The Social Context of the Law: Ukraine War: Peace-making Ahead – Traditional Methods of Accountability or New Solutions?

Sir Geoffrey Nice: This event is about wars and, more particularly, how law, lawyers and judges may reduce the number of wars, which we may encounter in years to come. Our two speakers tonight are Dame Rosalyn Higgins and Sir Adrian Fulford. Later, we will be joined online by Yuriy Belousov from Kyiv in Ukraine. He is in charge of prosecuting war crimes. He has on his docket a modest 110,000 potential war crimes cases that are being investigated, and with such success. Before the termination of that war, it may be that Ukraine will have to think imaginatively about how it wants to deal with accountability processes, maybe moving beyond the standard methods of dealing with war crimes currently planned for that country.

What led me to suggest this title, was, of course, the Russia/Ukraine war and these possible three premises. The first is that there is no real world order. There are bits of world order. Second, there are courts that do have some power to deal with war criminals, but it is a very patchy business. The third is that there is absolutely no evidence that war crimes trials, even when they do happen, deter the next warmongering leader of a nation from doing what he or she wants to do.

There is absolutely no evidence that war crimes trials, even when they do happen, deter the next warmongering leader of a nation from doing what he or she wants to do.

And in light of where we are with two wars it may be thought that for law, lawyers and judges, perhaps the most important thing for us to focus on now is how, if at all, law can help in deterring the condition of war.

Dame Rosalyn Higgins: ‘Peace-making Ahead – Traditional Methods of Accountability and New Solutions’, this title carries with it several different ideas, including how to make peace, peace-making and issues of accountability for violations of the peace. Underlying this there is another question – how can future wars be deterred?

International law is to provide an operational system for securing values we all desire, but it is not only about resolving disputes. Of course, sometimes, dispute resolution will be needed, and there are today a huge number of structures serving that purpose. Sometimes, norms are needed to limit the parameters of conduct where dispute resolution fails, but these last elements are only a small part of the overall picture.

We cannot totally avoid the topic of what exactly constitutes international law, what international lawyers call ‘the sources of international law’. The commonly agreed starting point is Article 38 of the Statute of the International Court of Justice, which is appended to the UN Charter. Article 38 refers to international treaties, to international custom as evidence of a general practice accepted as the law, to general principles of law and – subject to certain qualifications – the teachings of leading jurists. The UN Charter itself does have something to say on peace-making. Articles 36 to 38 deal in some detail with making and keeping the peace. A huge amount of structure since that time has been built up to implementing those ideas. Peace-making does not lack for ideas and innovation.

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To think about how future wars can be deterred, there are specific prohibitions on the use of international force in the charter. But conflict does still occur, and a body of law known as jus in bello will try to mitigate the ensuing horrors. This includes, but is not limited to, the growth of the idea of international criminal courts based on the violation of international criminal laws. My comments will be on the jus ad bellum, whether the actual recourse to the use of force is legal.

It is useful to refer to the two major conflicts shattering our world today. So far as Russia’s invasion of Ukraine is concerned, the applicability of the jus ad bellum is relatively straightforward. All member states of the UN, including Russia and Ukraine, are covered by the provisions of Article 2:4, the prohibition of the use of force against states. Article 2:4 provides that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.

Clearly, claims that independent UN member Ukraine is really ethnically and historically part of Russia, that it is not a real state in spite of its UN membership, that it was about to attack Russia, that it was a puppet in the West in preparation for that attack, are not convincing. There is also a crucially important principle of international law, namely uti possidetis, which provides, in the post-war world, that international frontiers may not be changed by force, but only by the agreement of both parties.

There is also a crucially important principle of international law, namely uti possidetis, which provides, in the post-war world, that international frontiers may not be changed by force, but only by the agreement of both parties.

Article 51 of the Charter retains, in the face of a violation of 2:4, the inherent right of individual and collective self-defence. I do find it curious that many states supporting Ukraine have not invoked this provision but have allowed the dialogue to drift to one about what NATO, a collective regional defence arrangement allowed under Article 52 of the Charter, may or may not do without itself risking direct hostilities with Russia.

Now to turn to the other current example preoccupying us, jus ad bellum, in relation to Israel and Gaza – the international law of whether force may be used is deeply uncertain. The starting point is that the old pre-Charter law of reprisals, just war et cetera, are gone, and that everything is governed by the use of force. Article 2:4 is the key – all members have to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. And Article 51 – according to your view – either retains a parallel and inherent right of individual, perhaps collective, self-defence or provides an exception to the prohibition of the use of force in 2:4.

It is regrettable that ambiguity and uncertainty remain at the heart of these provisions. Among the several issues which have not been judicially resolved with any clarity, are the following: Is a single attack on a state required to trigger a proportionate right of self-defence? Necessity and proportionality remain within the present constraints of Article 51.

How then to make an assessment of proportionality that is other than subjective? The use of force must be proportionate to the legitimate end sought. It can no longer be just punitive, whether it can be directed to non-repetition of the initial armed attack, as opposed to defence from it, is also less than certain. And here we have to recall that Hamas’s stated objective is to eliminate the State of Israel, so proportionality in response to that is very difficult to assess.

Further, and of critical legal importance, is the fact that Articles 2:4 and 51 are essentially inter-state. Neither Hamas nor the territory of Gaza constitute a state. Palestine is not yet a state, though its representatives are increasingly afforded standing to participate in UN events, including the International Court. So there, common sense prevails. But we must note that resolutions passed after the 9/11 attacks on the US by non-state actors indicate that the right to use force in the territory of another state in defence against attack by non-state actors was to be accepted.

A final question to show you how unclear the law is, is whether self-defence is applicable in situations of occupation. Israel long ago withdrew from Gaza, but some may argue that the constraints it continues to apply there in effect constitute occupation, and that argument is more easily made in respect of the West Bank. Do those under occupation retain the right to seek liberation by the use of force? And, like Hamas, are they liberated from the prohibition against targeting civilian targets? I myself think the answer to that question must be, “Surely not.” So, the problems of today, so far as jus ad bellum are concerned, are really because of a lack of clear articulation of the very real legal problems that are out there relating to them, and particularly to the role of non-state actors.

The problems of today, so far as jus ad bellum are concerned, are really because of a lack of clear articulation of the very real legal problems that are out there relating to them, and particularly to the role of non-state actors.

Sir Adrian Fulford: So, the division of labour is that I am going to look at the battlefield, a subject which is vast and complex. Consequently, I am not going to attempt a panoramic view but, instead, I want to focus on a single event which I consider to be critical in assessing whether the courts and the law have any utility when reflecting on what happens on the battlefield and how war is actually conducted.

Back in late 2019/early 2020, when I was interviewing candidates as the successor to my successor as the British judge at the International Criminal Court, I was in conversation with a senior British official working in the field of Foreign Affairs, who expressed his personal antipathy at the interest that was being shown by the ICC’s prosecutor into the role of coalition troops in Afghanistan. The view expressed was that the court surely had better things to be getting on with. The remark seemed to me to be tinged with a bit of outrage and a bit of anger. I think this is highly significant, and it is necessary to review the background to this and what has happened thereafter.

Three critical things have happened. First, on 20 November 2017, the Office of the Prosecutor had asked the Pre-Trial Chamber at the International Criminal Court for authorisation of an investigation which would cover the Taliban, the United States forces and other suggested unlawful acts in the context of the Rome Statute by members of other international forces, which would of course have included the United Kingdom. The request was refused by the Pre-Trial Chamber on 12 April 2019 – not because of admissibility or jurisdiction, which were accepted, but solely because the circumstances in Afghanistan then made the exercise untenable. The refusal by the Pre-Trial Chamber was the subject of an appeal to the Appeals Chamber, which was allowed on 5 March 2020.

The second is that there were key legal challenges to events in Afghanistan in this country, namely two claims in the administrative court, Saifullah v the Secretary of State for Defence and Noorzai v the Secretary of State for Defence. The claim in Saifullah is that the investigation into the deaths was not Article 2 compliant, and in Noorzai that there was a failure to investigate the claim, as well as a claim of a substantive Article 2 breach. Permission to apply for judicial review was granted in both cases, in 2019 and 2020.

Third: there were hard-hitting media investigations by the BBC’s Panorama programme and by The Sunday Times. Now I have no doubt but that those three events led Ben Wallace, the then Secretary of State for Defence, to set up what is my single event which I want to talk about tonight: the independent statutory inquiry led by Lord Justice Haddon-Cave into the circumstances of the deaths of various individuals at what is said to have been the hands of UK Special Forces between 2010 and 2013.

The inquiry will additionally scrutinise two Royal Military Police investigations into these events as to whether they were adequate. Lord Justice Haddon-Cave set out the gravity of the investigation by describing the task as investigating alleged numerous extrajudicial killings during that period, which were purportedly followed by a decade-long coverup, and two investigations by the Royal Military Police which are alleged not to have been fit for purpose. And in the meantime, the claims in Saifullah and Noorzai have been stayed, pending the outcome of the inquiry.

Lord Justice Haddon-Cave made an early visit to the ICC’s prosecutor in The Hague and in his open ruling on restriction orders he quoted from the ICC’s December 2020 report into the situation in Iraq by the Office of the Prosecutor, in which it was observed that what happened “was the outcome of a more than ten-year long domestic process involving the examination of thousands of allegations, which resulted in not one single case being submitted for prosecution, a result that has deprived the victims of justice”.

Lord Justice Haddon-Cave also visited Australia, which released the Brereton Report on 19 November 2020, reporting on war crimes committed by the Australian Defence Force (ADF) during the war in Afghanistan between 2005 and 2016. The report found credible information concerning 39 murders of civilians and prisoners by or on the instruction of members of the Australian Special Forces, which were subsequently covered up by ADF personnel. Those are all being investigated by Australian prosecutors, with the possibility of prosecutions to follow.

In this context, the principle of complementarity is key to the work of the International Criminal Court, and to ensuring that nations are not the recipients of arrest warrants aimed at their armed forces to secure their delivery to the cells of the ICC. What is meant by complementarity is that if the relevant country does not deal adequately with the alleged offences, the risk is that the ICC will step in wherever it has jurisdiction.

The hearings before Lord Justice Haddon-Cave began in earnest on 9 October 2023, and I suspect that they will be unprecedented in regard to the bright light they will shine on all of the evidence that relates to what happened in the context I have just described.

So, why am I reflecting on all of this? Well, my short point arising from these musings is that these recent events are simply unparallelled, and they signal what is a very helpful development for the future in terms of being able to control, at least to an extent, what happens on the battlefield. I do not pretend that war crimes in war will suddenly cease, but I do think there will be an ever greater and far more meaningful role for the courts and statutory inquiries in bringing individuals to account in ways unthought of when Alexander the Great left Macedonia en route for Persepolis, Napoleon marched into Russia, or the Americans and their allies went into Iraq and Afghanistan.

It is the nature of human affairs that awful things will happen, and the solutions for them will be imperfect. But I take great heart from the influence, in the context of Afghanistan, of the ICC and the British courts, in ensuring that alleged battlefield wrongdoings can be and are the subject of proper investigation and inquiry. This is a bright omen for the future whatever the Afghan inquiry ultimately concludes, and whether or not the ICC in the fullness of time launches its own separate prosecutions.

I take great heart from the influence, in the context of Afghanistan, of the ICC and the British courts, in ensuring that alleged battlefield wrongdoings can be and are the subject of proper investigation and inquiry.

Yuriy Belousov: I was focusing on the question regarding how to deter committing international crimes in the future. It is a difficult question, when you talk about one country which commits international crimes against another. But you know, if we take states as human beings, and we want to stop them from committing crimes, are we not asking ourselves the same questions? We think, how do we prevent people committing crimes? Traditionally, it goes to the severity of the punishment, which should deter people from committing crimes. At the same time, we need to nurture, to educate the socialised person so they should not commit crime in the future.

And I think it works with states – for many years, international society tried to educate, to nurture Russia, to have business with this country and to reduce the risk of any bad things being committed by Russia. But the problem is if the severity of the punishment does not work, or if you do not talk about the inevitability of the punishment. It is exactly what happened with the Russian/Ukrainian context.

We all know that the war started in Ukraine a long time ago. Russia attacked Ukraine in 2014, not 2022. And before that Russia attacked Chechnya, then Georgia, then Syria, and the world was pretending that they did not see what Russia is doing. That is exactly what gave Russia the feeling that there is no punishment for such actions. Let us come back to the analogy with human beings – if we see a person beating another one, and people around pretend they do not see it, the person starts to beat another person. No one reacts, and the person beats a third person.

I think that is exactly what was happening before 2022. Why 2022? Because in 2022 this subject started to commit such a serious crime that it was difficult not to see, even for the international community. Bucha maybe was the first example when the international society understood that we need to do something with this country. First, it was extremely important that the democratic world raised its voice. Second, it was the issue of inevitability of the punishment, and that is where international society faced a pretty big challenge.

Responsibility to stop war cannot be subcontracted to judges. It ultimately is going to lie with all of us.

At the moment in Ukraine, we have already identified 456 suspects for war crimes with 293 already in our indictments and our courts, and we have had 66 verdicts in the national courts. The problem is now that the world is not sure what to do with the biggest crime, the crime of aggression. So, we see two countries fighting with each other. So, we see definitely the aggressor who attacked one of the countries – an unprovoked aggression without any justification. And the world is still too shy to call it aggression, because maybe it is aggression, but how to prosecute this?

It is an interesting dilemma, because a lot of countries do not want to have a precedent. If you have a precedent, maybe someone would look at what we did a long time ago and we would be prosecuted. And the aggressor thinks that there is no reaction, “no one calls me aggressor. They are still thinking whether to have a special tribunal.” And inevitability of the punishment for international crime globally is the biggest problem, which will not prevent such cases in the future. What the punishment should look like is another issue, for researchers and scientists worldwide.

Sir Geoffrey Nice: Responsibility to stop war cannot be subcontracted to judges. It ultimately is going to lie with all of us.

For the full video recording:
innertemple.org.uk/peacemaking

Her Excellency Dame Rosalyn Higgins GBE KC JSD FBA
Sir Adrian Fulford
Yuriy Belousov
Sir Geoffrey Nice KC