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IFANS FOCUS Legal Accountability For the Crisis in Ukraine 남승현 국제법센터 책임교수 발행일 2022-08-04 조회수 4417
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Ⅰ. Introduction

Since Russia unleashed a war in Ukraine on February 24, 2022, according to the Ukraine High Commissioner for Human Rights (OHCHR), 11,862 civilian casualties have been reported with 5,110 killed and 6,752 injured.  The UN Refugee Agency (UNHCR) further reports that almost 6 million refugees from Ukraine have registered for Temporary Protection or similar national protection schemes in Europe with more than 9.5 million having crossed the border from Ukraine.  In the wake of Russia’s invasion of Ukraine, described as the largest conventional military attack in Europe since World War II, some members of the international community  are calling for ways to hold Russia and its leaders accountable for committing serious violations of international law. In fact, at the request of Ukraine, the International Court of Justice (ICJ) already ordered on March 16 a provisional measure against Russia to cease its military operations.. Former Prime Minister Gordon Brown even proposed the establishment of a new Nuremberg-style Tribunal to hold President Putin accountable considering the current limitations of the International Criminal Court (ICC). Based on these developments, this paper aims to examine whether and how Russia and its leaders can be held accountable, and how the lawfare can affect the political dynamics in the region. 

First, Russia can be held accountable for its armed attack against Ukraine as a flagrant violation of Article 2(4) of the UN Charter. It is now well-known that President Putin justifies his attack based on the notion of self-defense, both unilateral and collective, under Article 51 of the UN Charter. But considering that there was no armed attack on  Russia, it is difficult to support Russia’s position that its attack was legitimate. Even if Russia argues for the concept of anticipatory and preemptive self-defense, these concepts are still controversial and it is hard to find any evidence that there was an imminent attack or any serious threat against Russia. President Putin further argues that it was an act of collective self-defense based on the treaties of friendship and mutual assistance signed with and at the request of the Donetsk People’s Republic and the Luhansk People’s Republic on February 22, but the UN General Assembly has not recognized their independence and rather finds that these acts of recognition constitute an infringement of Ukraine’s sovereignty. Moreover, it is hard to find support for other claims of humanitarian intervention made by Russia to protect the Russian people from genocide in the Donbas region, especially in the absence of any evidence that genocide did occur in the region as the ICJ found in March 2022 and any kind of support from the UNSC or other UN organ. 

In addition to holding the country itself accountable, the international community can try to hold Russia’s leaders accountable for serious human rights violations amounting to international crimes such as genocide, war crimes, crimes against humanity, and the crime of aggression. In fact, President Biden has previously stated that President Putin is a war criminal, and Canadian Prime Minister Trudeau and UK Prime Minister Johnson declared the seriousness of the situation by defining the Bucha massacre to be a form of genocide or that it ‘looks far short of genocide’. The International Criminal Court (ICC) was established as a permanent court to hold leaders accountable for these international crimes, but it has its own limitations since Russia is not a party to the Rome Statute of the ICC. Ukraine is also not a party, but the Prosecutor of the ICC was able to initiate investigations in Ukraine in early March 2022 for war crimes and crimes against humanity in the territory of Ukraine because Ukraine had exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes occurring on its territory. However, gathering  the necessary evidence will be a challenge. It will be difficult to prove whether the leaders had the intent or knowledge of these crimes in addition to making judgments based on whether the attacks were proportional or necessary based on the laws of war. Despite its challenges, the European Commission has declared its support for the investigation capacities of the ICC by launching a new 7.25 million Euro project on June 8, 2022. Civil society groups in Ukraine are also working to collect as much evidence as possible through social media networks. 

Alongside efforts made by the ICC, former British Prime Ministers Gordon Brown and John Major proposed the establishment of a new tribunal, the ‘Special Tribunal for the Punishment of the Crime of Aggression against Ukraine’ to overcome the challenges of the ICC, particularly for the crime of aggression since Russia has not accepted the jurisdiction for this crime under the ICC. Leaders in the past have been held accountable for the crime of aggression or the crime of waging war against another state in the Nuremberg and Tokyo Tribunals, and experts find that it may be possible to establish a hybrid tribunal such as the one in Cambodia based on an international agreement between the UN and the government of Ukraine. In this instance, the UNGA cannot authorize the establishment of a new tribunal, but it can recommend or endorse the establishment of such a tribunal. 

Some may be skeptical of whether the international legal system can have any impact on Russia to cease its military operations, but these legal measures can pressure and isolate Russia from the international community, and thereby, reduce its leverage. In this regard, more countries and international organizations need to declare the unlawfulness of Russia’s attack and participate in other international efforts to hold the perpetrators accountable by assisting the ICC and other courts as well as states to strengthen the international criminal justice system. The Republic of Korea also needs to contribute to these efforts in line with its current policy to protect and promote universal values and international norms that are based on freedom and respect for human rights.


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#Ukraine #InternationalLaw #ICJ #ICC #Genocide
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