10.6092/issn.2531-6133/14696
application/pdf
2531-6133
14696
1
en
Julian Fernandez
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Україна 2022
Text.Serial.Journal
https://bolognalawreview.unibo.it/
7
Obiter Dictum
2022-04-12
2022-04-03
2022-04-12
2022-05-11
1-6
UBLR
Julian Fernandez
2022/04/12
10.6092/issn.2531-6133/14696
1
Paris-Panthéon-Assas University 
2531-6133
1
en
6
Україна 2022
https://bolognalawreview.unibo.it/article/download/14696/14106
7
llVOLUME 7                             llISSUE 1                        OBITER DICTUM



                        UNIVERSITY OF BOLOGNA LAW REVIEW
                       https://doi.org/10.6092/issn.2531‐6133/14696



                                   Україна 2022

There are wars that have barely begun militarily when they already appear lost
politically. By deciding to viciously attack at the heart of Ukraine, Vladimir Putin has
conflated Russia’s historic geopolitical concerns with his grotesque hubris concerning
his place in Russian history. Nothing is definitively written, of course. Between black
swans, serendipity, tactical moves, and strategic redefinitions, the time of the final
judgment of “Operation Z” has not yet come. But winning “hearts and minds” in the
asymmetric and irregular phase that this conflict will inevitably experience will not be
easy. The United States of America [hereinafter U.S.A.] know this from their experience
in Afghanistan, the longest war in its history. And everyone remembers how it ended. In
the immediate future, the path of total warfare chosen by Russia in Ukraine weakens the
internal authority of the Russian President, compromises the country’s economy, wipes
out years of investment in soft power, brings friends such as Venezuela closer to
Washington, and may even unsettle the objective alliance with China.              It also
rehabilitates the Ukrainian President’s reputation, whose virtue had been questioned
and restores the backbone of yesterday’s world security alliances - like the North
Atlantic Treaty Organization [N.A.T.O.], which no one can say is brain-dead anymore, and
the list goes on.
        “Winter is coming!”. Indeed, Putin’s Russia has crystallized and mobilized the
just resolve of the West. A resolve that had been confused and confounded, especially in
the Trump years, but that has emerged invigorated and that contributes to the
formation, albeit imperfectly, of a “liberal minilateralism” in combat. Who a few weeks
ago still believed in a collective impetus likely to (re)launch the defence of Europe? Who
foresaw the European Union ever activating the temporary protection mechanism that it
had refused to grant to Syrian refugees?            Even multilateralism seems partly
reinvigorated. Who would have thought, for example, that the General Assembly would
once again play a leading role, as in the heyday of the Cold War, by reactivating the
“Acheson” resolution?      Who would have imagined that so many international
organizations, in fields as varied as sports, human rights, communications, and
economic aid, would emerge from their lethargy to adopt disruptive measures against
Putin’s regime?



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                                        YKРАІН


One is reminded of the famous warning from the Soviet diplomat Alexander Arbatov at
the time of the fall of the Berlin Wall: “We are going to give you the worst of services, we
are going to deprive you of an enemy!”. By renewing the Russian threat to Europe, the
master of the Kremlin now personifies an antagonist that dwarfs personal and parochial
national considerations and has left the free riders of collective security exposed.
        There is no need to call for the military involvement of any coalition. At this stage,
intervention is neither seriously conceivable nor desirable. The legitimacy of a major war
against Russia cannot be decided in the absolutes of any deontological approach. Parallels
with the first Gulf War, and its ideal of a “new world order”, do not really hold water.
The parties are not the same, nor are their interests. Any military intervention requires
putting one’s emotions at a distance, not allowing oneself to be carried away by passion,
and involves analyzing in concreto the necessities, the possibilities and the probable effects
of the intervention. In keeping with an Aronian vision, a consequentialist type of ethics
must be imposed, a morality of responsibility. Of course, it cannot exclude the use of force.
Indeed, some resolutely pacifist postures turn out to provoke rather than mitigate conflict.
But the circumstances of each case must rule and that includes an understanding of how
the issues are perceived from all sides. Ukraine has a profoundly different meaning for
Russia than it has for Europe or for the U.S.A. Nor can one ignore the double dealing of
some or the shadow cast of nuclear weapons. Which planes for a suicide operation to save
Kiev? Who to compensate for Washington’s leading from behind? Finally, the risk that
would be taken in terms of storytelling should not be overlooked, with Vladimir Putin
finding the expected pretext to break his current impasse and play the “rally around the
flag” narrative against what would be presented as a new Barbarossa operation. All in
all, the situation should still be considered as one of restraint and certain measures that
are too direct such as the establishment of a no-fly zone or the recruitment to Ukraine of
various militias should be ruled out.
        Does this mean that we should just let things happen? This could not be an
option regarding what is currently at stake. So how can we win the war without waging
war? There is in fact a whole range of possible measures between belligerence and
indifference. In other words, it is necessary to defeat Russia without giving it cause to go
to extremes. At the military level, it means exploiting the grey areas permitted by the
status of “qualified neutrality” in public international law; by facilitating the access of
the Ukrainian resistance to various weapons (portable air defence missile systems or
combat drones), by sharing all human and electronic intelligence with the regime’s
regular forces, by supporting cyber operations aimed at jamming the adversary’s
communications, etc. These measures are not easy to implement, and they are not


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2022]                     UNIVERSITY OF BOLOGNA LAW REVIEW                         [Vol. 7:1


without risk. Many old Cold War codes need to be redefined due to the significant
evolution, and sometimes even replacement of the instruments of arms control used
during that era. Similarly, the grammar of the Europe/Russia opposition needs to be
reinvented. At the political level, required action include material support to a Ukrainian
Government in exile, weakening the adversary’s ability to rely on public opinion support
as much as possible, and creative counter measures that include the right balance of
effectiveness, efficiency, and acceptability. No nation has ever been so marginalized
because of a war it has started. Who would have imagined this possible to Putin and his
entourage? Nikita Khrushchev was ousted following the Cuban crisis, and it is hard to see
Vladimir Putin resisting the political impact of this disastrous war until 2036 when his
term in office is supposed to be up. Hopefully, he will choose to save face, and possibly
his head, much before that, as diplomatic avenues will open.          In this respect, the
Franco-German alliance that has been re- invigorated by Moscow should not spare its
efforts, in seizing even the slightest opportunity. Peace must not be abandoned.
        Last but not least: accountability. One has to take international criminal justice
seriously – both for what it promises on the judicial level and for what it brings on the
political level. In the long run, this simply means that Vladimir Putin and Russia’s main
political and military leaders would be tried for their core international crimes
committed in Ukraine. Impossible today, but not tomorrow. The trials of Charles Taylor,
Slobodan Milosevic, Hissene Habré stand as precedents. Hora fugit stat jus. In fact, effects
of international criminal justice can be heard, even before trials are opened. The impact
of naming and shaming associated with an accusation of crimes of aggression, war
crimes, crimes against humanity, crimes of genocide is considerable. As such it serves as
an additional tool in strategic communication, that leads to further sanctions or
restrictions, blacklisting in international relations, and generally representing an
additional cost in the conduct of a criminal policy.          The long-term exercise of
international criminal justice will of course have to overcome a number of obstacles
linked to the collection of evidence (even if from this point of view, original mechanisms
have already been set up), the cooperation of Russia or Belarus, and the functional or
personal immunities recognized in international law.           But these entail different
perspectives, whether local, specific, or universal.
        At the local level, it is above all up to Ukraine to deal with the crimes committed
against it. At the beginning of 2019, a national court found former president Viktor
Yanukovych guilty due to his repression of the Maidan protests and his support for the
Russian intervention in Crimea and Donbass. He was tried in abstentia and sentenced to
thirteen years in prison for treason and crimes against peace. Though instructive, this is


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                                      YKРАІН


a limited case, and it remains to be seen whether the local authorities will have sufficient
means and support to initiate all the necessary proceedings that result from the current
war. A situation made more doubtful given the likely collapse of the regime. In the event
that the Ukrainian courts are unable or unwilling to deal with the facts at issue today,
other national courts could pursue criminals on the basis of universal jurisdiction. This
jurisdiction, when provided for in domestic law, authorizes the prosecution of a person
solely on the basis of the offence that he or she might have committed elsewhere.
Universal jurisdiction remains optional in cases of genocide, crimes against humanity, or
serious violations of international humanitarian law. But it is increasingly being used.
However, national systems vary in the preconditions for the exercise of this jurisdiction
by their criminal courts. Some states, such as Germany, have a relatively open regime for
the prosecution of persons accused of crimes under international law - and in particular
crimes that may fall within the jurisdiction of the International Criminal Court. This has
been seen recently in the trials of Syrian nationals. Other states, such as France, appear
to be more cautious and still integrate a number of safeguards (double criminality of the
acts in question, “habitual residence” on the territory, for example). Nevertheless, the
whole system may prove sufficiently threatening so that leaders who know they might
be prosecuted will considerably reduce their travel abroad. Germany, Spain, and Poland
have already announced that they are opening investigations and will be able to draw on
the mass of refugees in Europe to gather evidence.
        Secondly, there is nothing to prevent goodwill from creating a hybrid court for
Ukraine.    This term is traditionally used to describe any court created with the
agreement of the State primarily concerned and whose statutes combine international
and national elements in terms of the applicable procedure, the definition of the crimes
that fall within their jurisdiction, the composition of the prosecuting or judging bodies,
and the source of their funding. The ten models created so far (between 1999 and 2015)
have little in common. But some, such as the Special Court for Sierra Leone, the
Extraordinary African Chambers, or the Extraordinary Chambers in the Courts of
Cambodia, have led to the conviction of former senior officials, if not leaders. And the
last two hybrid courts that have been established, i.e., the Special Criminal Court in the
Central African Republic and the Kosovo Specialist Chambers, appear to be very active.
However, no new ad hoc tribunals have been set up in the last seven years, despite several
proposals to do so in Liberia, Sri Lanka, or Syria. Today, the Ukrainian authorities
themselves are calling for the establishment of such a court to prosecute the Russian
leadership for the crime of aggression. This is necessary because the International
Criminal Court has no jurisdiction there, since the Court can only deal with acts of


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2022]                      UNIVERSITY OF BOLOGNA LAW REVIEW                        [Vol. 7:1


aggression committed between States parties to the Statute that have ratified the
amendments relating to the crime of aggression (some forty States are in this situation,
but neither Ukraine nor Russia). Many colleagues, around Philippe Sands, also supported
this request. This could be an ad hoc tribunal established by an international treaty or a
specialized domestic court sponsored by an international organization. Such a creation
would undeniably send a strong message, but it would not be without practical obstacles
(dealing with an ongoing conflict, obtaining and preserving evidence, secure funding,
getting suspects, etc.). In addition, there is concern that creating an unprecedented
structure, aimed above all at condemning the aggression of Ukraine, would inevitably
re-launch accusations of “double standards”. No effort was ever seriously envisaged to
hold George W. Bush and Tony Blair accountable for the aggression in Iraq nearly twenty
years ago.   Yet their successors - the same ones who argued for the International
Criminal Court’s jurisdiction over the crime of aggression to be as restrictive as possible -
would now make an example of Vladimir Putin?
        Finally, at the universal level, neither Russia nor Ukraine are parties to the Rome
Statute establishing the International Criminal Court (1998, entered into force in 2002).
Nevertheless, as early as April 2014, a preliminary examination in the context of the
situation in Ukraine was made public. Based on a provision of the Statute which allows a
third State to consent to the exercise of jurisdiction by the Court in a situation that
concerns it, it has allowed the Office to study for six years the numerous
communications received on crimes committed in this situation. A first progress report
by the Office (2016), moreover, found “an ongoing state of occupation” in Crimea and
affirmed the existence of “an international armed conflict” in the context of hostilities in
Eastern Ukraine since 14 July 2014 at the latest, in parallel with the non-international
armed conflict. This was already a major setback for Moscow, which saw its involvement
confirmed, particularly in the Donbass, and its narrative and strategy of “hybrid”
warfare disavowed. The assertion that Russia controls the groups operating in Eastern
Ukraine is also likely to have implications for international human rights law, and thus
echo the procedures opened before the European Court of Human Rights. Russia’s
reaction was all the stronger. It joined the very closed circle of States (United States,
Israel, and Sudan) that chose to “unsign” the Rome Statute in order to mark their
opposition to the Prosecutor’s strategy. This reaction seemed to paralyze the Court for a
while. It was not until late 2020 that the Prosecutor finally announced the conclusion of
the preliminary examination of the situation in Ukraine and affirmed the existence of a
reasonable basis to believe that war crimes and crimes against humanity had been
committed. However, an investigation was not immediately opened.


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                                       YKРАІН


The Winter 2022 aggression eventually served as a catalyst. On February 28, the Court’s
new Prosecutor, Karim Khan of Britain, publicly asked the community of parties to the
Rome Statute to agree to a formal referral of the situation in Ukraine, which would allow
his Office to gain a few months without the need for authorization from the Pre-Trial
Chamber. Lithuania promptly responded to this offer, followed by forty other parties
(including the entire European Union). On March 2, the Prosecutor officially announced
the opening of an investigation into crimes committed in Ukraine since 21 November
2013 (the start of the pro-European protests in Kyiv). Various arrest warrants could then
quickly be issued and the parallel request for the first warrants against South Ossetian
officials in the situation in Georgia under investigation since 2016 sounds like a first
warning. It remains to be seen what resources the Court will actually be able to mobilize
to make progress on this situation, as the “serious financial constraints” affecting this
international organization does not allow it to open new cases without this being to the
detriment of others.
        What about criminal responsibility for Vladimir Putin and his highest military
commanders within his first circle (including but not limited to Sergei Lavrov, the
eternal Minister of Foreign Affairs, Sergei Sheygou, Minister of Defence, Valery
Geryasimov, Chief of Staff) for the crimes committed today in Ukraine? The information
currently available allows us to envisage the existence of facts constituting war crimes or
even crimes against humanity, as a result of attacks intentionally directed against
civilians who are not participating in the hostilities or due to the use of weapons and
methods of warfare causing unnecessary harm and striking indiscriminately. But, and
this is also the advantage of the latter perspective in terms of the perception of justice at
work, International Criminal Court’s jurisdiction is not one-sided but in rem. All those
who order or commit crimes under international law are liable to be targeted, regardless
of their nationality or which side they are on. Every prisoner has a right to respect and
not to be used as a strategic tool. And the use of human shields is expressly prohibited in
international armed conflicts. This is not a question of equivalence at all costs. But,
without balance, the sword of Justice would never get the authority needed to acquire
the deterrence force that international criminal justice still lacks. It is to be hoped, that
this other revolution will also emerge from the chaos in Ukraine.
                                                                              Julian Fernandez
                                                          Professor in Public International Law
                                                       Paris-Panthéon-Assas University, France




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