European Rights Watch

ICJ Hears First Round of Oral Arguments for Ukraine v. Russian Federation: 32 States Intervening

By: Lauren Hile

Journal of Global Rights and Organizations Associate Articles Editor

 THE HAGUE, Netherlands – On September 18, 2023, the International Court of Justice (ICJ) began hearing oral arguments for Ukraine v. Russian Federation. Ukraine brought this case against the Russian Federation in February 2022 to establish two provision measures: (1) not to be subject to false claims of genocide by Russia, and (2) not to be subjected to other state’s military operations on its territory. In presenting its claim, Ukraine relied on the Genocide Convention (the Convention) to argue that Russia has been relying on false claims of genocide by the Ukrainian government as a way to legitimize its invasion. Russia responded by arguing that the court lacks subject-matter jurisdiction over this claim because the ICJ may only hear claims of genocide. Claims that genocide is not happening is outside the scope of the court’s jurisdiction.

 
The International Court of Justice is in the process of hearing oral arguments for Ukraine v. Russian Federation, where 32 states have intervened on behalf of Ukraine | Photo Courtesy of Reuters.
 

The oral arguments began last week with Russia. In arguing that the ICJ lacks subject-matter jurisdiction for this claim, Russia asserted that because Ukraine insists that no genocide has occurred, and because Russia claims to have never accused Ukraine of these acts, the case should be rejected. Further, Russia argued that by bringing this claim under the Convention, Ukraine is attempting to expand the Convention to cover the legality of military operations between two states.

In its argument, Russia also stated that it invaded Ukraine in 2022 because had a right to self-defense after conflict escalated in the Donbass region of Ukraine, where the ethnicity is mostly Russia. However, when giving reasons why conflict escalated in this region, Russia cited threats of genocide coming from the “anti-Russian, neo-Nazi Kiev Régime”.

Ukraine responded to Russia’s arguments on September 19, 2023. After stating that Russia has been falsely accusing Ukraine of genocide since 2014 to lay the groundwork for its 2022 invasion, Ukraine offered four reasons why the ICJ has jurisdiction over its claim. First, the Convention has broad jurisdiction, and includes disputes that relate to how countries fulfill their treaty obligations. Second, the court’s jurisdiction is extended to disputes that are related to the Convention. Ukraine explained that Russia’s allegations that Ukraine committed genocide in violation with the convention are obviously connected with the Convention. Third, jurisdiction is extended to “particular disputes relating to the responsibility of a State for genocide.” Here, particular disputes would include whether Ukraine is really responsible for genocide, or whether Russia is violating its duties by falsely alleging genocide as an excuse to invade Ukraine. Lastly, per the Convention, “any of the parties” to a dispute under the Convention may submit the dispute to the Court to be heard. Ukraine argued “if, as Russia acknowledges, a State that levels allegations of genocide against another can ask the Court to resolve that dispute, there is no reason why a State such as Ukraine – that disputes allegations of genocide against it and illegal actions based on pretextual allegations – cannot do the same”.

Over the past year and a half, thirty-two countries have intervened in this case on behalf of Ukraine. As Germany stated in its oral observation, this unprecedented intervention “shows that the parties to the Genocide Convention have a very strong interest in its proper interpretation in the case.” Many of these countries presented oral arguments last week, echoing Ukraine’s reasoning for why the ICJ has jurisdiction over this subject-matter.

The second round of oral arguments were on September 25, with Russian opening. 

For further information, please see:

ICJ – Germany Oral Consideration Round 1 – 20 Sept. 2023

ICJ – Lithuania Oral Consideration Round 1 – 20 Sept. 2023

ICJ — Request for the Indication of Provisional Measures Submitted by Ukraine — 25 Feb. 2022.

ICJ – Russian Federation Oral Argument Round 1 – 18 Sept. 2023

ICJ – Russian Federation Response to Ukraine Provisional Measures and Motional for Dismissal – 7 March 2022.

ICJ – Ukraine Oral Argument Round 1 – Sept. 19, 2023

Grand Chamber of the ECtHR Hears Climate Change Cases for the First Time

 By: Jamela Wharton

Journal of Global Rights and Organization, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights (ECtHR) located in Strasbourg France, has decided to host Grand Chamber hearings for three climate change lawsuits. The cases are Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Verein), Carême v. France (Carême), and Duarte Agostinho and Others v. Portugal and 32 Other States (Duarte). There were other climate change cases that did not reach this stage. Two were deemed inadmissible, and there are six others that have been adjourned.

Hikers look upon the Great Aletsch Glacier, the largest glacier in the Swiss Alps, which is said to be retreating due to global warning. Courtesy of Financial Times.

The Verein case was fast tracked which caused both hearings for the Carême and Verein cases to be held on March 29, 2023. Verein’s hearing was schedule in the morning, making it the first climate change case to be heard by the Grand Chamber of the EctHR. The Grand Chamber hearings are the last step before a judgment is rendered. The hearing for Duarte Agostinho and Others v. Portugal and 32 Other States does not have a hearing date yet, but it is expected to occur after the court’s 2023 summer recess.

The plaintiffs in all the climate change cases have asserted that their article two right to life of the European Convention on Human Rights has been violated. Verein argues that the Switzerland government failed to adequately mitigate the effects of climate change. The plaintiffs of this case are older members of the community who are concerned of the effects climate change may have on their living conditions and health. In Carême, the former mayor of a municipality in France contends that France has not taken the necessary steps to prevent the climate change crisis, and this failure amounts to a violation of the Convention. Duarte was brought against 33 member states for their role in greenhouse emissions. The applicants are made up of Portuguese nationals between the ages of 10 to 23. They claim the emissions cause a threat to their living conditions and health and is a violation of their right to life.

The decision is expected to determine whether a member state’s governmental inaction to mitigate climate change is a violation of human rights law. This decision would set a binding precedent to all member states.

 

For further information, please see:

ECtHR- Factsheet on Climate Change Cases Pending Before the Grand Chamber of the Court- Mar. 2023.

Greenpeace- First Climate Case Heard of the European Court of Human Rights – 29 Mar. 2023

Despite Newly Passed Avenues for Support to the ICC, the Biden Administration and Pentagon are at Odds in Determining Which Documents to Provide the ICC regarding Putin’s Actions in Ukraine

By: Patrick Farrell

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – As previously reported by Impunity Watch News, the ICC issued an arrest warrant for Putin’s arrest due to his role in the atrocities perpetrated during Russia’s war in Ukraine. The public issuing of the warrant was heralded as a significant step for two major reasons. First, in deterring further crimes in Ukraine, and second, widespread support for the indictment has been characterized as a win for the basic principles of humanity. Yet, the Kremlin has directly condemned the ICC’s actions, labeling them as “outrageous and unacceptable” and even rejected the warrant. Given this response, the ICC is now in need of support for the investigation and eventual prosecution. With that said, the Biden Administration is currently at odds with the Department of Defense in determining the nature of the evidence that the United States will share with the ICC regarding Russian atrocities in Ukraine.

The International Criminal Court. Photo courtesy of Dmitry Kostyukov for The New York Times

Following a National Security Council cabinet-level principals committee meeting on Feb. 3, President Biden has yet to make a decision to resolve the dispute. Although President Clinton signed the Rome Statute in 2000, he never sent it to the Senate for ratification, thus leaving the United States as a non-party to the Treaty. Further, in 1999 and 2002, Congress enacted laws that limited the support that the government could provide the ICC. However, following the bipartisan push to hold Putin accountable, Congress returned to the question of whether to help the ICC. Pursuant to regulations passed by Congress in December 2022, exceptions now exist that allow the U.S. Government to assist with “investigations and prosecutions of foreign nationals related to the situation in Ukraine.” These new laws, including the Consolidated Appropriations Act, the Justice for Victims of War Crimes Act, and the 2023 National Defense Authorization Act contain new elements highlighting the importance attached to supporting accountability for those responsible for atrocities such as these. Most importantly, the amendments in the Consolidated Appropriations Act allow the United States to provide assistance to the ICC Prosecutor’s efforts in Ukraine, even regardless of whether accusations have been made.

Despite these new powers, the Pentagon has maintained the position that the United States should remain separate from the ICC and that the Court should undertake its own investigation, especially since neither the United States nor Russia are parties to the Rome Statute.

Even amidst these internal tensions, national security experts and other government officials see an opportunity in using the ICC as a tool for enforcing accountability. According to John Bellinger, a lawyer for the National Security Council, the U.S. can assist in investigating and prosecuting war crimes by assisting the ICC, which is the successor to the Nuremberg tribunals. In addition, both Senator Lindsey Graham and Attorney General Merrick Garland have reiterated their commitment to helping Ukrainian prosecutors pursue Russian war crimes.

Even after modifications to longstanding legal restrictions which previously stifled America from aiding the ICC, a dispute now exists over whether the U.S. should provide such evidence. Still, it is hopeful that U.S. officials will come to a solution to assist the collaborative effort to bring justice for Russian atrocities committed in Ukraine.

For further information, please see:

Beatrice Nkansah, Impunity Watch News – ‘ICC’ Issues Warrants for Putin’s Arrest Regarding His Role in Russia’s War in Ukraine – 23 Mar. 2023

CNN – ICC issues war crimes arrest warrant for Putin for alleged deportation of Ukrainian children – 17 Mar. 2023

The New York Times – Pentagon Blocks Sharing Evidence of Possible Russian War Crimes With Hague Court – 8 Mar. 2023

Just Security – Unpacking New Legislation on US Support for the International Criminal Court – 9 Mar. 2023

Decision to Return Child to Father in USA Did Not Violate Mother’s Rights

By: Sallie Moppert 

Impunity Watch News Staff Writer 

STRASBOURG, France – The European Court of Human Rights (“ECHR”) handed down a decision on February 21, 2023 that determined no violation of Article 8 of the European Convention of Human Rights had occurred in the case of G.K. v Cyprus regarding the right to respect privacy and family life. The ECHR found that the district courts in Cyprus had properly considered the arguments of all the involved parties and ruled out any harm to the child before ordering his return to his father in the United States.

The District Court in Paphos, Cyprus
Photo Courtesy of In-Cyprus.

G.K., a native of Cyprus, married a US citizen (“Father”) in 2016 and the couple had a son born that same year. One year later in October 2017, G.K. filed a domestic violence complaint against the Father and subsequently sought an order of protection before moving to a safe house. She eventually took her son, now one-year-old, from the US back to Cyprus with the assistance of the Cypriot authorities. The son was granted Cypriot nationality and a passport during this time.

The Father hired private detectives to locate G.K. and their son, eventually tracking them down in Cyprus. In 2018, he requested the US authorities to apply to the Cyprus authorities under the Hague Convention for the son’s return to the US. The Cypriot authorities filed an application and affidavit in the Family Court in Paphos, Cyprus requesting the son’s return to the US. G.K. objected, claiming that the son would be in danger due to the Father’s prior record of violence. The Father refuted these allegations and provided an affidavit that he had a stable job and could successfully provide for his child.

After an adjournment and postponement due to the Covid-19 pandemic, the Court eventually ruled that the son should be returned to the US. The Father was determined to be a credible witness with consistent and persuasive testimony and evidence, while G.K.’s version of events was general, vague and contradictory. The Court found that she failed to provide evidence to demonstrate why the son should not be returned to the US. G.K. appealed, and the Family Court of Second instance affirmed.

G.K. argued that her right to private and family life under Article 8 of the European Convention on Human Rights was violated due to the unreasonable length of the proceedings and the Court’s decision to return her son to the US without adequately assessing the situation and risks involved. The Court disagreed, stating that the return of the son to the US was not an immediate decision, instead only being made after G.K. had the opportunity to cross-examine the Father, and the domestic courts had considered all the arguments of the parties before making a decision that was in the best interest of the child. The Court also determined that G.K. had not suffered a disproportionate interference with her right to respect for her family life.

 

For further information, please see:

‘ICC’ Issues Warrants for Putin’s Arrest Regarding His Role in Russia’s War in Ukraine

By: Beatrice Nkansah

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAUGE, NetherlandsThe tensions between Ukraine and Russia, formerly known as the Soviet Union, have been brewing for the past 8-9 years. Almost two centuries ago, the Soviet Union gifted Crimea to the Soviet Republic of Ukraine. In 2014, Russia violated General Principles of International Law by unlawfully annexing Crimea – forcing those living in Crimea to flee from Russian force and persecution. As a result of the unlawful annexation of ethnic and religious Crimea and Ukraine individuals are facing widespread discrimination and destruction. As tension between the two sovereign countries began to build, Russia invaded Ukraine in 2022 making significant advances until Ukrainian defending forces were able to launch counterattacks.

As a result of the growing tension and actions of Russia for the past decade, on March 17, 2023, the International Criminal Court (ICC)’s Pre-Trial Chamber II issued a warrant for the arrest of Russia’s president – Vladimir Putin and Russia’s Presidential Commissioner for Children’s Rights in Russia.

Vladimir Putin and Presidential Commissioner of Children’s Rights in Russia, Maria Alekseyevna Lvova-Belova . Photo Courtesy of Sky News.

The basis for the arrest warrant is alleged violations of the Rome Statute. The Rome Statute gives the ICC the power to investigate and prosecute international crimes relating to the following: Genocide, Crimes of Aggresion, Crimes against Humanity, and War Crimes. The ICC is using the basis of Articles 25 and 28 of the Rome Statute to assert their jurisdiction in issuing an arrest warrant for Putin on the basis of his individual responsibility and by holding him accountable for being a commanding superior to carry out the unlawful deportation of Ukrainian children as part of their war strategies. The ICC alleges that Putin violated two clauses of Article 8 of the Rome Statute pertaining to what constitutes a war crime including unlawful deportation, unlawful confinement, and taking of hostages.

There was great debate within the ICC as to keeping the warrants a secret or not, but they decided to ultimately go public, hoping that doing so would reduce and prevent further crimes. The ICC also chose to go public with the warrants as a signal that all who violate international law in Ukraine will be held responsible regardless of their political power or status. The expectation following this warrant is that if Putin or the Presidential Commissioner for Children’s rights in Russia leave Russia, they shall be arrested and brought forth to the ICC. It is currently uncertain if the ICC will pursue additional allegations as a multitude of crimes against humanity has been made since Russia’s invasion of Ukraine. Hopefully, justice will soon be brought to Ukraine.

 

For further information, please see:

Amnesty – Russia: ICC’s arrest warrant against Putin a step towards justice for victims of war crimes in Ukraine – 17 Mar. 2023

Council on Foreign Relations – Ukraine: Conflict at the Crossroads of Europe and Russia – 14 Feb. 2023

ICC – Rome Statute – 17 July 1998

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 Mar. 2023

The Guardian – ICC judges issue arrest warrant for Vladimir Putin over alleged war crimes – 17 Mar. 2023

UK Government – Speech on Seventh anniversary of Russia’s illegal annexation of Crimea: UK statement – 4 Mar. 2021