ICC's lack of jurisdiction over Russia's aggression on Ukraine and the establishment of a special tribunal

Worthy reminder on ICC lack of jurisdiction over Russia's aggression on Ukraine. When the inclusion of the crime of aggression into the jurisdiction of the ICC was debated and agreed upon 2010 in Kampala some states did not want to accept the jurisdiction at all over its citizens: China, the U.S. and Russia. Even states that were and are parties to the ICC statute such as France and UK opposed proposals that would extend the ICCs jurisdiction for the crime of aggression beyond the small groups of states that ratified the changes. This means that France and UK dont even accept the ICC s jurisdiction for the crime if committed by their nationals. If one would accept the position of France and UK, the ICC would only have jurisdiction if countries such as Iceland, Germany, Sweden, San Marino or Switzerland would start a war against each other. Now France (and other states) wants to create a special tribunal for the crime of aggression in relation to Russia. I dont have a major problem that Sweden - which has accepted the jurisdiction of the court over the crime of aggression - is pushing for this, but France? Is it realistic that the West can convince a substantial part of the rest of the world to vote in the UN general assembly to establish a special tribunal for the crime of aggression?

I do think that Russia's leaders - if they somehow are brought from power - should be held accountable for the crime of aggression, the better option would be through a hybrid tribunal supported by the EU and/or the CoE grounded in Ukrainian law and Ukrainian jurisdiction which already prohibits the crime of aggression. Don't go the UN general assembly route, I dont think there will be support enough. Last time there was a vote in UN General Assembly on the Russo-Ukrainian war (concerning damages to be paid by Russia) the voting numbers were 94 for, 14 against and 73 abstentions. I think voting numbers would get worse and thus also the legitimacy of such a court would diminish if there is a vote on a special tribunal for aggression, and I have not started to discuss the problems with immunity.

Kommentar i Kvällsposten

Jag ger kommentar om utlämning i Kvällsposten 17 augusti 2019, Gert-Inges misstänkta mördare kan ha lämnat landet.

Putin admits Russian military presence in Ukraine for first time

Note to myself

Guardian 17 December 2015: Putin admits Russian military presence in Ukraine for first time

Reuters 17 December 2015: Russia's Putin lashes Turkey, says Russian forces were in Ukraine

Compare with summary in Power and Law in International Society, page 155: "Similarly, Russia went to great length in its illegal annexation of Crimea in 2014 to argue that the “green men” taking control over various buildings were “local self-defense forces” and not Russian troops,132 contradicted by various international observers and later by president Putin himself.133"

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132 ‘Russia says cannot order Crimean 'self-defense' units back to base’ Reuters (5 March 2014) accessed 26 October 2014. ‘Crimea crisis: Russian President Putin's speech annotated’ BBC (19 March 2014) accessed 26 October 2014.

133 ‘Putin admits Russian forces were deployed to Crimea’ Reuters (17 April 2014 ) accessed 26 October 2014; ‘Putin acknowledges Russian military serviceman were in Crimea’ Russia Today (17 April 2014) accessed 26 October 2014.

Ukraine and state of emergency

Daniel Wiklander raised my attention to the fact that the Ukrainian parliament on 21 May 2015 has adopted a resolution that deals with state emergency, more specifially "departure from some obligations enshrined in Item 3, Article 2, Articles 9, 12, 14 and 17 of the International Covenant on Civil and Political Rights [ICCPR] and Articles 5, 6, 8 and 13 Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR] for the period until full termination of armed aggression of the Russian Federation."

The articles above concerns access to effective remedy, detention, freedom of movement, fair trial rights and privacy.

This is consistent with article 4 of the ICCPR which allows derogations in time of public emergency, no derogations is allowed from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18. Similarly, article 15 of ECHR allows derogations in time of public emergency, no derogations is allowed from articles 2 (except in respect of deaths resulting from lawful acts of war), 3, 4(1) and 7. These articles concern among other rights: the right to life, prohibition against torture, slavery/servitude and the principle of legality (no punishment without law) and freedom of thought, conscience and religion.

However, it appears that the Prime Minister at an earlier point of time has already declared a state of emergency, here is a news report from January 2015. I am investigating whether Ukraine has made the notices to the UN and Council of Europe respectivelywhich are  required under article 4 of the ICCPR and article 15 of ECHR - will get back to that.

One of Wiklander's questions was whether the UK declared public emergency and use of detentions in relation to unrest in Northern Irland (most intense during the period 1967-1997). The answer is yes, the European Court of Human Rights dealt with that issue in Ireland v. the United Kingdom  (Application no. 5310/71) Judgment 18 January 1978.

Para. 79 provides the following

In accordance with Article 15 para. 3 (art. 15-3) of the Convention, the United Kingdom Government sent to the Secretary-General of the Council of Europe, both before and after the original application to the Commission, six notices of derogation in respect of these powers. Such notices, of which the first two are not pertinent in the present case, were dated 27 June 1957, 25 September 1969, 20 August 1971, 23 January 1973, 16 August 1973 and 19 September 1975 and drew attention to the relevant legislation and modifications thereof."

The Court ruled the following in relation to detention.

II. ON ARTICLE 5 (art. 5)
11. holds unanimously that at the relevant time there existed in Northern Ireland a public emergency threatening the life of the nation, within the meaning of Article 15 para. 1 (art. 15-1);

12. holds unanimously that the British notices of derogation dated 20 August 1971, 23 January 1973 and 16 August 1973 fulfilled the requirements of Article 15 para. 3 (art. 15-3);

13. holds by sixteen votes to one that, although the practice followed in Northern Ireland from 9 August 1971 to March 1975 in the application of the legislation providing for extrajudicial deprivation of liberty entailed derogations from paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), it is not established that the said derogations exceeded the extent strictly required by the exigencies of the situation, within the meaning of Article 15 para. 1 (art. 15-1);

14. holds unanimously that the United Kingdom has not disregarded in the present case other obligations under international law, within the meaning of Article 15 para. 1 (art. 15-1);

15. holds by fifteen votes to two that no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established;

The reason why I did this enquiry is that I teach a five week course at Uppsala University where we among other things discuss public emergency and the human rights issues involved. I hope to write an article on the matter for the autumn 2015 course, the existing literature is somewhat outdated.

Det är ett brott mot folkrätten om Ryssland ansluter Krim

Idag blev jag intervjuad i DN under rubriken "Det är ett brott mot folkrätten om Ryssland ansluter Krim".

Ryssland bryter mot folkrätt och internationella avtal

Idag blev jag intervjuad i DN under rubriken "Ryssland bryter mot folkrätt och internationella avtal". (länk saknas)

Does Russia have the right to intervene in Ukraine to protect Russians?

In light of the Russian intervention in Crimea-Ukraine some commentators have discussed the matter in terms of Responsibility to Protect (R2P).
    My view is that the situation in Crimea only partly corresponds to scenario set up by R2P-concept. First, the R2P-concept rather concern situations when a state or group of states intervene militarily to protect the population of an other state, not its own nationals. Second and more importantly, a military intervention based on R2P is clearly illegal without a UN security council resolution. The UN-member states, including Russia, clearly rejected in paras 138 and 139 of the UN World Summit Outcome document (2005) military intervention under the banner of R2P without a security council resolution.
   Thus, I believe it is more relevant to leave the R2P-paradigm and instead discuss the Crimea situation according to the following question: Does a state (Russia) have the right to intervene in an other state (Ukraine) to protect its nationals (Russians)?
   The starting point is that the use of force is prohibited under the UN Charter and customary international law. The UN Charter only provides two explicit exception to this rule: 1) self-defence against an armed attack or 2) under authorization of the UN Security Council. None of these two exceptions are at hand in the Crimea situation.

Is there a third, implicit, exception to the UN Charter which would allow Russia to intervene militarily in Crimea?

There are three earlier incidents which may assist us in answering this question: 1) Entebbe (1976), Grenada (1983) and Georgia (2008). All three interventions were based on the argument that the intervening countries, Israel, USA and Russia wanted to protect their nationals. Considering that international customary law is a source of international law, state practice and the opinion of the community of states about the legality of these three incidents arguably becomes relevant. However, first we have to consider the wording of Article 2(4) of the UN Charter which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

American scholars such as D'Amato and Reisman have argued that a military intervention is compatible with article 2(4) even in the absence of Security Council authorization as long as the intervention does not threaten the territorial integrity or political independence of a state. This is a very controversial position because it as odds with the prohibition on the use of force, principles such sovereignty and territorial integrity of states. See D'Amato, Anthony, The Invasion of Panama Was a Lawful Response to Tyranny, American Journal of International Law, vol 84, 2, pp. 516-524, p. 520; Reisman, Michael W., Sovereignty and Human Rights in Contemporary International Law, American Journal of International Law, vol 84, 4, 1990, pp. 866-87.

Nevertheless, let us assume that D'Amato and Reisman make a reasonable interpretation of article 2(4). This means that state A have a right to intervene in state B to protect their nationals, but only if state A does not threaten the territorial integrity or political independence of state B. I would argue that this (very controversial) formula would make the Entebbe intervention 1976 legal because Israel's intervention constituted minimal interference in Uganda's territorial integrity/political independence. The Grenada invasion 1983 is more dubious from a legal perspective because USA did not only save its nationals, it also changed the government of Grenada. While the UN Security Council after the request of Uganda failed to condemn Israel's action, the Grenada intervention was criticized by states such as the UK, Canada and the United Nations General Assembly. Russia's intervention in Georgia 2008 went even farther in terms of disruption of Georgia's territorial integrity and political independence and gathered even less international support.
   Based on the argument made above I make the following conclusion. If Russia argues that there is a right for states (Russia) to intervene in other states (Ukraine) in order to to protect its nationals (Russians), this right may only be exercised in a very narrow manner, not threatening the territorial integrity or political independence of other states. Russia has clearly gone beyond the D'Amato/Reisman formula, a formula which already is very controversial.

Folkrättsexpert: Krim har inte rätt att bryta sig loss

Idag blev jag intervjuad i DN under rubriken "Folkrättsexpert: Krim har inte rätt att bryta sig loss".

Stor risk för våldsspiral

Idag blev jag intervjuad i Hufvudstadsbladet angående Ukraina och Krim under rubriken ”Stor risk för våldsspiral".