”Why recognize military aggression as a crime at all, if it cannot be punished”. Lawyer Jennifer Trahan — on how to overcome Russiaʼs veto in the UN Security Council and put Putin on trial

Oksana Kovalenko
Dmytro Rayevskyi
”Why recognize military aggression as a crime at all, if it cannot be punished”. Lawyer Jennifer Trahan — on how to overcome Russiaʼs veto in the UN Security Council and put Putin on trial

Kateryna Bandus / «Бабель»

Jennifer Trahan is an American lawyer and researcher in the field of international law. The main topic of her research is crimes of aggression and international tribunals. She has written several papers on the handling of war crimes, crimes against humanity and genocide at the International Tribunals for Yugoslavia and Rwanda. Trahan also professionally deals with the issue of the right of veto in the UN Security Council, when countries actually block the possibility of ending the war, preventing genocide, and other important decisions. Her book “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” was named the 2020 Book of the Year by the American branch of the International Law Association. Babelʼs correspondent and lawyer Oksana Kovalenko spoke with Jennifer Trahan about how and for what exactly Russia can be punished and how to fight the veto right in the UN Security Council, which Russia uses to block all decisions that could bring it to responsibility.

International organizations are powerless when a permanent member of the UN Security Council flexes its muscle. Russia vetoes all possible decisions and would block the creation of an International Aggression Tribunal. Is there any way to reform the UN Security Council?

I think there are two ways to address this.

The UN Charter states that if a member of the UN Security Council is a party to a dispute, it must abstain from voting on matters related to that dispute when the Security council is voting under Chapter VI, according to the Charter. And in matters related to the peaceful resolution of disputes according to the Statute. I wonder why the Security Council does not use this provision. Because then Russia should not vote on issues related to Ukraine. This could be one way to try to break the impasse.

Another way is to start questioning how the veto power (negative vote by a Security Council permanent member) is being used. For example, why can Russia use one provision of the UN Charter to nullify all its other obligations under this Charter as well as other obligations under international law?

It is the UN Security Council that must recognize the fact of aggression, yet Russia blocked this decision, so the resolution was passed through the UN General Assembly.

Yes. The UN Security Council is responsible for peace and security, and maintaining them is its main job. And, the Security Council often cannot perform its main task. Someone will say that nothing can be done about it, but the solution to this issue must be approached creatively. We canʼt just keep saying that Russia is blocking the issue of Ukraine, and the U.S. has veto power and is blocking the ceasefire in Gaza, and do nothing.

This is what representatives of the United Arab Emirates spoke about at the International Court of Justice recently. The UAE suggests, as do I, that the way the veto is used needs to be challenged through a legal ruling.

But even if Russia abstains from voting, there remains China, which can still block decisions related to Ukraine.

This is a problem because we donʼt know if China would veto a tribunal on the crime of aggression, for example. Although, to be honest, I donʼt think that the United States, Great Britain and France really want an international tribunal. And thatʼs the real problem. If they really wanted to, they could go to the Security Council, force Russia to refrain from voting on a Chapter VI resolution and convince China. But it all boils down to the fact that it appears that the G7 countries do not want to overcome the immunity of a head of state related to the crime of aggression—as would be done if an international tribunal were created.

Because they have their own history and their own operations in different countries.

Yes, because they are afraid that in the future their leaders could also have questions asked about their military interventions.

Talks about reforming the UN Security Council are ongoing. Is there really such a chance? Can Russia block such a reform?

All the permanent members of the Security Council must agree on changes to the UN Charter. So I think weʼve been wasting our time for 30 years talking about India and Africa joining the UN Security Council. And the veto also is not going away.

Ambassador and Permanent Representative of the United States to the United Nations Linda Thomas-Greenfield speaks at a Security Council meeting on the situation in Gaza before voting on a ceasefire resolution proposed by Algeria. The United States vetoed the resolution, 13 members of the Security Council voted in favor, the United Kingdom abstained, New York, UN headquarters.

Getty Images / «Babel'»

I have two ideas – not for formal changes to the UN Charter – but for how we interpret the Charter. The first is that under Chapter VI a party to the dispute must abstain from voting. States need to start applying this language. The second is that states need to apply to the International Court of Justice in The Hague and get a ruling from it on how the veto is being used.

And who should apply?

The General Assembly could seek an advisory opinion. Because in certain circumstances, using the veto can be seen as aiding and abetting crimes. One must ask: Does international law allow the use of the veto when it comes to blocking a plan that would prevent or stop the commission of genocide, war crimes, or crimes against humanity?

Now there is a court decision that recognized “that at least some of the rights asserted by South Africa under the Genocide Convention are plausible.” We may then well-question the US veto of the ceasefire.

It inspires me that the UAE raised the arguments in open court at the International Court of Justice. So I think it is that court in The Hague that needs to consider these issues.

Should the General Assembly vote for this decision? How many countries should support this idea?

There are two options if the General Assembly wants to seek an advisory opinion — either a majority of those present or two-thirds of the entire General Assembly if an “important question” is at issue.

And, of course, the General Assembly could also recommend the establishment of a tribunal on aggression, with the tribunal established by agreement between the UN and Ukraine. And, you know, if the G7 helped, we could get such a tribunal through the General Assembly. But the "Big Seven" does not help us. Thus, the votes in the General Assembly may not be there.

Letʼs go back to the international tribunal to investigate Russian aggression. The United States and Britain do not want to create an international tribunal, they prefer a hybrid one, which will not overcome the "immunity of the troika" and violates the Constitution of Ukraine. We insist on the international one. What other options are there?

I wouldnʼt even call that option a hybrid. It is rather a Ukrainian chamber that will have international elements. Because, in fact, some hybrid tribunals had the authority and could overcome immunity, like the Special Court in Sierra Leone. But the G7 states do not want such a tribunal.

To break the impasse between those states seeking an international tribunal and those seeking to use a Ukrainian chamber, we need a third way, which is probably a regional tribunal. If the tribunal is created by purely European countries, it is unlikely that immunity will be overcome. But if countries from other regions join, it is more realistic. If we recall the Nuremberg Tribunal, it was not only the Soviet Union, Great Britain, France and the United States that created it. In fact, 19 more countries joined them in endorsing it, which made it more international. The Council of Europe could coordinate the formation of such a tribunal.

A local journalist reads a newspaper at the entrance to the Special Tribunal for Sierra Leone in Freetown, where former Liberian President Charles Taylor is on trial, Sierra Leone, April 3, 2006.

Getty Images / «Babel'»

And it is important to use the definition of aggression which is spelled out in the Rome Statute. This definition took about 20 years to get finalized, and is agreed on at the international level by all of the States Parties to the International Criminal Court, so this is the accepted international definition.

Does the regional tribunal need support from the UN?

I donʼt think itʼs necessary. But it will not be superfluous.

The Rome Statute of the International Criminal Court defines aggression as any of the following acts:

  • invasion or attack by the armed forces of a state on the territory of another state, any military occupation, regardless of duration, or any annexation with the use of force on the territory of another state or part thereof;

  • bombing the territory of another state or using any weapon by a state against the territory of another state;

  • blockade of ports or coasts of a state by the armed forces of another state;

  • an attack by the armed forces of a state on the land, sea or air forces or sea and air fleets of another state;

  • the use of the armed forces of one state, which are in the territory of another state under an agreement with the host state, to violate the conditions stipulated in the agreement, or any continuation of their stay in such territory after the termination of the agreement;

  • the act of a state that allows the use of its territory, which it placed at the disposal of another state, to commit an act of aggression by this other state against a third state;

  • when a state sends armed gangs, irregular forces or mercenaries to use force against another state.

How many countries should create a tribunal that can overcome Putinʼs immunity?

The more countries, the more legitimate it will look. It will be a test for the whole world. Because Russiaʼs invasion of Ukraine is a flagrant violation of the UN Charter, the basis of state stability. If a state can indeed invade its neighbor in such a brazen way without any criminal consequences, every country and its borders are less secure.

I donʼt know why aggression should be recognized as a crime at all if it cannot be punished. More than 30 countries are currently working on the creation of the tribunal. Itʼs good that they continue to negotiate and look for a way.

With a tribunal for the crime of aggression that Ukraine is currently fighting for, we can also hope to deter countries from future acts of aggression. This includes China which harbors aspirations related to Taiwan or expanding in the South China Sea. The stakes really are this significant.

Putin is hard to arrest. Therefore, Ukraine is talking about the possibility of trying him in absentia. How realistic is it?

I know that trials in absentia are legal in Ukraine. But most international lawyers believe that defendantless courts have dubious legitimacy. The only internationalized tribunal to conduct trials in absentia was the Lebanon Tribunal. This is not our legal tradition. In negotiations in the group working on the creation of the tribunal, all states except Ukraine agree that the tribunal should not conduct trials in absentia.

There may be a certain middle ground, similar to the practice of the International Criminal Court’s "confirmation of charges". So now the ICC is preparing to hear evidence in the case of Joseph Kony, because he has not yet been found, but the investigation already has significant evidence. They cannot try him, but they can present evidence, and thus preserve it, because it will be recorded in the record during the hearings. This is not a trial in absentia, but a kind of intermediate step.

At the International Criminal Tribunal for the former Yugoslavia, the first witness against Karadzic and Mladic testified that the Srebrenica massacre took place several years before Karadzic and Mladic were arrested. Thus, his testimony was preserved.

Therefore, there are ways to form a tribunal. Having an indictment against Putin and/or others would already be powerful.

Ugandan soldiers of the Uganda Peopleʼs Defense Force (UPDF) patrol the jungle during an operation to hunt down notorious Lordʼs Resistance Army (LRA) leader Joseph Kony.

Getty Images / «Babel'»

If the tribunal is created by European countries, will only they be obliged to detain the suspects, and in particular Putin?

Yes, only they (and any other country that joins in endorsing it). Only the UN Security Council can oblige all countries to facilitate the arrest. The General Assembly could recommend that all countries conduct arrests, but this is only a recommendation.

Justice sometimes takes a long time, so it is possible that he will not be detained until he leaves power. It was somewhat similar with Charles Taylor – he lost power and then he was arrested. Slobodan Milosevic was losing power. When leaders lose power, they become vulnerable. And then we wonʼt have to worry about the issue of immunity, because it will no longer apply. There is already an arrest warrant for Putin from the ICC; thus, there already are 124 countries that are obliged to arrest him. This already creates significant travel limitations.

But Putin could remain in office.

Yes, but the issuance of charges would be a hugely important step.

In order to get rid of the consequences of the war, there is transitional justice — compensation for damages, establishing the truth, seeking dialogue, and punishing those responsible. But the war in Ukraine is still ongoing. Which of these tools can we use right now, and which should wait until the end of the war?

I believe that it is already necessary to do what is possible. I worked on Afghanistan 20 years ago, and we said that transitional justice should be launched, and the United Nations’ Special Representative said that the conflict should be resolved first. As a result, the conflict in Afghanistan was not resolved, and transitional justice was not launched.

The tribunal for the crime of aggression is just the tip of the iceberg, as are the cases before the International Criminal Court. The bulk of the cases will fall on the Ukrainian judicial system, and this is a huge effort and will need significant funding and assistance. Witness protection and psychosocial therapy for victims are also important components of justice and transitional justice. Eventually, memorialization will be important too.

A register of losses has already been launched. Yes, there is no money in it yet, but many countries have frozen Russian assets. Now the question is how to allow Ukraine to use them.

And it is important to understand one more thing – justice cannot be one-sided. If the Ukrainian military commits war crimes during hostilities, they must also be held accountable for this. It may not be popular to say this to Ukrainians, but justice involves responsibility for crimes, no matter who commits them.

Not all people who collaborated with the Russians in the occupied territories are criminals legally, but they still have the stigma of traitors. Does this situation require dialogue or conciliation commissions?

I think we need dialogue here. Perhaps Ukraine will decide that it does not want to see such people in parliament or the police. For example, in Bosnia, checks were carried out to ensure that war criminals did not remain as judges and prosecutors. And in Germany, after unification, there was lustration so that those who collaborated with the Soviet spy network would not get into positions of power. Therefore, there could be lustration and background checks of candidates for certain positions.

Dialogue in communities, as a rule, is not easy — it is difficult for them to talk about what happened. If the state does not want to create truth commissions, the community can gather on its own. It is important that such a dialogue is conducted by experienced facilitators.

When is it appropriate to start such a dialogue? Iʼm not sure I have the answer. Sometimes it takes time to get things right. I think it is important to consider how close the community is to the front: the closer, the more likely it is that there are more pressing problems.

This publication was made possible by the support of the American people, provided through the United States Agency for International Development (USAID) within the Human Rights in Action Program, implemented by the Ukrainian Helsinki Human Rights Union.

The views and interpretations presented in this publication do not necessarily reflect the views of USAID, the US Government, or the UHSPR. The authors and editors of the Babel website are solely responsible for the content of the publication.

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Oksana Kovalenko
Dmytro Rayevskyi
International Tribunal
Human Rights in Action

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