Writer: Carson Phillips
Editor: Catherine Donohue
11/3/23
On October 9th, Russian forces bombarded the Kherson region of Ukraine 59 times. The attacks left 12 people injured, including a 9-month-old baby. The same night in Kostiantynivka, four people were injured by a rocket attack. According to Yurii Ihnat, the Ukrainian Air Force’s spokesperson, Ukraine is anticipating a record number of Russian drone strikes this winter. The Russian invasion of Ukraine has also brought brutal executions and sexual violence upon the Ukrainian people. Why isn’t something being done about the violence in Ukraine, and isn’t it a violation of international law?
According to international courts, the answer is yes. However, difficulties arise in holding defendants accountable. The International Criminal Court (ICC) and the International Court of Justice (ICJ) were both erected to prosecute violators of international law. The ICC was established by the Rome Statute in 1998 to prosecute individuals who commit international crimes, specifically in relation to war crimes, crimes against humanity, and genocide. The ICJ was instituted in 1945 by the Charter of the United Nations to provide rulings on altercations between international states. A key weakness of both courts is that they lack enforcement mechanisms, and consequently, many individuals and states are able to ignore the rulings that the courts provide.
Back in February, the ICC’s chief prosecutor, Karim Khan, decided that Putin’s actions did violate international law and began to investigate the crimes that have occurred in Ukraine. In March, the ICC issued an arrest warrant for Vladimir Putin on the grounds that he instigated the “unlawful deportation of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.” Ukraine also implored for an ICJ petition in hopes that the ICJ would declare that Russia had no legal grounds to invade Ukraine. Russian officials argued that their invasion was justified on the grounds that Ukraine was committing genocide against the Donetsk and Luhansk people of Ukraine, both of whom are Russian-speaking. On March 16th, 2022, the ICJ ruled that Russian forces must withdraw from Ukraine. Unsurprisingly, this order was disregarded by Putin and Russia, and Russia responded with “preliminary objections,” which were heard by the court just weeks ago. An updated decision has yet to be released by the ICJ.
Unfortunately, it is unlikely that either of these endeavors will provide significant benefits for Ukraine and its people. Why? Ukraine elected to accept the ICC’s ruling even though it isn’t a member state, meaning that theoretically, the ICC has the ability to charge anyone who committed crimes within Ukraine. However, since the ICC lacks any real executive power, it is relatively easy for Putin and Russia to deny the ICC’s authority and ignore its ruling. The ICC has a history of charging the world’s political villains on accounts of crimes against humanity, war crimes, and the like without much effect. Following the violence he perpetrated in Darfur, Omar al-Bashir faced five counts of crimes against humanity, two counts of war crimes, and three counts of genocide in 2009. Regardless, he was able to evade the ICC’s charges and remain in power until 2019. The history of the ICJ tells a similar story in terms of its ineffectiveness. In 1986, the ICJ ruled that the United States’ involvement in Nicaragua was a violation of international law. The US ignored the ruling and even went so far as to not show up during the ICJ’s scheduled hearings. A fundamental problem with both the ICJ and the ICC is that the parties in question must agree to be present during hearings and submit to the court’s judgment. States have no obligation to abide by the ICJ or ICC’s ruling because the courts lack any executive or disciplinary mechanisms. Really, the weaknesses of the ICC and ICJ have been made apparent in Ukraine as they have been in the past time and time again.
The obvious retort to the argument of enforcing international law is the idea of national sovereignty. States are hesitant to cede their ability to essentially remain immune to their possible violations of international law. For example, the US has historically crowned sovereignty and individuality as defining norms and fittingly declined to join the ICC after its creation in 2002. The rationale behind this isolationist position is the threat of Americans being tried in an international court without the protections established in the US Constitution. An international court could also impose a decision proposed by an anti-US prosecutor. Regardless, prosecuting the world’s offenders in an international court may require a slight concession of sovereignty.
Following World War II, the ICJ was established in hopes of preserving international peace. In order for the world’s international laws to matter and for peace to be attainable, the institutions that represent these pillars must be equipped with adequate executive abilities. The ICC, ICJ, or a related body must be able to enforce the rulings they make; otherwise, the infractors of international law have no reason to comply. Putin and the Russian government will never be held accountable for the wrongs committed in Ukraine without an imperative to hear and adhere to an international court’s ruling.
References
Berlins, Marcel. “Marcel Berlins: The ICJ Is the UN’s Least Effective Body.” The Guardian,
The Guardian, 12 July 2004, www.theguardian.com/world/2004/jul/13/law.features11.
International Criminal Court. “Ukraine.” International Criminal Court, 2022, www.icc-
Llamzon, A. P. “Jurisdiction and Compliance in Recent Decisions of the International Court
of Justice.” European Journal of International Law, vol. 18, no. 5, 1 Nov. 2007, pp. 815–852, https://doi.org/10.1093/ejil/chm047.
McGrath Goodman, Leah. “International Court of Justice Weighs Ukraine Vs. Russia.” MSN,
Oct. 2023, www.msn.com/en-za/news/world/international-court-of-justice-weighs-ukraine-vs-russia/ar-AA1hlPQq. Accessed 15 Oct. 2023.
Posthumus, Daniel , and Kelebogile Zvobgo. “Analysis | the ICJ Ordered Russia to Halt
Military Operations in Ukraine. What Comes Next?” Washington Post, 25 Mar. 2022, www.washingtonpost.com/politics/2022/03/25/icj-russia-ukraine-international-law/
Synovitz, Ron. “Explainer: Why Does the U.S. Have It out for the International Criminal
Court?” RadioFreeEurope/RadioLiberty, Radio Free Europe / Radio Liberty, 11 Sept. 2018, www.rferl.org/a/explainer-why-does-u-s-have-it-out-for-international-criminal-court-/29484529.html.
Zvobgo, Zoha Siddiqui, Nathaniel Liu, Daniel Posthumus, Kelebogile. “Could Putin Actually
Face Accountability at the ICC?” Foreign Policy, 4 Mar. 2022, https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/.
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