Interview: Could Russia Be Taken To Court For Its War In Ukraine?

Russia's large-scale military attack on Ukraine is viewed by many governments and legal scholars as a clear violation of international law.

But Russian President Vladimir Putin has twisted the language of the law to defend his actions, asserting that Russia’s February 24 invasion is justified due to an unsupported claim that Kyiv is committing genocide in Ukraine's Donbas region against ethnic Russians.

Ukraine has responded by filing a suit against Russia on February 27 at the UN's highest court, rejecting Moscow's charge of genocide as absurd and asking judges to order an immediate halt to Russian military operations.

In seeking the International Court of Justice (ICJ) in The Hague to dismiss the Russian allegation, Kyiv is arguing that Ukraine and Russia have a dispute over the meaning of the 1948 Genocide Convention, a treaty they have both signed.

But what can such a move achieve? What other avenues can Kyiv take in the international system to hold Moscow accountable? And can the complicated world of international law actually deliver justice?

To answer these questions, RFE/RL spoke with Anthony Dworkin, a senior fellow at the European Council on Foreign Relations and an expert on international law.

RFE/RL: What is the legality of Russia's war in Ukraine and how is it categorized under international law?

Anthony Dworkin: The first thing to say is that the UN Charter as one of its central articles prohibits the threat or the use of force by one state against another and this invasion by Russia in Ukraine appears to be a clear violation of that prohibition.

Not only on this formal article of the UN Charter, but it's generally regarded as being essentially the foundation of modern international law, the cornerstone of the international legal order that was set up after World War II. So, for one country to invade another without any justification, which is what we're seeing in this case, is a core violation of a central principle of international law.

RFE/RL: What kind of legal avenues does Ukraine actually have? We saw that the Ukrainians announced that they're going to try to take Russia to the International Court of Justice (ICJ), so how can a country be held accountable if it has violated international law?

Dworkin: Before I answer that, maybe it's worth making clear as an addendum to my last answer that under the UN Charter states do have the right to use force if it’s self-defense and it's worth noting that Russian President [Vladimir] Putin in his speech announcing the attack for what he called a special military operation, did invoke the UN Charter and claimed that this was a legitimate act of self-defense by Russia. He made the point that Russia was defending itself against what he said was the threat of an attack from Ukraine against Russia, and an ongoing attack from Ukraine against the separatist enclaves in the Donbas.

So, there is a kind of presumptive legal argument there, but those legal arguments really have no validity because there is no attack from Ukraine against Russia. It has to be either imminent or already ongoing and those supposed attacks against the enclaves are not happening and, if anything, violence is being used from the enclaves outwards, rather than the other way around.

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There are a number of ways that the international legal order tries to uphold the UN Charter. One of them is essentially through the operations of the [UN] Security Council and the Security Council is charged under the UN Charter with maintaining international peace and security. However, as we know, Russia is a permanent member, and it has the power of veto on the Security Council.

Russia was able to veto the resolution that was introduced a few days ago. Therefore, that avenue essentially is blocked.

In terms of legal bodies, there is the [ICJ], which is the body in the international legal system that rules on disputes between states.

The jurisdiction at the [ICJ] is a little bit constrained, so it can only deal with disputes between states in cases where both states have accepted the jurisdiction of the court and a number of states have said that they'll accept the jurisdiction in all cases arising -- compulsory jurisdiction as that's called -- but Russia hasn't done this.

So, the only way that Ukraine could bring a case is by appealing to conventions that have a clause in them that allows disputes about the interpretation of the convention to be referred to the [ICJ] and that is what Ukraine is doing with the Genocide Convention.

But it's also worth noting that not only is a threat or the use of force a violation of the UN Charter, but aggression is also a crime under international criminal law. Individuals can be, in theory, held accountable for ordering or supervising an act of aggression against another state, but there are also some limitations about how likely that is to actually find a forum in which it's going to be heard.

In theory, the International Criminal Court (ICC) has jurisdiction over aggression, but the jurisdiction in that case also is quite limited and wouldn't reach to the case of Russia and Ukraine at this stage.

RFE/RL: Keeping that all in mind, how likely -- and how difficult -- is it to actually achieve justice in the international system and how can it be approached here with Ukraine and Russia?

Dworkin: It’s difficult, but not impossible.

I would also say that we shouldn't just look at it in terms of having a legal proceeding that is going to rule against Russia, it’s not the only point of the law. It also is providing a standard and a point of reference for those countries that are rallying against Russia's invasion, such as the widespread use of sanctions that we see from the United States, the European Union, and others. That is premised on the fact that Russia is violating international law. So, the legal standards do have significance.

Beyond that, there are a number of other ways where legal proceedings could be relevant.

There is the case before the [ICJ] under the Genocide Convention. I would say this is a narrow case and an example of imaginative lawyering from the Ukrainian side because what they're charging is not anything saying that Russia is committing genocide, because genocide is quite the specific crime and there really is no evidence that Russia is doing that.

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Instead, what they're saying is that Russia is abusing the concept of genocide as a false justification for their invasion. What they're essentially looking for is a ruling from the court saying that when Putin says that there is genocide taking place against the Russian speakers in the Donbas, that that's a completely unfounded claim and it doesn't provide any basis for Russia's aggressive actions.

RFE/RL: So you’re saying that these kinds of legal cases can hold great symbolic value, if nothing else?

Dworkin: I think one of the things that the countries who are opposing Russia's actions are basing their decisions on is not only to defend Ukraine, but to defend a whole vision of how the international order should function -- and to defend the principle that states that countries can’t simply invade another country without justification.

Of course, it happens and it has happened, but in this case, we are seeing a strong reaction against it and [that] direction is based around the illegal status of the action.

RFE/RL: What can past examples of similar scenarios tell us? The U.S. invasion of Iraq in 2003 is an example that comes to mind, but there are plenty of others. How instructive can these past cases be for Ukraine and Russia today?

Dworkin: There is limited precedent for having leaders being held criminally accountable for acts of aggression.

That did happen after the second World War in Nuremberg and at the Tokyo trials, but those trials had their limitations. For instance, they were staged by the victorious side and only the losing side was put on trial. Also, the Soviet Union, which had committed aggression during World War II, was also allowed to occupy the judges' seats.

But if you look at the acts of aggression that have taken place, you can see that they have affected the political reputation of countries. I think the United States did suffer internationally for its invasion of Iraq. I think it damaged the U.S. reputation around the world.

In recent decades we’ve also seen very important trials of military and political leaders, such as [Yugoslavia’s] Slobodan Milosevic facing trial for overseeing war crimes, crimes against humanity, and genocide.

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That is also something that has to be borne in mind here [with Ukraine and Russia] and the [ICC] does have jurisdiction here, because Ukraine has accepted the jurisdiction of the court. That means that any war crimes that are committed by Russian forces could potentially be prosecuted.

Under the principle of command responsibility, senior leaders of Russia could be prosecuted if it can be shown that they ordered, planned, or supervised war crimes.

Now, how likely is it in the short term for any successful cases to be brought or any Russian military leaders or others to appear before the court? That is an unlikely prospect in the short term, but in the longer term we've seen that political conditions change and individuals who seemed beyond the reach of the law suddenly find themselves appearing in front of the courts.

I think that is worth bearing in mind and it seems to me very important that anyone who's in a position to do so should be gathering evidence of any crimes that may be committed during the course of this conflict and keeping that evidence filed away. If at any point there is a possibility of bringing forward a case, then the evidence is there and there are witnesses ready to develop a legal case.

This interview has been edited and condensed for clarity