The legal arm of NATO

Case against Russia

On Wednesday, the International Court of Justice in The Hague (ICJ) – the United Nations’ most senior court – dismissed nearly all of the claims in a lawsuit filed by Ukraine against Russia in 2017. Kiev had accused Moscow of financing pro-Russian separatists in the Donbas and Crimea since 2014, providing them with weapons, equipment and military training. These actions were alleged to be a violation of the UN Convention for the Suppression of the Financing of Terrorism.[1] Ukraine also claimed Russia was guilty of violating the UN Convention on the Elimination of All Forms of Racial Discrimination by oppressing Tatars and Ukrainians in Crimea. Kiev’s lawyer had claimed that the rights of these two minorities had been violated through a “culture eradication campaign” on the peninsula since it had become part of the Russian Federation.[2] Ukraine had demanded compensation from Russia and widened its case by adding the charge of shooting down the Malaysian airliner MH17 in July 2017 over eastern Ukraine, with the death of all 298 people on board. Finally, Kiev called on the ICJ to issue an injunction to halt Russian “aggression”. The ICJ agreed with the latter request only insofar as the court required both sides to refrain from any escalation of the conflict.

Nearly all allegations unfounded

Announcing its judgements on Wednesday, the ICJ ruled in favour of Ukraine on just a few marginal points. It ruled that Russia’s attack on Ukraine on 24 February 2022 had escalated the conflict and thus violated the court’s injunction [3] and that Moscow had not adequately investigated Kiev’s allegations that Russian citizens were financing terrorism in Ukraine. The ICJ also concluded that, in Crimea, Russia failed to promote school education in the Ukrainian language to the extent required. The court expressly rejected all other accusations against Russia. For example, it deemed that financial support for Ukrainian separatists by the Russian state had not been demonstrated. The question of whether Moscow had provided separatists in eastern Ukraine or Crimea with weapons or military training was not a matter covered by the UN Convention, which Ukraine’s lawyers had cited. Ukraine also failed to present any relevant evidence in The Hague for the alleged comprehensive discrimination against the Ukrainian-speaking minority or the Crimean Tatars. In its judgement on Wednesday, the ICJ came to the conclusion that the Ukrainian allegations were largely unfounded. So the court decided to refrain from ordering Russia to pay compensation.[4]

Against the interests of the West

The ICJ’s ruling is the second in a short space of time in which the highest court of the United Nations has not pronounced in favour of positions taken by Western states and their allies. After all, it was only last Friday that the ICJ issued an interim injunction against Israel in which the Israeli government is obliged to take measures to prevent a genocide in the Gaza Strip (german-foreign-policy.com reported [5]).

The special tribunal

Because it is apparently no longer possible to prevent the international justice system from ruling against Western interests, these states have begun to look for new ways to have rivals and opponents prosecuted. The intention can now be clearly seen in efforts to put Russia’s President, Vladimir Putin, on trial on the charge of waging a war of aggression. It would, in principle, be conceivable to bring such charges before the International Criminal Court (ICC). However, as observers noted a year ago, the formal requirements for a conviction by the ICC for waging a war of aggression have been very “narrowly defined” and a conviction might not be secured. The tight legal wording was, ironically, due to pressure from Western states fearing being themselves dragged before the ICC for crimes arising from the invasion of Iraq and other wars.[6] So to prevent proceedings against Russia from becoming a precedent for initiating a case against the US and UK (for the destruction of Iraq) or even against Germany (for its role in the 1999 war of aggression on Yugoslavia), Western leaders, including notably German Foreign Minister Annalena Baerbock, have been advocating the creation of a “special tribunal” tailored specifically to the war in Ukraine.[7] This initiative began over a year ago and seeks legitimacy by bringing in “international elements” and, if possible, making The Hague the place of jurisdiction.

Only against Russia

Plans for a Russia-condemning tribunal have recently been taking shape. Ideas were put forward by representatives of some forty Western countries and several multinational organisations at a meeting in Luxembourg on 19 January. The drafts under discussion came from the EU Commission and the European External Action Service (EEAS, the EU’s diplomatic service). The plan is for a small group of actors to organise the special tribunal. The core consists of Germany and France, some other EU states and EU institutions, the UK and the United States as well as the NATO Parliamentary Assembly.[8] The ad hoc tribunal is to be directed exclusively against persons “suspected or accused of having committed the crime of aggression against Ukraine”. The accused are to be limited to persons who “actually control the political or military actions of the Russian Federation”. In other words, the targets for the tribunal’s proponents are just as few key individuals, primarily President Vladimir Putin, Foreign Minister Sergei Lavrov and Defence Minister Sergei Shoygu. And the tribunal is conceived as a body acting exclusively at the request of Kiev.

No equality before the law

The initiators are reportedly still concerned about the issue of legitimising their special tribunal. Ideally, the UN General Assembly should approve the plans, they say. Of course, the question here is whether the Global South in particular will have any interest in this project, especially as a court that serves solely to condemn one state would constitute a definitive departure from the central idea of equality for all before international law. However, if the West were to go ahead and establish a special tribunal without the legitimacy conferred by the United Nations it would have to reckon with nations in the Global South setting up their own special tribunals, for example to put the aggressors in the war on Iraq on trial.

[1] World court rejects bulk of Ukraine’s terrorism charges against Russia. news.un.org 31.01.2024.

[2] Ukraine verklagt Russland vor Internationalem Gerichtshof. rsw.beck.de 07.03.2017.

[3] World court rejects bulk of Ukraine’s terrorism charges against Russia. news.un.org 31.01.2024.

[4] IGH weist Klage gegen Russland weitgehend ab. rsw.beck.de 01.02.2024.

[5] See also: Der Westen, der Süden und das Recht.

[6] Matthias Wyssuwa: Wer kann russische Kriegsverbrecher verurteilen? Frankfurter Allgemeine Zeitung 17.01.2023.

[7] Baerbock wirbt für Sondertribunal. Frankfurter Allgemeine Zeitung 17.01.2023. See also: Das Sondertribunal.

[8] Jan Diesteldorf, Paul-Anton Krüger: Ein Gericht, maßgeschneidert für Putin und seine Helfer. Süddeutsche Zeitung 19.01.2024.