On March 31, 2022, as part of the 2022 Paris Arbitration Week, Shearman & Sterling LLP and the Ukrainian Arbitration Association co-hosted a conference on “International Law and the War in Ukraine: The Path(s) to Reparations.”
Moderated by Jennifer Younan, Partner, Shearman & Sterling and Olena Perepelynska, President, Ukrainian Arbitration Association; Head of Arbitration, Integrites, the discussion featured perspectives from Professor Jennifer Trahan, Clinical Professor, NYU-SPS Center for Global Affairs; Convenor, Global Institute for the Prevention of Aggression and Jonathan Powell, CEO, Inter Mediate; Partner, Datrys Mediation + on options to achieve accountability for the legal violations committed by Russia in and against Ukraine and the potential pathways to peace and justice more broadly.
These are pressing issues that demand the attention of the international legal community. They also raise broader implications for international legal and institutional frameworks for security and justice. This post provides a brief overview of the discussion of these critical matters at this event.
Starting off the discussion, Professor Trahan gave an overview of the international justice landscape as well as potential pathways and obstacles to achieving accountability for atrocity crimes committed in and against Ukraine. She emphasized that the work of prosecuting these crimes will necessarily take place at multiple levels: indeed, several States have announced domestic investigations of potential atrocities, while a record 41 States have referred the situation in Ukraine to the International Criminal Court (ICC) prosecutor since Russia’s invasion began.
Professor Trahan then discussed the crimes over which the ICC has jurisdiction (specifically genocide, crimes against humanity, war crimes and the crime of aggression), noting that Russian forces’ apparent targeting of civilian structures, their indiscriminate use of force and reported instances of sexual violence would each amount to war crimes that could lead to prosecutions both of individual perpetrators and officials up the chain of command. She then focused on the crime of aggression, which as defined in the ICC Statute essentially refers to the “planning, preparation, initiation or execution” of a “manifest violation” of Article 2(4) of the UN Charter. As the “supreme international crime”, the crime of aggression has the important particularity that it can only be committed by—and thus opens up an additional avenue to prosecute—senior political and/or military leaders. Unfortunately, limitations imposed by certain countries (notably, the U.S.) effectively prevent the ICC from having jurisdiction in this case. ICC jurisdiction over crimes of aggression committed by nationals of non-States Parties to the ICC Statute—such as Russia—can only arise from a UN Security Council (UNSC) referral. Russia’s veto power as a permanent UNSC member means it can effectively block ICC jurisdiction to prosecute crimes of aggression by Russian leaders.
Mr. Powell then turned to the question of achieving peace for Ukraine on acceptable terms and the role of accountability and transitional justice in peace negotiations. He first observed that it may be premature to harbor expectations of a settlement in the near term, as peace negotiations typically advance only once parties to a conflict reach a “perceived mutually hurting stalemate”, which Russian leaders are far from admitting. Nevertheless, opining that a negotiated peace settlement is the most desirable realistic outcome of the war, Mr. Powell went on to address possible pathways and obstacles to that outcome.
While applauding Ukrainian President Volodymyr Zelensky’s pursuit of negotiations, Mr. Powell commented on several risks to the success of Ukraine’s approach thus far. As an initial matter, he expressed a view that the promise of bilateral negotiations between Ukraine and Russia is limited, as any successful peace settlement will require parallel negotiations and coordination between western powers and (likely, separately) Ukraine and Russia. Mr. Powell also emphasized that it is critical for Ukraine to avoid the pitfalls of the Minsk II agreement, which sought to end the long-running conflict in the eastern Donbas region of Ukraine but failed to establish the sequence in which agreed steps should be taken, contributing to the agreement’s failure. In this respect, Mr. Powell expressed concerns that positions such as President Zelensky’s promise of a referendum on any peace agreement created a possibility that agreed peace terms would prove impossible to fulfil.
Over the course of their discussion, Professor Trahan and Mr. Powell touched on several specific issues with important implications both for achieving peace and justice for Ukraine in the specific context of Russia’s ongoing illegal aggression, and for the future efficacy of international frameworks for achieving accountability and maintaining peace more broadly.
One fundamental such issue is the proper role of accountability and transitional justice in negotiations, with Professor Trahan and Mr. Powell expressing differing views that underscored the inherent difficulties in balancing the goal of peace with the demands of (and for) justice. In his presentation, Mr. Powell opined that it is crucial that Ukraine include questions of accountability and reparations in its positive agenda in negotiations, as any settlement that provides no redress to Ukrainian victims of Russian aggression is unthinkable. However, he also cautioned that making justice the primary focus of negotiations would inevitably obstruct peace.
In response, Professor Trahan expressed concern that negotiating over accountability sends a message that responsibility for atrocity crimes can be negotiated away—a notion of unclear validity under international law and which, in any event, is deeply problematic. While recognizing these concerns, Mr. Powell argued that not putting justice or reconciliation on the negotiating table sends an equally problematic message to Russia that these matters are not a priority for the international community.
Mr. Powell noted in particular that Ukraine’s statements of willingness to accept neutrality and forego NATO membership in exchange for legally binding western security guarantees have the potential to thwart the success of a bilateral agreement. While preventing future Russian aggression is clearly a matter of crucial importance, the security guarantees invoked by Ukraine have not been clearly defined or agreed upon by western leaders and may prove unworkable. Similarly, Mr. Powell noted that Ukraine cannot unilaterally commit to the lifting of international sanctions imposed against Russia by other countries. Mr. Powell argued that Ukraine would find a stronger negotiating position by involving those countries as participants in, or as a “group of friends” to, the negotiations.
The obstacles to the ICC prosecuting Russian crimes of aggression have led to increasing calls to establish an ad hoc tribunal to prosecute those crimes. Considering two such proposals—the first of which would entail pooling national jurisdictions, while the second proposal would entail the UN General Assembly recommending the establishment of a tribunal to be negotiated with Ukraine—Professor Trahan argued that the second option is preferable for several reasons. These include its enhanced multilateral nature and legitimacy and, crucially, the fact that obstacles of immunity at the domestic level would not exist for a true international criminal tribunal. More broadly, however, Professor Trahan cautioned that use of ad hoc tribunals represents a step backwards: in the long run, amending the ICC Statute to lift restrictions on ICC jurisdiction over crimes of aggression is a preferable solution.
Another key issue with broader implications is the use of the veto power by permanent UNSC members. On February 25, 2022, Russia unsurprisingly vetoed a UNSC resolution condemning and calling for an end to Russia’s invasion. Addressing this issue, Professor Trahan argued that UNSC vetoes blocking certain actions—in particular, actions that would seek to prevent atrocity crimes—are legally invalid as they amount to a facilitation of those crimes inconsistent with the UN Charter. With some form of “voluntary veto restraint” having been endorsed by more than 100 countries, including permanent UNSC members France and the U.K., Professor Trahan opined that the best ways to establish the legal limits on UNSC vetoes would be for the General Assembly to develop a resolution outlining those limits or to refer the question to the ICJ for an advisory opinion. Such actions would go further than the General Assembly resolution adopted on April 26, 2022 requiring the General Assembly to “hold a debate on the situation” leading to any UNSC veto use within ten working days of the veto.
Finally, Professor Trahan touched on possible pathways to reparations, including two that would make use of sanctions. The first option, modelled on the UN’s Oil-for-Food Programme in Iraq, would allow Russia to sell oil and gas with a percentage of proceeds being diverted to Ukraine’s reconstruction. The second option, with a precedent in the Iran-U.S. Claims Tribunal established after the U.S. froze Iranian assets in response to the 1979 hostage crisis, would use Russian assets frozen or confiscated under international sanctions regimes for that purpose.
This second option highlights the potential interactions between sanctions regimes, international arbitration and other efforts to hold Russia accountable. Since Russia’s invasion, international sanctions and their possible impacts on arbitration have been a frequent subject of discussion, and notably led US courts to lift a stay of proceedings to enforce the Yukos awards. It has also been suggested that frozen Russian assets could be made available for or otherwise facilitate enforcement of arbitral awards against Russia. As many expect a raft of new investment arbitrations against Russia arising from its invasion and domestic countermeasures taken in response to international sanctions, novel issues such as who can—and should—be entitled to compensation from such pools of assets may also arise.
The obstacles to achieving peace and justice for Ukraine are considerable and raise fundamental questions regarding the efficacy of our international legal frameworks and institutions as they stand today. Nevertheless, there are reasons for optimism both with respect to Ukraine (including the record levels of State support for ICC atrocity investigations) and for such initiatives more broadly (such as a perceived shift in the U.S.’ traditionally hostile attitudes towards the ICC).
To be sure, nothing can erase the tragedies occurring in Ukraine—but it is to be hoped that the international community will come together to ensure that justice is served and that peace is restored, and to renew their commitment to our international laws and institutions to ensure they fulfil their promise of preventing future such tragedies. As active participants in the field of international law and justice, members of the international arbitration community undoubtedly have an important role to play in supporting this crucial work.
View a full recording of the conference panel: