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T The Rule of Law in Times of International Conflict: Shortcomings of the International Order
THE SOCIAL CONTEXT OF THE LAW: THE RULE OF LAW IN TIMES OF INTERNATIONAL CONFLICT:
SHORTCOMINGS OF THE INTERNATIONAL ORDER
From a panel discussion held on 17 May 2022 with The Lord Hannay of Chiswick GCMG CH (Chair of the UN All-Party Parliamentary Group), The Rt Hon Dominic Grieve KC (Former Attorney General for England and Wales), Master Andrew Cayley CMG KC (HM Chief Inspector of the Crown Prosecution Service, formerly Senior Trial Attorney at the International Criminal Court), and moderated by Master Geoffrey Nice (Gresham Professor of Law 2012–2016, International Criminal Tribunal for the Former Yugoslavia, Chair of the China Tribunal and the Uyghur Tribunal)
Ukrainian Monument of Independence located in the center of Kiev on Independence Square © Adobe Stock
Master Geoffrey Nice: The Ukraine war has brought international humanitarian law and the trying of war criminals into sharper focus. It has required a rethink about what part international criminal law can play in stopping conflicts that may lead to war, and in what ways it may have failed to deal with crimes committed in war. For example, the public has become aware of how Russia’s power of veto in the Security Council of the United Nations can block trial by the International Criminal Court (ICC) of the most obvious crime of aggression that Russia may have committed.
Where international humanitarian law has sometimes been proved wanting, and war crimes trials have sometimes perhaps been shown to be deficient, may human rights law – which overlaps with international humanitarian law, the law of war – have been breached beyond what is justified in armed conflict and then disregarded in overlong tribunal hearings? If the law of war and the trials that follow fail mankind, may human rights themselves be gravely at risk?
Tonight’s speakers have CVs available online to intimidate students and shame the rest of us: Lord David Hannay, GCMG, Companion of Honour; Andrew Cayley, CMG KC, Her Majesty’s Chief Inspector of the CPS; and The Right Honourable Dominic Grieve, Attorney General from 2010 to 2014.
Lord Hannay: I confess to some trepidation in accepting the invitation to address this distinguished gathering of lawyers on a subject which was summarised to me as: “Russia’s invasion of Ukraine has prompted doubts about the effectiveness of international humanitarian law generally, especially in the light of the composition of the UN Security Council, while Russia sustains an effective veto on prosecutions at the International Criminal Court.”
I will address these issues more from a diplomatic and geopolitical angle than from a purely legal one. The UN has taken some heavy knocks since Russia triggered that war of aggression against Ukraine nearly three months ago, and who could not have been moved by the anguish and the anger with which President Zelensky addressed the Security Council for being unable to brand Russia’s aggression for what it is: a clear breach of innumerable provisions of international law, not least the founding Charter of the United Nations itself. However, at no point in time since the United Nations was founded in 1945, would or could its Security Council have been able to act against one of its permanent members. That’s a simple fact. The veto is for the five permanent members. Because just ask yourself the question: would Stalin, or indeed Roosevelt and Truman, have agreed if there hadn’t been a veto? No, they wouldn’t. So, to those who believe that the Charter could now be rewritten to abolish the veto, I fear I have to tell you, you are lacking in realism. And then there’s the other question, why not eject Russia or suspend it because it has acted so egregiously? Well, the Charter does not actually provide for that.
The UN has taken some heavy knocks since Russia triggered that war of aggression against Ukraine nearly three months ago, and who could not have been moved by the anguish and the anger with which President Zelensky addressed the Security Council for being unable to brand Russia’s aggression for what it is: a clear breach of innumerable provisions of international law, not least the founding Charter of the United Nations itself.
But you shouldn’t overlook the UN and the body of international law it has built up in the 75 years of its existence. Do not forget either, the vital humanitarian work of the UN’s agencies: the refugee agency, the migration organisation, the Children’s Fund. These are vital in circumstances such as occur in Ukraine. The High Commissioner for Refugees, and the migration institutions are helping to mitigate the suffering from the largest migration crisis in Europe since the Second World War.
But that brings me to the vexed question of impunity from war crimes, the prima facie evidence which accumulates daily in Ukraine, and which has naturally attracted a great deal of attention. Well, I was one of those who, immediately after the Russian invasion, signed an appeal to the International Criminal Court (ICC) and its prosecutor to begin collecting evidence on the basis of which action could subsequently be taken. The positive reaction to that plea by the prosecutor was extremely welcome, as was the contribution that our own government is making to the court’s resources in this respect.
And you have to welcome the appointment of Sir Howard Morrison, a distinguished former judge of the International Criminal Court, to advise the government of Ukraine on the marshalling of the evidence that would have to be brought before the court. Is this route to justice rendered nugatory by the fact that the ICC is not mandated by statute to bring charges of war of aggression? I don’t believe that does have that effect. First, the ICC has shown in several of its early cases that it is ready to tackle the issue of command responsibility, which is the link which will lead to Putin.
Should the international community go further than that and establish a new international tribunal, like the Nuremberg and Tokyo tribunals after the Second World War, explicitly empowered to try cases of wars of aggression? I’m not at all sure that that would be either wise or effective. The citing of the Nuremberg and Tokyo precedents should remind us that those tribunals were only able to function as a result of the defeat in war of the offending regimes, the occupation of their capital cities, and the capture of their leaders. Well, in our nuclear weapons era, that’s not going to happen. We are not going to march to Moscow. And so it is important to bear that in mind if you want to weigh up the chances of an alternative route.
Now it’s often said that a country goes to war with the armed forces that it has, not with the ones it wishes it had. Well, I would argue in favour of going to court with the instances which already exist, not with those we would ideally like to have.
Master Andrew Cayley: I watched with real, profound sadness when I saw the failures of international institutions after the invasion of Ukraine. The UN Security Council couldn’t act because of Russia’s veto. So not only could it not refer the case to the International Criminal Court, it couldn’t refer the crime of aggression, because Russia vetoed it, but it couldn’t take any other measures under Chapter VII of the Charter. It was paralysed. So, it sent the matter to the General Assembly of the United Nations – and all that the General Assembly has done is to condemn Russia and request that it withdraws from the Ukraine, and of course that has not happened. Then the Ukraine found a hook into the International Court of Justice – under the Genocide Convention, there is a provision where any Parties to the Convention who have a dispute over its interpretation can go to the permanent court and ask for the judges to give an interpretation. And Putin, and many of the other leaders in the Russian Federation, had given genocide as a justification for invading Ukraine.
And because this allegation had been made against Ukraine, Ukraine was able to go to the International Court of Justice and say: “Look, you need to decide whether this is genocide, because we say this is nonsense, but that’s what Putin says.” And the court acted, and it found jurisdiction for the Ukrainians, and it was able to take what are called ‘provisional measures’ to support Ukraine. Part of those provisional measures was to condemn Russia, ask Russia to respect international law calling for the withdrawal of Russian forces from the Ukraine, calling for the protection of civilians – and of course, nothing happens.
Let me talk briefly about the Khmer Rouge Tribunal, because that’s a court which had its problems. The Khmer Rouge Tribunal was a hybrid court. There were a lot of problems in establishing the court because the Cambodian government wanted to control the court. The Khmer Rouge was an extremist Maoist political movement – it governed Cambodia between 1975 and 1979. And during that time, it either murdered, worked, or starved to death over two million people. The court took many years to establish, but eventually it was established in 2007.
It wasn’t established in the same way as the Yugoslav Tribunal, which was a product of the Security Council. The court was staffed, by both Cambodian nationals and by internationals from the UN. All of the Cambodian staff were in the pocket of the government. So, any decisions that we tried to take were never really that independent.
Was it corrupt? Yes. I struggled with that every day. I still struggle with it now. We did two trials. The first trial involved the trial of the commandant of S21, which was an extermination camp in Phnom Penh that murdered 18,000 people over the space of three years: women and children, elderly people, in the most horrific circumstances. We prosecuted him, convicted him, he got 19 years after trial. On appeal he got a whole life sentence. He died in prison two years ago: Comrade Duch.
We then tried the four remaining leaders of the Khmer Rouge, very elderly people. Two of them died during trial, one before trial. We ended up trying the deputy to Pol Pot who’d been the leader of the Khmer Rouge, and the former president, Khieu Samphan. We convicted both of them at trial, but Nuon Chea, the deputy to Pol Pot, died before appeal.
The process, you can see, was not ideal, but I think those two trials did meet international standards. Overall, did the court satisfy what we here in the United Kingdom would regard as fair and decent institutions with integrity and independent judges? No, I wouldn’t say that at all. But would I say that international justice is not something worth pursuing because of that? No, I wouldn’t.
We may have to wait many years, but these things are worth pursuing. They’re important to the victims. I remember after the conviction of Duch at the Khmer Rouge Tribunal a woman who had fled Cambodia in 1979 and left her mother and father behind, who had both been murdered in S21, came up to me and said: “Nothing, nothing in my life was as important [as] to see this day because my parents died. They were tortured and murdered in that terrible place. And now I can sleep more easily because 35, 40 years on justice is being done.”
Dominic Grieve: I once went to Salzburg and in the castle there was a large Habsburg cannon, which had written upon it the words: “Ultima ratio regum” – the ultimate rationale of kings. And I’m afraid the truth is that the ultimate rationale is force. States enforce the law. If we break the law in this country, we will end up in court because the state has the power to do that.
When one’s dealing with international tribunals, one has to recognise that, as there is no overarching international authority, ultimately, states can take action, and if they are strong enough, they will never be brought to justice, however badly they behave. It is no surprise that China, despite its gross human rights violations in a number of settings, is essentially immune from pursuit through the courts.
One of the complaints which is made about the International Criminal Court is that the countries which tend to end up in front of the ICC are often what might be described as ‘weaker states’, which can be effectively coerced by the leverage of others into accepting court jurisdiction. That’s what happened essentially with Milosevic over Serbia: a willingness finally to bend because the political advantages of bending to the will of the United Nations as expressed through the International Criminal Court are seen as being more advantageous than protecting Milosevic.
Ultimately, this is a flawed process. But that doesn’t make it an invalid one, however chaotic and difficult it might be. Over time, the standards of behaviour of states and individuals within it are subtly raised by the evidence that individuals can end up in front of international tribunals for breaches of international humanitarian law. It’s a drip feed, which we need as a country to add to. And indeed, we have been fairly consistent. Although it is worth bearing in mind there were times when the United Kingdom government thought it exceptionally irksome that allegations, for example of misconduct of UK forces in Iraq, should have to be investigated. Ultimately, the process did work, if only, mainly, in establishing that in many cases the violations that had been alleged had not occurred. So difficult as it may have been, it was good for us. So, for all those reasons, I happen to think that the international tribunal system is the only show in town, and if we were to abandon it, we would see a deterioration in behaviour. Russia’s behaviour in the Ukraine is a chilling example. Here’s a country after all, signed up to the European Convention on Human Rights, quite apart from the Geneva Conventions, which seems, when the conflict set out – leaving aside the question about the crime of aggression – to have simply conducted itself in a manner which is only too reminiscent of behaviour during the Second World War. And it’s that which we need to try and counter, and the law can play an effective part in doing that.
It’s not impossible that eventually we will see Putin brought to justice, because you never know how the political impact of the existence of humanitarian norms will ultimately play out – if, for example, he were eventually replaced as Russian leader by a regime which wanted to restore its international credibility. So, I am a great believer in this system, imperfect though it is.
It needs us, as lawyers, to sign up to it and to argue for it, because there have been occasions, even in the United Kingdom, where people seem to think that it would be much nicer if we had an easier system. The government introduced legislation not so long ago, until it was got rid of successfully in the Lords, to seek to remove some of the requirements to observe international humanitarian law – or at least the ability to investigate it – from UK forces, something which I should add attracted massive resistance within the armed forces themselves, which I think shows how you can raise standards.
And before we despair, I will just say in conclusion, we undoubtedly, as we can see in the Ukraine, live in a violent world, but I think sometimes we underestimate the extent to which, despite our gross imperfections, the world is in fact a much less violent place than it has probably been at any time since humanity began. And for that, we have to be thankful for the rules-based system that we’ve been able to establish.
Sir Geoffrey Nice KC The Lord Hannay of Chiswick GCMG CH Andrew Cayley CMG KC The Rt Hon Dominic Grieve KC
For the full video recording: innertemple.org.uk/shortcomings
