billions of dollars in compensation for breaches of the BIT and general international law. More BIT cases targeting Russia can be expected. When host countries lose these cases and face multi-billion-dollar awards that are enforceable under international treaties, the taxpayers usually end up footing the bill for their country’s defiance of international law. Moreover, tax monies fueling a country’s budget are used by host countries to defend themselves in these cases, and the average cost for state counsel is more than $4 million per case (see Susan D. Franck, Arbitration Costs: Myths and Realities in Investment Treaty Arbitration (Oxford University Press 2019), p. 204). This represents the indirect human impact of defiance of international law.
In support of the evidentiary record in international proceedings and to capture the human impact of Russia’s unlawful invasion of Ukraine, the UN General Assembly could establish a “Register of Damage” through its Eleventh Emergency Special Session addressing Russia’s invasion of Ukraine. On December 15, 2006, the General Assembly created such a register for the recording of claims for compensation in the aftermath of the ICJ’s Advisory Opinion of July 9, 2004. That ruling declared that the wall built by Israel to the east of the “Green Line” separating Israeli and Palestinian territories violates international law and obligates Israel to make reparation for all damage caused by the construction of the wall. No compensation has been paid to date.
Conclusion
The recent examples from the practice of international courts and tribunals referenced in this article served to highlight the various facets of the human impact of state defiance of international law and current shortcomings in enforceability. Lack of enforceability is a persistent problem that international lawyers and the community of nations must contend with. Unfortunately, there is no easy fix. It ultimately becomes a question of attitude and leadership. It is difficult to predict whether we would see less defiance and greater enforceability if the veto power would be abolished through UN Security Council reform. Denial of World Bank Group loans to defiant states would help.
Compliance with international law should not need to be dependent on coercive powers of any institution. Voluntary acceptance of international legal obligations is the goal, and it can be attained through a realization on the part of political leaders that all members of the community of nations, including their citizenry, stand to gain from strict compliance with reciprocally binding norms of international law, as applied and interpreted by international courts and tribunals. As citizens, we must hold political leaders to account. We must not allow them to take us back to what existed before the rules-based international order was created following the chaos of widespread armed conflict. We must go forward, guided by the international law that has been carefully developed over many decades.
In 1899, Russian tsar Nicholas II was instrumental in organizing the First Hague Peace Conference, an unprecedented gathering of country leaders and peace activists designed to end decades of war in Europe and to replace war with law in the form of treaties addressing pacific settlement of international disputes and warfare. That conference created the Permanent Court of Arbitration, an institution for which the Peace Palace was built through a gift from Scottish-American philanthropist Andrew Carnegie (1835-1919) in the early years of the twentieth century. Carnegie’s vision was that of a “Temple of Peace” to which nations would turn for the pacific settlement of international disputes. Now it is also the home of the World Court.
President Putin, who shares his birthplace of St. Petersburg with tsar Nicholas II, should draw inspiration from his illustrious predecessor in accepting an invitation to convene a new Hague Peace Conference in order to settle the Ukraine-Russia conflict through peaceful means, or at least let the World Court adjudicate Ukraine’s complaints at the Peace Palace with the participation of both parties. On behalf of Russia, tsar Nicholas II opted for peace, and peaceful dispute settlement, instead of war and violence at the end of the nineteenth century. President Putin should be urged to do the same in the twenty-first century. Peace and justice are stronger, less costly, and infinitely more enduring than defiant behavior.
About the Author:
Pieter Bekker is a professor and Chair in International Law at the University of Dundee (UK). He is a Member of the Permanent Court of Arbitration and a practicing attorney admitted to the New York Bar and affiliated with UK law firm CMS. He obtained his PhD degree in International Law from Leiden University in The Netherlands, his home country. He served as a staff lawyer in the Registry of the International Court of Justice in the 1990s after obtaining a Master of Laws degree from Harvard Law School on a Fulbright grant in 1991.