Thank you very much, Monica. Let me start with a side remark that four years ago, the General Assembly adopted the decision designating the seventh of April, today, as an International Day on Reflection of Genocide in Rwanda. And it was suggested that the day of reflection, again today, offered an opportunity to consider the factors that had led to mass atrocity. And to renew the collective pledge of “Never again.” It is very symbolic. “Never again.” But it is going on right now. Harold just referenced to Bucha. So let us renew our pledge.
We again reflect today, on this reflection day, on strikingly similar issues. We reflect, actually, on how our previous reflections were not sufficient. And what else can be done to stop the atrocities.
I speak today, of course, not as a Ukrainian. Although, as Ambassador Markarova just said in her very powerful speech a couple of hours ago, we all feel like soldiers in the war. While there are soldiers who are in the army, there are diplomats who are at war. There are many of us, lawyers, judges, who feels ourselves as soldiers serving the very purpose of the rule of law. And of course, serving our country. But I also speak as an international judge and human rights lawyer. And today, as perhaps many of you, I really question my whole career. We devoted so much energy into international law, into human rights law. We were so proud of our achievements, which, unfortunately, turned out to be at least partially illusions. The UN Security Council failed to safeguard international peace and security as a Council of Europe to which Monica referred, whose mission was to protect human rights, rule of law, and consolidate democratic stability in Europe, unfortunately failed as well.
Yes, three weeks ago this major event happened. Russia ceased to be a member of the Council of Europe after twenty-six years. Its flag was solemnly removed from the building. It was actually a very powerful video if you watched it.
It is worth reminding that the governments that signed the European Convention of Human Rights, including Russia, have declared their commitment to fundamental freedoms that are a foundation of peace and justice in the world. Twenty-six years of this document in Russia did not bring peace or justice to Russian citizens.
Following the invasion of Ukraine on the twenty-fourth of February, the Committee of Ministers of the Council of Europe unsuccessfully asked the Russian Federation to cease all military activities. It was not done. The Committee decided that Russia had committed serious violations of its obligations under the statehood of the Council of Europe. And here it is important to mention that the statute for the Council of Europe distinguishes between voluntarily withdrawal of a state from the organization at the initiative of the member state, Article 7 of the statute, or cessation of the membership against the will of the member state. In the first scenario, a member state should notify the secretary general and then the withdrawal takes effect from the next financial year. In this scenario, it would be January 2023. Now Russia submitted its withdrawal request—of course, accusing others states for destruction of the Council of Europe. In the words of Russian Minister Lavrov, let them enjoy each other's company without Russia. But nevertheless, despite their wish to withdraw, the Committee of Ministers decided the size of the case in the context of the procedure under Article 8 of the statute.
So Russia ceased to be a member of the Council of Europe. Again, not following its will, but against its will from March 16, 2022, exactly three weeks ago. But Russia remains a party to the European Convention for the upcoming six months, until September 16, 2022. This means that the Russian Federation remains responsible for any acts or omissions capable of constituting a violation of the European Convention of Human Rights, provided that they occurred before or including September 16, 2022. And of course, it covers everything that is committed by the Russian Federation in Ukrainian territory and also in the Russian Federation.
I am sure you know about all terrible restrictions on the freedom of speech and freedom of assembly. So Russia is the first state in the history of the Council of Europe expelled from this club of democracies. The Council of Europe was created in 1948. Before that, the only instance of withdrawal from the Council of Europe was Greece in 1969 after the coup d’état. Again, it was voluntarily withdrawn via Article 8, but there is a huge difference.
The huge difference is not because Greece withdrew voluntarily and Russia was expelled. The difference lies in the fact that Greece withdrew immediately after the coup d’état, when the military junta came to power. In Russia, the regime has remained the same for the past twenty years. This means that the Council of Europe, unfortunately, is at least partly responsible for allowing this monster to grow. This is something we should seriously reflect upon.
Perhaps I could just follow up by asking you to reflect a little bit on this. Because I feel like I cannot let that go. As you reflect on it, as I am sure you have, how have you thought the Council of Europe might have differently responded to Russia over the past twenty-six years, so as to reduce the likelihood of this kind of occurrence.
The American legal philosopher Eric Posner famously said that the Council of Europe had presided over a term of authoritarianship to Russia. This is something very symbolic. This means that the Council of Europe perfectly observed what was going on and did not intervene.
The first time the question of Russian expulsion from the Council of Europe was raised in 2000, during the Second Chechen War. Then again in 2008, during the invasion to Georgia. Then 2014, with the annexation of Crimea. Each time, the issue was discussed but nothing happened. Also because many Russian human rights activists asked the Council of Europe to not deprive the Russian citizens from their last hope for justice. The last hope for justice is, of course, the European Court of Human Rights.
They assured that thousands of the decisions of this court had a very significant positive impact on Russian legislation and judicial practice. Each time, this reasoning somehow was upheld by the borders of the Council of Europe. But then, of course, in March 2022, the parliamentary assembly considered that the positive impact apparently was not so significant to consider Russia as a state truly committed to the European Convention on Human Rights.
Now, what we missed. During this twenty-six years, when Russia was under the jurisdiction of the European Court of Human Rights, of course we were happy with the ratio of implemented decisions. The majority of the decisions and judgments of the European Court of Human Rights were implemented by the Russian Federation. But speaking about not quantity, but quality, unfortunately, the judgments that were not fully implemented and enforced touched upon the very core values of the European Convention—peaceful assembly, freedom of speech, disproportionate use of force by the state in many Russian cases, also judgments concerning crimes against civilians during the war in Georgia in 2008, and mass violations of human rights in Crimea.
Yes, it is a pity that many other very important individual human rights issues will not be further reflected upon and will not be implemented by the Russian Federation. But the tragedy of the victims of human rights violations in Russia is not because they can no longer apply to the European Court, but because they have the authorities that they have.
The sad truth is that the Council of Europe treaties, including primarily the European Convention, also empowered individual NGOs. The treaties were instrumental for them to insist on human rights. And they support Russian civil society in their struggle for a decent life.
Thus, Russia not only will no longer be monitored by external bodies, such as the Committee of Ministers, but also the relevant local actors unfortunately will be deprived of those important tools. What should we do with states like this? What should we do with states with clear authoritarian tendencies? Yes, unfortunately we have some within the Council of Europe. Should we keep them in this club of democracies and allow them an à la carte approach to the organization's values, which would undermine, unfortunately, the authority of the organization and will not protect democracy?
Perhaps while this time it was the right decision, the only question is if it is too late. This is something that is not up to me. But it is for all others to reflect upon and to consider when there is a point of no return. What should we do with states that develop in a non-democratic way.
Monica Hakimi
Thank you. Harold, I think that nicely tees up the ball again to you. You mentioned the need for action by everyone who is committed to the international legal order and the basic rule of law. Maybe I could ask you to tell us a little bit more about the International Court of Justice (ICJ) Order on Provisional Measures, which you mentioned earlier. How do you think that Order has affected the landscape and empowered different actors to take action against Russia to try to hold Putin and others accountable for their actions in Ukraine?
Harold Hongju Koh
First of all, let me just say that in the Ukraine case, the team that worked on it is a brilliant and committed team of lawyers, many of whom are here. And it is just the first step. Let us understand what the strategy is. Five steps, which I outlined in my earlier comments.
Number one, illegality: declare Putin's actions and Russia's actions illegal in as many places as possible.
Two, isolation: when you have declared somebody's actions comprehensively illegal they become isolated. They lose leverage. They lose allies. Thus, among other things, make it embarrassing for the Chinese and others to openly back the kinds of videos that we saw yesterday of people being slaughtered in Bucha and being left in mass graves.
Third, diplomacy: the goal is to stop the killing and to use the isolation of Putin to drive him into diplomacy. When he starts to realize, “I am now Pinochet. I cannot leave my country. My assets cannot leave my country. My daughters cannot take assets out of the country. We cannot use our credit cards. We cannot move money under the SWIFT system. My oligarchs cannot move my money, because their yachts will be seized,” people will gradually start to ask, is this really the best way forward? Maybe it worked in Chechnya and maybe it worked in Georgia, but it is not working here. They have already started to throttle back. Now they are repositioning. The question is, do they come back and start to concentrate on the Donbas? Or are they encouraged, through judicial orders and other kinds of pressures, to enter into a Dayton-type of negotiation.
Then step four, accountability: do not take accountability off the table. Civil and criminal accountability must be preserved. Milošević and Karadžić would have loved to take accountability off the table. At Dayton, they did not do so. They could not do so. And therefore, Milošević died in The Hague and Karadžić is in prison in Scheveningen.
And throughout the fifth idea, information: a brilliant information battle is being fought in the internet, on social media, in which the truth is fighting against the fake news. And that information is gradually getting out. It is being put out by government officials working together. The U.S. government foresightedly declassifying information and getting it out there ahead of the curve.
With this five-part strategy in mind, there are three broader goals that we want to keep in mind. Goal number one: we support an “accountability process.” An accountability process that unfolds in whatever institution can deliver accountability quickly. For example, there are at least four institutions that could deliver accountability: Ukraine courts, through their prosecutor and war crimes directorate; neighboring courts, like Germany or Poland; the International Criminal Court, where Karim Khan has set up prosecutorial capacity and forty-one countries or so have referred it; and the possibility of a new tribunal that people are discussing.
Now, you might wonder why do we reinvent the wheel when we have three wheels that we are trying to get going? But instead of fighting over these institutions, let us get this accountability process moving. And more than that, let us start developing a private-public archive that can be the basis for accountability.
A question that should be asked right now to Senator Lindsey Graham and other Republican legislators who now suddenly see the value of the ICC: “If you favor accountability for Putin, why don't you right now authorize, with law, sending twenty Justice Department prosecutors with money and intelligence resources to start helping out at The Hague?” If that is impeded by the Hague American Service Members Protection Act or any other provision of existing law, then authorize it into law by a law passed with Senator Dick Durbin next week. Because if that is what you are interested in doing, then do it. All of us can push on that.
Goal number two: unfortunately, Nuremberg will not happen again in this format. What we seek is a “Fragmented Nuremberg.” The aggression piece of this is much more complicated, because in Nuremberg everybody was in the dock. But Vladimir Putin has 200,000 troops and nuclear weapons. It is going to be awhile before you are able to pursue him on these aggression charges in whatever forum might be created. That does not mean you take accountability off the table. But it does mean that you have to take the pieces of it that you can take in the order that you can take them.
The third goal is an “Accelerated Dayton.” We have the Minsk process. We have a process recently convened by Erdoğan, unfortunately not a great democrat. The real question now is if you take the ICJ provisional measures order to the Security Council or the General Assembly under the British presidency and start trying to get that order enforced and implemented. Yesterday, or this morning I think, the General Assembly voted by two-thirds to expel Russia from the Human Rights Council. However, there were fifty-eight abstentions; which shows that getting things through the General Assembly, even under the Uniting for Peace resolution, is not going to be easy. But the goal should be to get the parties to the table, so that there is a ceasefire and they stop killing people. Because with every week that passes, atrocities are occurring at a horrifying rate and a country is being destroyed.
Now, there are many assets in this process. The Ukrainian people are extraordinarily courageous. Their leader is a communications genius. As Sabeena said, there is unprecedented speedy cooperation. This is not World War II. We have this network of international law and institutions that did not exist seventy-five years ago. We have the internet. Let us put these pieces together now, pursue the five-part strategy, and try to achieve these three goals: an accountability process; a fragmented Nuremberg; and an accelerated Dayton. The question is not predicting who is going to succeed. We are not just spectators in this game, we are players. The question is, how do we all work together to make sure that international law succeeds; which is why at our ICJ argument, maybe the most important point made was “Putin's short game is force, our long game is law.” Let us play our long game and win it. Everybody here has to participate on this team attempting to vindicate international law.
Monica Hakimi
Sabeena, I will come back to you. I would be curious to hear, and I think the members of the audience would be curious to hear, how the U.S. government is navigating this space. How are you using the institutions available to us to pursue the five-part plan that Harold laid out: illegality, isolation, diplomacy, accountability, and information. To state the question differently: I understand that the U.S. government is employing all five of these mechanisms and I am curious to hear how you coordinate among them and make sure that they all are working together and advancing the strategic agenda.
Sabeena Rajpal
Thanks, Monica. On the illegality point, I would note—jumping off of what Harold said before—that even if states are not using military action in response to an illegal use of force, there are other ways to police this prohibition on the use of force. There are a variety of means that the international community is working together to hold Russia to account, such as financial sanctions, international isolation, condemnation, visa bans, and airspace closures. There has been a full whole of government effort. Whole of government and then full coordination with allies and partners to see how we can be creative and what tools we can bring to bear to the situation.
If you broaden how you view enforcement of an international law norm, you can see that Russia's violation here is really being responded to by a majority of the international community in a wide spectrum of ways. To Harold's point also, we are seeing an interesting moment where international law and morality are aligning and reinforcing each other. Because you see actors that might not have legal requirements, like private sector entities, who are pulling out of Russia even if they are in non-sanctioned sectors. Or the crews of oligarchs’ yachts walking off the job. I think you are seeing a lot in the sense of condemning the illegality and working together to isolate Russia.
Going back to what we were talking about, regarding the international law framework being so important here, I think it is that tool which has allowed a lot of diplomats to work together to really take actions that many countries would not have taken otherwise. The United States has a robust sanctions program, but a lot of other countries do not. A lot of them have enacted new laws to deal with this situation. That says a lot.
In terms of isolation, Harold's other point, I know there are concerns about certain countries voting in different ways, but I think the General Assembly resolution in March was actually quite strong in a sense of only having five no votes, including Russia. And then today there was the vote to kick Russia off the Human Rights Council. That has only happened once before in the Human Rights Council's history. I do think the institutions are coming together and that we are looking at all of the things Harold mentioned.
The illegality has been confirmed in many different places and by many different institutions. The isolation is happening. The Council of Europe is a good example and the UN. There are a lot of mechanisms where there is focus on isolating Russia.
With regard to diplomatic efforts, we are trying to support Ukraine as much as we can. Whether it is through security assistance or the international tools to give them the best leverage they can have when at the negotiating table.
And it is not just that crew members on Russian oligarchs’ ships walking off the job; the lawyers for Russia at the ICJ walked off and said, we are not going to defend this.
Monica Hakimi
Yanar, I will come back to you and ask you a question of my own. Then I will start incorporating questions that we are receiving from the audience. Yanar, when you spoke initially you spoke of the perception of the people who have themselves been subjected to this kind of devastation. I am wondering if you could speak about how you perceive the position of the leaders of your country on the international plane and in responding to Russia.
In addition, since you mentioned that not all Russian people should be conflated with Vladimir Putin himself, the man, how should we think about separating Putin from the parts of the Russian population that do not support him? Or is that something that international law and the institutions that are available for responding to this crisis are just ill-suited to do? Are we faced with the problem that either we treat all Russians together or we do not respond to the problem effectively much at all?
Yanar Mohammed
Thank you Monica. My place in this discussion is a little bit strange, because I come from the other side of the world. And I am surrounded with all kinds of groups who think differently than the Western hemisphere. I would like to respond to the points that you mentioned, but I would like to connect them with what was mentioned in the discussion. The idea of isolation is that the isolation is meant to be for the Russian government and the military machine, but hurts the people more than the government or the military. We in Iraq had suffered something similar and it was called economic sanctions, which were decided and implemented by the UN and requested by the United States and the UK. It was thought that the sanctions would make the military machine weaker, but in reality it starved the people and rendered them unable to revolt against their dictatorship rule. My family and all my friends, we suffered, and were starved under economic sanctions that were forced by the UN, which was meant to be a peacemaker. The idea was to make the dictator, Saddam Hussein, weaker, but it did not. It just made us too weak to revolt against him. When isolation is connected with economic sanctions, the people suffer. Not Vladimir Putin, not the military machine. I worry when I hear something along those lines.
The other point that I worry about, and which has not been mentioned in the discussion so far, is the aftermath of such a military attack. We in Iraq have lived the aftermath of the imperialist attack against our country. The very clear result of this attack was that the most extremist groups on the ground became stronger. They got armed with heavy military machinery and were supported to eventually rule the country. They force the society to their medieval ways, and women do not have a say about anything now in Iraq. When you ask about the Iraqi government's position, it is a mix of positions. On the one hand, Iraq works like that remote American state that is told what to do by the American administration. But on the other hand, there is the Islamic Republic of Iran that is ruling half of Iraq. It is so much in conjunction with the Russian position. They are sending militias to support the Russians in their war against Ukraine. The Iraqi government's position on this matter will not be a clear position. It will be a mix of positions, mixed messages, that will not boil down to any clear position.
I, as an activist, usually speak and feel the pain of the those on the receiving end of the impact of the military aggression who lost it all. Just like the Ukrainians, we had to let go of our well-being and destiny. We had to emigrate to other parts of the world to build ourselves a life from scratch. The irony here is that many Iraqis were on the boats going to Ukraine, trying to cross over to Europe when this war broke out. Those Iraqis are suffering like everybody else in Ukraine.
What can international law do within all of this? First, take care of those who are suffering due to crossing the border on foot and under the threat of gunpoint. Second, emphasize diplomacy, more than putting the pressure on the people and starving them by sanctions, hoping that it affects the military machine. The military machine is the last resort to be chosen against dictatorship. I would also add the question about legality, about the issue of who is legal, who is illegal, this is a difficult one. Iraq has been subject to two American wars that were launched thousands of miles away from the borders of America. The most reasonable debate is that they were illegal. Still, there was no result of that debate that we started, and we received nothing from it. There is a lot of disappointment in my talk, but also the fact of how we felt about the war on us and on Ukraine on the ground—their realities and the priorities that should be considered. Thank you.
Monica Hakimi
Thank you. Ganna, I will come back to you and ask a question that I think is implicit in some of what Yanar said, while following up on one of your earlier remarks. You mentioned that the Council of Europe mechanisms are available at least through September 20 of this year. How might those mechanisms be used creatively in the Court or the Council of Europe? How might they be used to protect the population in Ukraine, as well as to hold Russia accountable? And how might they be used, not just with respect to Russia but also in other Council of Europe states—for example, to deal with the migration crisis that is no doubt occurring in them?
Ganna Yudkivska
Thank you very much. Our court has long line of jurisprudence related to migration crisis. Our jurisprudence more or less covered at least the most important issues that might create a problem nowadays with a huge migration. I think this is the biggest migration in Europe we have observed since World War II. It is estimated that at least three million Ukrainians have fled Ukraine and are now settled in Europe.
Interestingly enough, no one calculates how many Russians are now escaping Russia because they felt suffocated and unable to breathe. I assume there are also many people who are unfortunately living in the Russian Federation feeling unable to be there.
Now, when it comes to Russian accountability, we will examine all the cases submitted to our court related to the alleged violations committed by the Russian government up through September 16, 2022, provided that people first exhaust available domestic remedies. What is available in the Russian Federation I leave you to imagine. After that, come to our court, which means we will receive the applications much longer than as of September 16, 2022.
We all expect that at some point—the sooner the better—a new Democratic Russia will rejoin the Council of Europe and will again ratify the European Convention of Human Rights. Then we will see if the judgment that the court would deliver in the meantime, against the previous government, would be enforced by a new, democratic Russian government. I think it is a question for further negotiations, not for today. But I really believe this day will come very soon.
Monica Hakimi
Thank you. Sabeena, the feed from the audience contains a number of questions about the International Criminal Court (ICC). Let me combine a few of them together to ask whether the U.S. government might in any way, through Congress or through the executive branch, alter its stance with respect to the ICC. And might it alter its stance not just for this case, but in a general way that suggests that it is shifting its mode of interaction with the ICC going forward?
Sabeena Rajpal
As you have probably heard, we welcome the ICC prosecutor's announcement to open an investigation, particularly his focus on preserving evidence, which is really where a lot of our focus is right now. As Harold said, there are a number of accountability mechanisms existing and a number being discussed. Again, this is a conflict where we are seeing so much cell phone video footage. I think there is a real imperative to try to coordinate and make sure evidence is being preserved. There are around ten countries that have already opened up investigations. Everything is on the table. I am not going to speculate about any future position on the ICC. But in general, we have welcomed the prosecutor's announcement. We are definitely undertaking wide-ranging efforts to collect document preserve evidence and to assist various accountability mechanisms.
Harold Hongju Koh
I have worked on the U.S. relationship with the ICC for a long time. You could think of that relationship as spanning a spectrum. On one end is full cooperation, U.S. ratification of the Rome Statute. Unfortunately, that is not happening any time soon. Justice Ketanji Brown Jackson just got fifty-three votes. That is fourteen shy of sixty-seven. There are other problems, as well. At the other extreme, a possible U.S. position was demonization and imposition of sanctions, which was the Trump policy, toward people who won awards at this meeting: prosecutors at the ICC. Obviously, that was an absurdly counterproductive policy. But in between these extremes, there are two other possible positions. One is total exclusion or obsessive focus on not a single US soldier ever appearing or ever hypothetically having the possibility to appear before the ICC, which has been a focus of some U.S. government agencies. Then there is a much more realistic position, which is that, on a case-by-case basis, the United States may well find that its national interests fully align with punishment of certain individuals at the International Criminal Court, which, by the way, is what Senator Lindsey Graham has been saying quite loudly and publicly.
I note that my friend Ambassador Beth Van Schaack is here and this was something that was discussed at her recent confirmation hearing. It is worth asking: who in the U.S. government wants to protect Joseph Kony from ICC prosecution? Who in the U.S. government thinks that Vladimir Putin should escape ICC jurisdiction for his war crimes, to which Ukraine has consented and forty-one countries have referred. I think the U.S. position can, even within the scope of existing legal constraints, move to this more moderate middle position, which certainly sets the stage for a better relationship between the ICC and the United States going forward. There is absolutely no reason for this country to remain in the “demonization camp.” That was a totally counterproductive policy. Frankly, there is no particular reason why the United States should keep worrying about the potential criminal liability of American soldiers before an international court in a country where we have such a robust system of military justice. One would hope that the doctrine of complementarity would come into play against any example of an American soldier committing war crimes, crimes against humanity, or genocide.
On March 3, 2020, which was seven days before the COVID-19 pandemic hit full force, I went to Kyiv to judge the Jessup Moot Court Competition. My hostess was a very brilliant young international law student named Tata Marharian, who escorted me around. It was a wonderful performance by Ukrainian international law students of the exact case that I had heard argued by American students a week before at a moot court in the States.
When the war broke out, I turned on CNN and there is Tata Marharian now wearing full military gear. She was on CNN. She is working in a military hospital. And she said to the camera, “I'm surrounded here by dead children. I studied international law. Where is the international law that I believed in?” I thought, it is the duty of those of us who do international law to give her a positive answer.
Ironically, the answer was actually at the moot court itself. It was the twenty-fifth anniversary of the Ukraine Jessup Moot Court Competition. All twenty-five years of past Ukrainian Jessup winners came back. At our gathering, I asked them, “What are you doing today?” Every single one of these young lawyers was litigating against Russia, arbitrating against Russia, bringing a case against Russia in this court or that. They said, “Today, we are the international law army of Ukraine.”
Recently, I saw a new Twitter feed from Tata Marharian and she said “Mr. Koh, thank you for speaking up for the international law army of Ukraine.” She said, “We will fight here on the ground for a while. But you fight for us there in the court. And we will rejoin the international law army in which we have confidence.” By the way, that is the exact same message we heard from the ambassador about an hour ago. I think that is a message we should all take away from this meeting.
Monica Hakimi
I could not agree more. I think on that note, we can end. I want to thank all of our panelists here for their reflections on this extraordinarily difficult topic. I think I speak for them and for others in the room when I say that we are, again, looking with horror as events in the world unfold but also with desire for international law to have a real impact in the world. And I take Harold's point that it is up to us to make that happen. With that, I will just say thank you to all of you for the work that you are doing. And thank you for being here today.
