Russia’s invasion of Ukraine: UN adopts resolution calling for war reparations
On 14 November, the UN General Assembly adopted a resolution calling on Russia to pay war reparations in the latest addition to intensifying efforts being made by multilateral institutions to hold the Putin regime to account for its ongoing aggression in Ukraine.
The historic resolution recommends that member states establish an international register to document evidence and claims against Russia, as well as an international mechanism for damage, losses or injuries sustained since 24 February.
94 countries supported the motion. Fourteen – including Russia, China and Iran – voted against it and 73 – including Brazil, India and South Africa – abstained. Although Russia’s veto power has prevented the Security Council taking action against the country, no such veto power exists at the General Assembly and this latest move marks its fifth Ukraine-related resolution since the invasion.
The resolution has been hailed as a positive response to calls from within Ukraine to ensure that victims of the war are duly compensated. Jennifer Trahan, Clinical Professor at New York University’s Centre for Global Affairs, believes it will help provide the momentum needed to help Ukraine’s post-war recovery. ‘Given that the General Assembly resolution has been passed, I do think this measure will bear fruit,’ she says. ‘The damages are just absolutely massive. There will need to be a huge recovery programme for Ukraine and this will need to be implemented.’
However, Sara Elizabeth Dill, a partner at Anethum Global and Treasurer of the IBA War Crimes Committee, says in practice seeking compensation may still prove challenging. ‘Unfortunately, historically it has been difficult, if not impossible, to seize funds held by those who have committed war crimes or other atrocities,’ she says. ‘The UN Resolution is more symbolic, as questions remain as to how this will actually occur in a process that would be lawful under international law.’
There are also continued calls to create a special international tribunal focused on prosecuting Russia for the crime of aggression, which falls outside the jurisdiction of the International Criminal Court (ICC) as Russia is not a state party.
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What has happened is a threat to the international legal order. It is not solely a regional issue and deserves a response through the United Nations
Jennifer Trahan
Clinical Professor, New York University’s Center for Global Affairs
At the end of November, European Commission President Ursula von der Leyen announced plans to establish a specialised court to investigate and prosecute possible war crimes committed by Russia in Ukraine. The Commission proposed two options: either a special independent international tribunal based on a multilateral treaty, or a specialised hybrid court integrated in a national justice system with international judges.
During the IBA’s recent Annual Conference in Miami, Beth Van Schaack, US Ambassador-at-Large for Global Criminal Justice, remarked that proposals for the European Union to partner with Ukraine to establish an international tribunal were promising. ‘[This would] lend it the legitimacy that these are crimes that are being committed within the continent of Europe and the manifest violation of the UN Charter within Europe,’ she said.
Ukraine’s Prosecutor General, Andriy Kostin, also praised Europe’s support for a court during the session. ‘We are deeply appreciative of the Parliamentary Assembly of the Council of Europe and the European Parliament for their positive stance over the matter,’ he said. ‘We hope that individual members of the international community would support this initiative as well.’
However, Trahan, who is also Convenor at The Global Institute for the Prevention of Aggression, believes that securing accountability for Russia’s aggression in Ukraine is not just Europe’s responsibility. ‘What has happened is a threat to the international legal order,’ she says. ‘It is not solely a regional issue and deserves a response through the United Nations. When a permanent member of the UN Security Council invades a neighbouring country with impunity, that is a concern for the whole global order and stability.’
She’s also concerned that some aspects of the European Commission’s proposals could prevent heads of state and foreign ministers from being prosecuted. ‘The case law says that to avoid immunities a tribunal must be established by the international community as a whole,’ she says. ‘It is very unclear whether a tribunal, established by the EU, and with General Assembly recommendation would be such a tribunal. It might well not be. Given that the crime of aggression is a leadership crime, to have immunity apply would defeat much of the purpose of establishing a tribunal. For this reason, establishing the tribunal by a bilateral agreement between the UN and Ukraine, after the recommendation of the UN General Assembly, is much the preferable solution.’
There’s also still the burning question as to how a special tribunal, in whatever form it takes, would be funded, says Dill. ‘From a practical standpoint, the ICC is already struggling with funding and resources – in recent weeks defence counsel and staff have testified as to inequality and inadequacy in funding. Staffing issues are also prominent. I would question whether funds are available, or if this would even be feasible to set up.’
As Russia rejects any proposals for a 'Christmas ceasefire' in Ukraine, Dill says it’s incumbent on other states to negotiate peace talks and seek accountability and redress for the victims of the war in Ukraine. ‘One of the prominent aspects of this conflict was the initial response of most of the world to take sides,’ she says. ‘As we see countries such as the United Arab Emirates attempting to stay neutral and negotiate between the parties, we have to hope that there will be others who can assume the role of a neutral arbiter – either in the peace process, or in any prosecutions for war crimes. Unfortunately, accountability is not always possible or realistic, and thus we should also be looking at mechanisms or processes, outside the international criminal process, that will help survivors and victims move forward with their lives after the conflict.’
Image: A United Nations International Organization for Migration vehicle. Image credit: PhotoSpirit/AdobeStock.comIBA urges states to increase support and resources for the ICC
The IBA has urged states to increase support and resources for the International Criminal Court (ICC). The IBA’s intervention, in early December, coincided with the 21st annual session of the Assembly of States Parties (ASP) – the Court’s management oversight and legislative body, which is composed of representatives of states that have ratified or acceded to the Rome Statute, the treaty that established the ICC.
‘The workload of the ICC is growing significantly to meet global demands for international justice, including investigating alleged war crimes and crimes against humanity in Afghanistan, Palestine, Ukraine and Venezuela’, said outgoing IBA President Sternford Moyo.
The IBA International Criminal Court and International Criminal Law (ICC & ICL) Programme issued its priorities and recommendations for the ASP session ahead of its commencement, calling on the 123 states parties to support a major increase in the Court’s 2023 budget so that the ICC can implement its additional workload. The Court has requested an increase of €32m; however, the Assembly’s Committee on Budget and Finance recommended that the additional resources be reduced to €25.5m. The IBA ICC & ICL paper asserts that arbitrary reductions would undermine the Court’s functioning.
Read the full statement here.
IBAHRI condemns Israeli government plan to undermine Supreme Court
The IBA’s Human Rights Institute (IBAHRI) has released a statement condemning Israeli Prime Minister Benjamin Netanyahu’s decision to introduce legislation which will enable to Israeli government to overthrow the country’s Supreme Court’s decisions.
IBAHRI Co-Chair Anne Ramberg Dr Jur hc said that the move was ‘an affront to the rule of law and its foundational principle that the judiciary is independent of the government and decisions from the courts are respected by Parliament’.
The plans were announced in early January by Justice Minister Yariv Levin and would mean that the government would have the power to annul Supreme Court decisions that strike down legislation found to be unconstitutional. The government would also gain control over the appointment of judges.
IBAHRI Co-Chair Mark Stephens CBE said that the plan ‘must not be allowed to stand’ and that the ‘proposals not only challenge the authority of Israel’s courts, but the very bedrock of the country’s democratic system’.
Read the full statement here.
New ICC & ICL Programme report released
The IBA International Criminal Court and International Criminal Law (ICC & ICL) Programme has published a new report examining the legal frameworks and practices of international criminal courts and tribunals to remedy international injustice through appeals, retrials, reviews or revisions of judgments and compensation for miscarriages of justice.
The new report, Remedying international injustice: appeals, retrials and revisions of judgments in international criminal law, considers four procedural mechanisms aimed at preventing and remedying injustice: appeals, retrials, revisions, and compensation for miscarriage of justice. It examines how each remedy has evolved and been applied by international criminal courts and tribunals to date, including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Residual Mechanism for Criminal Tribunals, the Special Tribunal for Lebanon and the permanent International Criminal Court (ICC).
The report makes detailed recommendations to the ICC to maximise its safeguards, recognising that they may also be relevant for other active and future courts and tribunals. The four chapters cover: appeals, retrials, review/revision of judgments and compensation for miscarriage of justice.
IBA Executive Director Dr Mark Ellis commented: ‘There are many factors, within and beyond the control of international criminal tribunals, that may lead to wrongful convictions and unfair trials. This report recognises such risks and seeks to assist the ICC and other international criminal tribunals in avoiding the devastating impact of injustice on wrongfully convicted persons and on the public's confidence in international justice.’
This report forms part of the IBA’s longstanding contributions towards a just and effective system of international justice and is part of the ICC &ICL’s series of programme reports. The programme reports comment on current proceedings and fair trial developments at the ICC and provide detailed recommendations.
Read the report.
IBAHRI calls for end to capital punishment, unfair trials in Iran
The IBA’s Human Rights Institute (IBAHRI) has condemned Iran’s use of the death penalty, and has called on the nation to halt any planned executions. Mohsen Shekari and Majidreza Rahnavard were both sentenced to death in December last year, following trials that were deemed to be unfair and violated their rights. They were both convicted in relation to the nationwide protests that began in September, following the death of 22-year-old Mahsa Amini in police custody at the hands of Iran’s ‘morality police’. According to Iran’s judiciary, an additional ten people have been sentenced to death for similar charges of ‘enmity against God’ and ‘corruption on Earth’.
IBAHRI Co-Chair Anne Ramberg Dr Jur hc said that ‘it is horrifying that a state can kill dissident citizens so readily’, commending the United Nations Human Rights Council for ‘passing the resolution to establish an independent investigation for alleged human rights violations in Iran’.
IBAHRI Co-Chair Mark Stephens CBE commented that ‘the rushed nature of Mr Shekari’s and Mr Rahnavard’s trials and lack of due process is intended to instil fear in other young protestors and prevent them from taking to the streets and demanding their rights’.
Read the report.
IBAHRI: Torture-Free Trade Treaty and International Fair Trial Day
The IBA’s Human Rights Institute (IBAHRI) participated in a civil society summit on ‘Towards a Torture-Free Trade Treaty’. The summit brought together over 30 non-governmental organisations from across the world to network and strategise on the creation of a treaty to control the trade in law enforcement equipment and weapons that can be used to torture or ill-treat individuals. As a result, a Shoreditch Declaration was drawn up, which can be read here. In January 2022, the IBAHRI started preparations for the 2023 International Fair Trial Day and Ebru Timtik Award, with Mexico as this year’s country of focus. International Fair Trial Day is observed every year on 14 June and was launched in 2021 by the IBAHRI. The Ebru Timtik Award recognises an individual or an organisation who has or which has made an exceptional contribution towards securing fair trial rights in the country on which the International Fair Trial Day is focusing for the year in question.
Putin's Russia: hope in the darkest of times
Evgenia Kara-Murza is the wife of Russian opposition leader Vladimir Kara-Murza, who is currently imprisoned in Russia on charges of treason, facing up to 24 years. His grounds for arrest were for denouncing the war in Ukraine, for organising an event in support of political prisoners and for making three public speeches about illegitimate constitutional reform, political persecution and censorship.
In this Global Insight podcast, Evgenia discusses the situation in Russia, stating that although the Russian regime aims to portray itself as a monolith that stands behind Putin and his policies, this is far from reality. Over 19,000 people were arbitrarily detained across the country during 2022 and such people are continually being silenced. Evgenia talks about Putin being a bully in this sense, that ‘no strong leader uses force and intimidation’ to silence his opponents and civilians, exactly why her activism and her husband’s is so integral.
She goes on to discuss the war in Ukraine, highlighting that Putin wants to rebuild the Soviet Union which was a reason for attacking Ukraine. Evgenia addresses western allies, stating that they have often responded too late to Putin’s aggressions, such as with the war in Chechnya, invasion of Georgia, annexation of Crimea and the bombing of Syria. However, she does state the importance of western sanctions on Russia as this will make it much costlier for Putin to continue the war.
Throughout the podcast, Evgenia speaks with determination, raising awareness of the oppressive conditions in Russia and her and her husband’s activism. She maintains an incredible hope for the future, for human rights, democracy, rule of law and freedom of the press.
Listen to the podcast here.
Afghanistan: Male judges and prosecutors left behind in ‘forgotten crisis’
The Taliban’s increasingly draconian policies in Afghanistan, the return to Sharia law and attacks on women’s rights have rightly drawn the world’s attention. However, almost 18 months after the Taliban seized power, there are growing calls to ensure that Afghan men, including those working in the legal profession, are also safe from harm.
Imogen Canavan, a Legal Consultant at the Max Planck Foundation for International Peace and the Rule of Law, has worked closely with the IBA and the International Association of Women Judges to evacuate vulnerable Afghans since August 2021. As part of these efforts, hundreds of female judges deemed to be at risk were evacuated alongside their families and have since been resettled in Canada, Australia, Germany, the UK, Ireland, New Zealand and Iceland.
While Canavan says these efforts are to be hugely commended, she’s increasingly concerned for the safety of male judges in Afghanistan who are now being forced to impose Sharia Law. ‘One of the focuses for me as a consequence of this work has been the male judges, because I feel like they’re a much bigger group,’ she says. ‘There are about 200 female judges, but there are about 2,000 male judges. What we see in terms of security risks for them is mostly kidnappings of the eldest son. They usually want the judge to present themselves to the Taliban in exchange for the son. Then often we anticipate that this would be likely to result in killing or certainly torture. There's extortion as well.’
Safiya was an Afghan national working in the UK last August when the Taliban seized Kabul. Though she had no previous links to the legal profession, she, like Canavan, found herself fully immersed in the evacuation efforts. Safiya has watched in horror at how women have been steadily removed from nearly all areas of public life in Afghanistan, but says many male judges could be even more at risk than their female counterparts. ‘A lot of very well-known male judges were left behind,’ she says. ‘That’s the thing that upset me the most because all these men at the top of their field were getting in touch with me, but there was no evacuation mechanism for them. They're the ones that are most in need now.’
Canavan says it was also a mistake that prosecutors weren’t deemed at risk enough to be evacuated by governments and humanitarian organisations in the wake of the Taliban takeover. ‘They are being attacked with knives and guns and their homes are being burnt down,’ she says. ‘Like legal academics, this group has not been prioritised, has been left behind and nobody's thinking about them.’
Prosecutors are being attacked with knives and guns and their homes are being burnt down
Imogen Canavan
Legal Consultant, Max Planck Foundation for International Peace and the Rule of Law
Global Insight spoke to Ali, a male Afghan prosecutor who was fortunate enough to be evacuated to Pakistan in January 2022 and resettled in Germany in June. He believes that the international community has a moral obligation to help male prosecutors who remain in Afghanistan. ‘We are being persecuted and being labelled as having assisted the international community to promote certain principles,’ he says. ‘That affiliation and collaborative work with the international community is what caused us to be exposed to horrible experiences and risk of persecution. And now they need to advocate for human rights in the country because there's a dire need for that.’
While most countries have stopped taking in vulnerable Afghans, a handful continued to offer them much-needed refuge as 2022 drew to a close. In October, Germany launched a new programme to admit 1,000 at-risk Afghans and their family members per month and has been inundated with applications.
Canada also brought in several policies, including a programme that allows groups of five Canadian citizens or permanent residents in Canada to provide private sponsorship to Afghan refugees who have already left Afghanistan without the need to submit a refugee status determination document. However, the Canadian government said the programme had already reached its capacity of 3,000 Afghan refugees within six weeks of its launch.
Alex Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and managing partner of MKS Lawyers in Vancouver, says the popularity of such programmes underlines why countries must do more to support vulnerable Afghans. ‘The simple answer is that there is a need,’ he says. ‘The human rights situation in Afghanistan is horrific and people need settlement support.’
But Stojicevic admits the options are limited for those still in Afghanistan. ‘I don't know what more can be done in terms of supporting those displaced in-country,’ he says. ‘You would need military intervention in order to guarantee security to help such people, so I don't know how realistic that would be unless countries adopted an emergency evacuation visa model, such as what the IBA has been advocating for since 2019.’
In December, the Taliban sparked further outcry after it banned women from attending university and working for both local and international aid agencies. Mark Ellis, IBA Executive Director, says such moves are exacerbating the country’s humanitarian crisis. ‘Until the Taliban government, under the pressure from the international community, tempers its ways and allows international civil society, including the IBA, to help them to have a more engaging presence, then we're going to be limited in what we can do,’ he says.
Ellis says it’s crucial that the international legal community continues to support its counterparts still working in-country. ‘It's a forgotten crisis,’ he says. ‘The best we can do right now is to continue to try to engage with our colleagues that are still in Afghanistan to find ways that we can support them.’
Image credit: Anton.Matushchak/AdobeStock.com