Good afternoon!
Today we commemorate the victims of Russia’s invasion of Ukraine. Latvia stands by Ukraine. Latvia is providing important military, political and economic support. We are hosting Ukrainian refugees. We are a member state of the European Union and NATO, and thus, as an independent state, we share the responsibility to abide by international law. Therefore, today we will mostly discuss Russia’s accountability from the perspective of international law.
Such an attack and violation of international law is nearly unprecedented since the end of World War II. There was one relatively recent precedent, when Iraq invaded and annexed Kuwait in 1991, but afterwards a coalition of other states managed to drive Iraq out of Kuwait. However, an invasion of the scale as the one currently launched against Ukraine, has not been precedented since 1945. This is an extraordinary breach of international law, as world peace depends upon compliance with international law.
If international law is violated, or should it lose its significance, the result would be military anarchy, namely, a situation where anyone can do as they please, as it was, as a matter of fact, up until 1918, when states held the right to go to war. The principles of international law changed radically after World War I – for 104 years already states do not have the right to go to war, but rather are obliged to keep the peace. Therefore, aggressive war is a violation of international law.
How may we react to this? First of all, allow me to say that international law is imperfect in that, in contrast to national law, it provides a relatively weak mechanism for ensuring compliance. In Latvia, a violation of national law will automatically induce a response by law enforcement authorities. Internationally, we do not have such authorities, so compliance with international law is, to a great extent, a matter of goodwill on the part of states and depends on states expecting one another to abide by this law. Therefore, we cannot expect from international law that which we would like to – we cannot expect of it that which we expect at the national level.
There is a saying: “Rules don’t exist, unless there is someone to enforce them.” To a great extent, this applies to national law, and partially also to international law. Yet there are some options, and those will be the topic of our discussion today.
Allow me to just outline some of them. One is the International Court of Justice. Ukraine has filed a claim against Russia with the International Court of Justice over the fact that Russia has groundlessly accused Ukraine of genocide, which has served as the reason, according to Russia, for its invasion of Ukraine. The case is a circular issue, as the International Court of Justice does not hold jurisdiction over commencement of aggressive war. Two weeks after the beginning of the war, the International Court of Justice took an urgent decision that Russia must stop this aggression. Russia failed to do so. The question may be asked whether there is any use to launch such legal proceedings. Yes, there is, because we need to clearly identify what is lawful and what is not, regardless of whether these decisions are implemented. It would be the same if we were to say: “We will never catch all thieves, so we might as well simply repeal the article of the criminal law on theft.”
The second option is the International Criminal Court. As opposed to the International Court of Justice, the International Criminal Court examines crimes perpetrated by individuals. Prosecutors have launched proceedings at the International Criminal Court regarding war crimes perpetrated by Russia in Ukraine, and the investigation is currently ongoing.
Then there are sanctions. The European Union, as well as the United States of America and many other countries, such as Canada, Japan, Australia, New Zealand, have adopted sanctions against Russia because of its violations of international law. The sanctions target the Russian Federation, government property and assets abroad, and individuals closely associated with the regime – oligarchs.
As regards sanctions, we see property and assets being arrested, but the issue of confiscation remains outstanding – can we go even further and not only arrest these assets, but also confiscate them? The legal arguments go both ways here. A certain political and social debate is also ongoing at the moment in the USA, Canada and also Europe. Last week, the Canadian parliament adopted a resolution calling for not only arresting property, but also confiscating it, which signifies a political move in this direction. The USA is discussing the matter at a political and legal level, but these discussions have not yet reached a point where confiscation is on the table. Funds acquired as a result of confiscation could be provided as reparation payments for Ukraine.
Political and social discussions are also ongoing as to the creation of a special tribunal, because, as I already mentioned, the International Court of Justice in the Hague does not have jurisdiction over commencement of aggressive war. Such special tribunals have been set up before: the Yugoslavia tribunal, which operated for 20 years, the Rwanda and Cambodia tribunals, as well. A tribunal has also been created for one specific criminal case – the Rafik Hariri tribunal.
International tribunals can also be created, however, the problem is that these are established by a resolution of the Security Council of the UN, which, in this case, is impossible. In theory, the General Assembly of the UN could also adopt such a resolution, or such a tribunal could be established by other organisations, for example, the Council of Europe. It is crucial that the matter at hand is investigated and a judgement is issued.
And the last option I would like to mention is national investigation. International crimes also fall under national jurisdiction, and any state can investigate international crimes perpetrated outside its borders, by seeking out and interviewing witnesses, trying to identify the offenders, etc.
There is a whole range of possibilities for enforcing this accountability. I would like to reiterate that the fact that the individuals mainly responsible cannot be brought before the court, in no way means that these proceedings are useless. They are needed to uphold the standard of international law.
