After four years of war in Ukraine and a year since Donald Trump returned to power, international law seems more threatened than ever, and its role in peace negotiations is being challenged. But the example of Ukraine, which is establishing a “regional” tribunal for the crime of aggression created by the Council of Europe, shows us “a space for the extension and survival of international law even at the worst moment of its crisis,” according to Frédéric Mégret.
JUSTICE INFO: Four years on, what progress on justice for Ukraine?
FRÉDÉRIC MÉGRET: With regard to criminal procedures, which have become symbolic of international justice and so often carry higher expectations, the International Criminal Court (ICC) has been able to do very little in the face of Russia’s complete and predictable lack of cooperation. There was a miracle for the Court in that Russia had committed crimes on Ukrainian territory and Ukraine accepted ICC jurisdiction, which meant that the Court did have jurisdiction. But of course, the arrest warrants issued by the ICC have not been implemented.
Trials have taken place in Ukraine. The Ukrainian authorities’ efforts and their great dedication to the cause of international law are to be commended. But here too there have been significant constraints, including the fact that very few people have been arrested and brought to trial, except for a few Russian soldiers who were captured on the battlefield. There have been a few trials, which have sometimes convicted — rather inappropriately — ordinary Russian soldiers for their participation in a crime of aggression. Nevertheless, these cases have helped advance the cause of justice by showing that impunity is not total.
For Ukraine, the record on criminal proceedings is very limited and shows that national and international justice systems have found it very difficult to transcend territorial boundaries and sovereignty with a war unfolding in real time.
There have also been relatively few trials under universal jurisdiction. The record on criminal proceedings is therefore very, very limited and shows that national and international justice systems have found it very difficult to transcend territorial boundaries and sovereignty with a war unfolding in real time.
Ukraine’s legal battle is not limited to criminal proceedings — it has pulled out all the stops. Has this been a winning strategy?
As well as criminal proceedings, Ukraine has indeed developed a strategy of all-out litigation before multiple international courts, the results of which are far from negligible, even if they are not necessarily decisive. There are the cases before the International Court of Justice (ICJ), with at least one judgment already handed down in the 2014 case on Crimea, which found certain violations of the Convention on the Elimination of Racial Discrimination. There is also the case with a certain impact in which Ukraine alleges that Russia violated the Genocide Convention by invoking it in a misguided and bad faith manner to justify the so-called special operation launched on February 24, 2022. This led the ICJ to order provisional measures, which were, of course, completely ignored by Moscow. But the Court was not convinced by Ukraine and considers that Russia’s opportunistic invocation of genocide is not in itself a violation of the convention.
All this is a bit indirect. For Ukraine, it is a way of tackling this extremely complex, extremely violent process of a campaign of aggression that has been going on for more than ten years. The Ukrainians have certainly pulled out all the stops, but one sometimes gets the impression that in terms of representing what Russia has done, we are missing the point, namely the aggression.
Results at the European Court of Human Rights are more convincing, because using the human rights lens allows us to show a range of realities more directly related to aggression. The Court found multiple violations, particularly in the case brought in 2014 concerning Crimea. In particular, it highlights a clear interaction between human rights violations and aggression, through the use of force and discrimination against the occupied populations. All of this shows Russia in a bad light, which was undoubtedly Ukraine’s goal. And then, of course, there are the thousands of complaints filed by Ukrainian victims.
Ukraine has done itself and international law a service by arguing almost every possible angle in its favour. Its failures are due to the limitations of international law itself, and its partial successes paint a certain picture of what happened, one that will be more difficult to deny in the future.
Why was this so important for Ukraine?
These judgments are important for their content, despite the fact that they remain dead letters. They feed into a certain conception of the Ukrainian cause, a vision of the harm that Russia has caused. It is also a long-term investment in remembrance. Of course we would have liked more, but if this judicial work didn’t exist, it would be missing from our understanding of this history. Ukraine has done itself and international law a service by arguing almost every possible angle in its favour. Its failures are sometimes due to the limitations of international law itself, and its partial successes paint a certain picture of what happened, one that will be more difficult to deny in the future.
This snapshot of the situation in which they find themselves is being used to delegitimize Russia’s claims. Curiously, Russia has put forward many pseudo-arguments based on international law, notably the idea that it intervened to protect Russian speakers in eastern Ukraine. It was therefore important to combat these claims and to deny their plausibility before international courts. Whether or not the judgments were a clear victory, they still made it possible to rally the troops, put forward arguments, and speak out.
Has this had a real impact, a political one?
I think it has helped create solidarity and to back Ukraine’s military resistance with a political project to defend international law, territorial integrity and sovereignty. This helps boost consensus among states that think this way, without necessarily convincing those who do not. It is this project that today links Ukraine to the rest of Europe and its immediate geopolitical environment, and fundamentally opposes the rising predatory logic.
This was, in a way, the promise of international law: all states stand together in relation to these major prohibitions. If these taboos ceased to exist in certain cases, they would no longer exist for anyone, i.e., for other states that might be attacked or invaded in the future. The states that denied their political support to Ukraine so as not to offend Russia have in a way also weekend their own sovereignty.
Where this can also have a political effect, and this is much more concrete, is that once we understand Ukraine’s defence as a war of legitimate defence underpinned by the urgent need to respect and uphold international law, we rule out abandoning it and possibilities for negotiation. We protect ourselves against the temptation to concede territory in peace negotiations once we have rightly said that this is a war to the death to protect the survival of a people whose self-determination depends on the integrity of its territory.
Justice is also a way for Ukraine to engage with its own people and send a very strong internal message about President Zelensky’s determination to continue hostilities until Ukraine is reintegrated within its borders.
From this legal point of view, this war can only end in complete victory for Ukraine, with the recovery not only of the east of the country but also of Crimea. This is a defensible logic, even if it undoubtedly has a human cost and may also have a cost in terms of possible conflict resolution. It is also a way for Ukraine to engage with its own people and send a very strong internal message about President Zelensky’s determination to continue hostilities until Ukraine is reintegrated within its borders.
In a way, we should be grateful to Ukraine for defending international law on behalf of us all. What Ukraine has accomplished is an act of resistance to violations, which is in its own interest, but not only. This all-out legal strategy solidifies a united community, which until recently was transatlantic, in its desire not to reward aggression.
How much weight does this carry today in the American-led peace negotiations?
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