5 theses on international law: what Russia’s punishment could be and what it will definitely not be

The full-scale aggression of Russia in Ukraine has been ongoing for almost a year and a half.

Law enforcement continues to document and investigate crimes committed by Russian troops. Scholars and lawyers prepare reports and present them at international forums and platforms.

At the same time, there are many complaints in the public domain about the effectiveness of international law. Is it efficient, and how can we establish a legal mechanism to protect Ukraine from Russian aggression?

The author proposes five theses about how international law works and what Ukrainians should know about it.

International law is on Ukraine’s side

International law offers states rules of conduct that they must adhere to. However, there is no enforcement mechanism similar to national police that monitors countries’ compliance with this system of rules.

Therefore, if states that are aware of their obligations fail to fulfill them, they face certain restrictive consequences.

For example, when Russia, as a state, is no longer regarded as a civilized member of the international community, sanctions are imposed, and it is excluded from various organizations. This mechanism represents a response by countries dissatisfied with its behavior and adherence to the norms of international law as one of its subjects.

Consequently, such reactions from other states create certain inconveniences for the offending state. However, it should be understood that this cannot lead to an immediate effect.

On the other hand, Ukrainians, urge the world to react to violations of international law here and now. And they expect that the world will be capable of achieving results as quickly as possible.

However, in practice, everything works more complexly and slowly. Perhaps lawyers who truly deal with international law have slightly different expectations from its mechanisms.

Internationalists understand that it has never worked perfectly and never yielded results the following month or even the same year. This unpleasant fact may not please the consciousness of Ukrainians, but it is a reality.

However, in truth, international law is on Ukraine’s side. It specifically stipulates that a violating state, by occupying territory, does not acquire rights to that territory.

So, the law of force, including now from Russia’s side, doesn’t work without recognition from the international community.

This is precisely what we are witnessing now when the world acknowledges that Ukraine has become a victim of aggressive policies — an act of aggression from Russia, a direct violation of the UN Charter.

Russia is violating the norms of international humanitarian law on Ukrainian territory by conducting attacks not only on military targets but also on civilians. It violates humanitarian law norms on the occupied territory.

This gives Ukraine the opportunity to assert the following in the future:

1. Ukraine should indeed receive financial compensation from Russian assets that were frozen abroad.

2. Crimea is part of Ukraine because international law says so.

It also allows Ukrainians to believe and know that as soon as the global power balance shifts, and Russia loses its positions in Ukraine, Ukraine can legitimately, according to international law, reclaim its territories.

International law does not recognize the legalization of violations.

Crimea is Ukraine

First and foremost, international law grants Ukraine the ability to assert that Crimea is part of Ukraine.

Secondly, international law allows uniting the international community around the idea that this territory does not belong to the Russian Federation and should be returned, and all temporarily occupied territories must be returned. This is already a matter of developing new international mechanisms.

The fundamental legal basis for Ukraine’s demand for the return of Crimea is very strong. The European Court of Human Rights (ECHR) in Strasbourg officially recognized the case Ukraine v. Russia (regarding Crimea) as “partially admissible,” based on the statement by the Ukrainian government dated March 13, 2014. The court established that Crimea, as Ukrainian territory, was effectively occupied from the moment Russian troops began to exercise control over the territory, and not from the moment of the referendum in March 2014 when they claimed to have received “permission to enter.”

In this regard, international law has done a lot of the work.

Additionally, Russia commits actions that, from the perspective of international law, can be classified as persecution both towards Crimean Tatars and Ukrainians in the territory of Crimea and other controlled territories.

International law deems such actions unacceptable. That’s why Ukraine initiated a case in the International Court of Justice to fight against what the Convention considers racial discrimination against Crimean Tatars and Ukrainians (in April 2017, the International Court of Justice ordered Russia to refrain from imposing new restrictions on the rights of the Crimean Tatar community to maintain their representative institutions, including the Mejlis of the Crimean Tatar People, and to ensure access to education in the Ukrainian language).

When the question of Crimea’s return and compensation for damages arises after the end of hostilities, the formulation of a legal settlement will gradually be worked out.

However, this does not mean that international law already has all the answers regarding how all issues of Crimea’s return should be formalized.

It could be an agreement between Ukraine and the Russian Federation; it could be a multilateral agreement where certain world states act as guarantors, and others observe the transition from Russian occupation to Ukrainian jurisdiction.

Additionally, there might be a transitional period or perhaps an evaluation by international judicial institutions to assess who owes what to whom during the occupation period and how the legal and factual transition should take place.

In other words, the resolution of the issue will take place through international mechanisms.

International conflict situations always involve many nuances and are usually very complex. Each occupation ends differently, and as a result, there are no universal norms in the world, except that an occupation must come to an end. Transitional mechanisms in each situation — wars and international conflicts — are set up differently.

See also: Russia is destroying the world order: the West faces a dilemma

Ukraine still has a lot of work ahead, including the development of mechanisms and the creation of new pressure instruments on Russia.

War as a challenge for international organizations

Regarding the numerous criticisms directed at international organizations, several important points need to be considered.

When it comes to the United Nations, it is worth noting that within the organization, there are numerous specialized structures, agencies, and affiliated organizations. Some of them work better — those responsible for humanitarian aid, cultural preservation, while others receive more criticism — mainly the political bodies.

The political bodies of the UN tend to perform less effectively due to the organization’s focus on process rather than results.

However, it should be understood that this is partly due to the individuals who fill the UN — the bureaucrats accustomed to process-oriented thinking. Additionally, it is also influenced by the member states that are part of the organization: some countries block decisions, intentionally prolong processes, and complicate cooperation.

These aspects also shape the United Nations, and mutual responsibility should be present. However, considering the above, the UN does indeed require reevaluation.

This involves reforming the Security Council and reducing the influence of the “permanent five” states, where Russia, as an aggressor country, is among the permanent members and can effectively block the organization’s decision-making.

Furthermore, the UN needs reform in terms of more efficient use of resources. It is also essential to consider the need for a reformed UN to be an organization that goes beyond mere discussion and is capable of clearly identifying certain states as violators in specific areas of international relations.

Of course, it is easy to say, but turning these ideas into a concrete action plan is challenging.

Regarding the International Criminal Court, it was not designed from the beginning to handle a large number of cases.

It is a court intended to hear cases of the highest level — concerning leaders responsible for international crimes. The idea behind the International Criminal Court is to set a direction for qualifying criminal actions and demonstrate that the international community acknowledges and responds to mass atrocities.

Despite all the criticism directed towards the International Criminal Court, an author believes this institution has a chance, at least partially, to fulfill this function.

We have also witnessed arrest warrants issued for just one type of crime against two individuals (referring to arrest warrants issued for Russian President Vladimir Putin and authorized representative for children’s rights Maria Lvova-Belova in the case of deporting Ukrainian children from the occupied territories to Russia).

In the future, Ukrainians can expect that new arrest warrants will be issued, and new suspicions will arise against individuals involved in crimes. However, it can be assumed that not everyone will be covered.

Of course, when it comes to the physical execution of punishment, much will depend on the regime that survives in Russia and whether it will cooperate with the International Criminal Court or not.

But this is the reality of our days, not only for the ICC but for any court. If there is no access to a person, then the maximum one can expect from the courts is the allowed procedural response in the form of an arrest warrant or an in-absentia judicial proceeding.

Punishment for international crimes

First of all, an author wants to state an unpopular fact: there is no hierarchy of more or less important crimes.

War crimes, crimes against humanity, aggression, genocide — all international crimes are equally serious, and their commission should concern the entire international community and trigger reactions to hold the perpetrators accountable.

Here, it is also essential whether we are talking about national or international justice. When it comes to the international level, it is certainly not a matter of just one year.

One should not expect quick results from international jurisprudence. On the national level, everything moves much faster.

As we can see, there are already dozens of verdicts on war crimes in national courts. Work is being done on the crime of aggression, and there are already suspicions against individuals who, according to the prosecution, do not have functional immunity and are responsible for the crime of aggression against Ukraine.

However, even at the national level, it is unlikely to expect verdicts on genocide anytime soon.

This crime is challenging to investigate, and constructing a compelling case for the court that would satisfy both national and international standards takes time. Moreover, at the national level, there won’t be cases on crimes against humanity simply because they are not criminalized in the Ukrainian Criminal Code.

However, indeed, there has been significant attention given to the crime of genocide recently. In some cases, it may be justified, while in others, it may not.

It is justified in the sense that perhaps this crime allows for the most comprehensive description of what Ukraine and Ukrainians are going through today. In the sense that genocide demonstrates that individual killings, rapes, deportations, and other mass atrocities are driven by the desire to “not have Ukrainians” not only on the territory of Ukraine but also as a separate national group in principle.

And actually, if we classify the crimes that are happening as genocide, then we are directly obligated to describe the motives for the destruction of Ukrainians as a national group.

See also: Instead of confiscation: why is the EU looking for a new mechanism for frozen Russian assets?

As for how feasible it is to prove genocide, it is indeed a very complex process. Primarily because it is necessary to establish the presence of genocidal intent — the intent to physically destroy the group.

This intent is partially evident from the statements of the Russian political leadership. However, when these are statements from the military-political leadership, they prove their own intent.

But what about those who directly commit these crimes? Do they do it because they have been given the freedom to act in any way and this is their usual behavior? Do they hate everyone they are fighting against? Are they committing these crimes specifically to physically destroy the national group of Ukrainians?

In order to prove that such a motive truly existed, they must: constantly use hate speech; the crimes must unfold against the backdrop of the destruction of cultural heritage that enemies clearly associate with the Ukrainian people; they must target the leaders of the Ukrainian national group, and so on.

Yes, the hate speech coming from the Russian leadership does indeed suggest that genocide was planned.

And in fact, for its implementation in Ukraine, armed forces were deployed. But it is far from evident when we talk about the “lower level” and when it is necessary to prove the genocidal intent of individual Russian military personnel.

It is quite possible that in some cases where we consider that the crime of genocide was committed, we may not have the opportunity to prove it through an adequate judicial procedure.

However, precisely because the crime of genocide best describes the geopolitical purpose of the aggression, we should try and build a system of evidence that such a motive is present here.

Protecting cultural heritage

In the French film The Train, which depicts the resistance’s struggle to preserve the national cultural heritage during World War II, there is a scene where one of the heroes loses his life while trying to protect France’s cultural treasures from being taken away.

The moral is this: during war, many suffer — civilians and soldiers. But cultural heritage suffers as well. And for the role that cultural heritage plays in society, it is worth defending it even at the cost of human life.

For many people, this is an obvious issue. Because it is a part of human self-identification that allows citizens of Ukraine to understand themselves as Ukrainians or Crimean Tatars.

This is what allows us to see the true purpose of this war — it’s not just about territory in its broadest sense. It’s about the society that has formed on this territory.

Of course, on the occupied territories, the primary responsibility for protecting cultural heritage under international humanitarian law falls on the occupying party. In this case, the Russian Federation is responsible for preserving the cultural heritage of Crimea and other occupied territories.

This preservation includes various aspects.

Particularly, the prohibition of direct destruction in accordance with the norms of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. And in this regard, surprisingly, Russia is adhering to its obligations.

As a rule, Russians do not directly destroy cultural heritage sites.

Instead, they interfere with the cultural heritage in a different way: covertly, in order to avoid international legal consequences.

For example, how is this done? They conduct archaeological excavations and then remove the discovered objects from the archaeological sites.

According to the norms of the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954, archaeological excavations in occupied territories are prohibited. However, Russia has not ratified this Protocol. Nevertheless, it can be argued that there exists a customary international legal norm that prohibits archaeological excavations

Additionally, Russia deconstructs Ukrainian and Crimean Tatar culture by formally “removing” certain cultural heritage objects from their historical and cultural context. This makes it impossible to trace their historical continuity and the presence of a specific national group on the territory. Or it is done to cast doubt on certain unique cultural and national characteristics of this group.

We can see this example in the case of the Khan’s Palace in Bakhchisarai, where Russia vividly demonstrated a deliberate act of violation by restoring the palace without even attempting to reproduce its authentic elements (referring to the so-called Russian “restoration” of the palace in Bakhchisarai, which has disrupted its authentic historical and cultural value for the Crimean Tatar people and caused the substitution of the appropriate heritage of the peninsula).

In essence, modern construction methods were used instead of restoration, which would have provided future generations with access to past times. This would have been evidence that Crimean culture is ancient, rich, and diverse. It is also one of the ways Russia operates.

Despite the fact that specialized agreements regarding the protection of cultural property during armed conflicts almost lack provisions that regulate actions like the one described, Russia’s actions still fall under the purview of international treaties concerning cultural human rights.

Changing a cultural object that is important to a certain group leads to the impossibility of satisfying its cultural right to enjoy this cultural heritage object.

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions is also applicable. Therefore, encroachments on individual cultural objects violate the idea of diversity and access to various cultural manifestations.

However, these norms are quite general, making it sometimes difficult to demonstrate specific global violations against cultural heritage in occupied territories. Despite this, we understand that Russia views culture as a weapon and as part of the information warfare it conducts.

History teaches us that any state, even the most powerful and seemingly eternal, will not exist forever, as it will change within its borders, in its form of governance, and so on. No state has existed from the beginning of human communities to the present day.

Accordingly, it is absolutely certain that the Russian Federation will undergo changes within its borders.

International law already contributes to this by making things more complicated for Russia. No matter how many years pass, the Russian Federation will not have the opportunity to claim that Crimea is its territory or that Eastern Ukraine is its country.

Because international law declares that these areas belong to Ukraine and does not allow for the exploitation of violations of international law.

Originally posted by Dmytro Koval on European Pravda. Translated and edited by the UaPosition – Ukrainian news and analytics website

See also: United helplessness: Why international organizations do not work

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