Csongor István Nagy*
Editor’s Note: This piece is part of a special collaboration with the Harvard International Law Students Association on international arbitration.
In February 2022, Russia launched a full-scale war against Ukraine. The overwhelming majority of the international community condemned this as a gross violation of international law. Although the U.N. Security Council did not adopt sanctions, several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond asset freezes and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international legal concerns. While states have, with good reason, been reluctant to react to one wrongful act with another, this question has given rise to intensive debate. Recently, the EU set up a working group to inquire if and how Russian assets could be used to reconstruct Ukraine.
In this paper, I argue that instead of frontal approaches involving direct seizure, “maneuver lawfare” and international investment law provide a solution. Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. International investment law, notably the Russia-Ukraine BIT (“RUBIT”), “commercializes” acta jure imperii. It converts public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that a substantial part of Ukrainian war damages can be submitted to arbitration and that their incorporation into an arbitral award offers a solid legal basis for enforcement against Russian assets. Although the proposed approach promises no one-click solution and has not yet undergone baptism by fire, it is legally capable of producing substantial practical results.
II. Confiscating Foreign State Assets Under International Law
The wholesale freezing and confiscation of foreign state assets is generally prohibited under customary international law (Art 9 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live). There are, however, exceptions, most notably countermeasures. These are illegal acts whose wrongfulness is precluded by the fact that they react to a pre-existing wrongful act (see e.g. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ¶¶ 82-87; Air Services Agreement Case (France v. United States), ¶ 83), provided they are reversible and aim to compel compliance with international law (Article 22, 49(1) and 49(3) of the 2001 Draft UN Treaty on the Responsibility of States for Internationally Wrongful Acts (“TRSIWA”). Although generally countermeasures can be imposed only by injured countries, this limitation does not apply to the violation of erga omnes obligations. “Any State (. . .) is entitled to invoke the responsibility of another State (…) if (…) the obligation breached is owed to the international community as a whole” (Article 48(1) of TRSIWA). Russian aggression in Ukraine clearly violates the erga omnes prohibition on use-of-force in international relations (Article 2(4) of the U.N. Charter) and, hence, authorizes countermeasures. However, countermeasures are expected to preserve assets so they can be returned once their legal basis ceases (the perpetrator terminates the wrongful act and provides reparations (Article 48(3) of TRSIWA) or the countermeasure is revoked. This requirement implies that countermeasures may not go beyond asset-freezing and that the assets of the foreign state cannot be confiscated via countermeasures (Bederman, p. 824; Elegab, p. 196; Zoller, p. 15).
The confiscation of frozen Russian assets may also be described as a garnishment assisting the enforcement of Ukrainian international law-based claims to compensation. Undoubtedly, Russia is “under an obligation to make full reparation for the injury caused by the internationally wrongful act” (Article 31 of TRSIWA). Simultaneously, notwithstanding this substantive obligation, Russia has sovereign immunity in these matters. “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State” (Article 5 of 2004 UN Convention on Jurisdictional Immunities of States and Their Property (“CJISP”)). Although exceptions apply, the war is an actum jure imperii and all war-related claims may come under the general rule of sovereign immunity (Jurisdictional Immunities of the State (Germany v. Italy), ¶¶ 60, 77, 92-97, 134-35, 140-42).
While the confiscation of frozen Russian assets, both as countermeasure and garnishment, raises serious international law concerns, commercial matters (Article 10 of CJISP), as well as state consent (Article 7(1) of CJISP), are exceptions to sovereign immunity. This applies a fortiori to arbitration, which is, by definition, less intrusive in state sovereignty than proceedings by the courts of another sovereign. Section II demonstrates how investor-state arbitration embedded in BITs enables the use of this exception to claim compensation for war damages.
III. Investment Awards Create a Legal Title for Enforcement Against Frozen Russian Assets
International investment law, and specifically the RUBIT, converts claims emerging from acta jure imperii into private law, providing a basis of arbitral proceedings that rest on the consent of Russia. This makes the resulting arbitral award immune from sovereign immunity.
Investment arbitration is the only mechanism that authorizes compensatory claims by individuals for breaches of public international law. While claims emerging from acta jure imperii are suppressed by sovereign immunity, investment arbitral awards are not. BITs have a dual nature and, by blending public international law with private law, they vest claims emerging from public law violations with a commercial law character. They convert public law disputes into private law controversies with a quasi-commercial character, where states lack immunity.
This commercial character manifests itself in both scholarship and practice (Moses, pp. 243-45; Sweet & Grisel, pp. 72-73). Some even argue that investment arbitration is “international commercial arbitration.” (Gaillard & Savage, pp. 42-43). This thinking is also reflected in a wealth of case law that applies the New York Convention’s rules on recognition and enforcement to investment awards (Van Harten, p. 378). U.S. courts take a similar approach (Argentina v. BG Group, pp. 117-19; Chevron v. Ecuador, pp. 207-08; Gold Reserve v. Venezuela; Crystallex v. Venezuela).
International law limitations apply to “non-commercial” assets, such as military or central bank holdings, which are immune from enforcement even if the award or judgement was rendered in a commercial matter (Article 21 of CJISP). Nonetheless, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can, however, be used to satisfy enforcement creditors.
IV. Do War Damages Fall Under RUBIT’s Scope?
The case law on BITs’ application to illegally occupied territories is scant. It is limited to a few cases concerning Crimea, where arbitral tribunals held that effective control is sufficient for the RUBIT to apply ratione loci (Ukrnafta; Stabil; Everest; Belbek; Privatbank and Finilon; Naftogaz; Oschadbank; Lugzor). The issue has attracted more attention and produced some scholarship on BITs’ application in times of war (Zrilic; Schatz; Fach Gómez; Ryk-Lakhman; Ackermann & Wuschka; Ackermann; Schreuer) and civil disorder (Greenman), but this has predominantly focused on interpretation of substantive provisions, such as rules on expropriation and treatment. Interpretive questions concerning BITs’ scope and their application to illegally occupied territories have remained largely unsettled.
BITs apply to investments by citizens of one Contracting Party situated on the territory of another. They provide for protection against direct and indirect expropriation without compensation and set out various treatment standards for foreign investors. Translating this to the current question, the RUBIT applies to investments of Ukrainian nationals and legal entities within Russian territory. Article 12 of the RUBIT provides for its application to “investments carried out (…) as of January 1, 1992.” Accordingly, the RUBIT may apply to war damages caused by Russia in Ukraine, if the damages are done to an investment by a Ukrainian national made after January 1, 1992, within territory that could be considered Russian under the RUBIT.
Although the application of a BIT to seek compensation for war damages is uncharted territory, the real question of first impression is clearly the construction of territorial scope under the RUBIT and whether the territories of Ukraine illegally occupied or claimed by Russia can be regarded as Russian for purposes of the RUBIT. The other elements of scope have relatively settled meaning in international arbitral and state practice (Brown) and interpretation of these elements in the context of war damages raises no unprecedented issues.
Article 1(4) of the RUBIT defines the treaty’s territorial scope as “the territory of the Russian Federation or the territory of the Ukraine and also their respective exclusive economic zone and the continental shelf as defined in conformity with the international law.” Areas that legally belong to and are effectively controlled by a state are unquestionably that state’s territory. Nonetheless, what if the area legally belongs to but is not effectively controlled by a state or is effectively controlled by but does not legally belong to the state? Does it matter if a state frivolously claims the area it controls? What if a state makes continuous efforts to occupy an area it frivolously claims but momentarily does not control?
The possible scenarios can be presented in a three-dimensional coordinate system, whose axes are “legal title,” “effective control” (occupation) and “unilateral claim.” An additional question is if an area can, under the RUBIT, simultaneously belong to both Russia and Ukraine. Can Crimea qualify as Ukrainian territory via legal title and as the territory of Russia via effective control?
Based on the above factors, the following matrix emerges:
- Ukrainian territory controlled by Ukraine and neither claimed, nor controlled, by Russia;
- Ukrainian territory controlled by Ukraine and claimed by Russia (unoccupied parts of the Luhansk, Donetsk, Kherson, and Zaporizhzhia oblasts);
- Line of contact on Ukrainian territory claimed by Russia (the line of contact in the above four oblasts);
- Line of contact on Ukrainian territory not claimed by Russia (the line of contact during the offensive towards Kyiv);
- Ukrainian territory controlled but not claimed by Russia (e.g. the areas captured during the offensive towards Kyiv);
- Ukrainian territory controlled and claimed by Russia (e.g. Crimea, occupied parts of the aforementioned oblasts).
The starting point of the interpretation of the term “territory” is that this is strictly a question of treaty interpretation and not one of state territory and international recognition. This is how the arbitral practice approaches the applicability of the RUBIT. Put differently, it is a contractual dispute, not a title dispute. The relevant question is how to interpret the term “territory” in the application of the RUBIT and not whether a given region legally forms part of a country or not (although the two issues certainly overlap, and one may argue that they should coincide). This implies that the RUBIT’s provisions on territorial scope must be construed in accordance with the 1969 Vienna Convention on the Law of Treaties (“VCLT”), customary international law, and arbitral and state practice.
Arbitral and state practice confirms that effective control constitutes territory in the application of BITs. Russia has been the defendant of several arbitral proceedings under the RUBIT. In these cases, listed above, the tribunals consistently concluded that, due to Russia’s effective control, its territory includes Crimea, notwithstanding its occupation’s illegality. These tribunals held that the term “territory” must be interpreted broadly and that de facto territory is the term’s “ordinary” meaning, detaching it from questions of legal title.
The most difficult territorial question is the status of illegally claimed but uncontrolled areas. On September 30, 2022, Russia annexed four Ukrainian provinces (Luhansk, Donetsk, Kherson, and Zaporizhzhia), without controlling substantial parts of each.
Arbitral practice concerning Crimea suggests that the territorial scope of BITs is not a question of control but of international obligations. Effective control is, however, not the only case where a state assumes international obligations over a territory. Although arbitral tribunals have applied the RUBIT based on Russia’s effective control over the area, their reasoning suggests that Russia’s unilateral and unlawful annexation played an important role in this assessment and that its unilateral illegal claim was a crucial consideration in addition to occupation. In Stabil v. Russia, the tribunal noted (¶ 190) that “Russia [had] assumed obligations over Ukrainian investment in Crimea.” It found (¶ 175) that the RUBIT “became opposable to Russia (. . .) upon Russia’s incorporation of Crimea in its territory no later than 21 March 2014 when Russia ratified the Incorporation Treaty and passed the Crimean Integration Law which formally incorporated Crimea as a subject of the Russian Federation.” In Belbek, the tribunal held (¶ 175) that “the term ‘territory’ (…) has a wider meaning capable of encompassing territory for which a State has assumed the responsibility for international relations.” These statements suggest that a state’s unilateral position regarding its own territory may have an important role in assessing this question.
The question of “territory” may also be grasped using the interlinked concepts of good faith, acquiescence and estoppel. The 1969 VCLT does not rule out the use of the principles of interpretation based on customary international law (Linderfalk; Fitzmaurice & Merkouris; Lo; Dörr & Schmalenbach).
By pronouncing the incorporation of the occupied oblasts, irrespective of whether it has gained effective control over their entire territory or not, Russia assumed legal responsibilities related to these territories. This implies that it claimed the right to represent these areas internationally, made their inhabitants Russian citizens, and made Russian law applicable. The question is whether Russia also assumed duties under the RUBIT in relation to these areas and whether Russia can contradict itself and argue that the areas which it declared to be Russian are, in fact, not its territory? Some argue, in the context of Crimea, that, due to the principle of estoppel, the unilateral annexation prevents Russia from raising the objection that the annexed area is not part of its territory.
Good faith is an elusive legal principle. It serves as the root of both estoppel (Crawford, p. 420) and acquiescence (Reinhold, p. 53-56). In international investment law, estoppel can be understood as responding to inconsistent behaviour (Grenada Private Power, ¶ 208; Karkey Karadeniz v. Pakistan, ¶ 628; Border Timbers v. Zimbabwe, ¶ 411) and can have a narrower and a broader meaning (MacGibbon; Tran Thang Long; Kulick). Under the narrow definition, the principle of estoppel becomes relevant if the other party relied on a representation to its detriment (Amco v. Indonesia, ¶¶ 42-49). According to the broad definition, it suffices if the state acts contrary to its own facts. Although the former is the prevailing position (Besserglik, ¶¶ 423-424; Bolivia v. Chile (Access to the Pacific Ocean), ¶ 158; Bay of Bengal, ¶ 124; Province of East Kalimantan v. Kaltim Prima Coal, ¶¶ 211-12; Duke Energy, ¶ 231; Gruslin v. Malaysia (II), ¶ 20.2; Pope & Talbot v. Canada, ¶ 111), the broader approach also appears in arbitral practice (Rumeli v. Kazakhstan, ¶ 335; Dissenting Opinion of Mr. Bernardo M. Cremades in Fraport v. Philippines (I), ¶ 28), turning into another recognized principle of international law: tacit acceptance. According to the 2006 U.N. Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, “[d]eclarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith.” It would be reasonable to view the unilateral annexation of Ukrainian territory as implying the assumption of international legal obligations related to sovereignty over these areas, including the protection of BITs. Consequently, whether this implied assumption estops Russia from reneging on international obligations it assumed or if this amounts to acquiescence to these international obligations is a question of semantics.
Arbitral tribunals have also noted that it would violate good faith if Russia could evade the RUBIT notwithstanding its annexation. In Stabil, the tribunal noted, while discussing the principle of good faith, that “Russia cannot at the same time claim that Crimea forms part of its territory and deny the application of a Treaty that it has concluded to protect investments made on its territory, without incurring an inconsistency contrary to good faith and (. . .) consistency” (¶ 170). “Russia (…) has clearly manifested its will to consider Crimea as part of its territory, whilst taking no action to terminate or suspend the Treaty” (¶ 172). “[A] good faith interpretation of the Treaty mandates that Russia’s declaration that Crimea is part of its territory cannot remain without legal consequence to Russia’s Treaty obligations vis-à-vis Ukrainian investors in Crimea” (¶ 174).
The tribunal reached a similar conclusion in Belbek. It found (¶ 265) that “a conclusion that the Treaty no longer applies to conduct occurring in the Crimean Peninsula would . . . relieve the Contracting Parties of their obligation to perform the Treaty in good faith, contrary to the cardinal principle of pacta sunt servanda. It would be to create a legal void . . . that was never contemplated and should not be countenanced.”
V. Mass Claims and Investment Arbitration
Investment arbitration is thought of as being individualistic. Indeed, most investment disputes emerge from individual investor claims. Nonetheless, mass claims are absolutely not unprecedented. They were first recognized in three Argentine bondholder cases (Abaclat v Argentina; Ambiente Ufficio v. Argentina; Alemanni v. Argentina) and subsequently confirmed in Adamakopoulos v. Cyprus. In Abaclat, 180,000 Italian bondholders sued Argentina before the ICSID (the number was later reduced to 60,000). In Ambiente Ufficio, proceedings were launched by 119 claimants. In Alemanni, the claimants were 183 Italian individuals and legal entities. In Adamakopoulos, 956 Greek and Luxembourgish claimants, holders of certain financial instruments and bank deposits, sued Cyprus for financial restructuring measures adopted after the 2009 financial crisis.
These cases confirmed that the collective nature of mass claims is not a hurdle to arbitral proceedings. Although the ICSID Convention and Arbitration Rules are silent on this issue, there is nothing preventing arbitral tribunals from accommodating the special needs of mass actions with applicable rules of procedure, especially because Article 44 of the ICSID Convention authorizes tribunals to decide unsettled procedural questions (Ambiente, ¶ 146). Arbitral practice highlights two important propositions. First, if a tribunal has jurisdiction over individual claims, it may also have jurisdiction over their aggregation. There is no requirement of specific consent: states are not required to specifically consent to jurisdiction over mass claims, as long as they consented to jurisdiction over individual claims (Abaclat, ¶ 490; Ambiente, ¶ 146; Alemanni, ¶¶ 284, 286-87; Adamakopoulos, ¶¶ 269-270). Second, there needs to be a substantial link between the aggregated claims (Abaclat, ¶¶ 540-41; Alemanni, ¶¶ 287-88, 292; Adamakopoulos, ¶¶ 210-21). Third, although mass claims may raise issues of manageability, and unmanageable aggregations may be inadmissible, tribunals usually find mass claims manageable (Adamakopoulos, ¶¶ 224, 259).
For the purposes of the present analysis, it is sufficient to conclude that mass claims are admissible and feasible and that investment tribunals have a practice of entertaining them. Ukrainian war victims can meet the requirements of interconnectedness and manageability by creating “pockets” of claims and submitting them in separate collective proceedings. For instance, residents expelled from a specific occupied area can claim compensation for lost property. Similarly, the residents of a town damaged by shelling could jointly claim compensation for the indirect expropriation of their homes. They may establish an entity (a company or association) and assign their claims to this entity or establish a joinder of parties and sue jointly.
The above matters were entertained by ICSID tribunals, while the RUBIT, in investor-state arbitration matters, stipulates the jurisdiction of the Arbitration Institute of the Chamber of Commerce in Stockholm or ad-hoc arbitration under UNCITRAL rules. This is an irrelevant distinction. Neither the ICSID Convention nor ICSID Arbitration Rules, address mass claims and arbitral tribunals have dealt with them under this “regulatory silence.” There is no reason to doubt that the same approach could be adapted to the rules of the Stockholm Arbitration Institute or UNCITRAL.
International investment law is not susceptible to providing a quick, comprehensive vehicle to use frozen Russian assets to compensate Ukrainian victims. Instead, it can be used mainly to claim compensation for damages to tangible and intangible property, excluding personal injury, pain and suffering, and death. Nonetheless, investment arbitration could be a powerful tool that opens a path to remuneration. BITs are not a vehicle of compensating war damages but a mechanism for protecting foreign investments. Simultaneously, the existence of war crimes does not rule out or even limit the application of BITs, which partially overlap with compensation for war damages. This overlap can be used to achieve compensation.
The magic of international investment law can turn immune sovereign acts into non-immune commercial matters. Once the magic of an arbitral award occurs, the claim becomes enforceable against frozen Russian assets, which are, under international law, otherwise untouchable. To accomplish this, victims need to walk an arduous path to turn their claims into an arbitral award. The proposed enforcement strategy is a jig-saw puzzle made up of myriads of pockets of congenial claims. However, a meticulously constructed jig-saw puzzle still provides a fuller picture.
*Csongor István Nagy is a professor of law at the University of Szeged and a research professor at the Center for Social Sciences of the Hungarian Research Network. He is a recurrent visiting professor at the Central European University (Budapest/New York/Vienna) and the Sapientia University of Transylvania (Romania), and an associate member at the Center for Private International Law at the University of Aberdeen, Scotland. Currently, he is a CICL visiting fellow at the University of Michigan.
 An exception is Canada, which opened the way to the confiscation (forfeiture) of frozen Russian assets and the use of the proceeds for the reconstruction of Ukraine, the restoration of international peace and security and the compensation of victims. Sections 5.4 and 5.6 of 1992 Special Economic Measures Act. The provision on confiscation was introduced by Section 439 of the 2022 Budget Implementation Act.
 An exception is the European Convention on Human Rights, which, however, does not enable large-scale claims. Furthermore, Russia withdrew from the Convention as from 16 September 2022. The European Court of Human Rights remains, however, competent to entertain cases concerning actions (or omissions) that occurred up until this date.
 For an exception, see e.g. Mayorga.
 See also Happ & Wuschka. Ackermann, p. 80. For a criticism of the approach of the arbitral tribunals, see Dumberry, Krumbiegel.
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The founding treaty of the International Criminal Court (ICC), the Rome Statute, states in its preamble, “such grave crimes [under the Court’s jurisdiction] threaten the peace, security and well-being of the world.” However, the peacemaking role of the ICC is not as straightforward as its preamble describes. As a judicial and political forum, the ICC engages in storytelling. In most occasions, the story is told only from one side. In other words, it is a well-known practice of the Court to create villains and enemies of mankind. The indictments and issuances of arrest warrants by the Court have been used as forces of political pressure towards specific groups and individuals to such an extent that they impact peace processes and international justice.
Characteristic is the example of Joseph Kony, the leader of the Lord’s Resistance Army (LRA) in Uganda. In 2005, then-Prosecutor of the ICC, Luis Moreno Ocampo, decided to issue arrest warrants only against Kony and his inner circle, leaving aside any crimes committed by the Ugandan government. The arrest warrant against Kony was issued while the Juba Peace Talks were ongoing, damaging any effect of the potential peace treaty and the delivery of substantive international justice. This move was significant because, as the leader of the rebel group in Northern Uganda, the active participation of Kony in the peace process was a vital element for a successful result. However, by targeting the major opponent of the Ugandan government, the ICC kept up with its policy to prosecute the main stakeholders engaging in mass atrocities. It is also important to mention that both sides of the conflict wished to use the ICC as the main judicial institution to prosecute war crimes and crimes against humanity. While the self-referral of the Ugandan government became a catalyst to the peace negotiations, the arrest warrants against the LRA buried an effort for peace and justice by failing to contribute to a substantive delivery of criminal justice and, respectively, to prosecute all perpetrators of heinous crimes that “shock the conscience of humanity.”
The new target of the ICC is the President of Russia, Vladimir Putin. In March 2023, almost a year after a multi-party referral from 43 State parties to the Rome Statute, the ICC Prosecutor, Karim Ahmad Khan, proudly announced the issuance of an indictment and arrest warrant against President Putin for the crime of unlawful deportation (children) and unlawful transfer of population (children) from occupied areas of Ukraine to Russia. Hence, the construction of a new villain has started.
Against this backdrop, it is worth examining the potential impact of Putin’s arrest warrant on the peacemaking process and the delivery of international justice in Ukraine. Legal scholarship seems to predominantly embrace the arrest warrant positively. Some scholars remark that Putin’s arrest warrant is one of the most progressive movements made by the Court, while other scholars discuss how the warrant changes the dynamics in the Russia-Ukraine War, which includes the potential involvement of the United Nations (UN) Security Council. A few scholars highlight the risks of the arrest warrant. However, there is a glaring absence of legal scholarship that explains how Putin’s arrest warrant may serve peace and justice.
I. Breaking the Throne: The Al-Bashir Case
In March 2009, then-President of Sudan, Omar Al-Bashir, had the dubious honor of becoming the first sitting Head of State to be indicted by the ICC. Similar to then-President Al-Bashir, President Putin’s status as a sitting Head of State invokes two critical articles of the Rome Statute: Article 27 (Irrelevance of Official Capacity) and Article 98 (Cooperation with Respect to Waiver of Immunity and Consent to Surrender). First, under Article 27(2), there is no immunity protection for crimes under the jurisdiction of the Court; sitting or former Heads of State cannot hide behind the immunity veil to avoid prosecution and conviction. Second, under Article 98, as the Court does not have independent resources, States must cooperate with the Court and surrender the suspect immediately.
In the Al-Bashir case, despite the strict wording of Articles 27(2) and 98, Al-Bashir’s transfer to The Hague before the ICC judges was a tumultuous journey with no ending result. The first duty to cooperate fell on Sudan, which, due to the UN Security Council Resolution 1593 (2005), was deposed under the jurisdiction of the ICC. As the sitting Head of State, Al-Bashir had control over all enforcement mechanisms of Sudan. So, of course, Sudan could not act independently to surrender Al-Bashir. Consequently, the burden of enforcement fell to the other State parties to the Rome Statute. However, despite this obligation and the desperate cries from the Court, other African and Arab States—most of which were State parties to the Rome Statute—did not show any willingness to arrest and surrender Al-Bashir to The Hague. Even with his outstanding warrant, Al-Bashir traveled to several African and Arab States for conferences of international organizations, such as the African Union (AU) and the Arab League, without risk of surrender. For over 8 years, Al-Bashir wandered about the African continent, and no State—neither State parties nor non-party States of the Rome Statute—was willing to take the initiative to arrest him.
Due to the other State parties’ non-cooperation, the ICC was urged to interpret itself and made a strict ruling. In May 2019, the Court issued the Judgment in the Jordan Referral re Al-Bashir Appeal, interpreting the grounds of non-cooperation concerning the laws of immunities. The Court decided that as there is no exception to the waiver of immunity for sitting Heads of State in the Rome Statute and customary international law, there is no exception to the rule of cooperation. The States that have a duty to cooperate with the Court must cooperate with the Court no matter the circumstances. The Court set a precedent to stop any other Al-Bashir cases in the future.
II. A History Repeated?: The Putin Case
The first question is the enforceability of the arrest warrant. Russia has not waived the customary law immunity of its Head of State, and as a non-party State of the Rome Statute, it has no obligation to comply with the Court’s decision. Thus, the burden of enforcement mainly rests on Ukraine and other European Union (EU) Member States in the event that President Putin is present in their territories. As noted by Amsterdam Law School Professor Sergey Vasiliev, whether or not President Putin decides to visit an EU Member State falls in the spectrum of speculation. He also notes that even prior to the warrant, President Putin had reduced his travels to destinations outside Russia.
A further question is the impact of the arrest warrant on peacemaking and substantive international justice in Ukraine. This issue is complex. In the context of transitional justice and attribution of criminal responsibility, the ICC has been used as a forum to prosecute perpetrators of war crimes committed during active hostilities. Characteristic is the example of the Juba Agreement for Peace in Sudan, which names the Court as one of the main forums for delivering international justice as part of the peace process.
However, the Court is not a peacebuilding institution but a criminal prosecution mechanism for the most heinous crimes. The prosecutorial function of the Court is often detrimental to the peace process as it criminalizes certain parties of the conflict. The criminalization of one side of the conflict not only tarnishes the public image of those accused, but it also politically disenfranchises the individual and their constituency. Consequently, warlords, regional leaders, and armed group leaders are unwilling to enter peace negotiations as arrest warrants are pending against them, and they have been identified as international criminals. This phenomenon was seen with the Ituri conflict in the Democratic Republic of Congo and the arrest warrants against the former leader of the Union of Congolese Patriots (UPC), Thomas Lubanga Dyilo, and the former leader of the Patriotic Resistance Force in Ituri (FRPI), Germain Katanga.
Additionally, the prosecutorial role of the Court could easily jeopardize the peacemaking role of international organizations. International organizations such as the EU and the AU can be a neutral forum for peace talks as they offer flexibility and neutrality. Moreover, these organizations have developed strong mediation skills due to their enlargement process.
In the case of Ukraine, the EU can be the main negotiator and peacemaker in the Russia-Ukraine War. The EU has played the same role in the past, on certain occasions with great success, such as the Bosnian War, and on other occasions with great failure, such as the situation in Cyprus. As a mainly political organization, the EU has the capacity, the skills, and the appropriate means to provide a peaceful solution for Ukraine. However, under the pressure of the arrest warrant, the EU could not fulfill its role. Having a fear of being arrested and being transferred to The Hague, the Russian political authority would avoid any visit to EU countries or any negotiations in an EU Member State’s territory. Therefore, the EU would lose its main advantage as a neutral negotiation mediator.
Moreover, the EU would need to spend its resources to enforce the arrest warrant. Such a policy would length the gap in the relationships between the EU and Russia, prolonging the armed conflict. Thus, the arrest warrant can provoke more damage to the EU’s role than any benefit.
The arrest warrant against President Putin is indeed a challenging step for the ICC. The Court has indicted one of the world’s most powerful and prominent political leaders. On the one hand, such a move could increase the Court’s appeal. On the other hand, enforcing the arrest warrant is a complex matter that demands the cooperation of key factors, such as the EU. The implications of enforcing the arrest warrant could easily create a new Al-Bashir situation, which would not only damage the image of the Court as a forum of justice but also diminish the role of important stakeholders, such as the EU, in resolving the crisis. The ICC is one the main narrators in the Russia-Ukraine War, and its approach will vividly picture the villains and the enemies of mankind. The impact of the ICC’s storytelling will remain open for consideration in any future peacemaking efforts.
* Andreas Chorakis is a MPhil/Ph.D. Candidate at Middlesex University. He is currently a Teaching Fellow at the School of Oriental and African Studies (SOAS) University of London. He has taught modules at Middlesex University London and the University of Law, specializing in English Business Law, Civil Litigation, and Human Rights. He is developing his research in Business and Human Rights Law, International Dispute Resolution, International Criminal Law and General International Law. He is a graduate of the Geneva Graduate Institute (LL.M., 2018) and the University of Athens (LL.B., 2017).
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By David Donat Cattin* and Philippa Greer**
In our latest article for the Harvard International Law Journal (HILJ) on the topic of modernizing the International Criminal Court (hereinafter “ICC” or “Court”) through the creation of hybrid chambers, we advocated for amendments to the Rome Statute to allow for hybrid chambers at the ICC, which could yield several significant benefits. Most notably, we suggested that the introduction of such chambers could motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
On April 19, 2023, together with Judge Volker Nerlich of the Appeals Chamber of the Special Criminal Court of the Central African Republic, we presented at Harvard Law School further interventions regarding the proposal to introduce a hybrid chamber at the ICC, as well as our experiences concerning hybrid justice, or internationalized domestic jurisdictions, in international criminal law. The discussion that ensued from this thought-provoking HILJ event has prompted a revision of our original article and the issuance of this second part with operational suggestions for legislative drafters. These suggestions are two-fold. First, we propose additional consideration of the need to avoid amendments to the Rome Statute’s articles not falling under the accelerated amendments process provided under Article 122 of the Rome Statute, which specifically envisages reforms of a purely institutional and organizational nature, and hence does not affect states parties’ rights and obligations nor carry any jurisdictional or substantive law implications. Second, we reflect on the vital importance of the outreach and community-based work of judicial institutions, including those hosting hybrid chambers. We exclusively direct this Article’s proposal to the internal law of international organizations, also known as the “proper law of international organisations,” to quote C. Wilfred Jenks (1962). As such, in accordance with the letter and spirit of Article 122 of the Rome Statute, it would be sufficient that a majority of two-thirds of states parties vote for its adoption and immediate entry into force for all states parties, thereby ensuring that there would be no fragmentation and unity would be preserved in the self-contained system of the Statute.
Atrocity crimes pose a global threat to humankind. The progressive development of the practice of international criminal law, in addition to the advancement of the body of international criminal law itself, is essential to the mission of the ICC today. Both are critical to advancing the central objective of international criminal justice, namely, to combat impunity in the face of the gravest crimes of concern to the international community.
In response to Russia’s invasion of Ukraine in February 2022, states embarked on what may emerge as one of the most comprehensive responses to a situation of mass atrocities to date. Forty-three states parties referred the situation in Ukraine to the ICC and thereby allowed the Prosecutor to open an investigation immediately. Many states sent voluntary financial contributions and seconded staff to support the Court (not only to bolster investigations in Ukraine, but also to reinforce the Office of the Prosecutor’s capacities in all the other situations under investigation) and national Ukrainian investigators in their efforts to document war crimes and crimes against humanity. The ICC was invited to participate in complex mechanisms set up by relevant states to address the mounting crime waves in Ukraine, such as the Joint Investigation Team and the International Center for the Prosecutor of Aggression (ICPA) facilitated by the European Union’s Eurojust, and in Libya, specifically, the Joint Team supporting investigations into crimes against migrants and refugees, supported by the European Union Agency for Law Enforcement Cooperation (Europol). These significant developments, which are raising the bar for international cooperation in the global fight against impunity for mass atrocities, all point to the continued international legitimacy of the ICC.
Given the complexities of the subject matter, however, one of the most pressing conversations in international criminal law today is whether and how an ad hoc international jurisdiction or a specialized hybrid court can be set up to address the crime of aggression in Ukraine. The ICC’s jurisdiction over this crime is characterized by an extremely complicated regime, regarding which some states, led by Germany, and NGOs have been calling for reform. Due to a distinctive feature in its Statute as amended by the Kampala Review Conference (2010), the ICC cannot exercise jurisdiction over the crime of aggression by nationals of non-party states, including Russia (Art. 15 bis, para. 5), or perpetrated through the use of armed forces of states that have not ratified the Statute (Art. 15 bis, para. 4). Accordingly, numerous states are currently considering in tandem the creation of a new judicial mechanism that can exercise jurisdiction over the crime of aggression, with a few scholars insisting that such a court should be hybrid in nature, while a majority have expressed support for a special international tribunal (see, e.g., Oona Hathaway, Yale Law School; Jennifer Trahan, NYU Center for Global Affairs; Astrid Reisinger Coracini, University of Vienna; Philippe Sands, UCL Faculty of Laws; and David Crane, Syracuse University). These proposals are based on Ukraine’s call for, and explicit consent to, the exercise of jurisdiction over the crime of aggression, which is a crime under international law that shocks the conscience of humankind and represents the ultimate infringement on international peace and security. It falls within the framework of which all the other crimes, such as war crimes and crimes against humanity, are “contained” when they are perpetrated as a consequence of the waging of a war of aggression causing an international armed conflict. If this “special tribunal” is created, regardless of its model, there will be strong ownership by the territorial state.
Yet – looking back to the work of the ICC in this area – upon the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova on March 17, 2023, the first concrete step taken by the ICC with respect to the Situation in Ukraine, Prosecutor Karim A. A. Khan KC noted the following: “Since taking up my position as Prosecutor, I have emphasised that the law must provide shelter to the most vulnerable on the front lines, and that we also must put the experiences of children in conflict at the centre of our work. To do this, we have sought to bring our work closer to communities, draw on advanced technological tools and, crucially, build innovative partnerships in support of our investigative work.” To be “closer to the communities” affected by the relevant crimes, the Prosecutor entered into arrangements with the above-mentioned Joint Investigative Teams and developed a synergic cooperation with the authorities and civil society of Ukraine, a state that accepted the jurisdiction ad hoc under Article 12(3) of the Rome Statute and has not yet ratified the treaty.
In addition to the recent developments concerning the Situation in Ukraine at the ICC, the Court has furthered the objective of bringing the work of the ICC closer to affected communities through its recent actions, such as the conclusion of new memoranda of understanding renewing cooperation towards justice in the Democratic Republic of Congo, the establishment of an in-country office in Venezuela, and an action plan for renewed cooperation with Colombian national authorities in pursuit of accountability. Moreover, over the last twenty years, local and international NGOs and legal representatives of victims have repeatedly called for a greater presence of the ICC in the field through interactive outreach and public communications, including through the application of the Statute’s provisions on in situ proceedings.
Summary of the Benefits and Risks of Creating a Hybrid Chamber at the ICC
To summarize briefly the benefits and risks of creating a hybrid chamber at the ICC, as addressed in our original article, it is first noted that, on the risks side, there is the potential for compromised justice institutions through the use of national judges at the ICC, particularly in contexts involving a high degree of political instability. For instance, the rulings of national judges could be dismissed as lacking in impartiality or, even if impeccably well-reasoned, lacking the appearance of impartiality.
There is also the potential of a “due process critique” that a judge from the same state as a defendant might be biased in favor of, or against, that defendant, depending on the political climate following atrocity crimes. Also on the risks side, hybrid chambers could come with increased costs, or a rebalancing of resources away from the ICC’s core mandate. The Court would also need to adapt to new procedures for selecting judges, which could create difficulties at the initial stages. However, on the benefits side, hybrid chambers (and courts) may allow for building a more localized ownership of the justice process and fostering the development of international human rights norms within domestic legal systems.
There are a number of additional benefits a hybrid system would provide. The integration of national judges may provide a visible and more culturally appropriate justice process, which also adheres to international human rights standards. Furthermore, there is a perceived sense of transparency and greater resistance to political interference from the use of a combination of international and national judges. Indeed, integrating national judicial actors within the ICC’s decisionmaking process could enable a form of hybrid justice while still maintaining the ICC’s international legitimacy. Moreover, a hybrid chamber within the ICC could also motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
Having a national judge take part in proceedings could indicate a greater degree of respect for state sovereignty and an institutional effort to be more representative. Also, hybrid chambers could serve to promote knowledge transfer and strengthen the capacity of domestic judicial systems through the engagement of national judges in international criminal proceedings that adhere to international standards.
Additionally, the participation of national judges could also increase the use of the language of the incident state during trials, facilitating national media coverage and making the proceedings seem closer to home for the relevant population. Finally, a hybrid chamber could create a more specialized chamber. For example, in situations where the Court has jurisdiction on the basis of the location of the respective atrocity crimes, a judge of the territorial state appointed to the bench might be expected to have special expertise in the specific language of the state in which the situation arose, in addition to cultural skills and background knowledge of the relevant state. This could help to make the hybrid chamber more focused and efficient.
In order to advance these goals and minimize the hurdles or complications that may be associated with institutional innovation, it is necessary for the states parties to the Rome Statute to elaborate a set of amendments that would empower the Assembly itself and relevant Court organs to take the necessary action in forming hybrid chambers within the ICC, when their configuration would be suitable to bring the justice process closer to the victims and the communities affected by the perpetration of international crimes.
Proposed Amendments to the Rome Statute
The practical vehicle through which amendments to the Rome Statute may best be effected to allow for the establishment of hybrid chambers within the Court is Article 122, which provides that an amendment of an institutional nature may be proposed by any state party and must then receive unanimous support or, in the absence of consensus, a two-thirds majority vote in the Assembly of States Parties (ASP) for its adoption and immediate entry into force. The latter characteristic of Article 122 makes it much more efficient and effective than the Article 121 amendment procedures, which cause “fragmentation” or diversification of jurisdictional regimes between states that have ratified amendments and states that have not ratified them. Additionally, amendments that require the ratification by seven-eighths of the states parties before entering into force (for all states), such as the 2015 amendment through which the ASP unanimously deleted the transitional provision on war crimes of Article 124 from the Statute, are essentially impossible to achieve. This is due to the fact that political momentum for the amendments’ ratification is normally missing, and the technicalities of ratification processes pose an obstacle to collective and coordinated action by such a large number of states parties. Article 122 was conceived to allow adjustments in the internal (institutional) law of the ICC, but, as of today, it has never been applied or invoked by states parties, even if a Report of the Bureau on the Study Group of Governance, published October 15, 2013, encouraged states to submit proposals pursuant to this Article at paragraph 22.
It is further recalled that Article 39 of the Rome Statute leaves the Court free to establish new Pre-Trial and Trial chambers as it deems efficient. However, these chambers are composed only of judges from the existing Pre-Trial and Trial Divisions, respectively. Article 39 could therefore be amended to allow for the creation of hybrid trial chambers in addition to ordinary trial chambers, with two judges from the corresponding division and a third judge appointed on an ad hoc basis. The required amendments must specify that one or more hybrid chambers, in addition to ordinary trial and pre-trial chambers, are permissible and should set out the appointment mechanism for judges to hybrid chambers, in addition to the service, qualifications, nomination, and election requirements regarding ad hoc judges.
As also emphasized in our original article, we note in this respect that ad hoc judges would not fall under the definition of ICC judges. The Court would also need to adopt new procedures for selecting judges. The distinct articles of Part 4 of the Rome Statute would further require amendment in certain respects in order to detail how the provisions related to service of judges (Art. 35), qualifications and nomination/election (Art. 36, but exclusively in respect of para. 8 on criteria for selection, i.e., expertise and independence of ad hoc judges, and in respect of para. 9 to outline ad hoc judges’ term of office), the organizational functions of the Presidency of the Court (Art. 38), the configuration of the Trial Division (Art. 39, para. 1, second sentence) and the composition of the Trial Division (Art. 39, para. 2(b)(ii)), removal from office (Art. 46), disciplinary measures (Art. 47), and salaries, allowances and expenses (Art. 49) would apply to ad hoc judges (appointed to hybrid chambers). Other provisions, such as those on the independence of judges (Art. 40), excusal and disqualification of judges (Art. 41), solemn undertaking (Art. 45) and privileges and immunities (Art. 48) will need to be interpreted as applicable to ad hoc judges. Finally, ad hoc judges would also need to be exclusively bound to apply the law in accordance with Article 21 (Applicable Law) of the Rome Statute (which would impede their application of domestic law outside the extremely limited boundaries of Art. 21, para. 1(c)).
How Hybridity Can Foster Domestic Reconciliation: The ECCC Example
Beyond additional consideration of the need to avoid amendments to articles of the Rome Statute that do not fall under the accelerated amendments process provided for in Article 122 of the Rome Statute, it is important to also contextualize the hybridization project more broadly, in view of the overall goal of fostering domestic stabilization and reconciliation through accountability efforts.
Regarding the importance of bringing the work of the ICC closer to affected communities, we note that any such proposal to amend the Rome Statute to create a hybrid chamber should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities and embedding national judges in the judicial decisionmaking work and processes of the Court.
Taking the example of the Extraordinary Chambers in the Courts of Cambodia, known as the ECCC or informally as the Khmer Rouge Tribunal, the importance of fostering domestic outreach activities is clear. The ECCC was established within the Cambodian legal system in 2006 to seek justice for the crimes committed by the Khmer Rouge regime. It has received international assistance through the United Nations Assistance to the Khmer Rouge Trials, known as UNAKRT.
The ECCC can only prosecute two categories of alleged perpetrators for alleged crimes committed between April 17, 1975, and January 6, 1979, the first being senior leaders of Democratic Kampuchea, and the second being those believed to be most responsible for grave violations of national and international law. There have been four cases at the ECCC, with the second and fourth cases severed into two and three sub-cases, respectively (Case 001: defendant Kaing Guek Eay, alias “Duch”; Case 002 (severed into Case 002/01 and Case 002/02): defendants Khieu Samphan, Noun Chea (deceased), Ieng Sary (deceased), and Ieng Thirith (deceased); Case 003: defendant Meas Muth; Case 004 (severed into Case 004/01, Case 004/02 and Case 004): defendants Yim Tith, Im Chaem, and Ao An).
To date, three individuals have been convicted and sentenced to life imprisonment by the ECCC (Kaing Guek Eav, alias “Duch” (Case 001); Nuon Chea and Khieu Samphan (Case 002)), two of whom have since passed away (Nuon Chea passed away on August 4, 2019, in the hospital at the age of ninety-three. Kaing Guek Eav was serving his sentence at Kandal Provincial Prison, Cambodia, until he passed away on September 2, 2020, in the hospital at the age of seventy-seven. The last surviving prisoner convicted by the ECCC, Khieu Samphan, has recently been transferred from the ECCC Detention Unit to Kandal Provincial Prison, to serve out his sentence, under the jurisdiction of the General Department of Prisons of the Ministry of Interior.
The ECCC has a majority of Cambodian judges in each chamber. In the Pre-Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge). In the Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber again being Cambodian). In the Supreme Court Chamber, there are four Cambodian judges and three international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge).
Beyond a mixed composition of judges in chambers, there are, for example, Co-Prosecutors, both international and national, Co-investigating Judges, both international and national, and mixed international and national personnel in all other areas of the court, including the Office of Administration, the Defence Support Section, Victims Support Section, and there is also one Cambodian and one international Civil Party Lead Co-Lawyer.
Many commentators in the international justice realm have noted that the ECCC has experienced high levels of acceptance and support in its communities. Compared to domestic courts, it has also arguably demonstrated greater transparency and resistance to political interference. It has achieved a high degree of public attendance and victim engagement in trial proceedings. Through its Public Affairs Section, for example, it has hosted a weekly radio program, and a broader outreach program, and generated a high level of domestic media coverage. The ECCC also made great advances in interpretation and transcription of its three working languages (namely, English, French, and Khmer). To give just one example of this, the trial judgment in Case 002/02 stands at 2,259 pages in length and was issued in English, French, and Khmer.
The survey results of a recent study undertaken this year by the court show that the tour program organized by the ECCC as part of its public outreach is relevant for imparting knowledge to younger generations. According to most respondents, the ECCC study tours provided additional knowledge of the trial of Khmer Rouge senior leaders and the history of the Khmer Rouge regime – including through presentations by relevant officials and visits to Toul Sleng Genocide Museum, the Cheong Ek Genocide Centre, and Win Win Memorial. These results came from a survey that was conducted online by the court from February 15 to April 6, 2023, open to individuals who had participated in the ECCC study tour program. From February 15 to April 6, 2023, there were 3,430 youth, students, and teachers who had participated in the study tours organized by the court. 1,527 people responded to the online survey.
This focus on public awareness and engagement by the court is significant. The mandate of the Public Affairs Section prompts us to reflect on broader questions related to the role of capacity-building in a post-conflict society and how hybrid justice can help to develop a sense of local ownership of the justice process, while also leaving impacts for future generations to come. At the ECCC, officials routinely visit remote provinces and speak to members of the public, including school children, about the work of the court, distributing information materials about the ECCC and taking questions from students and the public about the court proceedings.
This aspect of the work of the court may be powerfully described with the notion of “justice under a tree.” The proposal to create a hybrid chamber within the ICC is based to an extent on the idea that hybrid forms of justice can help to develop a sense of local ownership of the justice process, leaving impacts for generations to come. The idea of “justice under a tree” is one which can be used to draw an analogy to the notion that hybrid justice and hybrid courts are often viewed as providing a more visible and culturally appropriate justice process that adheres to international human rights standards.
The concept comes from traditional African societies: under the tree is where people would meet to resolve disputes. For instance, with respect to the Constitutional Court of South Africa, the logo of the court depicts people sheltering under a canopy of branches, a representation of the court’s protective role and of the theme of justice under a tree. This logo reveals the ethos and culture of the court as a source of protection for all, as well as the Constitution’s historical roots in South Africa in terms of the struggle for human rights, infused with the spirit of a new democracy. Indeed, the Constitutional Court was borne not from clichéd images of the scales of justice and Roman columns. Rather, the symbol chosen for the court’s logo was the tree – something that protects, just like the Constitution. However, the tree does not stand alone in the logo. It is sheltering people who have gathered under its branches.
Standing outside, under trees, in school playgrounds in rural settings, public outreach missions in Cambodia may be said to have brought a sense of “bringing the law home” to affected communities, thereby further ensuring truth-telling in terms of historical record and teaching future generations to be attuned to the early warning signs of genocide and atrocity crimes. This may be considered as an extended form of “justice under a tree,” ensuring that justice is both visible and community-based.
Therefore, the proposal to amend the Rome Statute of the ICC to create a hybrid chamber within the Court with a composition of national and international judges may be viewed as one way of bringing the law one step closer to the communities affected by the work of the Court.
In order to achieve this result, it would be essential for the Assembly of States Parties to the Rome Statute to fulfill its legislative responsibility and make use of the provisions of Article 122 of the Statute, empowering a qualified majority of two-thirds to reform and modernize the internal judicial infrastructure of the Court and, ultimately, increase its impact, performance, and effectiveness.
This reform must be accompanied by concurrent efforts to increase the public outreach efforts of the Court and the accessibility of the only permanent international criminal tribunal, the ICC, for victims, including survivors. Therefore, such a proposal should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities, alongside embedding national judges in the judicial decisionmaking work and processes of the Court. The overarching question which we should always remain focused on is: how do we best produce positive results for affected communities?
 See generally Clarence Wilfred Jenks, The Proper Law of International Organisations (1962).
*David Donat Cattin is an Adjunct Associate Professor of International Law, Center for Global Affairs, NYU; Research Fellow, Center for International Law Research & Policy (www.cilrap.org/donat-cattin/); and Senior Fellow, Montreal Institute for Genocide and Human Rights Studies at Concordia University.
**Philippa Greer is the Head of the Legal Office of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, Gaza Strip. She previously served as a legal adviser at the United Nations in Afghanistan, Jerusalem, Cambodia and Tanzania and worked at the UN Secretariat in New York. The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations. Philippa tweets @philippa_bear.
Cover image credit
EVAN J. CRIDDLE*
Within the past year, members of Congress have introduced nearly a dozen bills to make Russia pay for its military aggression against Ukraine. This Essay argues that none of the bills are satisfactory because they would either violate international law or fail to deliver meaningful compensation to Ukraine. Instead, the Essay urges policymakers to use economic sanctions as leverage to compel Russia to make reparations through an international claims-settlement process.
When Russia invaded Ukraine in February 2022, the international community launched a vigorous counteroffensive without firing a shot. Over thirty States imposed economic sanctions against Russia, including sweeping asset freezes, import bans, export controls, and investment restrictions. Russia lost access to nearly half of its central bank reserves, valued at roughly $300 billion, as well as its $10 billion sovereign direct investment fund. Foreign regulators targeted Russian officials and oligarch-allies of the Kremlin, seizing mega-yachts, helicopters, real estate, and artwork worth tens of billions of dollars, and blocking hundreds of millions of dollars in private bank accounts. These measures delivered a heavy blow to the Russian economy, but they failed to achieve their primary purpose: compelling Russian President Vladimir Putin to call off his ruinous “special military operation.” Rather than back down, Putin pressed forward with a brutal campaign that systematically reduced Ukrainian cities to rubble.
As this tragedy was unfolding, international observers began to inquire whether economic sanctions, which have failed so spectacularly to curb Russian aggression, might be repurposed to alleviate suffering in Ukraine. Some commentators urged the United States and its allies to confiscate and transfer Russia’s frozen assets to Ukraine as humanitarian aid. Others proposed using frozen assets to bankroll Ukraine’s national defense or to promote reconstruction after the war. Each of these suggestions found supporters in Congress, generating a flurry of bills to unlock Russia’s frozen assets for Ukraine’s benefit.
Part I of this Essay sorts through these legislative proposals to expose their legal and practical deficiencies. Most of these proposals would authorize the Executive Branch to confiscate Russian assets, violating international investment law and triggering duties of repayment under the Takings Clause of the Fifth Amendment and customary international law. Some members of Congress have called for abolishing Russia’s sovereign immunity as a way to deliver financial assistance to Ukraine, but this would violate the United States’ obligations under customary international law. Congress could authorize the forfeiture of private Russian assets linked to public corruption or other criminal activities, as some policymakers have proposed, but those assets are insufficient to bankroll Ukraine’s reconstruction. Thus, none of the bills introduced in Congress would secure substantial reparations for Ukraine while also respecting the rule of international law.
Part II outlines a better strategy for leveraging Russia’s frozen assets to secure reparations for Ukraine. Under international law, the United States and its allies may use asset freezes, trade and investment restrictions, and other economic sanctions to compel Russia to compensate Ukraine for the harm produced by its illegal invasion. The greater the injuries caused by Russian attacks, the greater Russia’s legal obligation to compensate Ukraine at the end of the war. For this strategy to work, however, the United States and its partners must remain patient and resolute, keeping Russian assets on ice and refusing to lift other sanctions until Russia compensates Ukraine. While this strategy will take time to bear fruit, it is realistic to expect that it will generate substantial (if imperfect) compensation for Ukraine without undermining international law.
I. Legislative Proposals
Russian aggression has inflicted catastrophic destruction and suffering in Ukraine. Missile and artillery strikes, aerial bombardment, and kamikaze drone attacks have devastated major cities, including Kharkiv, Kherson, Kyiv, Mariupol, and Severodonesk, inflicting trillions of dollars in damage. Thousands of Ukrainians have perished, many as victims of Russian war crimes. Many more have suffered serious mistreatment, including torture, at the hands of Russia’s military. Given the scale and gravity of these harms and Ukraine’s urgent need for financial assistance, it makes sense that sympathetic policymakers in the United States would explore every option to make Russia “pay a heavy price” for its aggression in Ukraine.
Unfortunately, recent congressional proposals to hold Russia financially accountable for its aggression have serious flaws. Nearly all of the bills proposed to date raise serious constitutional concerns, and most would violate the United States’ obligations under international law. Others are too limited in scope to move the needle on Ukraine’s relief and reconstruction.
In the first weeks of Russia’s invasion of Ukraine, members of Congress circulated a series of bills to empower President Biden to confiscate Russia’s frozen assets for the benefit of Ukraine. “Confiscation,” for these purposes, refers to extinguishing a party’s legal interests in assets and vesting title in the U.S. government. Authorizing the Executive Branch to confiscate Russia’s frozen assets could make hundreds of billions of dollars available to Ukraine, bolstering its national defense, alleviating suffering, and advancing its eventual reconstruction after the war.
Federal legislation does not currently allow the Executive Branch to confiscate Russian assets. The International Emergency Economic Powers Act (IEEPA) does empower the President to block transactions involving foreign assets during a national emergency, and President Biden has used this authority to immobilize Russian assets in the United States. However, IEEPA does not permit the Executive Branch to confiscate foreign assets unless the United States “is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” Thus far, these prerequisites for asset confiscation are not satisfied: the United States has not suffered an “attack” from Russia within the meaning of the IEEPA, and President Biden has declared that the United States “will not be directly engaged” in Ukraine’s self-defense “either by sending American troops to fight in Ukraine or by attacking Russian forces.” In recognition of these limitations, Treasury Secretary Janet Yellen has emphasized that confiscating Russian assets is “not something that is legally permissible in the United States.” IEEPA does not allow the Executive Branch to confiscate and transfer Russian assets to Ukraine.
Several bills would alter the status quo by empowering the President to confiscate Russia’s frozen assets. A representative example is the Asset Seizure for Ukraine Reconstruction Act (ASURA), introduced by Senator Sheldon Whitehouse and several colleagues. This draft legislation would empower the President to confiscate assets “valued in excess of $2,000,000” that are subject to U.S. sanctions based on “corruption, human rights violations, the malign influence of the Russian Federation, or conflicts in Ukraine.” Confiscated assets would “vest in the Government of the United States,” after which they could be liquidated or sold for Ukraine’s benefit.
ASURA quickly attracted constitutional objections. The American Civil Liberties Union (ACLU) argued that the bill would violate the Fifth Amendment’s Due Process Clause because it did not afford an opportunity for foreign asset holders to challenge confiscations in court. In response to this concern, Representatives Tom Malinowski and eighteen co-sponsors proposed a watered down version of ASURA in the House of Representatives. The House version does not purport to expand the President’s confiscation authority but instead merely expresses the “sense of Congress” that “[t]he President should take all constitutional steps to seize and confiscate assets . . . of foreign persons whose wealth is derived in part through corruption linked to or political support for the regime of Russian President Vladimir Putin.”
Even setting aside due process objections to ASURA, there are reasons to question whether Congress can and should authorize the President to confiscate Russian assets. For example, confiscating assets from Russia—a nominally “friendly” foreign power—without compensation would violate the Takings Clause, as the Supreme Court held nearly a century ago in Russian Volunteer Fleet v. United States. Thus, even if Congress were to expand the President’s statutory authority to confiscate Russian assets, the Constitution would prevent the President from using this authority to take Russian assets without compensation.
Confiscating Russian assets would also violate international law. Under customary norms of international investment law, the wholesale confiscation of Russian assets would constitute a wrongful expropriation, triggering a duty of compensation. If the United States unilaterally confiscated Russia’s frozen assets for Ukraine’s benefit, therefore, Russia could claim a right to reimbursement under international law.
Neither the Senate nor the House version of ASURA is currently on track to become law, and that is almost certainly for the best. As noted, the Senate version is unconstitutional and would violate the United States’ obligations under international law. The House version avoids these pitfalls, but only because it does not grant any new powers to the Executive Branch. Under both versions, the President is unable to confiscate Russia’s frozen assets without leading the United States into combat—a step that the White House has firmly ruled out. Thus, neither version of ASURA offers a workable solution for delivering financial assistance to Ukraine.
Another option for unlocking Russia’s frozen wealth is asset forfeiture. Under current federal law, asset forfeiture takes three forms. First, some federal criminal statutes, such as the Racketeering Influenced and Corrupt Organizations Act (RICO), authorize the federal government to initiate in personam actions for criminal forfeiture of property connected to various illegal activities. Second, the federal government may seek civil forfeiture of property linked to certain designated crimes, such as embezzlement and money laundering, through in rem civil actions. Third, under the Tariff Act of 1930, the federal government may initiate administrative forfeiture proceedings in rem against certain types of personal property that have been seized under U.S. customs laws, including a “vessel, vehicle, aircraft, merchandise, or baggage” valued at $500,000 or less. Together, these three avenues for asset forfeiture offer opportunities for the Executive Branch to harvest the ill-gotten gains of Russian oligarchs and corrupt politicians for Ukraine’s benefit.
Recognizing the potential of asset forfeiture, the Biden administration in April 2022 proposed a “comprehensive legislative package” to “establish new authorities for the forfeiture of property linked to Russian kleptocracy.” The White House proposal would establish “a new, streamlined administrative process,” backstopped by expedited judicial review, to facilitate the administrative forfeiture of private assets belonging to sanctioned Russian nationals which are related to specified unlawful conduct. The White House plan would also facilitate criminal forfeiture by expanding RICO’s definition of “racketeering” to include sanctions evasion and by “making it unlawful for any person to knowingly or intentionally possess proceeds directly obtained from corrupt dealings with the Russian government.” Forfeited assets would then be earmarked “to remediate harms of Russian aggression toward Ukraine.” Several Senators have endorsed the White House plan and are collaborating across the political aisle to develop draft legislation that would expand the administration’s authority to pursue forfeiture against private Russian assets.
Expanding domestic forfeiture law in these ways could unlock hundreds of millions of dollars for Ukraine’s benefit, but Congress must first resolve some significant legal issues. As Professor Paul Stephan has observed, the White House proposal raises several due process concerns. First, applying new forfeiture legislation retroactively to Russian assets seized at the beginning of the war might infringe the Fifth Amendment’s Due Process Clause. Second, due process might also require that federal agencies strengthen procedural safeguards by giving foreign asset-holders individualized notice of forfeiture proceedings. Third, applying forfeiture to conduct that bears no meaningful connection to the United States might implicate due process concerns to the extent that it would extend the reach of U.S. law to transactions with no meaningful contact to the United States. If Congress wants to prevent Russia from challenging the White House plan successfully in court, any legislation it enacts must attend to these constitutional concerns.
Even if Congress manages to pass new legislation expanding the federal government’s forfeiture powers, this victory would be little more than symbolic when assessed against the backdrop of Russia’s financial accountability for the war in Ukraine. The harm Ukraine has suffered from Russian attacks—whether measured in lives lost, property damage, or the disruption of economic activity—is many orders of magnitude greater than the value of the yachts, planes, real estate, and other private assets that the United States and its partners have seized from Russian elites. The only way to make significant headway on Russia’s financial obligations to Ukraine would be to tap Russia’s massive central bank reserves and sovereign wealth funds. Yet, the White House’s “comprehensive legislative package” for asset forfeiture would not leave those sovereign assets untouched. Any serious effort to make Russia pay for Ukraine must therefore venture beyond asset forfeiture to find mechanisms for accessing Russia’s sovereign wealth.
Abrogating Sovereign Immunity
With these concerns in mind, some commentators have called for Congress to abrogate Russia’s immunity from civil litigation in domestic courts. At present, the Foreign Sovereign Immunity Act (FSIA) does not permit aggrieved parties to bring civil actions against foreign States, much less to execute judgments against foreign central bank reserves, based on injuries suffered in armed conflicts. This means that the federal government may not pursue forfeiture against Russia’s sovereign assets, and Ukrainian plaintiffs cannot sue Russia in U.S. courts for injuries caused by Russian attacks. If Congress were to eliminate Russia’s sovereign immunity under the FSIA, this would establish a powerful new mechanism to make Russia pay for its aggression against Ukraine.
Representatives Debbie Dingell and Fred Upton have introduced legislation to make this idea a reality. Their proposed Ukrainian Sovereignty Act would eliminate sovereign immunity for civil actions seeking money damages “for physical injury, including death, property damage, or loss of property caused by [a] foreign state’s invasion of another sovereign nation located in Europe . . . by or at the direction of the foreign state,” provided that the invasion was condemned by the U.N. General Assembly and both chambers of Congress. The Ukrainian Sovereignty Act also provides that the sovereign assets of an aggressor State—including central bank reserves—“shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by [an American] court.” These provisions would clear the way under domestic law for Ukrainian civilians to sue Russia in U.S. courts.
Whether the Ukrainian Sovereignty Act would pass muster under international law is another matter. In an influential 2012 judgment, Jurisdictional Immunities of the State, the International Court of Justice (ICJ) declared that customary international law entitles States to immunity from civil litigation in foreign courts for claims arising from war-related injuries. In particular, the ICJ held that war crimes committed by German armed forces against Italian civilians during World War II were covered by sovereign immunity because they involved the exercise of sovereign powers (acta jure imperii), rather than commercial activities (acta jure gestionis). According to the ICJ, sovereign immunity barred litigation in Italian courts as a threshold matter even if Germany’s war crimes violated peremptory norms of general international law (jus cogens). Although the ICJ’s opinion remains controversial and lacks the formal status of binding precedent under international law, it shapes how international lawyers understand the customary international law of State immunities today.
The ICJ’s analysis in the Jurisdiction Immunities case suggests that Russia also enjoys sovereign immunity in U.S. courts. Russia’s aggression, however contemptible, is a military campaign that entails the exercise of sovereign powers. Russia has not waived its sovereign immunity, nor is it likely to do so. Although Russia’s armed attacks violate jus cogensnorms, including the prohibitions of aggression, war crimes, and crimes against humanity, this would not diminish Russia’s immunity from litigation in foreign courts under the ICJ’s reading of customary international law. Consequently, if Congress were to abrogate Russia’s sovereign immunity, it could set the United States on a course to violate international law. If the United States wants to deliver the message that international law—including the prohibition against aggression, which Russia has so flagrantly violated— is worthy of respect, it would be a mistake for Congress to disregard Russia’s sovereign immunity under international law.
Members of Congress deserve praise for exploring every option to hold Russia accountable financially for its aggression in Ukraine. Russia’s brazen violation of Ukraine’s sovereign rights cries out for robust remedies. In the final analysis, however, there is little that Congress can do to hold Russia accountable within the constraints imposed by the Constitution and international law. Congress may strengthen the federal government’s authority to compel the forfeiture of private Russian assets, but this would produce only a tiny fraction of the funds needed for Ukraine’s relief and reconstruction. When it comes to Russia’s central bank reserves and other sovereign assets, the Constitution and international law afford Congress little room to maneuver. Thus, if U.S. policymakers want to make Russia pay for its war crimes in Ukraine, they would do well to look for solutions outside Congress.
II. How To Make Russia Pay
Fortunately, there is another way that the United States and its partners can make Russia pay for Ukraine: they can use asset freezes, trade restrictions, and other economic sanctions as leverage to compel Russia to deliver war reparations through an international claims-settlement mechanism. Unlike the flashy legislative proposals that have dominated public debates since the outset of the war, a strategy based on multilateral economic coercion could eventually succeed in delivering significant reparations to Ukraine without violating the Constitution and international law.
Russia’s Responsibility To Make Reparation
As a first step, the United States and its partners should put Russia on notice that it bears financial responsibility under international law for the catastrophic harm it has caused in Ukraine. An “essential principle” of international law is that every internationally wrongful act triggers a duty to provide “reparation.” As the Permanent Court of Justice explained in the Chorzów Factory case, this “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” When restitution in kind is not possible or would be insufficient to compensate an injured State for their loss, international law requires the “payment of a sum corresponding to the value which a restitution in kind would bear” plus “damages for loss sustained which would not be covered by restitution in kind or payment in place of it.” Since Russia’s invasion into Ukraine constitutes a manifest violation of the U.N. Charter, there can be no serious question that Russia bears responsibility under international law to compensate Ukraine in full for the grave injuries produced by its armed attacks. Ideally, the United States and its partners would seek additional resolutions from international institutions, such as the U.N. General Assembly, condemning Russia’s aggression and affirming Russia’s obligation to make full reparation to Ukraine.
Economic Sanctions as Countermeasures
Next, the United States and its partners should make clear that they are using asset freezes and other economic sanctions as countermeasures to compel Russia to satisfy its responsibility to compensate Ukraine.
Under international law, a “countermeasure” is an “act of non-compliance, by a State, with its obligations owed to another State,” taken “in response to a prior breach of international law by that other State and aimed at inducing it to respect its obligations.” To be permissible under international law, countermeasures may only be used to induce a recalcitrant State to comply with its international obligations. Moreover, countermeasures must, “as far as possible, be taken in such a way” that they can be reversed as soon as the recalcitrant State has resumed compliance with international law. States therefore may not use countermeasures to confiscate foreign assets, because this would result in a permanent deprivation. Instead, when a State freezes or seizes foreign property as a countermeasure, it must preserve the property so that the property can be returned intact when countermeasures end.
Ordinarily, only a State that has suffered injury from a breach of international law may use countermeasures against a responsible State. When an “obligation breached is owed to the international community as a whole” (erga omnes), however, any State may use countermeasures to compel “cessation of the internationally wrongful act” and “performance of the obligation of reparation . . . in the interest of the injured State or of the beneficiaries of the obligation breached.”
These features of international law would support efforts by the United States and its partners to use economic sanctions as countermeasures against Russia. Russia’s aggression in Ukraine violates an obligation erga omnes—the bedrock legal requirement to refrain from “the threat or use of force against the territorial integrity or political independence of any State.” In addition to the original act of invasion, Russia’s war crimes and crimes against humanity in Ukraine also violate obligations erga omnes. Accordingly, all States are entitled under international law to demand that Russia cease its belligerent conduct and make reparations, including though the payment of compensation. States may also use asset freezes, trade restrictions, and other economic sanctions as countermeasures to compel Russia to compensate Ukraine for its injuries. Although the United States and its partners may not confiscate Russian assets as a countermeasure, nothing would prevent them under international law from maintaining asset freezes for as long as it takes to convince Russia to compensate Ukraine.
The Long Road to Reparations
International economic sanctions rarely succeed in persuading States to call off armed conflict, so it should come as no surprise that asset freezes and other economic sanctions have not yet convinced Putin to pull out of Ukraine. This does not mean that economic sanctions cannot persuade Russia to provide redress after the war. In the past, the international community has used economic sanctions successfully on a number of occasions to make uncooperative States disgorge reparations. For instance, following the 1991 Gulf War, Iraq provided compensation to Kuwait through the U.N. Compensation Commission (UNCC) in exchange for relief from international economic sanctions. Similarly, in 2003, Libya abandoned its nuclear aspirations, dismantled its missile and chemical weapons programs, and compensated terrorism victims in return for sanctions relief. These examples demonstrate that economic sanctions can be powerful tools for extracting reparation even from rogue States ruled by obstinate autocrats.
Applying this strategy to Russia might seem unpromising because its success would depend on Putin’s willingness to make concessions in exchange for easing sanctions. Putin has staked his political reputation on thumbing his nose at foreign adversaries, such as the European Union and the United States. All signs suggest that he is settling in for a long campaign in Ukraine, wagering on Russia’s ability to outlast Ukrainian resistance and international outrage. Putin might win this bet; with energy prices surging and with weak Ukrainian grain exports threatening global food supplies, it is unclear how long world leaders will be able to sustain, let alone ratchet up, economic sanctions against Russia. Trade and investment restrictions are a double-edged sword, inflicting economic pain not only on Russia, but also on the European Union, the United States, and the broader global economy. Over time, economic and political pressures are likely to limit how long the United States and its partners can maintain costly trade and investment restrictions.
Even so, time is not necessarily on Putin’s side. As long as economic sanctions remain in place, Russia will find it difficult to promote economic growth, attract foreign capital, maintain liquidity, and buffer its economy against currency volatility. Moreover, as far as asset freezes are concerned, the United States and its partners can afford to be patient. Preventing Russia from accessing its frozen central bank reserves and other sovereign wealth imposes minimal costs on the United States and its partners. There is no way Russia can recover its sovereign assets and the frozen wealth of its ruling elite without cooperation from the United States and its partners. Hence, if Russia wants to reclaim any of its frozen assets, it will have no choice but to meet sanctioning States at the negotiation table. If history is any guide, Russia will eventually accept a deal on war reparations in exchange for normalizing trade relations, unblocking private assets, and reclaiming some portion of its sovereign wealth. When that day arrives, a comprehensive negotiated settlement on reparations could unlock a substantial percentage of Russia’s frozen assets for Ukraine’s reconstruction.
There are a variety of models for how Russian assets could be dispersed to the Ukrainian government and Ukrainian nationals. Russia could make a lump sum payment to Ukraine to resolve all war-related claims, perhaps paid in part from central bank reserves and other assets currently locked in offshore accounts. Russia and Ukraine could establish a bilateral claims-settlement body akin to the Iran-U.S. Claims Tribunal, which handled expropriation claims arising from the Iran Hostage Crisis. The United Nations could revive the recently shuttered UNCC to handle Ukrainian claims against Russia. Each of these models would present daunting administrative challenges. Those responsible for distributing reparations would have to take care to allocate funds prudently, efficiently, and equitably to advance relief and reconstruction while avoiding institutional corruption and weeding out fraudulent claims. Ultimately, however, all of these approaches offer practical mechanisms for delivering reparations to Ukraine.
Pending a comprehensive settlement on war reparations, the United States and its partners can leverage Russia’s frozen assets to assist Ukraine in other ways. Some U.S. officials have called for a new “Marshall Plan” to support Ukraine through international loans and other financial assistance. Were this proposal to become a reality, the United States could condition financial assistance on Ukraine’s agreement to repay international loans using Russian reparations. This debt repayment strategy could help to defuse domestic political opposition to international development assistance, while also strengthening the resolve of the United States and its partners to keep sanctions in place until Russia eventually relents on war reparations.
Congress’s problematic proposals to convert Russia’s frozen assets into reparations for Ukraine should serve as a cautionary tale about the legal limits of economic sanctions. Both domestic constitutional law and international law constrain how the United States may handle frozen assets. When deployed as countermeasures, asset freezes may be used only for limited purposes under international law. States may not use confiscate foreign assets, nor may they abrogate foreign sovereign immunity through asset forfeiture or civil litigation in domestic courts.
If Congress were to proceed down one of those legally proscribed paths, as some members of Congress have proposed, the costs for the United States would be high. Confiscating Russian assets or abrogating Russia’s sovereign immunity would undermine international norms that safeguard trillions of dollars in U.S. direct foreign investment abroad, potentially inviting retaliation from Russia and setting a dangerous precedent for future international disputes. These measures may also discourage foreign direct investment in the United States, threaten the dollar’s pole position as a favored currency for foreign central bank reserves, and weaken the United States’ ability to use economic sanctions to influence other States’ behavior in future crises. Moreover, responding to Russian aggression with illegal expropriations would play into Putin’s hands by eroding the rules-based international order. It would add fuel to Putin’s argument that Russia’s adversaries have equally dirty hands, so there is no meaningful difference between Russia’s “special military operation” and the sanctions other States have levied in response. The United States and its partners need not play into this false narrative. By adhering strictly to the law of countermeasures, they can compel Russia to compensate Ukraine while also upholding the rule of international law.
So far, the Biden administration has adhered to this playbook. The Treasury Department has kept Russia’s sovereign assets on ice, while the Department of Justice has sought opportunities to target Russian oligarchs for criminal, civil, and administrative forfeiture based on their personal criminal activities. These measures might appear feeble and ineffective in comparison to Putin’s ruthless military campaign, but it is still too early to assess their full impact. Viewed on a longer time horizon, the economic sanctions against Russia are laying the groundwork for a negotiated endgame in which Russia will pay dearly for its aggression—likely using assets that are currently frozen around the world. In the meantime, Congress would be wise to hold the course, resisting the temptation to enact hasty statutory shortcuts that would violate the Constitution and international law.
[*] Ernest W. Goodrich Professor, William & Mary Law School. This essay has benefited from conversation with Scott Anderson, Chimène Keitner, and Paul Stephan, as well as workshop participants at William & Mary Law School.
 See U.S. Dep’t of the Treasury, Treasury Prohibits Transactions with the Central Bank of Russia and Imposes Sanctions on Key Sources of Russia’s Wealth, (Feb. 28, 2022), https://home.treasury.gov/news/press-releases/jy0612; Elena Chachko & J. Benton Heath, A Watershed Moment for Sanctions? Russia, Ukraine, and the Economic Battlefield, 116 Am. J. Int’l L. Unbound 135, 135-36 (2022).
 New Financial and Trade Sanctions Against Russia, Cong. Res. Serv. (Mar. 17, 2022), https://crsreports.congress.gov/product/pdf/IF/IF12062#:~:text=Tightening%20Financial%20Sanctions.&text=3771%3B%20H.R.,entities%20incorporated%20in%20Russia%20(H.R..
 John Hyatt, How Putin Used Russia’s Sovereign Wealth Fund to Create a “State-Sponsored Oligarchy,” Forbes, Mar. 8, 2022, https://www.forbes.com/sites/johnhyatt/2022/03/08/sanctions-on-russian-fund-show-dashed-hope-of-moscows-cooperation-with-democracies/?sh=1a90fb99a431.
 Fact Sheet: President Biden’s Comprehensive Proposal to Hold Russian Oligarchs and Elites Accountable, White House (Apr. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/28/fact-sheet-president-bidens-comprehensive-proposal-to-hold-russian-oligarchs-accountable/ [hereinafter Biden Proposal].
 Andrew Osborn & Polina Nikolskaya, Russia’s Putin Authorizes ‘Special Military Operation’ Against Ukraine, Reuters (Feb. 24, 2022), https://www.reuters.com/world/europe/russias-putin-authorises-military-operations-donbass-domestic-media-2022-02-24/.
 Before Russia’s 2022 full-scale invasion of Ukraine, economic sanctions also failed to persuade Russia to withdraw from Crimea, which it had seized in 2014. See Anders Åslund & Maria Snegovaya, The Impact of Western Sanctions on Russia and How They Can Be Made Even More Effective (Atlantic Council 2021), https://www.atlanticcouncil.org/wp-content/uploads/2021/05/The-impact-of-Western-sanctions-on-Russia-and-how-they-can-be-made-even-more-effective-5.2.pdf (observing that “Western sanctions have not succeeded in forcing the Kremlin to fully reverse its actions and end aggression in Ukraine”).
 E.g., Simon Johnson & Oleg Ustenko, A Basic Income for Ukrainians, Paid for with Frozen Russian Assets, Politico (Mar. 2, 2022), https://www.politico.com/news/magazine/2022/03/02/frozen-russian-assets-humanitarian-relief-00013286.
 E.g., Laurence H. Tribe, “Does American Law Currently Authorize the President to Seize Sovereign Russian Assets?,” Lawfare, May 23, 2022, https://www.lawfareblog.com/does-american-law-currently-authorize-president-seize-sovereign-russian-assets; Philip Zelikow & Simon Johnson, How Ukraine Can Build Back Better: Use the Kremlin’s Seized Assets to Pay for Reconstruction, Foreign Aff. (Apr. 19, 2022), https://www.foreignaffairs.com/articles/ukraine/2022-04-19/how-ukraine-can-build-back-better.
 See Asset Seizure for Ukraine Reconstruction Act § 2(1), H.R. 6930, 117th Cong. (Apr. 28, 2022) [hereinafter House ASURA]; Asset Seizure for Ukraine Reconstruction Act, S. 3838, 117th Cong. (2022) [hereinafter Senate ASURA]; Oligarch Asset Forfeiture Act, H.R. 7086, 117th Cong. (2022); Make Russia Pay Act, H.R. 7083, 117th Cong. (2022); Repurposing Elite Luxuries into Emergency Funds for Ukraine Act, H.R. 7596, 117th Cong. (2022); Yachts for Ukraine Act, H.R. 7187, 117th Cong. (2022).
 See Ukrainian Sovereignty Act, H.R. 7205, 117th Cong. (2022).
 See Confiscating Corrupt Criminal Proceeds Act of 2022, H.R. 7015, 117th Cong. (2022).
 Paola Tamma, Payback Time: The West Studies How To Make Russia Foot the War Bill, Politico (Apr. 12, 2022), https://www.politico.eu/article/payback-time-west-make-russia-pay-war-ukraine-bill/.
 Ukraine: Civilian Casualty Update 27 June 2022, U.N. Office of the High Commissioner for Human Rights, June 27, 2022, https://www.ohchr.org/en/news/2022/06/ukraine-civilian-casualty-update-27-june-2022.
 Remarks by President Joe Biden on the Assistance the United States Is Providing to Ukraine, White House, Mar. 16, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/16/remarks-by-president-biden-on-the-assistance-the-united-states-is-providing-to-ukraine/.
 Cf. United Nations Convention Against Transnational Organized Crime art. 2(g), G.A. Res. 55/25, U.N. GAOR, 55th Sess, U.N. Doc. A/RES/55/25 (2001). (defining “confiscation” as “permanent deprivation of property by order of a court or other competent authority”).
 50 U.S.C. § 1702(a)(1)(B) (2001).
 Fact Sheet: United States, G7 and EU Impose Severe and Immediate Costs on Russia, White House, Apr. 6, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/06/fact-sheet-united-states-g7-and-eu-impose-severe-and-immediate-costs-on-russia/.
 50 U.S.C. § 1702(a)(1)(C); see also Trading With the Enemy Act of 1917, 40 Stat. 411, as amended 50 U.S.C. § 4305(b)(1) (providing that “[d]uring the time of war the President may” order the confiscation of enemy assets to “vest . . . in the interest of and for the benefit of the United States”); Scott R. Anderson & Chimène Keitner, The Legal Challenges Presented by Seizing Frozen Russian Assets, Lawfare (May 26, 2022), https://www.lawfareblog.com/legal-challenges-presented-seizing-frozen-russian-assets (explaining why the IEEPA does not permit confiscating Russia’s frozen assets).
 See Paul B. Stephan, Seizing Russian Assets, 17 Capital Mkts. L.J. (forthcoming). But see Tribe, supra note 7 (arguing that Russian cyberattacks should be considered sufficient to permit asset confiscation under IEEPA).
 Joseph R. Biden, Jr., What America Will and Will Not Do in Ukraine, N.Y. Times, (May 31, 2022), https://www.nytimes.com/2022/05/31/opinion/biden-ukraine-strategy.html.
 Transcript of Press Conference from Secretary of the Treasury Janet L. Yellen in Bonn, Germany (May 18, 2022), https://home.treasury.gov/news/press-releases/jy0793.
 See sources cited supra note 8.
 Senate ASURA, supra note 8.
 Id. § 2(a)-(b).
 Id. § 2(c).
 See Jeff Stein, ACLU Helped Defeat Plan To Seize Russian Oligarchs’ Funds for Ukraine, Wash. Post (Apr. 8, 2022), https://www.washingtonpost.com/us-policy/2022/04/08/aclu-ukraine-russia-oligarchs/ (discussing the ACLU’s pushback against the Senate’s ASURA).
 House ASURA, supra note 8.
 Id. § 2(2).
 See 282 U.S. 481, 491-92 (1931). In contrast, Congress may authorize the confiscation of “enemy” property without compensation during armed conflict. United States v. Chemical Foundation, 272 U.S. 1, 11 (1926).
 See G.A. Declaration on the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live, A/RES/40/144, 13 Dec. 1985, Art. 9 (“No alien shall be arbitrarily deprived of his or her lawfully acquired assets.”).
 See Articles on Responsibility of States for Internationally Wrongful Acts art. 31, U.N. Doc. A/56/10, GAOR, 56th Sess., Supp. No. 10 (2001) [hereinafter ARSIWA] (“The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”).
 The House bill sailed through the House in a near-unanimous vote, only to languish in the Senate Foreign Relations Committee. See All Actions H.R. 6930—117th Cong. (2021-2022), https://www.congress.gov/bill/117th-congress/house-bill/6930/all-actions. The Senate version never made it out of the Senate Committee on Banking, Housing, and Urban Affairs. See Action Overview S.3838—117th Cong. (2021-2022), https://www.congress.gov/bill/117th-congress/senate-bill/3838/actions.
 18 U.S.C. § 982 (2016).
 Id. §§ 981, 983-85.
 19 U.S.C. §§ 1905-09; see generally Types of Federal Forfeiture, U.S. Dep’t of Justice, https://www.justice.gov/afms/types-federal-forfeiture#:~:text=Description,part%20of%20the%20defendant’s%20sentence (discussing these three varieties of forfeiture).
 Biden Proposal, supra note 4.
 Id. Consistent with the White House proposal, Representative Tim Burchett has introduced a bill in the House to encourage the use of civil forfeiture to strip assets from Belorussian and Russian nationals to fund humanitarian relief in Ukraine. See Confiscating Corrupt Criminal Proceeds Act of 2022, H.R. 7015, 117th Cong. (2022).
 See KleptoCapture: Aiding Ukraine Through Forfeiture of Russian Oligarchs’ Illicit Assets, Senate Judiciary Committee Hearing (July 19, 2022), https://www.judiciary.senate.gov/meetings/kleptocapture-aiding-ukraine-through-forfeiture-of-russian-oligarchs-illicit-assets (discussing these efforts).
 Time will tell to what extent federal agencies will be able to establish the factual predicate for criminal, civil, or administrative forfeiture by connecting specific Russian assets to illegal activities in the United States or abroad.
 See Rishi Batra, Resolving Civil Forfeiture Disputes, 66 U. Kansas L. Rev. 399, 409-10 (2017) (observing that victim compensation is a traditional objective of civil forfeiture law).
 Statement of Paul B. Stephan, University of Virginia School of Law, Before a Hearing of the Senate Judiciary Committee on KleptoCapture: Aiding Ukraine through Forfeiture of Russian Oligarchs’ Illicit Assets, on July 19, 2022, at 5-12, https://www.judiciary.senate.gov/imo/media/doc/Testimony%20-%20Stephan%20-%202022-07-19.pdf.
 Id. at 6-8 (discussing the Supreme Court’s retroactivity analysis in Landgraf v. USI Film Prod., 511 U.S. 244, 267 (1994)).
 See id. at 11-12 (discussing this concern).
 See id. at 9 (expressing concern that expanding liability under the Foreign Corrupt Practices Act to transactions without substantial contacts to the United States would constitute an assertion of “universal jurisdiction over bribery and related corruption” everywhere in the world); see generally Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int’l L.J. 121, 123 (2007) (explaining how “constitutional limits—most notably those contained in the Fifth Amendment’s Due Process Clause— . . . restrict the ability of the United States to apply extraterritorially . . . U.S. code provisions outlawing conduct that is not subject to universal jurisdiction under international law”).
 See, e.g., Tim Hutchinson et al., How the US Can Make Russia Pay Ukrainians for Destroying their Country, CNN (Apr. 11, 2022), https://www.cnn.com/2022/04/11/opinions/ukraine-russia-monetary-damages-legislation/index.html.
 28 U.S.C. §§ 1604-05. For an illuminating discussion of the FSIA’s application to frozen Russian assets, see Ingrid Wuerth, Does Foreign Sovereign Immunity Apply to Sanctions on Central Banks?, Lawfare, Mar. 7, 2022, https://www.lawfareblog.com/does-foreign-sovereign-immunity-apply-sanctions-central-banks.
 The FSIA does not bar plaintiffs from bringing civil actions against individual Russian officials or oligarchs, but some Russian officials could claim immunity ratione personae for their involvement in the Ukraine invasion. See Chanka Wickremasinghe, Immunities Enjoyed by Officials of States and International Organizations, in International Law 349, 362-69 (Malcolm Evans ed., 5th ed. 2018) (discussing these features of foreign official immunity under international law).
 Ukrainian Sovereignty Act, supra note 9, § 2(a).
 Id. § 2(b).
 The Biden administration would also have to permit individual claimants to access frozen Russian assets for the satisfaction of judgments, rather than keep them blocked to maintain leverage for future negotiations with Russia.
 Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), 2012 ICJ Rep. 99.
 Id. at 125, ¶ 60.
 Id. at 134-35, 140-42, ¶¶ 77, 92-97.
 See Simoncioni v. Repubblica Federale di Germania, Corte cost., 22 ottobre 2014 n. 238, Gazzetta Ufficiale [G.U.] (ser. spec.) n. 45, 29 ottobre 2014, I, 1, http://gazzettaaufficiale.it, translated at http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf (declining to follow the Jurisdictional Immunities judgment); Claire E.M. Jervis, Jurisdictional Immunities Revisited: An Analysis of the Procedure Substance Distinction in International Law, 30 Eur. J. Int’l L. 105, 105 (2019) (critiquing the ICJ’s “sclerotic approach to the interaction between substantive and procedural law in the Jurisdictional Immunities case”); Kimberley N. Trapp & Alex Mills, Smooth Runs the Water Where the Brook Is Deep: The Obscured Complexities of Germany v. Italy, 1 Cambridge J. Int’l & Comp. L. 153 (2012) (exploring alternative approaches the Court could have taken to deciding the case).
 See Statute of the International Court of Justice art. 59 (“The decision of the Court has no binding force except between the parties and in respect of the particular case.”).
 See, e.g., Monica Hakimi, Constructing an International Community, 111 Am. J. Int’l L. 317, 334 (2017) (“The ICJ’s jurisprudence . . . limits the authority of international or national courts to enforce jus cogens norms.”).
 Factory at Chorzów (Pol. v. F.R.G.), 1928 P.C.I.J. (ser. A.) No. 17 (Sept. 13), at 47.
 See Aggression Against Ukraine, G.A. Res. A/RES/ES-11/1, Mar. 2, 2022, https://unwatch.org/wp-content/uploads/2022/05/A_RES_ES-11_1-EN.pdf (deploring “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter”).
 Christian J. Tams, Enforcing Obligations Erga Omnes in International Law 20 (2005); see also Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports (1997) 1, ¶¶ 82-87; Air Services Agreement Case (France v. United States), 18 RIAA 416, ¶ 83 (1978); ARSIWA, supra note 32, ch. V (discussing circumstances precluding wrongfulness generally).
 ARSIWA, supra note 32, art. 49(1) (“An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations . . . .”).
 Id. art. 49(3).
 See Elizabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures 15 (1984).
 Id. art. 48(1)-(2); see also Martin Dawidowicz, Public Law Enforcement Without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship to the UN Security Council, 77 Brit. Y.B. Int’l L. 333 (2007) (arguing that customary international law authorizes these “collective countermeasures”); Evan J. Criddle, Standing for Human Rights Abroad, 100 Cornell L. Rev. 269, 297-332 (2015) (explaining how States may apply countermeasures in the interests of foreign “beneficiaries”).
 U.N. Charter art. 2(4).
 See Barcelona Traction, Light & Power Co. (Belg. V. Spain), 1970 I.C.J. Rep. 3, 32, ¶¶ 33–34 (Feb. 5) (characterizing the prohibitions against aggression and genocide and “the principles and rules concerning the basic rights of the human person” as “obligations erga omnes”).
 See U.N. High Commissioner for Human Rights, Thematic Study of the Office of the United Nations High Commissioner for Human Rights on the Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Including Recommendations Aimed at Ending Such Measures, 7–8 ¶ 22, U.N. Doc. A/HRC/19/33 (Jan. 11, 2012), available at http://www.ohchr.org/ Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-33_en.pdf (“Where human rights or other obligations owed to the international community as a whole (obligations erga omnes) are concerned, any State may take lawful measures against the State that breached the said erga omnes obligation . . . .”); Mary Ellen O’Connell, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement 245 (2008) (“[T]he weight of opinion supports the right of states to take countermeasures in cases of erga omnes obligations with a jus cogens character.”); Tams, supra note 58, at 249–51 (“[I]ndividual States are entitled to take countermeasures in response to systematic or large-scale breaches of obligations erga omnes.”).
 See Omer Yousif Elegab, The Legality of Non-forcible Counter-measures in International Law 64-65 (1988) (explaining that countermeasures may be used to seek compensation for internationally wrongful acts).
 See id. at 111 (“[N]o form of confiscatory expropriation will be acceptable as counter-measures.”); David J. Bederman, Counterintuiting Countermeasures, 96 Am. J. Int’l L. 817, 824 (2002) (“Whatever countermeasure a state selects has to be capable of being reversed.”); Evan Criddle, Rebuilding Ukraine Will Be Costly. Here’s How to Make Putin Pay., Politico, Mar. 30, 2022, (explaining that this principle applies to frozen Russian assets); Paul Stephan, Response to Philip Zelikow: Confiscating Russian Assets and the Law, Lawfare, May 13, 2022 (explaining why states under international law may seize, but not confiscate, foreign state assets under the international law of countermeasures). But see Philip Zelikow, A Legal Approach to the Transfer of Russian Assets to Rebuild Ukraine, Lawfare, May 12, 2022 (arguing that asset confiscation would be a lawful countermeasure).
 See Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered 10 (3d ed. 2007) (finding that “most attempts at altering military adventures [through sanctions] have not been successful”).
 See Lea Brilmayer, Understanding “IMCCs”: Compensation and Closure in the Formation and Function of International Mass Claims Commissions, 43 Yale J. Int’l L. 273, 297-98 (2018).
 See Jonathan B. Schwartz, Dealing with a “Rogue State”: The Libya Precedent, 101 Am. J. Int’l L. 553 (2007) (discussing negotiations leading to this result).
 See Catherine Belton, Putin Thinks West Will Blink First in War of Attrition, Russian Elites Say, Wash. Post (June 3, 2022), https://www.washingtonpost.com/world/2022/06/03/russia-putin-economy-attrition-war/.
 See European Council, Infographic – Ukrainian Grain Exports Explained, https://www.consilium.europa.eu/en/infographics/ukrainian-grain-exports-explained/ (last visited Dec. 30, 2022) (explaining that Russian aggression has disrupted Ukrainian grain exports and impacted global grain prices); European Parliament, Briefing: Economic Repercussions of Russia’s War on Ukraine – Weekly Digest (Dec. 20. 2022), https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/733754/IPOL_BRI(2022)733754_EN.pdf (discussing economic pressures on European countries resulting from regional sanctions against Russian oil and natural gas).
 See Brilmayer, supra note 68, at 296-97.
 See id. at 297-98.
 For example, if Russia were to make a lump sum payment to Ukraine, Ukraine would have to decide how to allocate these funds to ameliorate suffering and promote reconstruction. This might include establishing an institutional mechanism at the national level to distribute reparations directly to private claimants. Alternatively, Russia and Ukraine could establish an international claim-settlement mechanism, such as a bilateral claims-settlement body. In either scenario, the vast number of potential claimants would present enormous administrative challenges.
 See Kate Connolly, Pete Buttigieg Calls for a New Marshall Plan to Rebuild Ukraine, Guardian (May 24, 2022), https://www.theguardian.com/world/2022/may/20/pete-buttigieg-says-us-backs-new-marshall-plan-to-rebuild-ukraine.
 See Bureau of Economic Analysis, Direct Investment by Country and Industry, 2020, https://www.bea.gov/news/2021/direct-investment-country-and-industry-2020 (noting $6.15 trillion in U.S. direct investment abroad at the end of 2020).
 See Readout of Russian Elites, Proxies, and Oligarchs (REPO) Task Force Deputies Meeting, U.S. Dep’t of Justice, Sept. 30, 2022, https://www.justice.gov/opa/pr/readout-russian-elites-proxies-and-oligarchs-repo-task-force-deputies-meeting (“Together with our partners, the steps we have taken so far have immobilized Russian assets as one of several means to induce Russia to come into compliance with its international law obligations, including the obligation to pay reparations.”).
Image credit: chuttersnap, CC0 1.0: https://creativecommons.org/publicdomain/zero/1.0/deed.en
NICOLE BREDARIOL & OMER DURU*
“How to hold Russia accountable for the invasion of Ukraine?”
On November 16, 2022, the Harvard International Law Journal and Harvard International Arbitration Law Students Association hosted a speaker series discussing one of the most pressing international law questions confronting the world today: how to hold Russia accountable for the invasion of Ukraine?
Keynote speakers, Professor Harold Koh of Yale Law School and Mr. Patrick Pearsall, Director of Columbia Law School’s International Claims and Reparations Project, challenged the invisible college of international lawyers to help protect the global order. Invoking the image on Achilles’ shield, one of history’s greatest warriors, as a metaphor for arbitration playing a significant role in post-conflict dispute resolution, Mr. Pearsall addressed how international arbitration in the context of the war between Russia and Ukraine can help international law rise to this challenge. Professor Koh, discussing his role as counsel to Ukraine before the International Court of Justice (ICJ), posed an existential challenge to the Court during his closing arguments in March 2022, asking if it was powerless to stop naked aggression and war crimes. He framed the current events not as Russia versus Ukraine, but rather Russia versus the post-World War II international legal order, and implored the ICJ to act.
The international community has answered the call twice now, first when the ICJ issued a 13-2 order on provisional measures that Russia “shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” On 7 November 2022, the international community responded again when ninety-four members of the United Nations General Assembly (UNGA) voted to hold Russia accountable for its violations of international law, recognized the need for an international mechanism for reparations for damage, loss, and injury arising from Russia’s internationally wrongful acts, and recommended the creation of an international register of damage to preserve evidence and claims.
Mr. Pearsall indicated the UNGA Resolution of 7 November 2022 creates the necessary framework for the establishment of a claims commission to account for Russia’s wrongful acts. Citing historical precedent for the establishment of post-conflict claims commissions, Mr. Pearsall asserted that a claims commission solely empowered with the authority to issue final and binding awards, is the most efficient and fair mechanism to ensure claims are lawfully adjudicated. Estimating that Russia’s invasion of Ukraine has caused in excess of $1 trillion in damages, Mr. Pearsall warned that Russia remaining an international pariah and outcast from global financial markets will have more detrimental effects on conflict resolution; thus, a claims commission is a necessary step for Russia’s reintegration into the global order.
Now the task falls to the invisible college of international lawyers to turn this call into action. Both Professor Koh and Mr. Pearsall asserted that the way forward should include interested States creating a commission through multilateral agreement, identifying the details of a claims register of harm, and determining how a Russia-Ukraine conflict claims commission will be funded. The Russia-Ukraine conflict will shape the next forty years of global relations; this is a unique opportunity for rising lawyers to become directly involved in the evolution of international law. As the speakers highlighted, the “train is just getting into the station, so get onboard.”
*Nicole Bredariol and Omer Duru are Harvard Law School LL.M Candidates, Class of 2023. They are focusing their studies on international humanitarian law and national security law.
Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977).
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.), Order, ¶ 86 (Mar. 16, 2022), https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf.
G.A. Res. L.6/2022, U.N. Doc. A/ES-11/L/6 (Nov. 7, 2022).
In the days following Russia’s invasion of Ukraine the United Nations (UN) General Assembly convened an Emergency Special Session under its Uniting for Peace mechanism. The initiation of this session was prompted by the exercise of the veto power by Russia, thereby impeding the Security Council from adopting a resolution on the situation. The Security Council took the unusual step (by majority vote) of deciding to call an Emergency Special Session given that Russia’s veto had “prevented it from exercising its primary responsibility for the maintenance of international peace and security.” For the first time since 1997, the General Assembly convened an Emergency Special Session on a new situation, broadcast live around the world, in which state diplomats joined together in large numbers to express their collective disapprobation of Russian aggression. It resulted in the adoption of Resolution ES-11/1 by a large majority (141 for, five against and 35 abstentions). This Article discusses the legal significance of this resolution and revisits the powers available to the General Assembly in supporting the maintenance and restoration of international peace and security. It shows that, moving forward, there are various legal solutions open to the General Assembly, some creative, to mitigate the Security Council’s failures to act on the Ukraine situation.
The nature of the Uniting for Peace mechanism has been extensively analyzed, such that only a brief outline of its key features is necessary here. In response to Security Council deadlock on continued UN military action in Korea, the General Assembly adopted Resolution 377A on 3 November 1950. The resolution stipulates that either the General Assembly or Security Council can initiate an Emergency Special Session where, due to a “lack of unanimity of the permanent members,” the Council “fails to exercise its primary responsibility for the maintenance of international peace and security.” In this case, the Assembly “shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.” In the ten prior Emergency Special Sessions, the Assembly took and recommended a variety of measures. It has condemned violations of international law and called for cessation of these breaches. It has recommended the imposition of sanctions against offending states. It has established peacekeeping forces with host state consent. Perhaps most famously associated with the Uniting for Peace mechanism, in 1951 the Assembly called upon states to support continued UN military action in Korea, including to repel Chinese aggression, a feat that it has not repeated since.
The output of the first meeting of the Emergency Special Session on Ukraine, Resolution ES-11/1, did not go as far as some of these prior resolutions, but it did return to a legal characterization that it has long avoided: aggression.† It deplored “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the [UN] Charter” and condemned Russia’s declaration as to the necessity of this “‘special military operation.’” It demanded Russia to “cease its use of force against Ukraine” as well as to “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” It also condemned “all violations of international humanitarian law and violations and abuses of human rights,” demanding that parties to the conflict “fully comply with their obligations under international humanitarian law to spare the civilian population.” It recalled the obligations under Article 2(2) of the UN Charter, that all member states, “in order to ensure to all of them the rights and benefits of membership, shall fulfil in good faith the obligations assumed by them in accordance with the [UN] Charter.”
Resolution ES-11/1 is unlikely to be the General Assembly’s final word on the Ukraine situation. The Emergency Special Session is now adjourned, but can be resumed in the future upon requests from member states. Although it is impossible to predict how this unfolding crisis is resolved, it is worthwhile considering the legal options open to the Assembly in seeking to secure peace and, in time, justice for the victims of aggression and other international crimes. To what extent is the Assembly able to take action or otherwise recommend measures to the membership that would be legally analogous to that taken by the Security Council?
This question comes back to the debate on the scope of the General Assembly’s powers and the effect of its resolutions. A commonly held view is that the Assembly, being a deliberative body, is lacking in legal authority to impose its will on states; its powers in Articles 10 to 14 are merely recommendatory. Rather, it is the Security Council that is vested with the powers to bind and coerce the membership, including to justify the use of military force and the imposition of economic sanctions. Furthermore, it is clear from past Assembly practice that it is not necessary for them to act in an Emergency Special Session in order to condemn member states or the Security Council in failing to meet its responsibilities under the UN Charter; it has become routine practice in regular sessions to do so.‡ An Emergency Special Session under Uniting for Peace, on this view, is symbolic, in creating the bracing optics of an urgently convened session to address shocking events, but does not give the Assembly any more power than it possesses under the UN Charter. Yet, even if one accepts that Uniting for Peace does not add to the Assembly’s legal powers, this view ignores the important role that the General Assembly’s solemnly worded resolutions in an emergency situation possess in crystallising a series of legal claims by the community of nations that can be used to support future actions. In this context, the use of the Uniting for Peace mechanism is a symptom of the UN’s institutional failure, with the many (i.e. the 193 members of the Assembly) attempting to do through a process of collective legal interpretation what the few have failed to do through Chapter VII decisions (i.e. the 15 members of the Security Council). The Assembly can legally support future actions against Russia in a variety of ways.
Its finding in Resolution ES-11/1 that Russia has committed aggression in Ukraine provides the first such internationally authoritative determination that this conduct occurred. Prior Assembly findings of this nature in other situations have been used to augment legal action taken by other bodies, including the International Criminal Court’s (ICC) exercise of jurisdiction and the ordering of provisional measures in the International Court of Justice (ICJ). Most relevantly, Resolution 68/262 (2014), which declared Russia’s annexation of Crimea to be of “no validity” was used by the ICC Prosecutor to support the opening of an investigation, on the basis that Crimea was Ukrainian territory. Indeed, in the recently initiated case, Ukraine v Russia, the ICJ drew upon Resolution ES-11/1 to support the ordering of provisional measures to protect the rights of Ukraine from being subject to the use of force by Russia based upon false allegations of genocide under the Genocide Convention.
The General Assembly can also take into account the Russian aggression as a factor in those internal operational matters in which it is empowered to make decisions. Its finding in Resolution ES-11/1 that the “rights and benefits” of membership entail good faith obligations provide a hook for future claims that the Russian government has not acted in accordance with the expectations incumbent on a UN member state. One route is via Article 5 of the UN Charter, which provides that “a member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.” The obvious impediment here is that Russia would not support its own suspension from the UN when voting on the matter in the Security Council. However, this does not preclude the membership from forming a view as to whether a representative possesses the credentials to represent a state in the Assembly. Normally this is a formality in approving the governmental representatives of a state, but there is precedent for the General Assembly to factor in a regime’s fidelity to the UN Charter in assessing whether to accept or reject credentials. The credentials of the South African apartheid regime were thus rejected by the Assembly due to its “flagrant violation” of the UN Charter. Whether isolating Russia in this way is politically wise is another matter. Yet, it is open to member states to object to the Russian representative based on the South Africa precedent, thereby triggering a consideration of its credentials by the UN Credentials Committee.
Another way in which the General Assembly’s legal determinations might assist in the Ukraine situation is in supporting the legal justification for the imposition of sanctions against Russia. Sanctions raise complex questions of legality, particularly when taken unilaterally outside an international institutional framework. Within the text of the UN Charter, the power to sanction is textually the reserve of the Security Council, which, pursuant to Article 41, are able to take measures to restore or maintain international peace and security. Still, there is a body of Assembly practice in calling upon members to impose sanctions against offending states, including the breaking of diplomatic relations; closure of sea and air ports; trade boycotts; severance of cultural relations; targeted sanctions against individual perpetrators; and arms embargoes. The difference in the Ukraine situation is that states have been quick to impose sanctions without the need for encouragement or endorsement from the Assembly. Still, there is a role, moving forward, for the Assembly to evaluate the legality of sanctions against Russia by, for example, certifying that the conditions for the valid invocation of the law of countermeasures have been met. These conditions, according to Article 49 of the International Law Commission’s Draft Articles on State Responsibility, include proportionality, proper purpose (aimed at inducing Russia’s compliance), and temporal limitation to the period of the breach. While an Assembly resolution would not automatically release states from its various treaty obligations to Russia, the involvement of the Assembly in certifying that these conditions have been met can serve to alleviate concerns regarding abuse that might arise in a single state, or a small group of states, determining the legality of sanctions unilaterally. Furthermore, closer coordination of sanctions through the Assembly would give effect to the international obligation on states to cooperate through international institutions (such as the UN) to bring to an end breaches of peremptory norms (such as the prohibition on aggression).
The General Assembly can also empower judicial or quasi-judicial bodies to address the legal implications arising from Russia’s aggression and its conduct in Ukraine. Resolution 377A noted it to be one of the Assembly’s responsibilities under the Uniting for Peace mechanism to “ascertain the facts and expose aggressors.” The Assembly can advance this purpose most obviously by creating a commission of inquiry with a mandate to collect and evaluate evidence to ascertain violations of international law. The recent precedent set in the Syria situation takes the Assembly’s powers a step further to allow commissions to prepare individual case files of persons suspected of committing international crimes, thereby facilitating future investigations and prosecutions at a domestic or international level. In 2016, Russia sought to resist this innovation as ultra vires but failed. A quasi-prosecutorial mechanism of this nature in turn enhances the Assembly’s ability to meet its responsibility under the Uniting for Peace mechanism to “expose aggressors” in the Ukraine situation. In this respect, it is noteworthy that the Assembly’s subsidiary organ, the Human Rights Council, has established a commission of inquiry to investigate a broad range of violations arising from the Russian aggression. This will, in turn, serve to not only ensure that an international investigation is conducted into these violations, but also provide the Assembly with information to underpin its future findings and legal characterizations on the Ukraine situation.
Furthermore, the General Assembly, acting under Article 96 of the UN Charter, could request an advisory opinion from the ICJ. Ukraine has already initiated proceedings against Russia which, given the latter’s limited acceptance of the ICJ’s jurisdiction, is confined to arguments concerning the application of the Genocide Convention. This provides a hook for the judicial consideration of the reasons purporting to support the invasion, but the Assembly might also confer jurisdiction on the ICJ on a broader basis through a request for an advisory opinion. The ICJ has the power to consider “any legal question” which has been construed broadly to include the conduct of individual states. As the Emergency Special Session on Israel shows, the Assembly has used the Uniting for Peace mechanism to request an advisory opinion on the legal consequences of Israel’s construction of the wall in the Occupied Palestinian Territory. Similarly, the Assembly could ask the ICJ to address the legal consequences arising from Russian conduct on a broader basis, both in February 2022 as well as in relation to earlier incursions into Ukrainian territory, such as its 2014 annexation of Crimea.
Finally, a more radical suggestion is for the General Assembly to create an ad hoc criminal tribunal to try suspects accused of international crimes, including aggression, in relation to the Ukraine situation. A group of leading figures have called for a Special Tribunal for Aggression to be established to prosecute Russia’s aggressive acts. While it has been the Security Council who has established ad hoc tribunals in the past, their failure to act on the Ukraine situation would arguably support the creation of an analogous tribunal by the Assembly under the Uniting for Peace mechanism. This view has gained some traction in UN practice, with the commission of inquiry report on North Korea noting the possibility for states to pool their combined sovereign powers over criminal jurisdiction to empower an Assembly created ad hoc tribunal. Although the Prosecutor of the ICC has initiated an investigation into the Ukraine situation, there are limitations to this Court’s jurisdictional reach, particularly over the crime of aggression. As Russia is not an ICC state party, and the Security Council is unable to make a referral of the situation due to Russia’s veto, the crime of aggression cannot be prosecuted at the ICC in this situation. The establishment by the Assembly of an ad hoc tribunal over the crime of aggression represents one legal option to redress this impunity gap.
The overview of legal options open to the General Assembly says nothing about the sizeable challenges in operationalizing these various options, especially in trying the incumbent Russian leadership for the crime of aggression. Nor has it sought to predict the geopolitical winds of change that might make these options more or less viable as a matter of international politics. However, as states and other actors coordinate their activities and strategize in forging creative solutions to overcome misuses of the Security Council veto, it is the General Assembly, now as in 1950, that can step into the breach. Resolution ES-11/1 has made a start.
† Michael Ramsden, International Justice in the United Nations General Assembly 133–36 (2021).
‡ Id. at 114–45.
* Michael Ramsden is an associate professor at the Faculty of Law, The Chinese University of Hong Kong and a barrister door tenant at 25 Bedford Row, London. Michael also previously worked in the Appeals’ Division of the International Criminal Court and at United Nations Assistance to the Khmer Rouge Trials. He has published extensively in the areas of international criminal law, international human rights law and international institutional law, including a monograph, International Justice in the United Nations General Assembly, published by Edward Elgar Publishing in 2021.